Lessons From History

Summary of interesting OHS cases

Controllers of Premises breaches OHS law
NSW OHS Act 2000 - s10(1)Self Employed

In the case of Inspector Jones v Rockdale Beef Pty Ltd [2007] NSWIRComm 275 we learn about the responsibilities of controllers of work premises for third parties delivering on to the controlled premises.

In December 2003, when an incident occurred at a workplace, the defendants, Rockdale Beef Partnership were conducting business as an abattoir. The charge was that under sec 10(1) of the Occupational Health and Safety Act 2000 (the act), the defendants "1; controlled the premises which were used by people as a place of work, not used only by employees of the defendant, not occupied only as a private dwelling, and controlled in the course of business; and 2: failed to ensure that the premises were safe and without risk to health;"

The premises in question included a livestock unloading ramp that was the subject of a management agreement between "Rockdale Beef Partnership" and two others. On the day of the incident, 20 December 2003, the defendant had a degree of control, not to the exclusion of others, over the premises which were used by people as a place of work.

Mr. J was employed by a third party (W P/L) as a livestock driver and on the day in question was delivering cattle to the premises in a double-decker live stock carrier. Whilst unloading, Mr. J fell between 2.15m and 2.45m off a ladder, backwards and head-first, and as a consequence suffered severe spinal injuries. The incident was observed by a Mr. F.

The alleged failures were that

1) Mr. J had delivered to the premises previously but had never undergone a site induction or orientation and had not been provided with any instruction in relation to the unloading of cattle by any representative of either the defendant or W P/L.

2) Mr. J was not provided with any type of fall prevention or fall arrest device by W P/L or the defendant.

3) It was known to both the defendants and W P/L that this activity was being carried out by drivers.

4) The ladder, which was permanently affixed to the side of the trailer, did not comply with Australian Standard AS 1657-1992, which requires a clearance or foothold of not less than 200mm for ladders in excess of 750mm in height.

5) After Mr. J left the site in an ambulance, Mr F remained behind to unload the rest of the cattle that remained on the truck. In doing so, he climbed onto the side of the trailer as Mr J had done and continued to remove the cattle onto the ramp. Mr. F did so without use of a fall prevention or fall arrest device.

6) The system of work being followed at the time of the incident was the normal procedure carried out by the transport drivers for W P/L at the premises. It was standard practice for drivers to climb to the top of the trailers so that they could watch and assist the cattle exit the truck. However an alternate system was available at other premises.

7) There is no evidence of a risk assessment being conducted by the defendant or a written work procedure being produced by the defendant for drivers performing the work that Mr. J was undertaking.

The court also heard that problems associated with falls from heights in the heavy vehicle sector have occupied the attention of participants in the industry and the various governmental statutory organisations charged with the responsibility of improving workplace health and safety for some time.

In assessing penalties, the court took into account that the defendant conceded that it had some, albeit not exclusive, control of the premises. Furthermore, those premises were used by people as a place of work. And that s.10(1) of the Act, imposes an obligation to ensure that the premises are safe and without risks to health. This should have involved the defendant having taken some step so as to render the unloading operation safe for drivers in these circumstances. Even a simple warning sign asking drivers to take care would have represented a minimal step of this kind that might be taken. The agreed statement of facts demonstrated that the defendant took no active steps to comply with its obligations and as such the offence was assessed to be a serious one. The court also recognised that the defendant had co-operated fully with the WorkCover Authority of New South Wales in connection with its enquiries and investigations concerning the incident. The defendant had no prior convictions and must be assessed on the basis that it otherwise had a good safety record.

A maximum penalty of $550,000 for this prosecution was available to the courts, however a penalty of $95,000 was fixed.