Citation: Workcover v Gunnedah Leather Processors P/L [2014] NSWDC 187
Court: District Court of New South Wales
Date: 23 May 2014
Judge: Judge MJ Finnane QC
Background
The defendant was a leather tannery and processing plant that had taken over its premises in 2009. On 4 January 2011, a supervisor at the plant was struck by a gas-powered forklift while crossing a long concrete drum aisle. The forklift driver was travelling at a speed the court estimated at well in excess of the 5 km/h limit, and the victim did not see or hear the vehicle approaching before it struck him.
The injured supervisor suffered traumatic brain injuries, fractures to the base of his skull, multiple facial fractures, and permanent cognitive and visual impairments. He has not returned to work since the accident. A second employee operating a jackhammer nearby was also passed by the forklift at a distance of one to two metres.
WorkCover prosecuted the defendant under the Occupational Health and Safety Act 2000, alleging that it had failed to ensure a safe system of work for both pedestrian and forklift traffic in the drum aisle.
Legal Issues
- Whether the defendant breached its duty under s 8(1) of the Occupational Health and Safety Act 2000 by failing to maintain a safe system of work at its premises
- Whether the defendant had taken adequate steps to separate pedestrian and forklift traffic in the drum aisle
- Whether the defendant had sufficiently enforced or implemented speed controls for forklifts operating in the aisle
- What penalty was appropriate given the defendant's guilty plea, its prior safety efforts, and the severity of the resulting injuries
Decision
The defendant pleaded guilty at the earliest opportunity. The court accepted an agreed statement of facts and reviewed CCTV footage of the accident, which it described as "very compelling." The footage showed the victim walking diagonally into the aisle without looking either way, while the forklift approached at what appeared to be 20 to 30 km/h with no load obstructing the driver's forward view.
The court found that the defendant had, in fact, devised a traffic management plan that identified the relevant risks and recommended ten control measures, including floor markings for pedestrian exclusion zones, speed enforcement, and forklift licensing. Critically, however, those measures had not been fully implemented before the accident occurred. The drum aisle had no physical barriers, no painted markings, and the forklifts had neither speedometers nor governed speed limiters.
The court noted several contributing factors: the noise of a jackhammer drowned out the forklift's approach; the victim had a prosthetic left eye that affected his peripheral vision; the forklift driver had previously been disciplined for speeding; and the driver held no formal forklift licence, though the absence of a licence did not itself cause the accident.
In assessing penalty, the court characterised the defendant's fault as real but not extraordinary. The defendant had no prior offences, had alerted WorkCover promptly, had supported the injured worker following the accident, and had improved its safety systems after the incident. The court placed particular weight on general deterrence, noting that employers who take steps toward implementing safety measures but fail to complete that implementation remain liable.
Orders Made
- Fine of $20,000 imposed on the defendant
- Defendant ordered to pay WorkCover's costs
- A moiety (half of the fine) awarded to WorkCover
- Costs to be resolved between the parties, with referral to a costs assessor if agreement cannot be reached
Key Takeaways
- An employer that identifies workplace hazards, devises a safety plan, and recommends control measures, but then fails to fully implement those measures before an accident occurs, can still be found criminally liable under the Occupational Health and Safety Act 2000.
- The District Court placed particular emphasis on general deterrence in setting the penalty, treating it as important that other employers understand that partial compliance with a safety plan does not provide a complete answer to a prosecution.
- Contributing factors such as a worker's own unsafe behaviour or physical disability did not displace the employer's liability, though they were relevant to the overall assessment of fault.
- Where a defendant has no prior offences, pleads guilty at the earliest opportunity, cooperates with the regulator, and has since remediated the hazardous conditions, those matters bear on the quantum of the penalty, resulting here in a fine of $20,000.
- CCTV footage can play a significant evidentiary role in workplace safety prosecutions: the court here viewed the footage multiple times and drew direct factual findings from it about the forklift's speed and the sequence of events leading to the collision.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), s 8(1)
Cases:
- No cases were cited in the provided text. The judgment references a decision referred to as "the Empire Waste decision" (Court of Appeal), which caused a delay in the delivery of judgment pending a High Court special leave application that was ultimately abandoned. That decision is not otherwise identified or cited in the text provided.