A tragedy waiting to happen: A record OHS fine confirms why risk assessments are key - Health & Safety

A tragic recent case in which a transport company was fined a record amount for breaching its OHS duties confirms that safety and legal compliance requires competent risk assessments and a timely response to their outcomes.

In Director of Public Prosecutions v Toll Transport Pty Ltd, Mr Anthony Attard, who was employed by Toll Transport Pty Ltd (Toll) as a stevedore, was fatally injured at work on 20 May 2014. Toll was prosecuted for breaching its duties under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and was fined $1M on 14 December 2016.¹

THE KEY FACTS OF THE CASE

Toll ships from Webb Dock in Melbourne to Tasmania. When it loads shipping containers, Toll puts them onto flat trailers called MAFIs and then a prime mover pulls the trailers onto the ship. When fully loaded, the trailers weigh up to 90 tonnes.

On 20 May 2014, Mr Attard was putting rubber mats on the floor of a ship called the Tasmanian Achiever in readiness for a prime mover to pull the MAFI trailers onto the ship.

While laying the mats, a prime mover ran over Mr Attard and fatally injured him.

Toll did not fully apply its own written procedure for the work. The procedure said that a senior Toll employee was responsible for the safe performance of the work with the assistance of a junior employee. However, that assistance was not provided on the day.

Toll was prosecuted for breaching section 21 of the OHS Act, which says that:

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

THE DECISION

Toll pleaded guilty and the County Court of Victoria sentenced Toll on the basis that:²

the system of work for loading and unloading shipping containers was not safe so far as was reasonably practicable, because Toll did not eliminate or adequately control the risk of collision between prime movers and pedestrian workers in the vicinity (e.g. the shipping container occupied most of the forward view of a prime mover driver as the container was pushed up the ramp on deck);
it was reasonably practicable for Toll to have implemented safety measures to ensure that the system was safe (e.g. ensuring that a Level G5 employee was in sight or had signalled to proceed, before a driver travelled onto the deck);
Toll's system of work was 'hopelessly inadequate and vague'; and
Toll had conducted reviews of the system in 2006 and those reviews made it clear that the incident that caused Mr Attard's fatal injuries was 'readily foreseeable and much more could have been done to maximise the safety of the workplace'.

Judge Cannon said that:

Toll's offending was 'most serious and deserving of strong punishment and denunciation', and the ship loading process 'involved hazards to people working in the vicinity of mobile plant, as being of the most serious kind, and the risk identified was high. ... In my view, this was a tragedy waiting to happen.'³
the maximum penalty of $1,299,240 would have been imposed on Toll if Toll had not pleaded guilty.⁴

The maximum fine was reduced to $1 million due to mitigating circumstances including Toll's guilty plea, its safety improvement post incident, its contrition and support of Mr Attard's family.

Judge Cannon was critical of Toll for not acting on its knowledge about the risks of the loading process - earlier reviews of its process had informed Toll of the relevant risks.

Judge Cannon also stated:

'A strong message needs to be sent to employers whose employees are placed in highly dangerous situations ... that they must do their utmost to ensure the safety of those employees. If they do not meet their obligations in this regard, then they should know that they will be met with strong punishment. ... [In high-risk workplace environments], the term "so far as is reasonably practicable" must involve the creation of strict, rigorous and comprehensive standards which are then religiously maintained.'⁵

3 KEY TAKEAWAYS

Competent risk assessments and timely action are critical to safety and legal compliance.
Employers and other persons who conduct businesses and undertakings should identify:
1. how risk assessments 'fit' within their current WHS systems;
2. the competence of their risk assessment processes and the persons who conduct assessments;
3. their processes to act on risk assessment outcomes; and
4. their processes to verify actions taken in response to the risk assessments.
Directors and officers in most states/territories of Australia are personally liable if they do not take reasonable steps to ensure that the above steps are undertaken.

Back in 2015 Corrs posted a Vodcast about the primacy of risk assessments titled Preventing work-related death and injury: Managing the physical safety and mental health of workers. This Vodcast remains current.

Footnotes

¹ Director of Public Prosecutions v Toll Transport Pty Ltd [2016] VCC 1975.

[2016] VCC 1975 at [41]-[43], [46].

[2016] VCC 1975 at [46].

[2016] VCC 1975 at [74].

[2016] VCC 1975 at [47].

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