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A forklift driver, employed at a Linfox road-rail container depot, and in the process of moving a 32 tonne container, caught the edge of a nearby stack with his load. This caused the fork truck to flip forward, severely crushing the driver inside the cabin. He lived – but remained in hospital for more than four months.

The container, loaded with steel casts and more than 12m long, needed relocating within the depot. In order to move the container safely through the yard the forklift’s route required at least 15m in width. Due to site congestion, the route did not provide enough allowance and so the driver raised the load more than 8m to clear a stack of containers by the side of the road.
According to Australian Standards, an operator must not lift a load more than the minimum amount needed for the driver to see below the load. The fork truck lacked instruments to alert the driver to risk factors, such as the weight of the load, the tilt of the mast, or a speedometer, with the driver’s experience in safely handling loads left as the only real hazard control. Along with a culture of speeding at the site, this resulted in serious injury when the suspended load  failed to clear a section of the stacked containers.
The court heard that Linfox ought to control the risk factors through better training and supervision  and by  installing forklift control  and instruments  – all steps  reasonably  practicable  and  easily  implemented.  The  risks,  well  understood and  documented  industry-wide  in  three  sets  of  Australian  Standards,  as  well  as described in the operator’s manual for the particular fork truck used, included the instruction to “keep the load as low as possible and never travel with a load at vertical or forward tilt”.

The magistrate considered ten elements in deciding on a penalty:

1. the court must hand down a large enough penalty so as to compel attention to occupational health and safety generally, and to ensure that workers whilst at work do not find themselves exposed to risks to their health and safety;

2. that even if an employer could not foresee the precise cause or circumstances of the exposure to a risk, they ought to foresee the actual risk itself, along with the resulting injuries;

3. if the business did actually consider the risk of injury as foreseeable but no adequate response resulted, then this also aggravates the offence;

4. the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety;

5. the court will view more seriously a systemic failure by an employer to appropriately address a known or foreseeable risk than a risk to an employee due to a combination of inadvertence on the part of an employee and a momentary lapse of supervision;

6. in light of the objects and terms of the law, particularly relevant factors include general and specific deterrence;

7. that the law requires employers to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt a proactive approach to safety and not merely reactive. In view of the scope of those obligations, in most cases the law must encourage a sufficient level of diligence by the employer in the future – particularly so where the employer conducts a large enterprise which involves inherent risks to safety;

8. that the court regard the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration;

9. the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category;

10. the objective seriousness of the offence may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.

The magistrate also noted the following facts about this case:

1. the fact that prior to the incident, Linfox did not undertake a formal hazard identification and risk assessment of container movements;

2. the generally-known and foreseeable risk of injury associated with operating a fork truck with a raised load;

3. the fact that Linfox inadequately responded to the identified risk of injury due to congestion in the container yard until after the incident;

4. the fact that reasonable practicable steps, if taken, would enable Linfox to maintain a safe working environment, including plant and systems of work
– safe for its employees and without risk to their health;

5. the lack of adequate supervision, including the absence of appropriately skilled and qualified supervisors; and

6. the lack of a pro-active approach to risk identification and assessment at the yard prior to the incident, particularly given the generally known risks associated with operating fork trucks contributed to the seriousness of the incident;

On the other hand, Linfox did plead guilty early, and did afterwards try to address the inadequacy of the site. The court found $150k an appropriate penalty, along with an extra $25k to Comcare for costs.

Comcare v Linfox Australia Pty Ltd