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 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.