In the past two months, there have been three successful SafeWorkSA prosecutions for breaches of duties under Section 32 of the South Australian Work Health and Safety Act (2012). These cases show that proper risk assessments and adequate controls to eliminate or reduce risks are essential.
Campbell v Woodlands Hill Fabrication Pty Ltd & Anor [2022] SAET 22
This case is about a WHS prosecution for serious and life-changing injuries to a worker. Both defendants pleaded guilty in the South Australia Employment Tribunal (SAET) for breaches of their duties under section 32 of the South Australian Work Health and Safety Act (2012).
Key takeaway
This incident demonstrates how an employer’s failure to identify hazards and impose even the most straightforward control measures can pose a serious risk of injury and harm to others. The employer could have easily avoided these life-changing injuries through adequate risk management.
When work needs to be done close to powerlines, the power should be deactivated before that work commences.
About the case
In October 2018, a worker of Woodlands Hill Fabrication received serious injuries, including the loss of both legs, because of electricity arcing through the elevating work platform (EWP) that he was working on.
The worker was lubricating the metal platform from underneath, and the second defendant was operating the platform. The second defendant raised the platform underneath an active overhead power line. This caused an electrocution injury to the worker. He had both lower limbs amputated and required extensive burn treatment over several months.
SafeWork SA’s investigation found that before commencing the task:
Reasonable and straightforward measures were available to conduct the work safely, including:
The SAET convicted Woodlands Hill Fabrication Pty Ltd. It did not issue a pecuniary fine, noting the business was no longer trading and had no assets. In sentencing, the SAET accepted that specific deterrence was less applicable in this case because the second defendant was no longer operating the business and would not do so in the future.
A conviction was also recorded against the second defendant, the sole director and operator of Woodlands Hill Fabrication Pty Ltd. The second defendant was ordered to pay a fine of $40,000 (reduced to $28,000 following an early guilty plea). Additionally, as the defendants’ activity had ended, no prohibition notices were issued by SafeWorkSA.
Campbell v Roberts [2022] SAET 27
In this case, a refrigeration mechanic has been fined $33,000 for unsafe work practices at a food retailer due to an accident that caused significant burns to himself and the shop owner.
Key takeaway
This case demonstrates that caution and care must be exercised when using chemicals or substances, including flammable liquids. Safe Work Australia has published a guide on the storage of flammable liquids.
Additionally, this case highlights the requirement to undertake a risk assessment when undertaking any task which could be hazardous. SafeWork SA’s Code of Practice on managing health and safety risks provides PCBUs with practical guidance.
About the case
Roberts pleaded guilty in the SAET for failing to comply with his duty under section 32 of the South Australian Work Health and Safety Act (2012).
In September 2019, Roberts was engaged to provide refrigeration repair services at a café and takeaway shop called Yummy Fish. Roberts was required to repair the condensing unit of a refrigeration cabinet by replacing the compressor. He was required to charge the condensing unit with refrigerant gas in undertaking the task. Roberts mistakenly used a flammable propane gas to charge the new condenser. On realising his mistake, attempted to remove the flammable gas by pumping it down causing it to ignite. This action created an uncontrolled explosion and fire in the kitchen. The fire caused second degree burns to Roberts and extensive burns to the shop owner.
SafeWork SA investigations found that Roberts commonly decanted the hazardous chemicals required for his work into smaller, unmarked containers. The decanted chemicals were not adequately labelled as required under WHS laws, which led to Roberts selecting the incorrect canister for the job.
Roberts also failed to adequately identify the hazards and manage the risks associated with correcting his mistake. The SAET commented that Roberts’s mental risk assessment was rudimental and inadequate. Roberts also failed to implement control measures when working with the hazardous chemicals, including having an exclusion zone to prevent harm to the shop owner.
The SAET convicted Roberts and imposed a fine of $33,000 ($50,000 before 40% discount for early guilty plea) for the section 32 offence and $2,000 ($3,000 before discount) for the regulation 342 offence, plus legal costs and the Victim of Crime Levy. The SAET considered Robert’s personal circumstances, including his serious burn injuries, the small nature of his business, his poor finances and his inability to work for the past year.
Campbell v Dial a Tow Australia Pty Ltd [2022] SAET 36
Dial a Tow Australia Pty Ltd has been found guilty in the SAET for breaches of their duties under section 32 of the South Australian Work Health and Safety Act (2012) over the death of their worker. The tow truck manufacturer AHRNS has a parallel duty under section 25 of the Act as a person conducting a business or undertaking supplying plant, substances, or structures.
Key takeaway
Risk assessments must be conducted and adequate controls put in place to eliminate or reduce the risk. It is not enough to place multiple warning signs of the risk of injury or have administrative instructions. It is also insufficient to rely on the manufacturer’s risk assessment.
Health and safety risks in the workplace need to be eliminated or minimised. Hazard management needs to be a continuous process used to improve the health and safety of the workplace.
About the case
In March 2018, trainee Ravlich died from a crush injury when he was caught between a fixed headboard behind the cabin of a tilt tray tow truck and the mechanical sliding tray. This tray was retracting horizontally towards the headboard.
The tow truck involved in the incident had a unique design whereby the headboard and toolboxes were fixed to the back of the cab and did not move with the tilt tray. This design left a crush zone and risk of being crushed when the tray was retracted. Workers needed to enter the crush zone and turn 90 degrees to their back to the returning tray to access the toolbox. The tow truck was new to the fleet and had only been in operation for six weeks. Within the crush zone were multiple signs warning of danger.
Ravlich returned items to the toolbox and was in the crush zone as the tray was retracted. Another employee was retracting the tray via a handheld remote control at the back of the vehicle. Ravlich had been advised to keep clear of the moving tray.
The SafeWork SA investigation identified that the incident could have been avoided if engineering controls were in place, such as pressure sensors. It was suggested that there was a need for engineering controls on the tow truck that would prevent the tray from moving whilst a person or object was within the crush zone. Additionally, toolboxes could have been located to another area of the vehicle to remove the need to enter the crush zone.
SafeWork SA successfully argued that instructions and signage were insufficient to reduce the risk adequately and that engineering safety controls were required.
A prohibition notice was placed on the use of the tow truck until revised control measures were put in place by the truck manufacturer to eliminate or minimise the risks of workers becoming trapped.
The SAET highlighted that an employer must protect against human errors, including inadvertence, inattention, haste and even foolish disregard for personal safety.
The Tribunal determined that reasonably practicable measures could and should have been implemented. These measures included administrative controls such as training and supervision. Engineering controls should also have been in place, including a two-stage process of returning the tow truck’s tray, relocating toolboxes, and installing a pressure-sensitive device.
The SAET held that Dial a Tow Australia Pty Ltd knew that the tow truck had a crush zone and that persons entering the crush zone while the tray was returning were put at risk. It relied on signage and administrative instructions to discharge its duty. The SAET held that this was not an adequate discharge of its responsibility.
It was acknowledged that the defendant may not have had the expertise to eliminate or minimise the risk. Still, it could engage others to find and implement adequate safety controls. Dial a Tow Australia Pty Ltd had in their possession the AHRNS risk assessment, which identified a risk, albeit AHRNS thought that a fatal injury was highly unlikely.
The SAET found that it was beyond a reasonable doubt that engineering solutions were available to mitigate the risk of crush injuries. They commented that installing a pressure-sensitive device based on the evidence provided was a reasonably practicable measure that could and should have been implemented. The costs of a retrofit installation would not be grossly disproportionate to the risk.
The matter is listed for sentencing shortly.
