District Court New South Wales

• Medium Neutral Citation: Work Cover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171
• Hearing dates: 17/02/2014
• Decision date: 17 February 2014
• Before: Curtis, J

Decision

The information is dismissed

• Legislation Cited: Occupational Health and Safety Act 2000
• Cases Cited: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
• Category: Principal judgment
• Parties: Workcover Authority of New South Wales (Inspector Battye) - Prosecutor; Patrick Container Ports Pty Ltd - Defendant
• Representation: S Crawshaw, SC with M McCarthy appeared for the Prosecutor; B Hodgkinson, SC with G H Livermore appeared for the Defendant
• File Number(s): 2013/218842

Judgment

Introduction

1 The defendant is charged that, contrary to the provisions of section 8(1) of the Occupational Health and Safety Act 2000, on 2 September 2010 at Port Botany it failed to ensure so far as was reasonably practicable the safety and welfare at work of its employees, Mr Richard May, Mr Destri Tami and Mr Richard Gilholme.

2 On that day Mr May commenced to remove a left-hand rear tyre on a Hyster YardMaster Reach Stacker by removing an outer rim clamp without first deflating the tyre.

3 The tubeless tyre, inflated to a pressure of approximately 150 psi, is contained within a steel rim with narrow flanges. The tyre and rim assembly are fixed to the wheel hub by a rim clamp. This rim clamp serves to reinforce the narrow flanges of the rim in containing the tyre pressure.

4 Because of the risk that the flange of the rim may be damaged or defective and prone to failure, causing a sudden release of air pressure, safe practice requires that the tyre be fully deflated before the rim clamp is removed.

5 When Mr May removed the rim clamp a flange of the tyre rim failed because of a pre-existing fracture, and the air pressure within the tyre was released explosively, killing Mr May and injuring Mr Tami and Mr Gilholme.

The Allegations

6 Inspector Battye alleges that the dangers created by Mr May's actions could have been obviated or reduced had the defendant employer taken the following reasonably practicable steps:

(a) Undertaking a risk assessment to identify the risk and providing appropriate measures to control that risk;

(b) Instructing Mr May to consult a document entitled "Reach Stacker Operating Manual YardMaster" prior to undertaking the task;

(c) Providing documented formal training to Mr May with respect to the task;

(d) Providing to Mr May such information, instruction and training as was necessary with respect to the task;

(e) Providing Mr May with such supervision as was necessary in relation to the task.

The Evidence

Documents

7 The operating manual for the Hyster YardMaster Reach Stacker is in evidence. Under the heading "Maintenance" the following text appears:

WARNING

Wheels must be changed and tyres repaired by trained personnel only. Always wear safety glasses. Completely remove the air pressure from the tyre before it is removed from the YardMaster.

When dual wheels are installed remove the air pressure from both tyres.

The pressures in the tyres can cause the tyre to explode causing injury or death.

Mr May

8 Mr May completed his apprenticeship in automotive engineering, heavy equipment in 1987 and was a member of the Institute of Automotive Mechanical Engineers. He had extensive experience carrying out repairs on heavy vehicles before he was employed by the defendant.

Mr Gerard Strawbridge

9 Mr Gerard Strawbridge was Mr May's direct supervisor. Before the accident Mr Strawbridge instructed Mr May on the correct method of replacing wheels on the YardMaster. He specifically told him, "Remove the valve and make sure there is no air in it." On the occasion of the instruction, Mr Strawbridge demonstrated the safe method of replacing wheels to Mr May, and stayed to watch him replacing four wheels.

Mr Zupan

10 Mr Zupan was a self-employed mechanic engaged on a contract by Patricks to perform mechanical work under the supervision of Mr Strawbridge. He said that the operating manual for the Hyster YardMaster Reach Stacker was held in the maintenance workshop office and all workers at Patricks had access to that manual. When asked how he knew this Mr Zupan replied,

"If we have ever got problems with the machines we go to the manuals. Everyone is aware of the manuals and will go to the manual. It is common practice. At the induction prior starting work that's when we're made aware of the manuals."

Mr Zupan said that he knew the correct procedure for removing a wheel from the YardMaster involved deflating the tyre. He was trained in this procedure by Mr Strawbridge.

Mr Raymond Gilholme

11 Mr Gilholme was employed by the defendant as a mechanic and often worked with Mr May changing tyres on the YardMaster. He was aware of the correct method, having been instructed by Mr Strawbridge some three or four years before the accident, when the defendant purchased the YardMasters.

12 Mr Gilholme was specifically informed by Mr Strawbridge of the risk that a rim assembly may explode and cause injuries. He said that Mr Strawbridge, from time to time, attended to inspect the work when he was changing tyres with the assistance of Mr May. When asked by a WorkCover Inspector "Why do you think the incident occurred on 2 September 2011?" Mr Gilholme replied,

I think that Richard forgot to take the valve out and I don't know why.

13 Further evidence indicates why.

Dr William Allender

14 A blood sample was taken from Mr May postmortem and found to have present methylamphetamine 0.8 milligrams to a litre and amphetamine 0.14 milligrams per litre. Dr Allender, a forensic scientist and toxicologist, provided a report of 8 March 2012 in which he states:

Methylamphetamine and amphetamine are central nervous system stimulants which can impair a user's faculties by altering perceptions and judgment and increasing aggression or risk taking behaviour during the acute phase of intoxication. This drug may also produce hallucinations. Following the stimulation phase as the blood level decreases there may be a reactive drug induced fatigue when the user's faculties can be impaired. During this stage the user may experience drowsiness/sleepiness/fatigue, a slowing of reactions and impairment of perceptions and judgment.

15 Dr Allender says that this concentration of methamphetamine in Mr May's blood was well above the therapeutic range. He concluded that the methamphetamine level present could have contributed to increased aggressive and/or risk taking behaviour and impaired judgment.

The Law

16 In considering a charge laid pursuant to section 8(1) it is necessary to identify with some precision the risk to health alleged by the informant. In the present case this was the risk that the air in the tyre may be released explosively because an ignorant or poorly trained employee, in this case Mr May, failed to deflate it.

17 Put another way, it was a risk that Mr May may fail to follow safe procedure in removing the tyre. It is the informant's case that this failure was caused by the neglect of the defendant in the particulars specified. It is no part of the informant's case that the defendant was, or should have been, aware of Mr May's intoxication, which was on the evidence also a cause of the risk.

18 Cause is essentially a question of fact to be determined by the application of common sense. In criminal law an act or omission causes an event if it is a substantial or significant cause of that event. It may not be the sole, direct or immediate cause but must be sufficiently cogent to justify the serious finding that the accused is morally culpable (Royall v The Queen (1991) HCA 27, R v Wright [2009] NSWDC 251).

Resolution

General

19 Each particular of the defendant's failures is contingent upon a general allegation that the defendant failed to so control the mind of Mr May as to substantially obviate the danger. If Mr May's mind was already sufficiently alerted to that danger then there is no causal nexus between the failures alleged and the failure of Mr May to advert to that danger. Taking the allegations serially:

Risk Assessment

20 The informant relies upon the agreed fact that no formal documented risk assessment was carried out by the defendant. I think this is irrelevant.

21 In this case there was a risk assessment by Mr Strawbridge. The risk, that is, of there being a catastrophic blowout, was identified. Had the defendant carried out a more formal risk assessment before this incident, no more would have been done than identifying that same risk.

22 The informant suggests that because the defendant's policy was to require a formal written assessment to be undertaken prior to any work being carried out, that a failure to adhere to that policy is a failure to observe the terms of the statute. That does not follow. The statutory duty is not conditioned by any policy of the defendant to carry out a formal recording of risk assessment.

23 The answer to the first particular of negligence is that an assessment was made and the relevant risk was identified.

24 Even if, although this is not pleaded, a more formal risk assessment concluded that an employee may, under the influence of drugs, fail to observe what he knew to be safe procedures, what could have been done about that?

25 The informant has not identified any reasonably practicable step that may have been taken to control that risk (See Kirk). The prosecutor's allegation is that the risk of catastrophic blow out should have been identified, not the risk of irrational behaviour by a person under the influence of drugs.

Failure to Instruct

26 The informant relies upon a failure to instruct Mr May to consult a document entitled "Reach Stacker Operating Manual". This failure cannot be causative if Mr May already knew the content of the manual.

Training

27 The prosecutor alleges that had the defendant provided documented formal training to Mr May with respect to the task, the risk would have been obviated.

28 It seems to me that if a person is trained it is idle to suggest that documenting that training could have any effect in preventing an injury. No injury I could conceive would be caused by a failure to document or write down. Failures to inform, to bring to the attention of, or to train, may create a risk of injury, not a failure to document.

29 The prosecution relies upon the Oxford English Dictionary, which defines training as:

"Sustained instruction and practice given or received in an art, profession, occupation, or procedure with a view to proficiency in it".

30 The evidence is that Mr Strawbridge instructed Mr May in the correct procedure, observed him repeat that procedure four times on the occasion of that instruction, and thereafter attended upon his work from time to time to ensure that the procedure was followed. I am satisfied that Mr May was properly trained.

Supervision

31 It is the informant's contention that, because Mr Strawbridge said that the incident could have been prevented "If I had been there", the accident arises from an unreasonable failure of the defendant to ensure that Mr Strawbridge was at all times present when Mr May, an experienced qualified mechanic, was performing a task within his particular duty, skill and ability.

32 This contention is impracticable, and has no merit.

Conclusion

33 Even if, contrary to these findings, the defendant should have prepared a formal documented risk assessment, should have formally instructed Mr May to consult the operating manual, should have documented his training or even inadequately trained him, such failures, in the light of Mr May's knowledge of the risk and the vastly more immediate cause of risk to health and safety constituted by his intoxication, would not justify the serious findings that those failures had any substantial or significant effect on the cause of the event, or that the defendant was morally culpable.

Orders

34 The information is dismissed.

The prosecutor is to pay the defendant's costs.

Decision last updated: 23 October 2014