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Inadequate traffic management plan: huge fine for employer

A company has been hit with a fine of $450k after a forklift knocked over a worker at a depot. Read why the court imposed such a heavy penalty on the employer but acquitted the sole director.

02 May 2024

Gaby Grammeno

Contributor

The worker was employed as a truck driver with a contractor providing services to a freight distribution company.

On 4 November 2020, at a transport depot in Tamworth, New South Wales, he was working on foot, assisting the driver of a B-Double trailer in the loading/unloading area.

The driver of the B-Double asked the worker to find a smaller freight pallet that would fit under the mezzanine level of the trailer. While searching for a suitable pallet, the worker crossed the loading zone and was hit from behind and knocked over by a forklift driven by another employee of the freight distribution company.

The worker suffered significant injuries, including fractures in his arm, hip and leg. The forklift operator had not seen him because he was driving with a full pallet raised so high above the ground that it obstructed the driver’s line of sight.

Following its investigation of the incident, SafeWork NSW prosecuted the company for failing in its duty of care and its director for failing to exercise due diligence in relation to work health and safety issues.

The case was heard in the District Court of New South Wales.

In court

The court heard evidence that over the last three years, SafeWork NSW had issued three improvement notices to the company in relation to the lack of traffic management controls at various depots, including one just five days before the incident occurred at the Tamworth depot. Steps had been taken at the other locations, but no substantial traffic management plan was in place at Tamworth.

Though the WHS manager had sent a traffic management template to all the company’s depots, it was not used at Tamworth.

Why the director was not liable

SafeWork NSW alleged that the director had failed to ensure the company allocated sufficient resources, established processes to eliminate or minimise WHS risks, and failed to verify that the resources and processes were in place at the Tamworth depot.

After considering the evidence, however, Judge David Russell found that the director had taken an active interest in WHS by:

employing a WHS manager
attending weekly WHS briefings and following up issues at the next management meeting to check that appropriate measures had been put in place
visiting each depot and instructing the WHS manager to fix WHS problems
attending meetings with the depot managers to discuss compliance measures
signing off on updated WHS policies
directing supervisors to deal with any workers who disregarded safety instructions
responding promptly to WHS concerns.

Judge Russell found that though the WHS manager had failed to ensure the separation of forklift and pedestrian pathways, this was a failure of the PCBU, not a failure of the director to exercise due diligence, as he was entitled to rely on the WHS manager’s advice.

The company’s culpability

The court found that the employer should have known that only ‘a total separation of forklifts and pedestrians’ would ensure safety. The risk was obvious, and it was not enough that the company had merely adopted a loosely enforced three-metre rule to keep forklifts away from pedestrians.

The employer could easily have established a designated loading and unloading zone, line marking, pedestrian exclusion zones and physical barriers as more effective risk controls.

In sentencing the company, Judge Russell found that the risk of a collision between a forklift and a worker on foot was known to exist at the employer’s other depots, so the PCBU ought to have known that the Tamworth depot presented similar risks.

The likelihood of an incident was significant, especially where forklifts were working on one task and workers on foot were employed on another task, as neither would have been looking out for the other. The consequences could be severe, involving serious injury or even death.

He said that the seriousness of the potential harm must be taken into account, even if incidents with severe consequences might not be expected to occur often. Where it would have been reasonably easy for the employer to implement suitable risk control measures, the employer’s culpability is greater.

In this case, there would have been little or no burden of inconvenience for the employer to put preventive measures in place – ample guidance material was available to help PCBUs deal with this risk.

An aggravating factor was that the injury, emotional harm, loss or damage caused by the offence was substantial.

A mitigating factor was that the employer had no previous convictions. There was no need for specific deterrence as the employer was in liquidation and no longer conducting a business.

Judge Russell imposed a fine of $450,000 on the employer, plus costs. The judgment was to be sent to the company’s liquidator.