By
Gaby Grammeno
Contributor
Runaway forklift
Unsafe practices were the fundamental cause of a workplace fatality in a timber distribution warehouse.
The employer was in the business of providing timber to wholesalers. The warehouse in western Sydney consisted of two large timber storage sheds with a roadway in between for trucks to load up in five marked loading bays. Forklift drivers would deliver loads to the loading bays in anticipation of trucks arriving at the site to be loaded.
Forklift operators would drive through the warehouse to locate the timber packs, stop the forklift and leave the forklift unattended to apply a consignment tag to the load. It was common for forklift operators to leave the forklift’s engine running while carrying out this task, and they did not always apply the park brake either.
On 1 February 2021, when a truck driver was kneeling beside his truck in a loading bay to retrieve straps from a storage cage in order to strap and secure his load, a 7.6 tonne forklift left unattended by its operator rolled down the sloped driveway, crushing the truck driver’s head against the tray of his truck and killing him instantly.
SafeWork NSW charged the forklift operator with exposing the truck driver to a risk of death or serious injury, in breach of his duty under the Work Health and Safety Act 2011 (NSW). He was also charged with manslaughter under the Crimes Act 1900 (NSW). Following negotiations between his lawyers and the Office of the Director of Public Prosecutions, the forklift operator pleaded guilty to the lesser offence of dangerous driving occasioning death.
For the dangerous driving offence, he was sentenced to a two-year intensive corrections order consisting of six months of home detention and a requirement to perform community service work.
The charge under the WHS Act was heard in the District Court of New South Wales.
In court
The court heard evidence that the forklift operator was a yard supervisor whose role included checking for hazards and ‘developing and implementing safe operating procedures relating to traffic management, forklifts and other plant and systems’ and was reportedly a ‘very diligent, honest, trustworthy, absolutely committed employee’.
Nevertheless, he had:
- left the forklift unattended with the engine running
- failed to apply the forklift’s park brake
- failed to lower the tynes
- parked on a slope but not horizontal to the slope, nor with the steer wheels on a 45-degree angle or the rear wheels chocked to prevent rolling.
Judge David Russell found that the forklift operator was guilty of the WHS offence, as he had failed to take simple and obvious steps to eliminate or minimise the obvious, foreseeable risk. Taking such steps would not have imposed any practical burden or inconvenience on him.
His level of culpability was in the mid range, and the penalty had to provide for general and specific deterrence. The harm and loss to the deceased truck driver’s family was substantial, as revealed by the Victim Impact Statement tendered by the truck driver’s wife. In it, she described the ‘unbearable weight of grief’ and the ‘emptiness that threatens to consume’ her and her three daughters aged 13, 11 and 3.
The mitigating factors were that the forklift operator was 61, had no previous convictions and was otherwise of good character. He was unlikely to re-offend and had good prospects of rehabilitation. He’d shown remorse and accepted responsibility for the fatal consequences of his actions. He was cooperative with enforcement authorities and pleaded guilty.
Judge Russell said that because the charges under the WHS Act and the charge of driving in a dangerous manner causing death arose out the same event, he had to avoid double punishment for the same crime when imposing a sentence. The fine was therefore much lower than it would have been if the forklift operator had not already been sentenced on the dangerous driving charge.
The appropriate fine of $10,000 was reduced by 25% to reflect the early guilty plea. Judge Russell ordered the forklift operator to pay a fine of $7,500 plus the prosecutor’s costs.
What it means for employers
The presence of vehicles and people on foot in the same space is a notorious WHS risk, responsible for an ongoing stream of fatal or serious accidents. Traffic management plans and the enforcement of safe driving rules are vital for employers with the duty to protect pedestrians.
