Court faulted employer for exposing worker with 'limited experience'
A district court in New South Wales recently slapped a hefty fine of over $2 million against a services company after one of their workers died at a work site. The tragic incident involved exposing workers to faulty equipment, and so the court found it appropriate to impose the largest penalty ever given to a business in the state.
The employer, A1 Arbor Tree Services Pty Ltd, was running a business where they pruned and removed trees.
As part of their operations, they owned a brand-new Bush Bandit Whole Tree Woodchipper Model 2090, which they purchased around April 2015. The woodchipper was made by Bandit Industries, a US company that doesn't have any operations in Australia.
According to records, the said machine was quite large and required two experienced operators to run it. It wasn't meant to be operated manually by feeding it with hands.
Cromehurst School, a public school managed by the NSW Department of Education, is situated on the corner of Nelson Road and Kochia Lane in Lindfield, New South Wales.
A1 was hired by the school to get rid of three trees located on the school grounds along the boundary of Kochia Lane and to prune another tree that was further inside the premises.
The incident
On the day of the tragedy, Cromehurst School required A1 to clear up some trees in an area. But before A1 started using the woodchipper at the school’s worksite, they didn't conduct a daily check to make sure everything was working fine.
They also didn't have any equipment to help them feed branches and logs into the woodchipper.
After the workers noticed blood near the machine, with one of their co-workers missing, the NSW police showed up and noticed some human tissue on the ground near the towing hitch.
They also saw blood splattered on the back of the truck and inside the container. It confirmed that a worker, a Fijian national who arrived in Australia in 2018, got caught up in the woodchipper.
The records said that he was pulled in through the hopper, went through the rollers and into the chipper drum, and suffered fatal injuries as a result.
It's unclear how he actually came into contact with the woodchipper since there were no witnesses to the incident.
‘Foreseeable and avoidable’ risk
During the court proceedings, it was revealed that the workers had very little supervision and were not provided with any training on how to use the equipment.
At the time of the incident, A1 had not created, put into action, or enforced a Safe Operating Procedure (SOP) for operating the woodchipper.
Additionally, the manufacturer's instructions mandated the installation of the feed control bar, which was not done.
A1 also didn't have a proper system in place to assess how well its workers understood the company's work procedures or their ability to safely perform tasks, including operating the woodchipper.
According to the machine’s manual, the owner was supposed to make sure that anyone operating the woodchipper read and understood the manual and the decals on the machine, watched a video, and followed the manufacturer's recommendations.
However, A1 workers were being verbally trained by the employer without any official procedure or reference to the manual. They weren't given a copy or shown any instructional videos recommended by the manufacturer.
Any instruction or training given to A1 workers wasn't recorded or documented. The company admitted guilt for not meeting its safety obligations under the Work Health and Safety Act.
During the sentencing, the court explained that “an offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible.”
The court’s penalty
In its decision, the court ruled that the incident was “an objectively serious offence.”
“The seriousness of the foreseeable harm to a worker was extreme, and the steps available to avoid the risk were straightforward and readily available to the [employer],” it said.
“[The deceased worker] was a vulnerable worker who had only been on this job for a matter of 5-7 days, and had limited experience with tree removal, let alone in the operation and use of the woodchipper.”
“In those circumstances, [the employer] ought to have been additionally vigilant to ensure that [he] was not exposed to the hazard and risk associated with the use of the woodchipper.”
The court said that “A1 failed to ensure, so far as was reasonably practicable, the health and safety of workers whilst the workers were at work in the business or undertaking.”
“It failed in that duty and exposed workers to the risk of death or serious injury,” it added. Thus, it imposed a penalty of $2,025,000 against the company; and $101,250 against the colleague of the deceased worker who was responsible for all operational aspects of the employer.
