In a recent case before the NSW District Court, City Projects Pty Limited (‘the Offender’) was fined a large penalty of $167,000 for failing to comply with its health and safety duties under s 19(1) of the Work Health and Safety Act 2011 (‘the WHS Act’), when it exposed a subcontractor to a risk of death or serious injury contrary to section 32 of the WHS Act. 
On 17 March 2017, Mr Rami Ealya (‘the Subcontractor’) delivered 10 glass crates weighing a combined total of 8,500 kg to the Offender’s premises. Upon arrival, Mr Daniel Kastropil, the Safety Co-ordinator for the Offender, decided to borrow a forklift from Enfrex as the glass would be too heavy for their smaller forklift.
Mr Kastropil instructed Mr Domenico Lombardo, another employee of the Company, to operate the forklift. Neither of the Offender’s two employees held the appropriate license to operate the forklift.
Mr Kastropil and the Subcontractor walked on either side of the forklift to guide Mr Lombardo and stabilise the second glass crate, which was unsecured and unstable. CCTV footage from the premises indicates that Mr Lombardo was unable to see in front of him whilst driving the forklift.
Once inside the warehouse the forklift was required to make a left turn. Upon doing so the 850 kg second glass crate tipped forward and started to slide off the forklift. Both Mr Kastropil and the Subcontractor moved in front of the crate to try and manually prevent it from falling. The glass crate continued to slide forward, falling onto and crushing the Subcontractor’s leg. Mr Kastropil was able to move backwards and avoid the crate entirely.
Mr Lombardo attempted to use the forklift to lift the glass crate off the Subcontractor’s leg. However, due to the angle of the forklift arms, this placed even more pressure onto the Subcontractor’s leg. Extra assistance was required from employees of a neighbouring business, and wooden beams were eventually used in a lever system to lift the front of the glass crate off the Subcontractor’s leg and first aid was administered.
The Subcontractor required a plate and six screws to be inserted to repair his broken leg. He was in hospital for 10 days where he underwent physical therapy and rehabilitation.
Judge David Russell criticised the Offender’s WHS operating system stating, “This was not just an accident waiting to happen, it was an accident almost 100% certain to happen.”
He determined that the offender’s culpability was in the high-end of the mid-range due to a number of factors. Key factors included:
- Workers were placed in a serious risk of death and/or injury;
- The Offender permitted unqualified personnel to operate forklifts (a high-risk activity);
- The Offender’s safety coordinator was not adequately trained in unloading, handling and transporting glass;
- The Offender’s Warehouse lacked a comprehensive WHS Policy and WHS Systems; and
- There were available steps that could have reasonably been taken to minimise the risk.
The appropriate $200,000 fine was discounted by $50,000 to reflect the Offender’s guilty plea and a sum of $17,527 was paid for the prosecutor’s legal fees. SafeWork NSW v City Projects Pty Limited  NSWDC 364
Similar Case, Lower Penalty?
In a second similar case determined again by Judge Russell, Erect Safe Scaffolding (NSW) Pty Ltd (‘the Offender’) was fined a total of $127,000 after a worker was crushed by scaffolding that had fallen from a forklift driven by an unlicensed driver.
The driver stopped the forklift abruptly when a worker in his way shouted out to warn him, causing approximately 160 scaffolding tubes to fall on top of the worker crushing him. Judge Russell categorised the culpability of the Offender as the high end of the low range.
This incident warranted a lower penalty than the previous case as Judge Russell considered the event to be a ‘one-off’ rather than a widespread and systematic failure by the Offender, despite the substantial nature of the injuries.
Both cases serve as a timely reminder to companies that it is their duty to ensure that workers and labour-hire workers have the relevant training and qualifications to perform their duties safely and lawfully. SafeWork NSW v Erect Safe Scaffolding (NSW) Pty Limited  NSWDC 365
Please do not hesitate to contact us if you would like to discuss how the team at Stevens & Associates Lawyers can assist with any WHS Policy or WHS Systems queries.