Transpacific, a company that provides recycling, waste management and industrial services, was ordered by the Federal Court of Australia to pay $363,000 to its insurer Comcare as Transpacific admitted contraventions of ss 16 and 17 of the Occupational Health and Safety Act 1991 (Cth) (OHS Act).
Significantly, it was found that employers must ensure they have sufficient and stringent supervisory systems in place in order to comply with the OHS Act.
Mr Meotti, an employer of Transpacific, was driving a truck when he collided with two cars and as a result, the driver of one of the cars died. Mr Meotti had entered a street when another car entered the same street at speed, forcing Mr Meotti to brake suddenly or veer to the left. He did not veer left as there was a telegraph pole on the side of the road. The truck's wheels locked and the truck began skidding towards a van and station wagon. The truck collided with the station wagon and the driver of the station wagon died as a result.
The investigation after the incident found that the truck had brake defects. The brake defects were not reported by Transpacific's mechanics on any of the three subsequent services undertaken.
Further, within the three months prior to the accident, Mr Henderson (a senior heavy duty diesel mechanic at Transpacific) was issued with a formal warning for failing to meet and record vehicle defects.
It was submitted by Comcare that Transpacific have breached s16 of the OHS Act, in that Transpacific had not taken all reasonable steps to protect the health and safety at work of its employees and s17 of the OHS Act in that Transpacific had not taken all reasonably practicable steps to ensure that persons at or near the workplace under Transpacific's control were not exposed to health or safety risks.
It was submitted by Comcare that on several occasions the mechanics for Transpacific failed to identify or rectify the brake defects. It was submitted that this failure was serious because the brake defects were a cause of the fatal incident. Comcare also submitted that the brake defects were foreseeable.
Further, Comcare submitted that there was no formal monitoring system in place for employees who were given warnings and there was no system of supervising, overseeing or auditing of the servicing of Transpacific's vehicles. It was also submitted that instructions to mechanics for checking brakes was insufficient and that there was not a proper system in place to check brake pad thickness.
Transpacific submitted that the brake defects were not foreseeable as there was no evidence of brake defects in previous services and it was not foreseeable that such brake defects would cause or contribute to a serious incident. As to management and monitoring systems, Transpacific submitted that the mechanics had considerable experience and therefore did not require such stringent monitoring systems or instructions. Transpacific also submitted that the implementation of a system recording brake pad thickness would not have assisted with identifying any brake defects.
Transpacific further submitted that the truck was relatively new and Mr Meotti was driving at a speed and a distance too close to the car in front of him which would not have allowed him to stop the truck safely in an emergency.
Transpacific submitted that the conduct contravening the OHS Act was not due to the failure of the mechanics but due to the failure of Transpacific to take reasonable steps in supervising and monitoring the servicing of its trucks and it should therefore only attract one penalty (rather than several penalties in the case of each servicing oversight as to brake defects).
Transpacific noted that its integrated environment and safety management system is certified under Australian and New Zealand standards, that all employees are required to conduct regular training and complete a company and site induction process. Further, the Occupational Health and Safety policy and associated procedures are reviewed and updated on an annual basis by Transpacific.
It was held that Mr Meotti applied the service brakes as hard as possible and the accident was not due to his driving speed, being too close to the car in front of him or not swerving to the left. It was further held that it was entirely foreseeable that brakes and slack adjusters would come lose and as a result a serious traffic accident could occur.
It was also held that there was a systematic servicing problem with identifying issues with the brakes, as the problem was not identified in three separate incidents and therefore there is less than adequate supervision in place.
Specifically, it was stated that "...there needed to be a properly thought-out system of supervision, including with respect to brake linings, in place at all material times, and there was not. There needed to be proper adherence to checklists and to have checklists which, perhaps, more fully and systematically identified all the various things that needed to be investigated, and there was not. In this case, there was also a need to ensure that a particular mechanic employs was adequately supervised, given that his work had been noted as less than satisfactory and a warning has been given to him previously."
Although the contraventions were not deliberate, Transpacific showed serious remorse, cooperated with Comcare and the Court and subsequently made changes to its servicing systems. Despite this, the seriousness of Transpacific's failure to provide an adequate system was emphasised and resulted in a penalty at the higher end of the scale (at about 75%).
Transpacific was ordered to pay a total of $363,000 ($181,500 for each section breached) to Comcare for the contraventions of the OHS Act.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Employers should review their policies in relation to work health and safety to ensure that they have sufficient monitoring systems in place. Specifically, employers should have a routine supervisory system to ensure all employees are fulfilling tasks appropriately and safely.
In order to comply with their obligations under the work health and safety legislation, employers should also ensure that systems, policies and checklists applicable to safety in the workplace are detailed and completed correctly.
For a copy of the full decision please click here.
-This article was co-written by Kate Hollings, Law Graduate.