In a recent judgment, the Industrial Court of NSW has found that an employer who failed to develop systems for refuelling on construction sites was in breach of section 8(1) of the Occupational Health and Safety Act 2000 (NSW) (OHS Act) following the death of an employee. The defendant was the principal contractor on a project involving the construction of 6.5 kilometre of dual carriageway on a highway when the incident occurred. The employee, a truck driver and refuelling operator was standing behind his refuelling truck on the site when a loader reversed into him, fatally crushing him.

The defendant pleaded guilty to breaching section 8(1) of the OHS Act in that it had failed by its acts or omissions to ensure the health, safety and welfare at work of all its employees and, in particular, Mr Pulver. Specifically the defendant had neglected to comply with a specific Safe Work Method Statement for refuelling plant and had failed to provide adequate information, instruction and training to its employees operating mobile plant in respect of the Safe Work Method Statement. Justice Boland fined the defendant $350,000. Due to the defendant’s prior convictions and the seriousness of the offence, the maximum penalty that could have been imposed was $825,000. However, the defendant’s guilty plea, cooperation and contrition resulted in a 22.5% discount. Justice Boland emphasised that the defendant failed to take appropriate measures where there was an obvious or foreseeable risk to safety. Despite acknowledging that the defendant knew of the risk and attempted to deal with it, the Court found that the system of work in place was inadequate.

The case illustrates the necessity for employers to have well developed policies and procedures in place to manage occupational health and safety. As Justice Boland notes, “the employer’s duty under the Act is to ensure safety and down at the coalface, so to speak, it is sometimes overlooked that what is necessary is a very careful and thorough-going analysis of what could possibly go wrong, with an eye very much to human folly and inattention.”