The charge  

In late November 2006, Dong Wang (Wang) fell to his death from the prong of a forklift attachment, after being raised 5.8 metres by the forklift operator, Jeffrey Poole (Poole). Poole was charged with a breach of section 21(1a) of the Occupational Health, Safety and Welfare Act 1985 (SA) for failing to take reasonable care to avoid adversely affecting the health or safety of any other person through an act or omission at work in that he:

  • elevated Wang whilst Wang was standing on a fork lift attachment of a powered industrial truck (forklift)  
  • failed to use a work platform when elevating Wang using a forklift, and  
  • operated the forklift in an unsafe manner.  

Background  

At the time of the incident, Poole had been employed by SP Hay Pty Ltd for over 10 years as a loader operator and was responsible for loading and unloading trucks and stacking and moving bales of hay. Wang was employed by SC Agri Produce Pty Ltd as a hay marketer and his duties included stock control, stocktaking, quality sampling and arranging shipping.

The incident  

During the week of the incident, Wang had been at the SP Hay premises for stocktake and auditing. On the day of the incident, Wang asked Poole to be lifted to the top of a stack of hay bales to count the bales. The forklift was fitted with a hayfork attachment which comprised a vertical frame with a cross bar at a height of 1.4m and had four horizontal cylindrical pointed prongs which were 1.1m long at intervals of 0.64m. Wang stood with both feet on one prong at right angles to the front of the forklift holding the crossbar of the frame. According to Poole, he lifted Wang up on the forks, moved the forks towards the hay and put the prong in about the fifth bale, Poole then got out of the cab to see how Wang was going and called out but Wang did not answer, Poole then reversed the forklift back about a foot and Wang fell approximately 5.8 metres from the forks. For about twelve months prior to the incident Wang had been visiting SP Hay and was generally assisted by Poole during the process of counting hay bales. In evidence, Poole admitted that he had lifted and moved Wang forward on the hayfork attachment “lots of times” before.  

Reasonable care  

Although the precise sequence of events that caused Wang to fall was unknown, Magistrate Lieschke said that it was plainly foreseeable that raising a person to such a height on a hayfork attachment created a real risk that a person may fall and suffer very serious, if not fatal, injuries. Magistrate Lieschke noted that a narrow tined hayfork attachment could not provide stable footing and the dangers of moving a forklift forward to contact a fixed object, very near the roof of the shed caused further risk of dislodging Wang from the raised hayfork as well as a risk of crushing Wang against the haystack. Poole admitted he had received written and verbal instructions from SP Hay not to carry anyone on the forklift except in a personnel box. SP Hay owned two personnel boxes designed to be attached to the end of the forklift boom and at least one personnel box was available on the day of the incident. Poole admitted to failing to take reasonable care for the safety of Wang by elevating him without using a personnel box.  

Instructions regarding forklift practices  

Magistrate Lieschke considered the instructions that Poole had received in relation to the practice of carrying people on a forklift and noted that:

  • Poole had previously been trained and assessed as a competent forklift operator and part of that training would have included an instruction never to allow a person to ride on, or be elevated on the tines of any forklift attachment  
  • in October 2002, SP Hay issued its first prohibition against anyone riding on the forks or on a load  
  • in June 2006, SP Hay organised an OHS induction and training session for its employees which included a prohibition against lifting people on forklift attachments, and  
  • there were pictograms inside the forklift cabin which indicated that people should not be carried or lifted on the forklift tine.  

Common disregard of instructions at SP Hay

Poole pointed to a context of previous common disregard in practice of the instruction at SP Hay not to carry anyone except in a personnel box, as some explanation for his disregard of it when working with Wang. Magistrate Lieschke noted that:  

  • although SP Hay issued its first prohibition against anyone riding on the forks or on a load in October 2002, the practice of employees being lifted on forklifts continued  
  • the issue of people being lifted on forklift tines was not specifically addressed as a change in practice at the SP Hay OHS induction and training session in June 2006, and  
  • the pictograms inside the forklift cabin which indicated that people should not be carried or lifted on the forklift tines predated the practice of lifting people in that manner.  

Employers’ deficiencies  

The court noted the “lack of enforcement of the policy” and the “deficiencies in SP Hay’s past practices”. Furthermore, Magistrate Lieschke noted that:

  • neither SP Hay nor SC Agri Produce provided any OHS training or instruction to Wang regarding working at heights or working with forklifts  
  • SP Hay did not have any safe operating procedures or work method statements for the process of counting stacks, and  
  • SP Hay was not aware that Wang or anybody else was accessing the top of the stack of hay bales to be able to complete that task, notwithstanding Wang attended monthly for about one year with the assistance of Poole and the forklift.  

However, neither SP Hay nor SC Agri Produce were charged with an offence.

Outcome  

Magistrate Lieschke found Poole’s actions to be inexcusable, notwithstanding SP Hay’s previous practices, and fined Poole $7,500 (maximum fine $10,000) which was reduced by 20% due to Poole’s guilty plea and imposed a non-pecuniary penalty of undertaking a formal assessment of his competency to operate a forklift or powered industrial truck.  

Implications for employers  

Although this case resulted in the prosecution of an employee it clearly demonstrates the importance of employers:

  • checking whether OHS policies are complied with in practice by monitoring employees  
  • identifying unsafe practices which emerge in the workplace  
  • ensuring OHS induction and training sessions identify unsafe practices in the workplace and seek to change those practices  
  • establishing safe operating procedures or work method statements for risky activities, and  
  • enforcing compliance with OHS policies in practice.