Warning signs proof that risk was known, OHS appeals dismissed
July 26th, 2009
The erection of warning signs around sediment ponds on a worksite was proof that the employers knew they posed a danger to their workers, the NSW IRC has ruled in dismissing their appeals against their OHS convictions.
At the time of the incident Thiess Pty Ltd and Hochtief AG were engaged in a joint venture on a Sydney rail development. At the worksite were two large ponds where water and sediment extracted during tunnelling were stored.
In 2005 a contractor parked his backhoe on a concrete platform adjacent to one of the ponds. He was later noticed to be missing, and his body was eventually found at the bottom of th epond.
A post mortem revealed that the worker had died as a result of a severe heart attack before falling into the water.
Theiss and Hochtief were subsequently charged with breaching s8(2) of the NSW Occupational Health and Safety Act 200 for failing to ensure that non-employees weren’t exposed to the risk of falling into the ponds.
They both pleaded not guilty, but were convinced and fined $24,750 and $16,500 respectively in the Industrial Relations Commission.
Both appealed.
Risk not remote
Before a full bench – Justices Trish Kavanagh, Wayne Haylen and Frances Backman – Thiess and Hochtief contended that the judge, in the first instance, failed to establish that non-employees were exposed to the risk of falling into the ponds.
As non-employees were not required to work in the vicinity of the ponds, they argued, it could not be held that they were placed at risk.
Alternatively, the risk of falling into the ponds wre so remote, they contended, that “no reasonable employer could be required to be proactive to ensure the removal of the risk”.
The bench disagreed.
The worker, they found, had been able to park and alight from his backhoe within two meters of the water’s edge. The ponds were large (28 metres long and three metres deep) and inadequately fenced, and there was nothing to prevent any of the “numerous employees” on the site from coming into their vicinity.
The bench also found that warning signs erected next to the ponds prior to the incident indicated that the employers had recognised the risk. However, they failed to take “simple and proactive” steps to eliminate the danger.
After the incident, the bench heard, barricades were put in place.
The bench also noted that the fact that the worker died of a heart attack did not negate the fact that he was able to fall into the pond.
“Actual injury is not an element of an offence under s8(2) of the Act.”
www.ohsalert.com.au Thursday 25 June 2009