Moore v SD Tillett Memorials Pty Ltd [2002] SAIRC 47
Keywords: Reasonably Practicable; documented procedures; one-off departure by an employee; verbal instructions
The Case
On 21 December 1999, an employee, Mr Bacon was helping another employee, Graham Muscat, move an “A” frame loaded with seven granite sheets. The men were moving the granite sheets using a forklift.
Mr Bacon died when the granite sheets loaded on the ‘A’ frame fell, trapping him between the granite sheets and a metal table.
The defendant company, SD Tillett Memorials Pty Ltd (SD Tillett) was charged as follows:
On the 21st day of December 1999 at Hindmarsh in the said State, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Craig Anthony
Bacon, was, whilst at work, safe from injury and risk to health and, in particular:
(a) failed to provide and maintain so far as was reasonably practicable a safe system of work; and
(b) failed to provide such information instruction training and supervision as were reasonably necessary to ensure that the employee was safe from injury and risks to health.
The particulars of the charge, that is the precise allegations were that SD Tillett failed to:
Provide and maintain a safe system for the movement of ‘A’ frames loaded with granite sheets.
Provide and maintain a safe system for the loading and storage of granite sheets on ‘A’ frames.
Provide adequate information instruction and training to Graham Muscat will about the safe movement of “A” frames loaded with granite sheets.
Provide adequate supervision for the employee and Graham Muscat.
Provide adequate information instruction and training to the Operations Manager, Stephen Tanner about the loading and storage of granite sheets on ‘A’ frames.
The Findings
The process for moving the granite sheets required them to be secured using a strapping. When Mr Bacon died, the slabs had not been strapped in accordance with what was described as a “standard operating procedure”. While there was some discussion about a memorandum setting out this standard operating procedure, it was not produced in the trial, in other words the documented standard operating procedure was not available.
Earlier in the day of the fatal accident, there had been another incident where slabs had not been strapped, and disciplinary action was taken against the worker involved.
The evidence at the hearing came from the workers. In all but one case, that evidence was consistent. The evidence confirmed all the workers understood the requirements to strap the granite, and this was a requirement that was continually reinforced by the operations manager Mr Tanner. The Court said:
... there is a common thread through the evidence of those witnesses that there was a continuous verbal reinforcement of the requirement to strap loaded “A” frames. [79]
The only person who said he was not aware of the prohibition against moving the granite without strapping was the driver of the forklift, Mr Muscat. In relation to his evidence, the Court said:
It is my view that Muscat has tried to cover up the system of work that he adopted at the time of the incident. His denial of any rule about strapping loaded “A” frames is contrary to the evidence of all the other witnesses who were either former employees or current employees of the defendant. [78]
With respect to the written standard operating procedure or memorandum, although the document was not produced at the trial, the Court formed the view that the procedures had been committed in writing, because all the witnesses gave evidence that they had seen a written procedure or memorandum. The prosecution then argued that a written record should have been made of who had received the document. In response to this, the Court said:
This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees save and except for Muscat. As I have indicated I find that the evidence of Muscat is unreliable. [82] (my emphasis added)
The preponderance of evidence in the case was that the employees were aware of the requirement to strap the granite before moving it using a forklift, there was constant verbal reinforcement of this requirement, and disciplinary action taken against employees who did not comply with this requirement. In the face of this evidence, the Court found:
I find on the totality of the evidence led by the prosecution that it has not discharged the onus of proving beyond reasonable doubt that there were one or more measures which the defendant may have reasonably practicably taken but did not take which would have eliminated or ameliorated the risk. [84]
I find that there were constant verbal directions to strap loaded “A” frame pallets before any movement. The responsibility for the incident lies not with the defendant but elsewhere. [85]
I therefore find the defendant not guilty. [86]
Comments
The findings in this case are in stark contrast to what we normally see. Here we have witnesses who clearly understand the safe procedures for doing the work, even though a documented procedure could not be produced. Normally, we are faced with a position with a documented procedure can be produced, but nobody recalls what is in the document, understands it or complies with it.
It is also important to recognise, irrespective of whether you have documented safety processes or not, employees will still be required to give evidence about their understanding of the work they do, the hazards associated with the work and how those hazards were controlled. Often, that evidence will include discussion about the way the work was “normally” performed, and what history tells us is the way work is normally performed is not consistent with documented procedures.
The argument by the prosecution that a written record should have been made of who had received the standard operating procedure is of course a very common approach to “evidencing” safety management. Indeed, obtaining the signature that a person has read a policy or completed training is sometimes more important than the content, quality and comprehension of the information itself. Most people involved in health and safety management would be able to point to examples where workers were required to sit down with a couple of folders full of documents, ostensibly read them and then sign off that they had “read and understood” all the relevant policies and procedures. This (potentially) mechanistic and bureaucratic approach to safety is not sufficient. At best, this approach is evidence a person has been provided with information.
This case reinforces that it is incumbent on an employer to show they have proper systems in place to manage the health and safety risks – whether documented or not - and the systems are implemented, understood, constantly applied and enforced.
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.