Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58
Keywords: Reasonably Practicable; Safe Work Method Statement; Drugs and alcohol in the workplace; on-the-job training
The Wollongong Glass case is an interesting decision, because similar to the S.D. Tillet case I looked at earlier in this series, it is an example of a company that was able to successfully defend a prosecution under workplace health and safety legislation, even though it did not have documented safe working procedures or other documented safety management processes.
The Case
In March 2013 at Wollongong Glass’ factory, Mr Johns was helping another employee, Mr Pham, lean sheets of glass stacked on an A-frame trolley forward so Mr Pham could remove one of the sheets stored behind them. The glass sheets weighed about 80kg each.
Mr Pham would lean the sheets towards Mr Johns, and Mr Johns would support them with his hands. When Mr Pham could access the required sheet, the plan was to attach a pinch grab and remove it to another A-frame trolley using an overhead crane. The weight of the glass sheets became too much for Mr Johns to support and they fell causing him fatal head injuries.
The prosecution particularised the relevant risk as:
the risk of glass sheets falling and crushing persons whilst those persons were attempting to remove one or more of the glass sheets stacked in an ‘A-frame’ trolley. [36]
The crush injury risk was relevant to Wollongong Glass because they used large glass sheets and cut them down to various sizes to create products including, window panes, glass doors, splashbacks and shower screens.
Mr Pham was the only witness to the incident, and the Court was satisfied that his evidence ought to be accepted. According to Mr Pham, prior to the incident he was using the crane to move glass sheets from one A-Frame trolley to another to access the glass sheet that he needed.
At the time, the crane Mr Pham was using was the only crane available on his side of the factory.
Mr Johns approached Mr Pham and asked if he could use a crane. Mr Pham told Mr Johns he would have to wait for five minutes, then:
The deceased said to Mr Pham, “No. I need it” referring to the crane. Mr Pham’s experience of the deceased was that “he was always in a rush”. The deceased said to Mr Pham, “I will give you a hand”. To which Mr Pham replied, “No”. The deceased then said (in Mr Pham’s words), “I give you a hand to hold your glass for you”. To which Mr Pham replied, “We need more people”. The deceased then said, “No, no, no we can do it. I’m okay I can do it”. Mr Pham replied, “You need more people” and called out “Ralph”, trying to get the attention of his supervisor, Mr Mastroianni. [49]
Mr Pham flipped over a glass sheet with his left hand away from the centre of the A-frame trolley and Mr Johns supported it. Mr Pham continued to flip glass sheets but was calling out “Ralph” trying to get the attention of his supervisor, because he knew he needed help due to the weight of the glass.
Mr Johns was holding four sheets of glass when he told Mr Pham the glass was too heavy, and the glass fell on him.
When Mr Pham was asked why he did not refuse the offer of assistance from the deceased, he said, “I’m not his supervisor, so I can’t stop him”. [56]
Relevantly, Mr Johns was under the influence of cannabis to the extent that, in the opinion of a consultant pharmacologist, his perceptions, judgement, decision making processes, vigilance, appreciation of dangers, concentration and reaction times were significantly impaired.
The Findings
Mr Pham gave evidence that:
He had never moved glass by leaning it against another person who was standing in front of the glass
He had never seen other employees do that.
Mr Pham said the reasons he initially said “no” to Mr Johns was because he knew what they were doing was unsafe, but said Mr Johns was impatient and he agreed to do what he wanted because he did not want to upset him.
The Court accepted Wollongong Glass had a system of work in place, but it was not a written system. Wollongong Glass implemented the system using verbal direction and on the job training, including a buddy system. The system was enforced by supervision.
The prosecution said the system of work was inadequate and described it as “informal”, “ad hoc”, and involving the exercise of a worker’s discretion, based on their experience, to determine how to move a piece of glass.
The Court found there was no evidence Wollongong Glass had departed from its usual practices to train Mr Johns, and there was no evidence that workers had to manually lift or handle heavy glass sheets, or that they did. The Court found Mr Pham understood the safe way to access glass sheets using a crane and was applying that system of work when Mr Johns approached him. Moreover:
None of the witness called had ever seen a worker at the factory attempt to do what the deceased did at the time of the incident, ie to support multiple glass sheets by hand whilst standing in the fall zone. Each of the supervisors gave evidence that they would have intervened to stop such conduct because it was unsafe. [104]
The court also found that Mr Pham was not acting within the scope of his employment, what he did was unsafe and exposed Mr Johns to a "very grave risk". The court said Mr Pham’s actions were contrary to his training and experience, inconsistent the duty imposed on him by health and safety legislation and the express terms of his employment.
The prosecution argued that several steps were reasonably practicable because Wollongong Glass adopted them in a Safe Work Method Statement after the accident. The Court rejected this position for the following reasons.
First, a Safe Work Method statement is only required “high risk construction work” and did not apply to the relevant work.
Second, a person is competent under the legislation if they have acquired the knowledge and skills to carry out a task through training, qualification or experience. This did not require a Safe Work Method Statement.
Third, whilst a Safe Work Method Statement may provide evidence of a safe work procedure, it does not follow that workers have been trained on the Safe Work Method Statement or will comply with it. The Court noted:
Both Mr Pham and Mr Heaton were considered to be good workers. Neither of them could read the SWMS that was adopted on 14 March 2013. [98]
Finally, Wollongong Glass trained the workers by oral instruction and on the job training in and those matters were enforced by adequate supervision.
Ultimately, the Court found:
I am satisfied on the evidence that workers did not stand in the fall zone when lifting or handling large and/or heavy glass sheets because they were instructed not to.
It was not reasonably practicable to prohibit the workers from attempting to support multiple glass sheets by hand, because it was not a practice adopted in the factory, it was contrary to the instructions given to the workers by the defendant and thereby it was not reasonably foreseeable. The precise mechanism of the incident occurred by reason of the deceased acting irrationally and by both the deceased and Mr Pham acting against instructions and with a significant disregard for safety. That set of circumstances was also not reasonably foreseeable. [108 – 109]
Comments
It is important to note, the fact that Mr Johns was under the influence of cannabis is not a defence per se. If Wollongong Glass had not been able to satisfy the Court they had a safe system of work based on instructions and supervision, Mr Johns’ impairment would have been irrelevant. For example, if the witnesses had given evidence that it was common practice for workers to manually handle heavy sheets of glass and support them, rather than use the crane, the fact that Mr Johns was under the influence of cannabis would not have been a defence.
Like the S.D. Tillet case, Wollongong Glass demonstrates safety management systems do not have to be documented to be effective. What is important is workers are able to give consistent, credible evidence that they understand the hazards associated with their work and how they are supposed to manage those hazards. There also needs to be credible evidence to convince the Court that prior to any accident, work was normally done safely, and in accordance with the agreed procedures. Those same principles apply to documented systems, except in the case of documented systems the prosecution can point to the documentation as evidence of what should have been in place.
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.