Hillman v Ferro Con (SA) Pty Ltd (in liquidation) and Anor [2013] SAIRC 22
Keywords: Reasonably Practicable; Control; Contractor Safety Management; tick and flick
The Ferro Con case caused much consternation amongst the health and safety industry primarily because of issues associated with insurance. In the case both the company, Ferro Con and the sole director of the company were prosecuted following a workplace fatality. While both the company and the director were convicted, the consequences of the conviction were largely meaningless because of their insurance arrangements:
In my opinion Mr Maione and Ferro Con have taken positive steps to avoid having to accept most of the legal consequences of their criminal conduct as determined by the course of justice. This has occurred through Mr Maione successfully calling on an insurer to pay his fine. [78]
While this was an important aspect of the case, and an equally important issue of public policy, there were several other important principles arising from the case which health and safety managers should consider.
The Case
During the construction of the Adelaide Desalination Water Plant, Ferro Con was using a crane to install a 1.8 tonne 14m long steel monorail beam to the rafters of a partially built building.
No risk assessment or job safety analysis had been done for the lift, and no safe working procedure had been put in place to consider the specific hazards of the task. During the work, one of the riggers, Mr Fritsch had to pull down heavily on a tag line to try and lower the tilted beam’s high end to a level position, so it could then be bolted to a rafter. To do this, Fritsch had to stand under the beam, contrary to a general instruction to not stand under a load.
While Fritsch was trying to move the beam into position, the fabric sling supporting the beam snapped, and the end of the beam dropped directly onto his head, and he died shortly after.
The other rigger, Mr Fowler, was standing on an Elevated Work Platform at the time. His machine was struck by the falling beam, but he was able to ride the fall until he could jump clear onto nearby scaffolding.
Both Ferro Con and its director pleaded guilty to charges under health and safety legislation, and the case was discussed in some detail during sentencing. At the time of the sentencing hearing, Ferro Con was in liquidation.
The Findings
During the sentencing decision, the Court made several interesting observations about the nature of Ferro Con’s safety management processes and planning, and about some of the mitigating factors offered by Ferro Con in their defence. The mitigating factors are particularly interesting, because they represent arguments companies often make when incidents happen, or as excuses not to comply with their own systems. However, before looking at those mitigating factors, what did Court have to say about the systems of work?
The observations of the Court make it clear that the safety management systems were not appropriate to the work being performed, and in any event, there was very little relationship between the documented safety management systems and the way work was done.
The Court was very critical of the general nature of the safety documents, and the lack of specific planning or management for the actual task being performed. Ferro Con did not prepare any site-specific or job specific safety analysis or safe working procedures. An existing, general JSA for all types of steel correction failed to address the issues and conditions present on different jobs.
So, while these processes were not appropriate to the work, the processes themselves were not given the respect they required:
At the day’s pre-start toolbox meeting each employee was required to sign a “cover sheet” to the general JSA to acknowledge they were aware of it. Each employee was also required to sign a general safety awareness document called a START card. This is an acronym for Stop, Think, Assess, Review and Talk. Whilst the START cards had space for specific hazard control measures to be added, nothing was noted about this lifting job. As described by the prosecutor, the signings were primarily treated by both Ferro Con and the employees as a ‘tick and flick’ exercise. [15] (my emphasis added)
Another observation of the court, which I think may have contributed to the perception of “tick and flick”, was the content of a JSA prepared for general structural steel correction:
The JSA itself rated each of 15 identified hazards as ‘M’ for medium risk even though it identified potential risks of fatalities from falling loads. Mr Bleby suggested it was mere coincidence that each and every risk was rated the same, and each and every control measure was also given an identical rating. [41] (my emphasis added)
Whatever the failings in the general approach to the planning for the work, Ferro Con should have ensured, at a minimum, complied with the processes it did have:
Ferro Con’s fourth failing was to not ensure that the lift complied with its own general job safety analysis for structural steel erection, and in particular a written requirement that riggers were not to stand under a load. … The rule in the JSA was wholly disconnected from the way the job was planned and directed. [51] (my emphasis added)
This is an issue that I encounter in every matter I am involved in. The quality of documentation used by frontline workers, and in particular the quality of the risk assessment, it is very difficult to defend objectively. They are nearly always poorly written, poorly constructed and the risk assessments are either inconsistent or otherwise do not make sense. In these circumstances it is very difficult to try and argue these documents “mattered”, when objectively it appears people were only paying lip service to them. As the Court observed:
a cover sheet to the structural steel erection JSA was signed daily, largely as a perfunctory exercise to fulfil Adelaide Aqua’s requirements. [43]
The observation by the Court about filling Adelaide Aqua’s requirements is an important one. In my experience, contractors often develop safety management systems to meet the requirements of the contract, but those safety management systems do not inform the way work is performed and are only designed to win work. This clearly seems to have occurred in this case:
No detailed JSA’s for different types of lifts, or lift plans, were required by Adelaide Aqua. Ferro Con took its cue for the level of safety planning it would use in its work from Adelaide Aqua, and not from the foreseeable hazards of its work activities. Ferro Con was more focussed on complying with contractual requirements than taking all reasonably practicable steps to minimise the foreseeable hazards its business created. [44] (my emphasis added)
In stating its case, Ferro Con argued several points which they said mitigated the seriousness of the offence.
First, Ferro Con submitted it was difficult to coordinate access to the site and control its immediate work area. They said the site was congested by other contractors due to the project running behind schedule and there was also significant production pressure from Adelaide Aqua. The Court said these were not mitigating factors, and if anything requires more attention by Ferro Con:
In my opinion, rather than any of these factors being a mitigating circumstance they represented additional potential hazards that should have alerted Ferro Con and Mr Maione to the need for extra care in planning the work. [58]
Ferro Con also argued not practical for them to create a specific JSA for each different type of lift, because they needed approval from Adelaide Aqua which may have delayed the process, impacted contractual milestones and had possible adverse financial consequences. The Court observed that this did not explain why the existing JSA was not followed, but in any event rejected the submission saying there was no evidence that Adelaide Aqua had control over Ferro Con’s internal safety procedures. Moreover:
But if there were delays in getting on with production due to Adelaide Aqua wanting to consider detailed JSA’s, then so be it. Some delay could not have amounted to reasonable impracticability, even if there was some additional cost to Ferro Con. To not comply with serious safety obligations regarding dangerous work because there may be a delay in proceeding, and even with a financial penalty, would be to breach the Act. [60]
Finally, Ferro Con argued it was “unfortunate” their senior supervisory employee was not watching the lift immediately before the incident. The Court said the implication of this argument was that if you had it been watching, he would likely have stopped the work. The court identify that this was speculation are not consistent with other circumstances. The Court said the supervisor was present when the beam was slung and during an earlier failed attempt to lower it into the structure with riggers pulling down on the beam. He was present when the beam was first raised inside the structure and tilted and did not seem to have noticed the position of large EWP is under the load. Tellingly, the Court also observed:
Furthermore if the supervisor’s role was so crucial to the jobs safety he should have been required to watch the whole job. [61]
Comments
The Ferro Con case provides a snapshot of a mechanistic, bureaucratic approach to safety where form takes priority over substance. The impression the case creates is a safety management system designed wholly to win work and meet contractual requirements, completely disconnected from the day-to-day hazards and working environment. Hazard identification and work planning appears to have been paid only lip service, with all parties seemingly comfortable to accept “perfunctory” paperwork as evidence hazards were well managed.
In my experience the mechanistic, bureaucratic or “tick and flick” approach to health and safety management exists in all organisations to a greater or lesser degree. While the Ferro Con case is a very stark example of the phenomena, it should act as a strong prompt to all organisations whether as an employer, principal or a contractor, to revisit what is done in the name of health and safety and challenge whether those processes are effective in terms of their purpose – are they making a meaningful contribution to ensuring that workplace hazards are managed as well as they can be?
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about the principles of legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.