On 2 February 2021, the defendant company entered a guilty plea and was sentenced in the Maroochydore Magistrates Court for breaching section 32 of the Work Health and Safety Act 2011 (the ‘Act’), having failed to meet its duty under section 21 of the Act to ensure plant at a workplace, over which it had management and control, was without risks to the health and safety of any person.
The defendant company conducted a business which included the manufacture of metal products, such as flashing and roof sheeting. The business also included the delivery of products to customers at various addresses. The defendant leased two trucks, each with a vehicle loading crane mounted behind the cabin of the truck, from an associated company. One of those trucks was referred to as the ‘rack truck’ (the ‘truck’). The defendant was responsible for maintenance of the truck.
The crane attached to the truck was fitted with two stabilising legs or outriggers, one on each side of the truck. Each outrigger was designed to readily slide outwards and retract. There were two locking mechanisms fitted to each outrigger, which served to secure the outrigger in the retracted ‘transport position’ and prevent it from extending. The primary mechanism was a spring loaded handle which, when manually engaged, would hold the retracted outrigger in place.The secondary mechanism comprised a hooked latch which was designed to automatically clip over a U-shaped bar once the outrigger was in the transport position and was designed to prevent the outrigger from sliding outwards if the primary mechanism failed or was not engaged.
On 5 February 2018, a truck driver employed by the defendant company, was driving the truck through a housing estate, when the passenger side outrigger on the crane became extended causing it to strike a van parked on the street, pushing it backwards. A member of the public had been standing behind the van, with the collision causing him to become dragged beneath the van and sustain fatal injuries.
It was concluded by investigators that the driver had failed to engage the primary locking mechanism on the passenger side outrigger before commencing his journey out of the estate. The secondary locking mechanism on the passenger side outrigger was bent and worn. Testing showed that this mechanism would not, on its own, provide adequate and reliable restraint of the outrigger, in the absence of an engaged primary locking mechanism. The investigation could not determine whether the passenger side outrigger became extended as a result of a failure of the secondary locking mechanism to restrain the outrigger or through a failure by the driver to properly retract the outrigger in the transport position.
At the time of the incident, the crane was well overdue for its 10 year major inspection required by the Australian Standards and the manufacturer’s recommendations, with the inspection being outstanding since approximately July 2016. The defendant did not have a maintenance plan or schedule in place to ensure that periodic inspections and maintenance were conducted when required.
The defendant was aware of the need for a 10 year inspection, having received a quotation of the cost of such an inspection for its other truck-mounted crane. Had the crane received a 10 year major inspection and service this would have, amongst other things, included an inspection of the primary and secondary locking mechanisms to ensure they operated effectively and identified the availability and recommended course of fitting a warning device in the vehicle cab to indicate when an outrigger was not in the transport position.
In sentencing the defendant, Magistrate Sternqvist observed the defendant company was responsible for maintenance of the crane, with the truck and crane being used regularly in its business. His Honour referred to the aggravating circumstances of the case, namely that the defendant had no system in place to ensure the trucks it utilised as part of its daily business operations were properly maintained, the truck was being driven on public roads thus exposing unsuspecting members of the public to risk, and the defendant was alert to the need to conduct a 10 year inspection for its other crane truck, yet had not made enquiries to obtain a quote for a 10 year inspection of the subject truck.
While observing the comments made by her Honour Judge Fantin in Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd  QDC 20 regarding ex post facto measures, his Honour had regard to the post-incident improvements made by the defendant company, including the purchase of new cranes and the commencement of an ongoing service contract with a specialist crane company to inspect and maintain the cranes.
His Honour identified the defendant’s capacity to pay a fine as a relevant consideration in arriving at the appropriate sentence. His Honour took into account the defendant’s lack of previous convictions, cooperation with the investigation and guilty plea, which was noted to be a timely plea.
In determining not to record a conviction, his Honour had regard to the defendant’s lack of previous convictions and the comparative sentences to which the Court was referred.
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Sections 21 and 32 Work Health and Safety Act 2011