Category: Duty of Care

River death leads to OHS prosecution

The prosecution of a New Zealand adventure company, Black Sheep Adventures, over the death of Englishwoman Emily Jordan has received more press in England than in Australia but the case should be watched by all OHS professionals.

One report provides a useful summary of the fatal incident

“Emily Jordan drowned while riverboarding on the Kawarau river in New Zealand’s south island in April last year [2008].

The 21-year-old former Alice Ottley School (now RGSAO) pupil was travelling with her boyfriend after graduating from Swansea University with a first class degree in law.

The riverboarding company Black Sheep Adventures Ltd and its director Brad McLeod have been charged with failing to ensure the actions or inaction of employees did not harm Miss Jordan.”

The same article is an illustration of the importance of regular communication with the family of the deceased by the Authorities, even if the parties are on opposite sides of the globe.

The family established The Emily Jordan Foundation and a eulogy about Emily is available which provides a clearer understanding of what was lost in this tragedy.

Black Sheep Adventures have also been charged under the Health and Safety Employment Act 1992, with failing “failure to take all practical steps to ensure the safety of employees and the prevention of possible hazards.”  The company and its director have pleaded not guilty.

The Birmingham Post is continuing to cover the case including the start of the trial due for next week.

Maritime New Zealand who are prosecuting the company instigated a review of the river boarding industry in late 2008.

Kevin Jones

Vehicles are workplaces too

Radical Concept 1 – A vehicle can be workplace

Today the Australasian New Car Assessment Program (ANCAP) urged fleet managers to consider OHS obligations in their choice 0f work vehicles.  ANCAP said

“Our understanding of the OH&S principles is that there is an obligation on companies and fleet managers to ensure a safe workplace.

“Vans certainly constitute a workplace under the legal definition. We would urge fleet purchasers to examine the legislation and then factor safety into their fleet purchasing policies.”

But in practice this creates enormous challenges for the fleet manager who may only have chosen vehicles in the past that were fit-for-purpose without considering the needs of the driver.

Only recently have steps been added to trucks to allow for easier access to goods on the rear trays.  When technology became affordable tilt-down hydraulic ramps were installed, although these have their own work hazards. In both of these examples the changes occurred outside the cabin and related to accessing the transportable products.  Looking after the physical and psychological needs of the driver as a worker is different.

For instance, emergency fire appliances in Australia have had substantially improved design over the last ten years.  Many of the features are for the benefit of drivers and passengers, such as flip-out steps  for when the vehicle is stationary or special seating to allow for personal protective clothing.  But the cost of each of these new “safer” vehicles is such that the introduction is phased in and most likely as replacement vehicles.  This process could take years.  How can a workplace justify allowing only some workers to use “safer” workplaces?  The churn of vehicles could establish an inequitable safety standard ion the workplace.

ANCAP’s argument seem to be that a fleet manager who chooses a vehicle that does not have the  highest level of safety available are not providing a safe workplace.  We could be back to determining what is reasonably practicable.

Radical Concept 2 – A road can be considered a workplace.

Some bus drivers consider their regular route to be a workplace.  To some extent this is supported by the road traffic authorities who only allow certain speed control mechanisms on the roads that have bus traffic, such as speed islands rather than speed humps.  Although this may be due to the needs of not knocking the passengers around as well.

Regardless of the whether it is passenger safety, pedestrian safety or public liability insurance that creates these design decisions, bus drivers take some “ownership” of their routes.

Important Consideration 1 – Vehicles have drivers

A lot of attention has been given to driver distraction and how drivers drive.  Not only are there distractions from within the cabins from passengers, radios, phones, cigarette smoking and a range of driving activities, the relationship between external signage and driver response has also been high.

The complexity of the distraction issue can perhaps be summarized by a couple of recent links. In July 2009 a roadside memorial to a fatality itself is identified as having contributed to a fatality.  Research in the United States has begun on the impact of roadside memorials but at the moment the jury is out.

“Our results showed that the number of red light violations was reduced by 16.7% in the 6 weeks after the installation of the mock memorials compared to the 6 weeks before whereas the number of violations at two comparison sites experienced an increase of 16.8%.”

Managers, fleet and OHS, also need to assess the suitability of their workers for driving and consider the following matters.

  • Companies have an obligation to induct new workers.  Do companies induct new drivers on their vehicles or is a valid driver’s licence deemed sufficient?
  • Is a driving licence a certificate of competence?
  • Is a worker’s driving record considered when employing them?  Would one employ a driver whose record shows a propensity for speeding?
  • Are driving applicants asked whether there is a history of road rage?
  • How many demerit points are left on their licence when employed?
  • For car driving the same licence is used for personal vehicle use and driving work vehicles.  What would happen if the worker has their driver’s licence suspended thereby ending their capacity to drive for work?
  • It would be necessary to clarify in what circumstance transport accident insurance applies and when injuries relate to workers’ compensation?
  • Who should investigate a traffic incident involving work vehicles – the OHS regulator, police or some other authority?
  • Are traffic incident statistics collected for work-related vehicles?

Perhaps ANCAP could begin looking not only at the design of vehicles and additional safety features but also how these matters affect a driver’s perception of their own safety.  Does the elevation of the driver compared to other vehicles change the way the driver drives?  Could the safety features encourage the driver to drive recklessly?  Is technology deadening the driver’s instincts?

Similar questions have been posed in the occupational field for decades in relation to the operation of plant, the safe design of workplaces and the types and locations of safety signage.  Now these concepts must be considered for the mobile workplace.  Many will find this process challenging with some thinking that it is just another grab by the OHS “fascists”.

The issues do need considerable discussion in workplaces.  The recent WorkSafe Victoria “Guide to safe work related driving” is a good starting point but for the development of appropriate policies and, more importantly, to affect cultural change on the matter, companies require an elaboration by traffic authorities and from groups like ANCAP.

Kevin Jones

Three OHS case studies

The South Australian Industrial Court made three decisions in late July 2009 that are useful cases to look at in order to promote improved health and safety practices but also, in one particular case, to note the approval and endorsement of the judge in the post-incident actions of the employer.

As the SafeWork SA media notice states

“All received 25 per cent discounts from their fines in recognition of their guilty pleas, cooperation, contrition and remedial action to improve their safety systems.”

Case 1

“Bluebird Rail Operations Pty Ltd was fined $30,000 over an incident at its Kilburn workshop in March 2007.  A worker’s arm was crushed beneath a 1,500 kilogram sidewall, which broke loose when a lifting lug failed as it was being lifted to a rail freight wagon under construction.

The court heard that SafeWork SA’s investigation revealed deficiencies in the equipment used, the work processes and the communication channels.

While the worker suffered permanent and debilitating injuries, his employer provided ongoing support including education and training. The employee returned to work after several months and has been promoted within the organisation.”

This case reports a surprisingly short rehabilitation period for a crushed arm.  The words of Magistrate Lieschke should be of considerable note to those OHS professionals who want their clients and companies to go beyond compliance.

“I accept that Bluebird Rail facilitated Mr Sewell’s return to work, in accordance with its legal obligations to provide vocational rehabilitation.  I accept that Bluebird Rail has gone beyond its minimum legal obligations and has provided further re-education support to Mr Sewell, sufficient for him to complete a Diploma in Project Management and for him to now be studying an engineering degree at university. The degree course is being funded by Bluebird Rail.  That is commendable support. Mr Sewell has been promoted and is now working as an assistant project manager.”

Case 2

“International Tastes Pty Ltd was fined $20,250 today after an incident in which an employee had his arm caught in the rotating blades of a pasta-making machine at the company’s Glynde premises in January 2007.

The court was told that the employee was taught to operate the machine with the safety guard open, the interlock switch which would have stopped the machine from operating in such cases was not working, and no safety checks or procedures were in place for either the machine or the tasks involved with its use.

The 24 year old victim suffered fractures, lacerations and nerve damage resulting in a number of operations and considerable pain and suffering.  He has since returned to work interstate with a related company.”

Safety professionals constantly argue for interlocks that cannot be bypassed.  This case shows that the relatively young worker suffered considerably from the incident and has moved interstate to continue with his career.

The judgement raises issues of deep concern to OHS professionals in relation to the level of supervision and induction required for workers and the perennial issue of machine guarding.  The judgement reports the circumstances of the incident:

“On 23 January 2007 [Mr B] suffered serious right arm injuries while operating a pasta making machine in accordance with a method he had recently been taught.  He had received on the job training only and was not given the benefit of any written work procedures.  He had been taught to work in close proximity to unguarded rotating blades.

While using a two litre plastic container to collect pasta mix from the machine the container came into contact with the exposed rotating blades of the adjacent mixing bowl, which in turn dragged his right arm into the blades.”

Case 3

“Central Glass Pty Ltd was fined $9,375 having been prosecuted over an incident in February 2007 at its Salisbury factory, where it makes aluminium window components.

Two workers were manually lifting a slippery steel die weighing 95 kilograms to place it in a press.  In doing so, the die slipped crushing the fingertip of one worker and narrowly missing their feet as it fell to the ground from about waist height.

SafeWork SA told the court there were no safety procedures for the task and the injury could have been averted through the use of mechanical lifting gear, which was later purchased.”

This case can relate to the concept that existed for some time in Australia of a “safe lifting weight”.  This concept has been shown to be a myth as it focuses on only one part of the work process and assumes that the particular lift is outside the other lifting actions that a worker may have been performing previously. It also assumes that everyone has a similar lifting capacity.

The judgement of this case provides more detail

“On 16 February 2007 Central Glass Pty Ltd unnecessarily exposed its employee [Mr R] to a risk of serious injury at work.

With the help of another worker [Mr R]was required to manually lift an oily 95kg steel die from ground level and place it in a close fitting slot in a press at about waist height.  While doing so the die slipped and crushed one of [Mr R’s]fingers.  The die then fell to the ground narrowly missing the feet of [Mr R]and of his colleague. [Mr R] suffered a crush injury to the tip of his left middle finger.

Central Glass had not previously carried out any hazard identification and risk assessment process in relation to changing and fitting dies.  It did not have any safe work procedure for this task and did not provide adequate safety control measures such as mechanical lifting assistance.”

Kevin Jones

Peanut allergy fatality saga to continue

Safety management in the education sector seems to be one of the hardest management challenges.  There are overlapping safety obligations through OHS legislation, education department guidelines, public health matters and meeting the demands of parents and students.

700 Peanuts - Federal Court coverA decision in the Federal Court of Australia on 30 June 2009 illustrates the challenges.

A 13 year old boy from Scotch College, in Melbourne, Nathan Francis, died after eating from a ration pack of beef satay on a Defence Forces camp.  The school, which was supervising the camp, were aware of the boy’s severe allergy to peanuts.

The Australian Department of Defence was fined over $A200,000.

The full judgement of the court raises several  issues that are relevant to the management of safety of people in one’s care.  The judge has recommended a State coronial inquest to determine the roles and responsibilities of Scotch College in Nathan’s death.

Justice for Nathan and his family is likely to have many more months to go. [ SafetyAtWorkBlog will follow the issue.]

A fantastic audio report on the decision is available at the ABC website. The payment of the fine back to the government is not dealt with in this blog.

The first section of the judgement (below) indicates what the judge believes are the failures that need to be addressed through an appropriate safety process:

  • Communication;
  • Instruction;
  • Provision of appropriate supplies;
  • The importance of labelling; and
  • Following procedures and guidelines

Some readers may find that this prosecution could make an interesting case study for safety management.

Kevin Jones

Justice North found that the Federal OHS Act was breached by the Commonwealth government through the Chief of Army.  The respondent

(a) supplied Cadet Nathan Fazal Francis, Cadet Nivae Anandaganeshan and Cadet Gene van den Broek with one-man combat ration packs (CRP’s) containing a satay beef food pouch which contained peanuts or peanut protein for their consumption despite having been informed that the said cadets were allergic to peanuts;
and, in so doing, it failed to:

(b) warn parents of the [Australian Army Cadets] AAC cadets about the contents of the CRP’s;

(c) warn AAC cadets about the contents of CRP’s;

(d) warn AAC cadets with pre-existing food allergies of the contents of CRP’s;

(e) make appropriate use of information provided by AAC cadets and parents of AAC cadets regarding pre-existing or known allergic conditions and correlate that information with the potential risk of being exposed to allergies through the supply of food contained in CRP’s;

(f) ensure that the contents of CRP’s allocated to AAC cadets did not include food products or allergens that may have triggered allergic responses by removing or requiring the removal of peanut-based food products from CRP’s;

(g) prevent distribution or provision of peanut-based food products to AAC cadets with pre-existing allergic reactions by:

i. inspecting the contents of CRP’s to be allocated to those individual AAC cadets who had given notice of allergic conditions;

ii. isolating cadets with pre-existing medical conditions and/or notified food allergies at the time of distribution of CRP’s and issuing them with CRP’s that did not contain peanut products or other food allergens;

iii. removing all CRP’s known to contain peanut protein or other food allergens from circulation amongst AAC cadets;

iv. requiring all AAC cadets with notified allergic conditions to provide their own food supplies;

(h) issue any or any adequate instructions or provide adequate supervision regarding distribution of CRP’s;

(i) issue any adequate instructions or provide adequate supervision regarding consumption of contents of CRP’s;

(j) prevent the consumption of CRP’s containing food allergens by AAC cadets with food allergies;

(k) distribute CRP’s after consulting or considering pre-existing medical conditions; and

(l) take into consideration the findings of a report dated 22 November 1996 by the Australian National Audit Office entitled ‘Management of Food Provisioning in the Australian Defence Force’.

Latest guidance on working alone

Western Australia’s WorkSafe has just released its latest guidance on working alone and it is the most practical look at the hazard from any OHS regulator in Australia.Working_alone cover

Importantly, it differentiates between “alone” and “remote”.  In 1995, when the Victorian First Aid Code of Practice raised the issue of isolation, there was considerable confusion.  How can someone in the metropolitan area be isolated or remote?

  • Undertaking an assessment of first aid needs of a multi-storey building which has cleaners or nightshift working at 2am.
  • Working alone in a petrol station in an outer suburb.
  • (Sadly) showing a potential client a new property in a new real estate development on the fringes of the city.
  • Security guard walking the perimeter of an industrial site
  • Delivering pizzas at 3am
  • Home visits from medical specialists

The WA definition of “alone” is very useful and needs to be kept front-of-mind in OHS policy and procedure production.  It could be used in the review process of existing policies and prores to ensure their applicability.

“A person is alone at work when they are on their own, when they cannot be seen or heard by another person, and when they cannot expect a visit from another worker or member of the public for some time.”

The working alone guidance identifies four industry types that require special support for working alone:

  • Agriculture
  • Pastoral
  • Forestry
  • Mining

Although SafetyAtWorkBlog advocates low-tech control options as much as possible (usually because of increased reliability) thankfully this guidance discusses mobile phones, satellite communications, GPS locators and other communications devices.

Kevin Jones

OHS crime alert

Media -0x1.8b5ce0p-63lert- 52392336nal[1] - crimeIn late June 2009, WorkSafe Victoria tried a new approach to raising the awareness of the criminal status of OHS breaches through producing a formatted media alert and placing an ad in the daily newspapers.

It is unclear how else the “flyer” will be distributed other than through the WorkSafe website.  Indications are that a hard copy of the alert for distribution through WorkSafe offices is not planned.

The ad, pictured right, refers to the prosecution of Rapid Roller over the second serious lathe incident at that workplace in 12 months, the most recent resulting in a death.

Kevin Jones

Trained first aiders in “low risk” microbusinesses

WorkSafe contacted me today concerning some issues raised in a previous post concerning their first aid information. Some small tweaks have been made to that post but one point required elaboration.  There is some dispute over whether low risk micro businesses require a trained first aider.   Below is my position.

FIRST AID NEEDS ASSESSMENT

The First Aid Compliance Code discusses a first aid needs assessment.   In our experience of assessing scores of workplaces, large and small, for first aid needs (including over 28 McDonald’s restaurants but that’s another story), we are convinced that a workplace that relies on others to provide an acceptable level of emergency first aid response would expose the employer to avoidable legal issues.   Unless, of course, one relies on “as far as is reasonably practicable” after someone may have been seriously injured or died on your premises.  It is doubtful that the relatives of the deceased would be so forgiving.  (Consider the actions of concerned relatives following the Kerang court case decision.)

Ask yourself, is it better to have a trained first aider on site just in case, or rely on an ambulance being readily available and render no assistance?

Time is crucial in an emergency, with the risk of a person’s condition becoming more serious the longer treatment is delayed.  Emergency ambulances, even in metropolitan areas, can be delayed and, in an emergency, waiting with an unconscious and/or non-breathing person will seem an eternity.  Any delay in rendering appropriate first aid treatment will complicate proving that an appropriate duty of care was applied in the circumstance.

The Australian Resuscitation Council has made its guidelines available online. For those interested in establishing an appropriate level of first aid response for their workplaces, the guidelines are recommended to read.  But more importantly is the need to have suitably trained first aiders on site, particularly after an assessment of the workplace’s  first aid needs has been conducted.  A first aid kit is next to useless if CPR is required.

Of course, the need for first aid is minimised if all the other OHS matters are dealt with first in an orderly safety management system.

Kevin Jones

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