Andrew Douglas: I’ve made that a bit longer than normal, haven’t I? The main topic. But I guess, yeah, I really did want to say we forget. You know, when we talk about fatigue, we think it’s limited to interstate drivers and people like that, and there’s a whole lot of different jurisdictions that sit around that which are being arranged. And we think that’s really the only fatigue issue that we’ve got.
Now, the case I think we’ve got here is a delivery driver, so not subject to that legislation at all, just subject to safety law. And had been working 12 hours?
Kim McLagan: He was 12 hours into his shift.
Andrew Douglas: Yep.
Kim McLagan: And he drifted into the path of an oncoming truck.
Andrew Douglas: Yep.
Kim McLagan: Yeah. And the company have been charged with breaches under section 21 and 23.
Andrew Douglas: And there’s a single director, isn’t there, as well?
Kim McLagan: Director’s been charged with reckless endangerment.
Andrew Douglas: Yeah, so-
Kim McLagan: And on the basis there were inadequate rest breaks. He wasn’t trained properly, he wasn’t given adequate time out of his truck, and that all led to-
Kim McLagan: Do you know, it’s so easy. I was driving in from Mornington Peninsula after getting up at five for work. And I was struggling, I was on the Monash and I was tired. So I took a rest break with a bottle of Coke that actually worked really well for me, ’cause I understand interstate truck drivers use drugs. So I thought, I’ll use the nearest thing I can get this legal, and it’s Coke. And I sat there for 15 minutes and the caffeine roared into my veins and I was wide awake, but I guess my point of telling that story is it affects us all.
Now, part of the reason that I’m tired is not just that I got up at five o’clock in the morning, but there was some urgent work I had to get out and I got to sleep and woke up at one and thought, “I’ve just got to get this done.” Did it, went back to sleep, but I had broken sleep. I don’t need a lot of sleep to function, but when I have broken sleep, it does me in.
All of us have days like that. All of us who’ve got young kids have times where we’re up half the night with a sick kid or a crying kid or what. So a lot of our lives are disrupted. What this case says absolutely, particularly for officers, is where fatigue could be an issue with one of your high risk jobs that you’re doing, like mobile plant for instance, like heavy plant equipment, like traffic management, like all the really high risk things.
Do you deal with it at all? And the answer is as I look through our clients’ portfolios of policies and procedures, the answer is no.
Do I have a method of checking it? No, and yet, what’s the obvious method of checking whether someone’s tired? It’s actually making sure as they clock on or as they come through to work, you have a chat with them. And fatigue is very obvious on someone’s face. It’s not something which is easy to hide. You know, makeup doesn’t fix it.
So to not have a checking mechanism when you have a high risk activity where you know fatigue is a high risk, is likely to retract prosecution is my point. So this wasn’t international truck driver, this was a delivery driver.
Kim McLagan: Yeah.
Andrew Douglas: It could have been a salesman in the car, it could have been a person on a forklift working in a warehouse. It makes no difference because the principles are the same.
So that’s sort of why we did it, wasn’t it really, to agitate, and say what does it mean? And, you know, one of the things you’d think about, we do some fatigue management here because there’s times when we have a lot going on and we’ll see a young staff member starting to wilt, we send them home.
Kim McLagan: Yeah.
Andrew Douglas: You know, make sure that they’re getting in taxis or getting in trams or getting there safely. We’re aware of it as a professional service business, which means if we can be aware of it, I guess is what I’m saying, where we don’t have dangerous plant equipment, we just have me as a major risk in the base; then in more dangerous environments like agriculture, like manufacturing, like roadworks, like delivery drivers, you’ve got to do something about it, don’t you?
You’ve got to ensure that people are having their breaks and if that’s in factory, you make sure people don’t work through the whole shift, which sometimes happens. So that’s the reason, and we go and push this a little bit further, so why don’t we go onto our case study?
Kim McLagan: Okay, do you want to talk about the other cases?
Andrew Douglas: Oh, is there another case?
Kim McLagan: There was.
Andrew Douglas: What’s the other case?
Kim McLagan: We’ve got a slide for that. I just seeKim McLagan: Yes. A bus had broken down and two mechanics had been sent off by the bus company to fix it. And one of them, as he went off the bus, a driver came past, so a different situation. But they’d been affected by prescription medication, Valium, and had driven over the line.
Andrew Douglas: Can I just say this? There’s another touch to this which shows that it was an issue that they, they’d agitated and fought about, ’cause the two people knew they had to remove the bus from the highway where it was up into a ramp to do it.
Kim McLagan: Yeah.
Andrew Douglas: So the issue of the risk that sat around was a known risk, okay. And yet, what happened is after they’d fixed it, they got out and when they got out, they got knocked over by somebody who was on prescription drugs.
Kim McLagan: Yeah, yeah.
Andrew Douglas: My point about, this is a really great case ’cause this is true traffic management. We think traffic management is on site. Traffic management is wherever there is traffic.
Kim McLagan: Yeah.
Andrew Douglas: And having people wandering around on highways where we know people use drugs, where we know people use alcohol ’cause the police pick them up every day.
So remember for officers, do I know there is a risk that exists? Absolutely I know there is. So you’re on risk primary duty. 144, you know, in Victoria, 27 elsewhere, you’re on risk.
As a company, it’s a was there. Is there a hazard? Yeah, there’s a road with cars on it. Is there a level of risk? Well, there are certain hazards which are incredibly high level of risk. Are they on the road? Yes. What are the controls? I don’t have any. I’ll let them walk out, yeah.
And this is another interesting part of this case is that there was some consideration of policies and procedures, but there was a gap in the policies and procedures that, you know I’m not the greatest fan of policies and procedures all the time.
But this is an example of what happens when you have inadequate ones, so you have them, but they’re not good enough. Then the prosecution go to the gap and say, “Aha, look.” What happens if you do have them, they are adequate and you don’t follow them? The prosecution goes and goes, “Aha, this is what is reasonably practical and you didn’t follow it.” And that’s why safety law is emerging out into critical risk management and looking at the four or five things you must do based on the critical risks so that you don’t end up creating this backbone of liability which nobody uses in policies and procedures, but people are always competent doing high risk activity.
I just want you to know, when courts look at incidents like this, what they do is they go, was there a hazard that was known to you? Yes, tick.
What was the level of risk? Even without a drunk driver, okay, somebody who swerves to avoid stone on a road or whatever. High risk, really high risk. Highway, people are moving quickly. What’s the control? Don’t let anyone walk on the highway.
And remember, these are not safety people. These are judges, these are common law judges mostly who are dealing with stuff who think of negligence, they go, but if you go on the road in high hazard, high risk, the level of control on the hierarchy of control has to be to exclude the possibility of being struck, so you’re not allowed on the highway.
They’re right, but that’s how a judge looks at it. It doesn’t look, well, if you stand there and you’re on a walkie-talkie and say it’s safe to go in there, judges are not interested in any of that crap at all. They’re just interested in going hazard, risk, control. Okay, breach to the standard of care, so it’s not a safe working environment. Gone.
Kim McLagan: Yeah.
Andrew Douglas: Good case, yeah, really good case. You ready for it now?
Kim McLagan: Yes.
Andrew Douglas: Let’s go to the case study. Now, I did do this earlier this morning, so it’s a bit longer than-
Kim McLagan: Nicky can finish up.
George manoeuvred the concrete boom pumping truck next to the scaffold. Witches’ hats lined the pathway for the ready-mix concrete trucks to reverse and discharge their concrete into the pump’s hopper. The entrance of the site traffic was managed by Stop and Go Management Co. The site consisted of many contractors working for the principal contractor, Tall Build, who were contracted to erect a 30-floor residential tower. All the work was focused on the 35-meter-deep pit where foundational work was underway.
TB’s foreman, Toby, noted that one of the ready-mix trucks had broken down and was blocking the path for other ready-mix trucks, which were now eight deep in the road outside the site. Time was critical given the nature of the drying speed of the concrete for the pump and existing trucks. He asked Kurt, a D9 Caterpillar bulldozer driver-
Andrew Douglas: That’s a bloody big bulldozer by the way.
Kim McLagan: Okay, I wondered.
Andrew Douglas: It’s huge. I mean, the size of those are beautiful.
Kim McLagan: I thought, how do you know these two?
Andrew Douglas: Beautiful piece of machinery.
Kim McLagan: He asked Kurt, the Caterpillar bulldozer driver, big beast of a thing, undertaking earthworks for TB to tow the cement truck out of the queue to the pump so others could gain access whilst the ready-mix driver and diesel mechanic got the broken-down truck going.
Kurt and George moved the truck away from the queue to the pump, parking it near the edge of the excavation. As they walked out from between the dozer and the truck, after decoupling it, they were struck by a mobile crane carrying precast cement piping into the excavation area where the foundations were being embedded. Both of them died.
The mobile crane wet hire company was a subcontractor of TB. The subcontractor owned three mobile cranes and worked predominantly in road construction. This was the first time they’d worked on a large building site. Their driver, Kate, had signed the SWMS and been inducted to site. The traffic management system did not include handheld transceivers.
Andrew Douglas: Walkie-talkies.
Kim McLagan: Right, good. I’m glad you clarified, thank you.
She did not know people were near the parked dozer and cement truck and couldn’t have been told. There was no traffic management team dealing with the area where the vehicles were parked, even though it was a narrow section of the downward ramp into the foundations. It was the only access and egress path from the bottom of the pit and carried significant traffic. Kate had been working 16 hours straight, she had a young child at home and had not slept properly for several days. She was visibly tired and yawning. Toby, the foreman, had met all contractor employees at Smoko for a safety toolbox meeting involving risks on site. It was a simple discussion around the SWMS and critical risks. Toby observed how tired Kate was and even asked her if she was all right and she said yes, but he did no more.
TB site HSR sought and was refused a copy of the traffic management system prepared by TB’s safety consultant. After lengthy and difficult meetings with the site foreman and engineer of TB, Angus, the HSR, issued a direction under section 74 of the OHS Act to cease work and called WorkSafe. He also issued a provisional improvement notice and sought access to the safety plan, consultation notes, and traffic management plan under section 58. He advised he would then accompany the inspector from WorkSafe who had attended to investigate the deaths and took photos, videos of the accident site, drafted plans of the area-
Kim McLagan: It was early the morning when I drafted this.
Andrew Douglas: Sorry. Long sentences.
-and sought profile technical drawings of the affected area. Toby intervened when he saw him taking a video and told him to return to work and stop videoing things. Angus pushed him away and said he was doing his job. Toby advised him that striking a company officer was serious misconduct and he was immediately stood down. He had to attend work the following day to show cause why his employment should not be summarily terminated.
Andrew Douglas: There we go.
Kim McLagan: And you didn’t make me swear? I’m pleased with that. There we go.
Andrew Douglas: Well, not yet.
Kim McLagan: So, was Angus entitled to make the requests, direct a cessation of work and follow the inspector around the site?
Andrew Douglas: So that’s the first, and the answer is-
Kim McLagan: Yes.
Andrew Douglas: Yes. Easy isn’t it?
Kim McLagan: Yeah.
Kim McLagan: Did Toby and TB have risks under Part 7, Division 9 of the OHS Act, discrimination, and General Protections in the actions taken against Angus?
Andrew Douglas: Yeah, both of them reverse onus. So the fact that he pushed him is pretty low level for a construction site. I know that’s not a good test, but it’s a good start. But it’s so unlikely the termination will be upheld. Discrimination provisions do have a significant penalties of 50,000. The individual and 250 for the organisation. They’re not used a lot, but they are very effective, and when prosecuted, almost invariably successful, which goes back to the Patrick Stevedores case and it’s a shoo-in for General Protections. Like, it’s the easiest General Protections claim you’ve ever run. Somebody carrying out their activity is a pure workplace right.
So I know this all sounds a little bit odd, but what I’m trying to show you is there’s a whole lot of things that happen around safety, which if you just do the right thing, you’ve got nothing to worry about. Why would you ever withhold stuff? Unless it has a person’s private information or it has confidential information in relation to the business from an HSR. I don’t know, anyway.
Did Toby and TB have risks around Kate’s fatigue and what should they have done? Absolutely they did.
Kim McLagan: Yeah.
Andrew Douglas: Okay? Once you say what is a critical risk on a building site, you’ve got traffic management, you’ve got working at heights and you have mobile plant. The three biggest, okay? Can’t miss them. You’ve identified the person is fatigued, you’ve actually seen it and you’ve raised it with the person.
The answer after that is you need to make a few more inquiries and you need to be satisfied and keep a bit of an eye on her afterwards to make sure that, her guarantee that she’s fine is not. And if you see her yawning again while she’s driving around, you’ve got to tell her “No, you’ve got to stop, come back after you’ve had some sleep.”
Kim McLagan: Especially given the activity she was engaging in at the time.
Andrew Douglas: I know, I know, anyway. So yeah, just finishing that up a little bit. So yes, Toby personally has a liability around that. That’s the thing that I want you to remember because reckless endangerment applies to anybody.
Kim McLagan: Yeah.
Andrew Douglas: Was there a serious risk of injury or harm? Yes. Was he indifferent to it? The mere asking is not enough, okay? So yes for him, and TB of course have an attribution. Reckless endangerment, because Toby did it there on notice. What happens, let’s just test a bit.
What happens if Toby didn’t notice it? Well, the answer is it’s probably a primary duty breach at that stage. So often with safety it’s like this. If you do nothing, sometimes you’re safer. But unless it could have been noticed, then there’s a failure to have a system in place, which is quite a serious breach. But WorkSafe would struggle to prosecute, but here there is real knowledge.
Kim McLagan: Yeah.
Andrew Douglas: It’s known and there’s apprehension around it, so problems.
What were the safety risks and repercussions for TB and its officers given the two deaths on site? Forget about how tired Kate was, because even if Kate was alert and fine, the lack of traffic management control was horrendous.
Kim McLagan: Yeah.
Andrew Douglas: And on that basis, this is one which borders on the edge of industrial manslaughter, okay, because the breach was so fundamental. You have large vehicles going up and down a single access point. Cars are parked there, people are walking across and there is no traffic manager. You’re actually guarding the front door. That’s such a primary duty breach of such significance that’s criminal in nature, I think they’d be lucky to get out of industrial manslaughter.
So the case is about a lot of things, but one of them is to show how WorkSafe is gradually levering up the nature of prosecution, and what are the things are their focus? Mobile plant, traffic management, working from heights, absolutely. Definitely going to be charged with something serious and we’ve seen it recently with the fatigue.
So there you go, that’s it for this week. We’ve done all right. We’re both fatigued, so we got through that all right. And thank you very much for listening. Here’s cheers.
Kim McLagan: Bye.
Kim McLagan: Thumbs up.
