Employer gets caged in by OHS laws

A NSW employer has lost its appeal against a finding that it breached its duty of care in failing to install cages around its forklifts until after two workers had been injured.

The case involved a worker employed by labour hire company Integrated Workforce (NSW) Ltd, which on-hired his services to food company Goodman Fielder.

The worker was manoeuvring a stand-up reach forklift in cramped conditions when it failed to stop as a result of either reversing direction or removing his foot from the clutch/brake. Either braking mechanism should have resulted in the vehicle stopping within 1 m.

Instead of stopping, the forklift 'shuddered' and continued to move, causing the worker to lose balance, and his left foot became crushed between the vehicle and a wall.

At trial, District Court Judge Gay Murrell heard that the warehouse had narrow aisles. One month earlier, another worker had been injured while driving a sit-down forklift at the site. His knee was protruding outside the vehicle when it struck a rack, resulting in a fracture to his leg, After that incident, the sit-down forklift was replaced with the stand-up model. After the second incident, however, a cage was installed around the lower part of the operator's cabin, to prevent workers' body parts protruding.

Judge Murrell took into account that Goodman Fielder acknowledged it was aware after the first incident that nobody should be allowed to use the forklift unless it had a proper safety device that kept their body parts contained. She found it had breached its duty of care to the worker and awarded him damages.

On appeal, Goodman Fielder claimed it hadn't breached its duty and further, that the worker was guilty of contributory negligence.

The company argued that being wise after the event of two accidents was not the same as being negligent between the first and second accident. It also argued that the original, uncaged forklifts complied with Australian Standards.

The bench further rejected the company's argument that it couldn't be held responsible because the accident revealed an "entirely unexpected and unforeseeable combination of events". It accepted that the worker had complained on an earlier occasion about the stopping efficiency of the forklift and that he had a "near miss".

The bench upheld the trial judge's finding that there had been no contributory negligence, saying she had adequately dealt with the company's argument that the worker had not kept a proper lookout or taken care for his own safety at trial.

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