Sub-contractor responsible for workplace death, despite incident happening at Star Track Express depot
By Brad Gardner
A leading trucking company has been found liable for the death of one of its drivers, despite the incident happening at a depot leased and owned by two separate parties.
The New South Wales Industrial Court rejected the claim Western Freight Management should not be held liable for its employee who was crushed between a prime mover and a loading dock at a depot run by Star Track Express and owned by Truebond Investments.
Despite pleading not guilty to the incident, the judge ruled Western Freight Management still had a responsibility to ensure workplace safety and it failed to do so under the Occupational Health and Safety Act.
The case centred on a garden bed at the Waverley Drive depot, which forced drivers to reverse jack-knife their vehicles in a confined space to avoid hitting it when leaving.
The death occurred when the driver attempted the procedure while another driver was standing behind the truck.
The court heard the company was aware of potential safety issues raised by the garden bed, but claimed it did not want “to meddle in” the running of the depot and it risked upsetting Star Track Express if it did so.
Justice Boland, however, rejected the argument, saying Western Freight Management did not discuss employee safety with Star Track and had not investigated the depot’s safety policies.
“Western Freight Management did not even test to a proper degree the question of whether it had sufficient control over the causes of the risk at Waverley Drive,” his judgement read.
Furthermore, he said there was evidence the depot would have listened to the company because it had already changed the loading dock height after being requested to do so.
“By failing to take positive steps to address the risk the bed created, and to ensure that drivers had sufficient space to safely exit the depot, Western Freight Management failed to fulfill its statutory duty,” Justice Boland said.
He said companies had an obligation to their employees to avoid risk “and if this means having the physical character of the premises altered, then that must be done or the premises should not be used”.
The company was also criticised for not putting in place traffic and pedestrian management strategies or completing a risk assessment to minimise the likelihood of an incident.
He argued the procedures could have prevented the accident despite Western Freight Management claiming nothing could be done because “the risk was so well known”.
“The submission fails a basic test and that is whether Western Freight Management made an actual assessment of the risk at the depot,” Justice Boland said.
“I find that the defendant failed to conduct risk assessments in respect of traffic and pedestrian management at the Waverley Drive depot, and in particular in relation to reversing trailers.”
Western Freight Management also tried to argue there was an “unwritten rule” about standing behind trucks. But Justice Boland rejected this, saying companies must still take into account “the careless, inattentive or inadvertent employee”.
However, Star track Express was also at fault because employees did not follow the company’s policy of ‘spotting’, which involves someone standing on the loading dock and signaling to the truck driver to let them know if it is safe to reverse.
If implemented, Boland said the procedure would have decreased or eliminated the risk of the victim being crushed.
Western Freight Management will be sentenced at an unspecified date and time.