Intercoast Refrigerated owner liable for driver's death

Date: 27.07.2012

Intercoast Refrigerated owner held liable for the death of a truck driver at an inspection facility

Intercoast Refrigerated owner liable for driver's death

Trucking owner liable for driver's death

By Brad Gardner | July 27, 2012

The owner of defunct transport operation Intercoast Refrigerated Transport has been held liable for a truck driver killed while the company’s B-double was being repaired at an inspection facility.

Gregory Phillips was crushed to death on November 14, 2008 at the Twelve Mile Creek site on the Pacific Highway.

The Industrial Court of New South Wales ruled that Intercoast, which is being liquidated, and owner Anthony Morfea breached the Occupational Health and Safety Act by failing to provide a safe system of work.

A mechanic was repairing the vehicle’s deflated airbags and asked Phillips to assist him, but Justice Tricia Kavanagh says the task should have been carried out alone.

"Mr Phillips should have been instructed to stay clear of the vehicle when repairs were being conducted. He should have been directly instructed to take no role in any repair of his vehicle when on road. Such an instruction would have minimised the risk to Mr Phillips’ safety," Kavanagh says in her written judgment.

"I find the corporate defendant failed to instruct Mr Phillips not to participate in the roadside repair and failed to instruct Mr Phillips to remain clear of the vehicle during the repair. These failures are demonstrative of the unsafe system provided by the corporate defendant for roadside repair.

"Mr Morfea, as the controlling mind of the corporation, is therefore guilty of failing to provide a safe system of work."

The court heard the Autopool mechanic, Michael Webb, told Phillips to leave the engine running and brakes off while he inspected the airbags. Phillips then left the cabin of the truck and adjusted a docking valve, which raises airbag height to make it easier to load or unload a truck.

The action caused the airbags to overextend and the vehicle to bounce slightly over a set of chocks placed behind the wheels. The B-double started to roll towards the highway, prompting Phillips to chase after it.

"Mr Phillips placed himself between the cabin door of the vehicle and the vehicle in reaching for the brake in his effort to stop the rolling vehicle. The cabin door was forced shut by the movement of the vehicle past the steel pole on the RTA site," Kavanagh says.

"Mr Phillips had managed to stop the rolling vehicle by applying the brake, regrettably at the same instant that he was crushed to death."

The company and Morfea pleaded not guilty to breaching the Act, saying their actions did not cause the risk to Phillips during the repair. The court was told Webb used incorrect chocks to hold the vehicle in place and that Autopool should be held accountable.

Both parties also argued an order for drivers not to take part in repairs could have had dangerous consequences if Phillips had not intervened to apply the brakes.

Intercoast relied on the TruckSafe accreditation program when inducting its drivers, but the manual only says drivers need to report faults to management and follow instructions from their national maintenance manager.

"The training and system of work is silent on the driver’s conduct during a repair," Kavanagh says.

WorkCover also tried to prosecute Intercoast and Morfea for exposing Webb to risks, but Kavanagh dismissed the charge.

"The obligation to properly instruct an employee is not transferrable to an obligation to properly instruct another employer's employee, such as Mr Webb," Kavanagh says.

An engineering expert that gave evidence during the case told the court it was "unacceptable practice" to leave the engine running and brakes off during repairs.

Webb says he was taught an airbag repair task should be undertaken with all the brakes off.

"This was clearly incorrect as the expert evidence revealed the trailer brake could have been left on without causing an inhibition to the airbags refilling. Applying the separate trailer brake alone would have ensured the heavy vehicle was immobilised," Kavanagh says.

A sentencing date to determine the penalty has not been set. Morfea can appeal, but must do so before the end of the month.

"A date for sentencing is yet to be set down by the Industrial Court, at which time the family will have the opportunity to provide a victim impact statement and the appropriate penalty will be considered," a spokesperson for WorkCover says.

FATIGUE AND DRUG FAILURES
The case also highlighted shortfalls in Intercoast’s fatigue management policies.

Although the TruckSafe manual has extensive fatigue management guidelines and Intercoast had a fatigue management system in place, Phillips drove 15.5 hours in a 24-hour period prior to the fatal incident.

He was legally allowed to drive 12 hours and was ordered to rest when a Roads and Traffic Authority (RTA) officer inspected his work diary at the Twelve Mile Creek facility.

WorkCover argued Intercoast failed to effectively manage fatigue and that this played a role in the risk to Phillips. An autopsy found Phillips had traces of cannabinoids and methamphetamine in his system.

However, Kavanagh says there were no signs drug use or fatigue played a role in causing Phillips’ death. She says the driver had a rest in his cabin at the inspection facility of more than six hours before the vehicle was repaired.

"While Mr Phillips had a high level of amphetamines in his system on death, he had the minimum statutory rest break. All his actions I find indicated no impairment," Kavanagh says.

"There was a failure to ensure that Mr Phillips was not in breach of the fatigue management policy but as it has not been established that he was fatigued, this particular failure did not provide on the relevant date the possibility of danger or the possibility of harm."

WorkCover claimed Intercoast’s decision to hire Phillips, who had a conviction for driving under the influence, proved the company did not follow its own pre-employment screening. It argued he would not have been put at risk if he was not employed.

It also argued Phillips would not have been at the inspection facility, and therefore at risk, if the company complied with fatigue management obligations. Kavanagh rejected both claims.

"I dismiss these particulars. Even if there were such failures established, such omissions did not contribute to the identified risk," she says.