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Intercoast and Morfea fail to get conviction overturned

NSW court upholds conviction against Intercoast Refrigerated and owner Anthony Morfea in relation to death of a truck driver

By Brad Gardner | March 11, 2013

The owner of failed trucking firm Intercoast Refrigerated Transport has lost his appeal against a conviction in relation to the death of a truck driver in 2008.

The Industrial Court of New South Wales threw out Anthony Morfea’s and Intercoast’s appeals against last year’s ruling holding both parties accountable for the death of Gregory Phillips, who was crushed between his rig and a steel pole at a heavy vehicle inspection facility.

Morfea and Intercoast, which is being liquidated, were fined a total of $88,000 and convicted under the Occupational Health and Safety Act for failing to provide a safe system of work for Phillips.

The full bench of the Industrial Court upheld Justice Tricia Kavanagh’s ruling that Intercoast and Morfea should have instructed the driver to stand clear while the truck was being repaired and to take no part in the repair work. Kavanagh found that the lack of instruction created a risk to Phillips’ health.

Morfea and Intercoast unsuccessfully argued Phillips’ actions were instinctive and would have happened even if an instruction to remain clear of the vehicle was made.

“It is simply unknown what Mr Phillips’ reaction would have been if he remained in the area in similar circumstances. It cannot be assumed that, if the instruction as particularised had been given, Mr Phillips would stay in close proximity to the truck,” the full bench says in its written judgment.

“It is equally unknown whether, given an instruction to keep clear and to not involve himself in the repair of the vehicle, Mr Phillips would disobey that direction.”

The court also rejected the argument that Phillips was not participating in the servicing and repair of the truck and was just doing as instructed by the Autopool heavy vehicle mechanic.

“The appellants’ submission, in this simple form, is not supported by the evidence,” the full bench ruled.

“…Mr Phillips volunteered to assist the mechanic. He performed the tasks that he was asked to, namely, to leave the engine on and brakes off…Mr Phillips was involved in the ‘checking process’ following the repairs.”

Furthermore, the Industrial Court disagreed with Intercoast that Kavanagh was vague when ruling that the company should have instructed the driver to “remain clear of the vehicle”.

The full bench’s written judgment says it is not necessary to specify a distance when ordering a person to stand clear.

“This instruction, like any workplace instruction, requires, at minimum, the application of commonsense. A direction by the employer to ‘stand clear’ from an object necessarily carries with it an understanding that the person must put themselves beyond danger,” the judgment reads.

As well as dismissing the appeal, the Industrial Court ordered Morfea and Intercoast to pay WorkCover’s legal expenses.

Autopool was also convicted last year for failing to provide a safe system of work for its mechanic, who was not using purpose-built wheel chocks while working on the B-double. The firm was fined $220,000.

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