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Western Freight Management strikes blow against WorkCover

Commission overturns conviction against Western Freight Management for the death of its truck driver at a Star Track Express depot

By Brad Gardner | June 24, 2011

Western Freight Management has won its lengthy battle with WorkCover NSW, after the Industrial Relations Commission overturned a conviction against the company for the death of a truck driver.

Relying on the landmark 2010 High Court ruling involving farmer Graham Kirk, the operator successfully argued it should not have been convicted of an occupational health and safety breach when Brian Lloyd was crushed between a loading dock and reversing truck at a Star Track Express depot in 2004.

Kirk was convicted when a farm employee died, but the High Court quashed the decision because prosecutors failed to specifically identify what measures he should have taken to prevent it.

Representatives for Western Freight Management argued WorkCover did not show what the company could have done to prevent the accident or identify an act or omission that led to a contravention.

In the original matter, Justice Roger Boland ruled that the trucking operator could have implemented a traffic and pedestrian management plan to minimise the risk of an accident.

“The term ‘traffic and pedestrian management’ is not a term of art or law. It does not provide, with any adequate or proper specificity, what measures should have been taken by the defendant. It is a global term which potentially contains several unspecified measures,” Justice Michael Walton says in his written judgment overturning Boland’s decision.

“The concept of a ‘traffic and pedestrian management system’ envisages any number of measures that could have been taken.”

Walton says the term cannot be considered to identify a particular measure based on the findings of the Kirk case.

As well as overturning the conviction, Walton ordered that the $200,000 fine and Boland’s requirement for Western Freight Management to pay WorkCover’s legal bill be set aside.

Walton also found that the conditions Boland argued could have been implemented were not specified by WorkCover but only raised when the Justice handed down his decision.

“Here there has been a procedural unfairness. The trial judge fell into error when convicting the appellants of the offences in circumstances where the charges failed to plead, either expressly or by implication, the relevant acts or omissions.

“A defendant must be fairly informed of the charge it has to meet.”

Western Freight Management pleaded its innocence in the original hearing, arguing there was an unwritten rule about drivers standing behind trucks and the risk at the depot was so well known that nothing could be done.

The accident occurred at the Star Track Express depot at Unanderra, about 90 minutes south of Sydney’s CBD.

The commission heard that drivers were forced to reverse jack-knife their rigs due to confined space. Lloyd was standing behind that was a truck attempting the procedure when he died.

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