Comcare v Post Logistics Australasia Pty Ltd [2008] FCA 1987 (Forklift incident - fatality of contractor)
Issue
Mr John Lapidario, a contracted store person working at the Wetherill Park, New South Wales facilities of Post Logistics Australasia Pty Ltd (Post Logistics) was killed in a workplace accident involving a forklift on 25 May 2006.
Investigation
Comcare immediately commenced an investigation into the incident and worked in cooperation with NSW Police and Workcover NSW who were also investigating the fatality. The investigator concluded that Post Logistics had demonstrated a failure to take all reasonably practicable steps to protect the health and safety at work of its employees in that it failed to provide an adequate traffic management system to separate pedestrian and forklift traffic, to provide an adequate induction and training system in relation to forklift safety, to provide an adequate induction and training system in relation to appropriate worker behaviour in the workplace, particularly in the vicinity of operating forklifts and to provide adequately trained persons in supervisory positions.
Outcome
On 26 May 2008 Comcare filed proceedings in the Federal Court of Australia (New South Wales) against Post Logistics seeking a declaration of contravention by Post Logistics, of section 16(1) of the Act and the imposition of a civil pecuniary penalty. Section 16 of the Act requires an employer to take all reasonably practicable steps to protect the health and safety at work of its employees and contractors.
On 24 December 2008, Justice Flick of the Federal Court declared that Post Logistics contravened the Occupational Health and Safety Act 1991. Justice Flick determined that Post Logistics contravened section 16 of the Occupational Health and Safety Act 1991 by failing to take all reasonably practicable steps to protect the health and safety of its contractor and another employee. Specifically, Post Logistics failed to provide adequate supervision or instruction and failed to ensure there was an adequate traffic management system in place to prevent or reduce the risk of the contractor coming into contact with a moving forklift.
Post Logistics was ordered to pay a civil penalty of $165,000 for the breach and to pay Comcare's legal costs.
A copy of this decision is available at http://www.austlii.edu.au/au/cases/cth/FCA/2008/1987.html