Justice Ingmar Taylor found the incident exposed workers to an “at least moderate” risk of being hit by a falling tree. Photo: Mattinbgn/Wikimedia.
A fall in which a worker suffered multiple fractures has led to his employer being hit with a more than $220,000 fine.
In a recently published decision, NSW Industrial Court Justice Ingmar Taylor convicted Mulligan Geotechnical Pty Ltd of failing to comply with a workplace health and safety duty.
The company had been engaged by Snowy Valleys Council to complete remedial work on hillside slopes along the side of the Alpine Way at Khancoban in NSW.
At about 8:15 am on 15 March 2023, two workers went into a boom lift elevated work platform (EWP).
“[One of the workers] had only placed a small cut in the subject tree when it suddenly ‘let go’ and began to fall towards the EWP’s basket, which was positioned on the opposite side to the direction the tree was intended to fall,” Justice Taylor said.
Another employee was located under the basket.
While that second employee wasn’t hit by the falling tree, it hit the basket and made a third employee “catapult” out of the basket. He landed about 11 metres away.
The man was hospitalised and suffered multiple broken bones, including an ankle fracture/dislocation, a broken heel bone and a fracture to his left tibia.
“As is so often the case in work health and safety prosecutions, the incident arose from events that were uncommon and unexpected, but neither unlikely nor unforeseeable,” Justice Taylor said.
According to the decision, the business was established in 1986 as a family-owned company.
Justice Taylor said that other than the incident, the company had a strong safety culture and that a need to deter it from future offending would play a “relatively small” part in sentencing.
When new staff members were employed, they (including the three involved in the incident) were given an induction book with safety procedures.
They were required to read and sign the booklet.
But he said that step, along with other safety measures and inductions that Mulligan Geotechnical carried out, wasn’t enough to keep employees safe.
“There must be vigilance to ensure that the basic safety steps essential to protecting workers from serious injury or death are taken.”
He said the company failed to create an exclusion zone around the tree and also didn’t wait until all workers were clear of the area to start cutting the tree down.
He also said that while it was “no doubt, unusual” that the tree fell in the opposite direction to what the workers expected, it did sometimes happen.
“The step that ought to have been taken … namely, not commencing cutting until a ‘flag’ was raised indicating that all workers were outside an exclusion zone so that work could start – most directly gave rise to the risk.
“That important step was not expressly addressed in the safe work method statement in use at the time of the incident. … It was an obvious and necessary step to take before starting to chainsaw a tree, in particular a tree of this size.”
Justice Taylor described the lack of a proper tether used by the injured employee as appearing to be a “one-off failure”, rather than part of ongoing unsafe behaviour.
Justice Taylor also noted the company had no previous convictions for workplace health and safety offences.
“That is a matter of some note given the offender has been undertaking construction-related work since 2015.”
In the aftermath of the incident, the company updated its safety policies and had a training session for all workers.
He said the two directors had kept in regular touch with the injured worker, visited him at his home and provided financial support after the incident.
When assessing the appropriate penalty, Justice Taylor said that while the company was no longer operating and a penalty would impact the former directors’ retirement funds, there was no evidence put before the court on that impact.
However, he took into account the business’ small size in determining its penalty.
Mulligan Geotechnical Pty Ltd will pay $225,000, with half of the fine to be paid to SafeWork NSW.
The company will also pay SafeWork’s costs.
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