Work Cover (Inspector Battye) v Patrick Container Ports Pty Ltd

District Court

New South Wales

Medium Neutral Citation:	Work Cover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171
Hearing dates:	17/02/2014
Decision date:	17 February 2014
Before:	Curtis, J
Decision:	The information is dismissed
Legislation Cited:	Occupational Health and Safety Act 2000
Cases Cited:	Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Category:	Principal judgment
Parties:	Workcover Authority of New South Wales (Inspector Battye) - Prosecutor Patrick Container Ports Pty Ltd - Defendant
Representation:	S Crawshaw, SC with M McCarthy appeared for the Prosecutor B Hodgkinson, SC with G H Livermore appeared for the Defendant
File Number(s):	2013/218842

Judgment

Introduction

1. The defendant is charged that, contrary to the provisions of section 8(1) of the Occupational Health and Safety Act 2000, on 2 September 2010 at Port Botany it failed to ensure so far as was reasonably practicable the safety and welfare at work of its employees, Mr Richard May, Mr Destri Tami and Mr Richard Gilholme.

1. On that day Mr May commenced to remove a left-hand rear tyre on a Hyster YardMaster Reach Stacker by removing an outer rim clamp without first deflating the tyre.

1. The tubeless tyre, inflated to a pressure of approximately 150 psi, is contained within a steel rim with narrow flanges. The tyre and rim assembly are fixed to the wheel hub by a rim clamp. This rim clamp serves to reinforce the narrow flanges of the rim in containing the tyre pressure.

1. Because of the risk that the flange of the rim may be damaged or defective and prone to failure, causing a sudden release of air pressure, safe practice requires that the tyre be fully deflated before the rim clamp is removed.

1. When Mr May removed the rim clamp a flange of the tyre rim failed because of a pre-existing fracture, and the air pressure within the tyre was released explosively, killing Mr May and injuring Mr Tami and Mr Gilholme.

The Allegations

1. Inspector Battye alleges that the dangers created by Mr May's actions could have been obviated or reduced had the defendant employer taken the following reasonably practicable steps:

(a) Undertaking a risk assessment to identify the risk and providing appropriate measures to control that risk;

(b) Instructing Mr May to consult a document entitled "Reach Stacker Operating Manual YardMaster" prior to undertaking the task;

(c) Providing documented formal training to Mr May with respect to the task;

(d) Providing to Mr May such information, instruction and training as was necessary with respect to the task;

(e) Providing Mr May with such supervision as was necessary in relation to the task.

The Evidence

Documents

1. The operating manual for the Hyster YardMaster Reach Stacker is in evidence. Under the heading "Maintenance" the following text appears:

WARNING

Wheels must be changed and tyres repaired by trained personnel only. Always wear safety glasses. Completely remove the air pressure from the tyre before it is removed from the YardMaster.

When dual wheels are installed remove the air pressure…