Legal News docs

Employer's responsibility for plant and equipment extends to repair

By David Cross, Deacons

Published with permission from Deacons.

25 Sep 06

A recent decision1 by a Full Bench of the Industrial Court of New South Wales has illustrated the extraordinary reach of the Occupational Health & Safety Act 2000 (NSW) (the Act).  The case is a further reminder that employers need to anticipate risks that will arise outside of the workplace and take proactive steps to eliminate those risks.

The facts
The defendant company (Bros Bin Systems Pty Limited) conducted a business involving the removal of industrial rubbish.  In the course of the business, the company operated a number of trucks that were specially fitted with a hydraulic bin mechanism.  One of the trucks required repair and for that purpose was taken to Tibby Rose Auto, an auto repair business.  An employee of Bros Bin Systems (Mr Wood) drove the truck to the premises of Tibby Rose Auto and remained there whilst the vehicle was worked on by an employee of Tibby Rose (Mr Whitehouse).

During the course of the repairs, Mr Whitehouse requested that Mr Wood raise the hydraulically operated jib that formed part of the vehicle.  Mr Wood did so by manipulating controls situated within the vehicle's cabin.  Mr Wood then walked away to obtain a drink.  When he returned he heard the sound of the hydraulic system being released and saw that the jib mechanism had come down upon Mr Whitehouse, killing him.  Another employee of Tibby Rose Auto was seen in the cabin of the vehicle.  It was later accepted that this employee had touched the control lever that caused the hydraulic jib to descend.

Bros Bin Systems was charged under what is now section 10(2) of the Act.  Under that section, a person who has control of plant that is used by people at work must ensure that the plant is safe and without risks to health.

The first trial
At the first hearing of the matter, Marks J dismissed the charge on the basis that the truck was not "plant" for the purposes of the relevant section of the Act.  Whilst the truck was at the premises of Tibby Rose Auto it represented the product of work processes carried out by Tibby Rose Auto and not a fixture, implement or apparatus used in carrying on the work process.

Appeal by prosecution
The prosecution appealed this result to the Full Bench.

The prosecution argued that the word "plant" should not be given an unduly narrow reading and the mere fact that the truck was being repaired did not rob it of its character as "plant".

Bros Bin Systems argued that if such a view was to be accepted it would be impossible for a company to have an item of machinery or equipment repaired by a third party as the company could only discharge its OH&S duties by having the item repaired before giving it to the repairer.  Such an absurd result could not have been intended by Parliament when passing the relevant sections of the Act.

The Full Bench agreed with the prosecution.  The acquittal was set aside and the matter was sent back to Justice Marks for hearing.

The second hearing
At the second hearing Marks J found Bros Bin Systems guilty on the basis that the company had failed to ensure that props were available to allow the jib to be held in place and that the control lever for the jib mechanism could not be moved inadvertently.

Further appeal
Bros Bin Systems brought an appeal to the Full Bench against the conviction and asked that the Full Bench reconsider the conclusions that it had previously made.

The Full Bench accepted that the case involved important issues of law and policy and examined the matter again.

The issue that received most consideration was whether the wording of the Act allowed any distinction to be drawn between a piece of plant when it was being used for its prime purpose and a piece of plant when it was undergoing repair.

Ultimately the Full Bench concluded that the Act did not contemplate such a distinction.  The definition of "plant" in the Act was "any machinery, equipment and appliance".  The use of the word "any" meant that it was impossible to exclude from the Act plant that was in the process of being repaired.

Significance for employers and others
As a result of this decision, it is clear that the responsibilities of an employer or someone who owns/controls a piece of plant or equipment continue to operate whilst the plant or equipment is with a third party for repair.  If the third party makes mistakes in the course of that repair, and those mistakes cause a risk to health and safety, then the employer or controlled of the plant/equipment may be liable.

1 Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287

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