|Defendant||City of Stirling|
|Section||23D, 21B(2) & 21C(3)|
|Offence Date||25 November 2011|
|Description of Breach(es)||
The Accused was a body corporate which, in the course of trade or business, engaged a contractor to carry out work for it, and failed, so far as was practicable, to ensure that the safety or health of persons was not adversely affected wholly or in part as a result of work that was being undertaken by the contractor (being a person carrying out work under the direction of the Accused)
The City of Stirling (City) is a local government authority established pursuant to the Local Government Act 1995 (WA) (LG Act).
The City oversees a total land area of approximately 109 square kilometres, comprised of 30 suburbs and approximately 202,000 residents. The City's responsibilities include managing and maintaining 1050km of road, 915km of footpaths and 627 hectares of parks, gardens and developed reserves.
In managing its responsibilities, the City is heavily reliant on contractors and subcontractors to undertake operational tasks including construction and landscaping works.
The City has approximately 400 contractors on its contractor panel across all area of works, the majority of which undertake works for the Infrastructure Directorate within the City. The Infrastructure Directorate includes responsibility for parks and reserves.
Total Landscape Redevelopment Service Pty Ltd (ACN 118 479 995; Total Landscape) is a corporation that carries on a business of landscaping and related services. This includes providing landscaping services to a number of local governments.
Total Landscape had been engaged by the City of Stirling as one of a number of ongoing landscaping contractors. This appointment of Total Landscape followed a tender process as required by the LG Act.
In the response to tender, Total Landscape set out (inter alia) its considerable experience in performing landscaping work, and the significant qualifications and experience of its personnel including that all personnel held construction ‘Blue Cards' (the former version of a nationally recognised construction safety qualification).
Total Landscape further held itself out as being experienced and accredited in traffic management, occupational health and safety (all staff were stated to have been trained to report for documentation any risk assessment or hazard identifications) and plant and equipment operation.
Total Landscape indicated it ‘exercises the safest practice discussing all possible hazards that may arise using response/documenting format such as a JSA'.
The City on the basis of the tender response was satisfied that Total Landscape was an appropriate and competent contractor to perform landscaping work.
Total Landscape had performed work for the City under previous contracts over a period of approximately 10 years. There had been no issues with the performance or competence of Total Landscape, and there had been no reported or identified safety issues involving Total Landscape.
The City accordingly engaged Total Landscape to provide landscaping services to the City for a two year period, pursuant to the City's contract number 220.127.116.11.2011/12, described as being ‘for the provision of landscape construction, development, establishment and associated services within the [City]' (Contract).
The Contract included the following terms.
1) (Cl 2.3.4) The provision of goods or services under this Contract are not to be commenced by [Total Landscape] without having been formally given possession of a site.
2) (Cl 7) [Total Landscape] is responsible to achieve the objective of the Contract to the extent that a proficient and qualified contractor exercising due diligence could be expected to achieve in accordance with the Contract Documents. [Total Landscape] is to be solely responsible for:
3) (Cl 7.10.2) [Total Landscape] is responsible to ensure all work practices used on work for the City, conform in all respects with the requirements of Worksafe WA.
4) (Cl 7.15) [Total Landscape] acknowledges the Occupational Safety and Health Act (WA) and sets out specific duties relating to the general duty of ensuring Employees and/or the community are not exposed to hazards. [Total Landscape] is to comply with the [City's] safety requirements or as directed by the Contract Superintendent.
5) (Cl 7.15.5) Any identified potential for an accident if no action is taken is to be reported to the City of Stirling immediately.
6) (Cl 7.15.6) [Total Landscape] is to perform work with the least possible inconvenience to the public. The public is to be protected from injury by [Total Landscape] in an adequate and satisfactory manner (e.g. warning signs and/or barriers).
Under the Contract, a Technical Officer from the City would be responsible for engaging and instructing Total Landscape in respect of any particular job commissioned.
The role of the Technical Officer is that of a contract superintendent. The Technical Officer would advise and agree on the scope of work the City required to be performed and obtain quotes for this work. The Technical Officer's role was not to direct how a contractor was to perform its work.
However, through the responsible Technical Officer, the City could have required Total Landscape to prepare and provide a job safety analysis (JSA), or conduct a similar hazard identification process for the services to be provided, whether in documentary form or otherwise.
The City's Engineering business unit-which oversees high risk construction work, including work undertaken on roads and public footpaths, and is closely and frequently involved in significant building and construction work-required job-specific JSAs to be submitted by contractors prior to the commencement of works.
Subsequent to 25 November 2011, the City's Parks and Reserves business unit implemented a similar requirement.
Morris Place Works
By purchase order PPR29864, dated 20 October 2011, the City commissioned Total Landscape to perform landscaping works (Landscaping Works) at Morris Place, Innaloo, outside the Innaloo Community Centre (Centre) (Workplace).
The Centre is located in the southeast corner of a number of commercial buildings that collectively form the Morris Place shopping precinct, located in a primarily residential area, readily accessible from various directions.
The area where the work was to be performed was not a main thoroughfare, and was not a key access point to the Morris Place shopping precinct.
The city employed a Parks and Reserves Technical Officer, responsible for overseeing the Landscaping Works on behalf of the City.
The Landscaping Works were to be part of the broader upgrade of the Morris Place precinct, and included removal of the existing playground at the Workplace, relevelling of the ground, and returfing.
Also in the vicinity of the Workplace was a small shed (Shed). In 2003, the City had granted an amateur theatre group (theatre group), a licence to use the Shed and certain parts of the Centre.
By email dated 12 October 2011, the City informed stakeholders, including the theatre group, that certain works were planned to commence at the Workplace on 17 October 2011, with other works anticipated for March 2012.
Total Landscape commenced its part of the Landscaping Works on 24 November 2011.
Prior to the works commencing, the City had arranged for the removal of the perimeter fence running along the north and west boundaries of the Workplace. This was necessary to enable the Landscaping works to be performed. There was no practicable way of performing the Landscaping Works while the perimeter fence was in place.
The City believed Total Landscape, in accordance with clause 7 of the Contract would erect appropriate barriers and signs that would enable it to perform the Landscaping Works in a safe manner.
Events of 25 November 2011
On 25 November 2011, Total Landscape commenced carrying out tasks for the Landscaping Works through the following persons, in the following capacities.
1. Christopher Cantelo - Supervisor
2. Long-term contract landscape labourer
3. Long-term contract landscape labourer
4. Employee landscape labourer
5. Employee landscape labourer
As part of the Landscaping Works on 25 November 2011, Total Landscape used a Caterpillar Multi Terrain Loader (Bobcat), of tare weight 3,174 kg, to lay and mix sand around the Workplace and ‘back blade' the sand to press it down.
The Bobcat was solely operated by Mr Cantelo on 25 November 2011.
The Bobcat was fitted with a reversing beeper, which was operational on 25 November 2011.
At approximately 7 a.m. on 25 November 2011, the Parks and Reserves Technical Officer, attended the Morris Place site and met with Mr Cantelo to confirm the works to be performed. The Parks and Reserves Technical Officer did not require Total Landscape to provide or prepare a JSA or conduct a similar hazard identification process prior to performing the work, and did not otherwise discuss risks to members of the public associated with the operation of the Bobcat.
Prior to commencing work on 25 November 2011, Total Landscape placed signs and traffic cones as warnings at various locations around the Workplace.
The Parks and Reserves Technical Officer departed the site shortly after 7 a.m. following his discussion with Mr Cantelo.
Two irrigation workers from the City attended Morris Place. They were undertaking irrigation works adjacent to the area where Total Landscape was performing the Landscaping Works with the Bobcat.
At approximately 9 a.m. a member of the theatre group which used the community centre arrived at the Workplace and parked his vehicle near the Shed.
The member of the theatre group was able to access the Workplace by using keys held by the theatre group to unlock the bottom gate. He had arranged for a skip bin to be delivered to the site on that day for a busy bee to be held on the weekend of 27 November 2011. The skip bin was delivered during the morning through the bottom gate and placed by the Shed.
Neither Total Landscape nor the City had prior notice that the member of the theatre group would be at the Workplace on 25 November 2011, or that a skip bin was to be delivered.
Mr Cantelo told the member of the theatre group that he did not want him at the Workplace. However, the member of the theatre group advised Mr Cantelo that he would only be working in and around the Shed. This area was not within the area in which Total Landscape was performing its work, and was not within the area where the irrigation workers were performing their work. Mr Cantelo warned the member of the theatre group to stay away from the Bobcat.
Neither Mr Cantelo nor any of the other workers at the Workplace on 25 November 2011 contacted the Parks and Reserves Technical Officer or otherwise informed the City of the presence of the theatre group member or the skip bin, or any concerns about his presence.
Over the course of the morning, the member of the theatre group was removing material from the Shed and transporting it into the skip bin in apparent preparation for the busy bee. The Shed and skip bin were outside, but adjacent to, the area in which the Bobcat was operating and visible to Mr Cantelo operating the Bobcat. On a number of occasions, he also moved from the Shed to the Centre and back again, such as to get a cup of tea.
During the morning, one of the long term contract landscape labourers (of Total Landscape) made several trips to and from the Workplace in his truck, bringing fill sand for the Landscaping Works. On at least two occasions, the member of the theatre group came in proximity to the landscape labourer's truck and was told to keep out of the way.
The City's irrigation workers also warned the member of the theatre group on at least two occasions to be careful of the reticulation trenches and the operation of the Bobcat.
The member of the theatre group had observed the Bobcat being operated at the Workplace during the course of the morning and was repeatedly warned to stay clear of the Bobcat.
At some time between 11 a.m. and noon, Mr Cantelo instructed the four landscape labourers to go and get lunch. The four men left the Workplace to do so. The City's irrigation workers also left the Workplace for lunch at this time and made Mr Cantelo aware of this. This left Mr Cantelo as the only person working at the Workplace.
At some time around noon, Mr Cantelo was operating the Bobcat. After checking his rear vision mirror and considering the area to be clear, he reversed the Bobcat generally westwards, up the incline in the area between the Centre, the Shed, and the access road.
Mr Cantelo sensed an impact and moved the Bobcat forward. He jumped out and saw that the member of the theatre group had been struck by the Bobcat.
The member of the theatre group suffered fatal injuries as a result of the impact.
Practicable measures that could have been taken as at 25 November 2011
As at 25 November 2011, it was reasonably practicable for the City to have:
1. required Total Landscape to have completed a JSA, or similar hazard identification process, that addressed the risks of the work it was to perform, specifically risks to members of the public associated with the operation of the Bobcat; and
2. satisfied itself that the JSA appeared to appropriately address those risks.
Had the City taken these measures, this would have eliminated or reduced the risk of harm to the member of the theatre group by coming into contact with the Bobcat.
It was not alleged that the City's failure caused the death of the member of the theatre group for the purposes of section 21C of the Occupational Safety and Health Act 1984 (WA) or otherwise.
The Accused entered a guilty plea and was convicted. On the 6 August 2014 the Magistrate fined the Accused $20,000.00 after discounts for the guilty plea, for remorse, and for other mitigating factors.
|Conviction Date||04 Aug 2014|
|Court||Magistrates Court of Western Australia - Perth|