On the 5th March 2009, I received a call from a Member informing me that an incident had occurred at Freshwater Place Southbank, and my attendance would be required.
On arrival I found the employer had shut the access to the area of the incident and I was taken to the amenities area where the injured worker’s workmates were grouped, contemplating what had just happened. Initially I thought I was dealing with a fall issue and the worker would soon be back at work, this was not to be the case, he died later that day.
The worker was Keith Dickman, a Plumber engaged to install spiro duct at a fit-out site using ‘A’ frame steps, a high powered actuated tool (Hilti type nail gun), which required working both hands above his head through the ceiling grid.
The following day I walked through the area with the relevant employer representatives, WorkSafe Inspector and WorkSafe Investigator. Whilst others were making their observations, I conducted an investigation into what should have been a routine, relatively uncomplicated task. What I found was not the workers behaviour, but inherent hazards and associated risks in the work process. Also; it was my opinion that the ladder Keith was using was unserviceable prior to the task being undertaken.
Due to the fact the Inspectorate failed to write any Notices’ with regards to breaches of the OH&S Act, the impression I received was as far as WorkSafe was concerned, this was simply an unfortunate accident, and that Keith must have done something that resulted in his fall. My conclusion was completely the opposite.
WorkSafe determined in their judgement that a breach of the OH&S Act had not occurred, and a prosecution was not likely to be successful. Process was now that the case be handed to the Coroner for an enquiry, which culminated in a hearing some two and a half years after the event.
What was borne out of the hearing by those representing the employers, was that they had provided the safest level of risk control available (even though the result was a fatality), and the incident was characterised as an unlikely event. The Corner did not accept the characterisation.
Walking into the Court Room on the first day, senior management said to me words of the effect; how could somebody fall from a ladder and make no attempt to protect himself, he must have fainted.
So here it was again, the myth of the careless worker and somebody trying to easily and falsely explain away actions and omissions that led to the death of a worker.
I presented evidence and gave my opinions to the Coroners Court for over 4 hours, along with other of his workmates present at the time of the incident; evidence and opinions which indicated a disregard by the employer to their obligations under the relevant OH&S legislation, and their lack of discharging their duty of care was self-evident. The Coroner remarked in her finding on the huge amount of additional material produced to the Court in relation to the fatality, including documents relating to the work process and planning which had not been originally produced.
Historical landmark decisions were handed down by the Corner, Kim Parkinson. In summary:
One of the findings of the Coroner was that an indictable offence may have been committed. (This is now subject to a DPP review of the evidence).
WorkSafe Victoria immediately advise building and construction contractors to cease using ‘A’ frame ladders for the installation of ducting, and that WorkSafe Victoria publish a hazard alert to this effect.
WorkSafe Victoria abolish the distinction between working at height above or below 2 metres in their publications. (Victoria is the only State to have this distinction in legislation, and one of the reasons the Ballieu Government stalled the implementation of the National OH&S Harmonisation Laws). WorkSafe Victoria restates to all industry stakeholders the risk of death and serious injury whilst working from ladders.
The findings were handed down on the 29th February 2012, and WorkSafe Victoria is yet to act on any of the Coroners recommendations (at the time of print)
Whilst this matter may be subject to further legal proceedings, as the Coroner has requested the DPP review the evidence, there are many questions that need to be answered, for example:
How is it that suspected breaches were not fully and adequately investigated by WorkSafe Victoria?
How is that work practices that have a known high consequence of injury/death be afforded such a low level of control?
How can a workplace that is of a known high risk be afforded such a low level of supervision?
Where was the planning to allow for safe systems of work, ie. scaffold or work platforms as opposed to conducting heavy work from a step ladder?
Why were work practices allowed to change without the appropriate risk assessments conducted and implemented?
What came from the enquiry are three things:
Firstly; Keith’s family can now have peace of mind that the initial conclusion from WorkSafe that he may have attributed to his death was not supported by the evidence produced at the enquiry.
Secondly; your Union is the only Union to pursue the interests of the Members and the interests of the family through to the Coroners Court, and prepared to go as far as necessary to hold all those accountable for their actions/omissions.
Thirdly; we as an Industry will not tolerate the myth of the careless worker, and will ensure that once the truth has been found, to use the findings to ensure that an incident such as this, and the events leading up to the incident, can never happen again.
In summary, what has been made evident is the myth of the careless worker is still in the mindset of some companies, and those companies will attempt to protect themselves from under its veil.
What now needs to be exposed is the lax and reckless mindset of those companies that believe in such myths that are charged with the responsibility of providing a safe workplace; in what is, a high risk work environment.
To fully appreciate this article and the outcomes of the Inquest, it is strongly recommended that Members visit the Union web site: pteu.asn.au and read the full transcript of what Coroner K Parkinson had to say.
Also of interesting reading is “The Myth of the Careless Worker”, Health and Safety at Work, John Matthews, Pluto Press.
DPP response to FoI request