Bauer Foundations Australia Pty Ltd

Incident description:

On 10 August 2009 a 31 year old worker was killed when a 10.5 tonne piling rig counterweight fell onto him.

The court acknowledged Bauer Foundations Australia Pty Ltd employed the worker as a store keeper at its Pinkenba yard.

The defendant held obligations under s.28(1) of the Workplace Health & Safety Act 1995 being a person conducting a business or undertaking.

Investigation findings presented to the court alleged the incident occurred while the deceased and another worker were removing a counterweight from a BG28 piling rig to prepare the rig for transportation. The other worker operated the rig so that the rear faced toward an assist crane, before unscrewing the long bolt using a 55 millimetre spanner (and a length of pipe on the spanner to create the force necessary to undo it). The long bolt was left in place in the counterweights. While the worker was walking to the nearby assist crane, he heard a 'crack', turned around and saw the rear counterweight had fallen on his colleague.

A similar incident occurred with a related company, Bauer Malaysia, in Malaysia on 13 May 2009 when a counterweight was being removed from another BG28 piling rig. The workshop manager of Bauer Malaysia sent out a detailed email alert regarding the incident to the workshop manager of the parent company in Germany, which was forwarded to the defendant's Pinkenba yard manager, and copied to the defendant's general manager. On 5 June 2009, the workshop manager of the parent company sent an email providing an amended procedure to disassemble the counterweights to the workshop managers of related companies, including the defendant's Pinkenba yard manager. No action was taken by the defendant.

Investigation findings presented to the court revealed:

• the piling rig had a cab base on a crawler track system with an extendable mast and three counterweights to the rear of the cab
• the two inner counterweights weighed five tonnes each and were flat and rectangular
• the third outer counterweight weighed 10.5 tonnes and was an irregular 'D' shape
• all counterweights rested on a supporting frame at the rear of the piling rig
• each of the counterweights was retained on the rear support using two hold down bolts and corresponding large washers with one bolt either side of the counterweight centre line
• the hold down bolts were inserted from below the counterweights up through the support shelf into a threaded hole in the base of each counterweight
• a long bolt measuring 1060 millimetres in length was inserted fore-aft through the centre of the counterweights. At one end it was attached to the base carrier and at the other it sat within a recess on the large counterweight.
• one of four of the defendant's mechanics who was experienced in, and whose duty it was to perform the task of mounting or removing counterweights on the piling rigs, was contacted before the incident but was unable to immediately attend the Pinkenba yard because he was repairing a piling rig elsewhere
• the end counterweight had tilted backwards snapping the retaining bolts and falling to the ground immediately below the end of the support frame
• the deceased had loosened the two retaining bolts on the end counterweight before the assisting crane was attached
• when the counterweight was removed, the deceased had the length of pipe in his hand. The large socket and extension bar used with the pipe by the deceased to partially undo the retaining bolts were located close to the deceased, on the ground underneath the remaining counterweights
• the defendant had adopted the manufacturer's procedure for counterweight removal, but did not assess this procedure
• the manufacturer's procedure adopted by the defendant was defective in that it directed the long bolt to be removed before the counterweight was suspended by the assisting crane
• the deceased and other worker did not follow the (flawed and uncorrected) manufacturer's procedure to remove the counterweights
• the defendant did not at any time instruct or train the deceased or the other worker in how to remove the counterweights
• the defendant knew the piling rig was scheduled to be transported, and although unlikely, this may have involved the removal of the counterweights before transportation
• the deceased had not previously been involved in the counterweight removal process.

Court result:

The defendant pleaded guilty in the Brisbane Industrial Magistrates Court on 22 April 2010 to breaching s.24(1) of the Workplace Health and Safety Act 1995, having failed to meet its workplace health and safety obligations and was sentenced with no conviction recorded.

Industrial Magistrate Graham Lee ordered the defendant pay a penalty of $200 000 as well as investigation, professional, and court costs totalling $15 065.40.

In reaching a decision the industrial magistrate acknowledged the defendant failed to manage the hazards of an inadequately secured counterweight to height on plant, and the system of work for the removal of a counterweight at height on plant. Industrial Magistrate Lee accepted the defendant had been aware of an alert advising of a death hazard from a related Malaysian company that involved a similar incident, and effectively did not respond.

In deciding penalty Industrial Magistrate Lee took into account the defendant had not been prosecuted previously for any workplace health and safety breach, cooperated with the investigation, accepted that mitigation circumstances were present and relevant, took quick and comprehensive remedial steps, and entered an early plea of guilty.

The defendant appealed to the Industrial Court of Queensland on the grounds that the penalty imposed was manifestly excessive. The appeal was heard before President Hall on 1 September 2010 and a decision handed down on 7 September 2010. President Hall held the amount adopted by Magistrate Lee was reasonably available to him and to interfere would be to simply substitute one opinion for another. There had been no material mistake of fact, no extraneous or irrelevant matters taken into account and no error or principle. The original fine was not disturbed and the appeal was dismissed.

Considerations for prevention:

(Commentary under this heading is not part of the Court's decision.)

When deciding on and implementing control measures associated with the risk of falling objects, obligation holders should consider:

• engineering control measures, such as a locking device to secure the counterweights in place without the need for people to be in the potential fall zone
• adequate supervision of the work being undertaken
• an exclusion zone for personnel
• safe work procedures
• worker qualification and experience.

Security of materials and plant can be achieved through proper engineered controls, in conjunction with enforcement of exclusion zones. The likelihood of workers or others being injured or killed by falling objects can be reduced or removed.

Visit the Workplace Health and Safety Queensland website for more information on:

• protection from falling objects
• building and construction
• health and safety information for construction
• managing risk
• employer training options
• training staff
• counterweights on mobile plant 
• Plant Code of Practice 2005
• How to Manage and Control Asbestos in the Workplace Code of Practice 2011
• Work Health and Safety Act 2011.