Demonstrating compliance: The SD Tillett case

I recently posted an article about the way health and safety is measured and reported in organisations.  In the article, I argued that many of the indicators that we used to understand how well health and safety risks are managed in our business are measures of activity and provide no real assurance that health and safety risks are being managed.  I suggested that the assumptions that are drawn from these indicators create a dangerous illusion of safety – because all our indicators are green”, we assume our risks are managed.

The article prompted a lot of discussion and several questions about how health and safety are measured and how organisations might better understand if their health and safety risks are being managed.

I thought it would be helpful to further the debate by looking at a few cases where organisations have met their legal obligations, even though there was an accident to try and understand the sorts of factors that are considered.

In this article, I want to look at the decision of Moore v SD Tillett Memorials Pty Ltd [2002] SAIRC 47, a decision of the South Australian Industrial Relations Court.

On 21 December 1999, an employee, Mr Bacon was helping another employee, Graham Muscat, move an “A” frame loaded with approximately seven granite sheets.  The men were moving the granite sheets using a forklift.

Mr Bacon died when the granite sheets loaded on the ‘A’ frame fell, trapping him between the granite sheets and a metal table.

The defendant company, SD Tillett Memorials Pty Ltd was charged as follows:

On the 21st day of December 1999 at Hindmarsh in the said State, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely Craig Anthony Bacon, was, whilst at work, safe from injury and risk to health and, in particular:

(a)     failed to provide and maintain so far as was reasonably practicable a safe system of work; and

(b)     failed to provide such information instruction training and supervision as were reasonably necessary to ensure that the employee was safe from injury and risks to health.

The particulars of the charge, that is the precise allegations were that SD Tillett failed to:

·         Provide and maintain a safe system for the movement of ‘A’ frames loaded with granite sheets.

·         Provide and maintain a safe system for the loading and storage of granite sheets on ‘A’ frames.

·         Provide adequate information instruction and training to Graham Muscat will about the safe movement of “A” frames loaded with granite sheets.

·         Provide adequate supervision for the employee and Graham Muscat.

·         Provide adequate information instruction and training to the Operations Manager, Stephen Tanner about the loading and storage of granite sheets on ‘A’ frames.

The process for moving the granite sheets required them to be secured using a strapping.  When Mr Bacon died, the slabs had not been strapped in accordance with what was described as a “standard operating procedure”.  While there was some discussion about a memorandum setting out this standard operating procedure, it was not produced in the trial period

Earlier in the day, there had been an incident where slabs had not been strapped, and disciplinary action was taken against the work involved.

There is no discussion in the case about SD Tillett’s injury rates or any other lead or lag indicators used to measure health and safety.

The evidence at the hearing came from the workers.  In all but one case, that evidence was consistent.  The evidence confirmed that all the workers understood the requirements to strap the granite, and this was a requirement that was continually reinforced by the operations manager Mr Tanner.  The Court said:

… there is a common thread through the evidence of those witnesses that there was a continuous verbal reinforcement of the requirement to strap loaded “A” frames.

The only person who said he was not aware of the prohibition against moving the granite without strapping was the driver of the forklift, Mr Muscat.  In relation to his evidence, the Court said:

It is my view that Muscat has tried to cover up the system of work that he adopted at the time of the incident. His denial of any rule about strapping loaded “A” frames is contrary to the evidence of all the other witnesses who were either former employees or current employees of the defendant.

With respect to the written standard operating procedure or memorandum, although the document was not produced at the trial, the Court formed the view that the procedures had been committed in writing, because all the witnesses gave evidence that they had seen a written procedure or memorandum.  The prosecution then argued that a written record should have been made of who had received the document.  In response to this, the Court said:

This is of course desirable but what would it have achieved against a background of constant verbal reinforcement? Recording who received the document had not been carried out in the past although there was a universal awareness of the document by the employees and former employees save and except for Muscat. As I have indicated I find that the evidence of Muscat is unreliable.

This proposition is in quite stark contrast to what we normally see.  Here we have witnesses who clearly understand the safe procedures are doing the work, even though a documented procedure could not be produced.  Normally, we are faced with a position with a documented procedure can be produced, but nobody understands it or complies with it.

The preponderance of evidence in the case was that the employees were aware of the requirement to strap the granite before moving it using a forklift, there was constant verbal reinforcement of this requirement, and disciplinary action was taken against employees who did not comply with this requirement.  In the face of this evidence, the Court found:

I find on the totality of the evidence led by the prosecution that it has not discharged the onus of proving beyond reasonable doubt that there were one or more measures which the defendant may have reasonably practicably taken but did not take which would have eliminated or ameliorated the risk.

I find that there were constant verbal directions to strap loaded “A” frame pallets before any movement. The responsibility for the incident lies not with the defendant but elsewhere.

I therefore find the defendant not guilty.

This case reinforces that it is incumbent on an employer to be able to demonstrate that they have proper systems in place to manage the health and safety risks in their business and that those systems are implemented, understood, constantly applied and enforced.

 The inherent weakness in most health and safety reporting is it does not confirm any of these matters.

Injury rates do not give us this information.  The number of action items that have been closed out does not give us this information.  The number of management walk arounds or “interactions” does not give us this information.

Let me address the obvious objection at this point.  In my view, this is not just about legal compliance.  If an organisation does not have effective assurance that they have proper systems in place to manage the health and safety risks in their business and that those systems are implemented, understood, constantly applied and enforced how can they have any comfort that health and safety risks are being managed?

In my view, it is beyond argument that health and safety reporting needs to move beyond measures of injury rates and “activity” and start to provide positive assurance the critical health and safety risks are being managed.

 

 

 

One thought on “Demonstrating compliance: The SD Tillett case

  1. I might also add Greg that ‘lead’ indicators (currently in vogue) also don’t provide relevant information either. The real problem is the way the WHS industry understands the concepts of ‘measurement’ and ‘demonstration’. Unfortunately, a poorly educated WHS industry with very narrow lower order goals (zero) that somehow define success, simply becomes a basket case for who has the best attribution. Add to this a naive notion of culture (‘what we do around here’) and there is the foundation for the delusion.
    A good example of the delusion can be seen with this example from Thames Water here: https://corporate.thameswater.co.uk/about-us/health-and-safety
    Here is an organisation with the 3 zeros – zero incidents, zero harm and zero compromise. (What amazing language/discourse) and yet on the same site they accept that their network will break down and develop problems: https://www.thameswater.co.uk/help-and-advice/report-a-problem/report-a-problem
    Can they not see how dumb and dangerous this is. So we expect fallibility with our systems and network objects, but infallibility from our humans??? Just wait till this one goes to court and they get hung on their own discourse.

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