Case: Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465
Outcome: applied
Consideration has also been given to: &#8226; the two earlier events that took place in November 2002 and July 2003. It would be inappropriate to increase the penalty now to be imposed by reason of those two earlier contraventions of the New South Wales Act -- to do so " would be to impose a fresh penalty for past offences ": Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ. But those events do assume some limited relevance. There was no explanation as to why those steps which have more recently been implemented in order to address the safety of employees working in the vicinity of forklifts were not implemented at a far earlier date. The dangers inherent in working in the vicinity of forklifts had very clearly emerged long ago. 47 It is considered that it is " appropriate " to give effect to the agreement between the parties as to penalty. Whether or not the Court would have reached the same figure is not to the point; the sum of $165,000, as agreed between the parties, is within the " permissible range ". 48 The Court declares that: 1. In or about March 2006 and on 25 May 2006 Post Logistics Australasia Pty Ltd contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of its having breached section 16(1) of the said Act in that: (a) The duties of Post Logistics Australasia Pty Ltd under subsection 16(1) apply not only in relation to its employees, but also, to the extent provided for in subsection 16(4), in relation to its contractors, as defined in section 9A. (b) In or about March 2006 its contractor Mr John Lapidario approached a moving forklift operated by its employee Mr Van Trot Tran and disconnected the power on that forklift. (c) On another occasion in or about March 2006 Mr Lapidario, without any qualifications or training to do so, operated a moving forklift in warehouse 1 in the vicinity of Mr Tran. (d) On another occasion in or about March 2006 Mr Lapidario approached an operating forklift operated at the time by Mr Tran and applied the handbrake. (e) At approximately 2.45 pm on 25 May 2006 Mr Tran was operating a forklift from the driver's seat in the vicinity of the work benches and immediately to the south of the southern-most rack of shelving at the Site. In an attempt to engage in horseplay with Mr Tran, Mr Lapidario climbed onto the forklift putting his right hand on Mr Tran's head and neck, and his left hand under Mr Tran's leg. The forklift travelled in reverse and Mr Lapidario was accidentally crushed between a pole and the forklift. Mr Lapidario died at the scene of the accident. 2. In this regard Post Logistics Australasia Pty Ltd breached its duty under section 16(1) of the Occupational Health and Safety Act 1991 (Cth) to take all reasonably practical steps to protect the health and safety at work of its employee Mr Tran and its contractor Mr Lapidario in that it: (a) failed to provide adequate supervision or instruction to Mr Lapidario so as to ensure that he did not engage in the conduct set out above. (b) failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Mr Lapidario coming into contact with a moving forklift. 3. The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Ltd.