Worker crushed after director neglected broken gate for 2 years, court finds

The director of two transport and logistics companies has faced court after failing to address a damaged gate before the incident, which may have been prevented by a $517 welding job.

Sole director Andrew Mytkowski and the two companies he operated were found guilty of breaching section 27(5) of the Work Health and Safety Act (WHS Act) by the District Court of NSW on 8 April after it was determined that the director had knowledge of a steel gate’s damage for almost two years before it crushed a worker.

The 800-kilogram, almost 11-metre-long gate – one of two that sat at the entrance to a Seven Hills work site in Western Sydney – sustained damage in June 2020 when a truck reversed into it, compromising an electric motor and sensor. From then until March 2022, the gates were manually opened and closed by workers, and no steps were taken to address the issue.

According to a SafeWork NSW summons, this risked employees “suffering death or serious injury as a result of the gate(s) overturning the end vertical supports and falling onto the workers, while they were manually operating the gate at any time after the truck collision”.

On 24 March 2022, a 53-year-old worker was crushed while performing a manual operation of the gate, becoming trapped for a number of minutes and sustaining serious injuries, including a fractured pelvis, bladder injury, and vertebral fractures.

Following an investigation, SafeWork NSW commenced legal action against Mytkowski and his two companies – SMB Australia Car Transport Employment Pty Ltd and SMB Australia Car Transport Pty Ltd – with all three defendants pleading guilty.

An “informal and undocumented” response was noted by the court, with no risk assessment, updated safety procedure, or written instruction recorded.

The prosecutor (SafeWork NSW) claimed: “The defendant failed to ensure, so far as is reasonably practical, the health and safety of workers, in particular [the worker], in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to health and safety to workers.”

The District Court found that Mytkowski was aware of the damage, and further did not keep up-to-date knowledge of manual gate operation safety, obtain a relevant gate manufacturer manual, obtain information from a competent person about safe gate operation following the collision, nor obtain a risk assessment.

According to the presiding judge, His Honour Judge D Russell SC: “There were no documented procedures or processes relating to work health and safety (WHS) at the site. There was no written safety policy, safety handbook and safety management plan.”

Similarly, “issues relating to WHS were only raised on a verbal basis at the site or by text messages to Mr Mytkowski”.

The court held that a director must exercise due diligence to take such reasonable steps.

Similarly, it was determined that the two companies failed to take reasonably practical steps to conduct a risk assessment, implement a safe work procedure when manually operating the gates, implement supervision, conduct training, and conduct training or instruction in safe practices.

Following the incident and in response to Improvement Notice 7-415213 issued by SafeWork NSW, additional end stops were welded to the gate for $517 on 30 March 2022, with electronic operation later restored on 6 April 2022 for $6,985.

Mytkowski, SMB Australia Car Transport Employment Pty Ltd and SMB Australia Car Transport Pty Ltd will be facing court again for sentencing on 12 August.

Want to see more stories from trusted news sources?
Make HR Leader a preferred news source on Google.