A Gerard Corporation subsidiary has been fined $80,000 for operating an an unsafe workplace.
The unusual case was decided yesterday in the Industrial Court where it was disclosed that the Gerard Corporation had attempted to make interim compensation payments to the injured worker’s family, but was prevented from doing so due to legal concerns.
The case involved a New South Wales truck driver crushed on the premises of Gerard Corporation subsidiary Custom Cartons in Brompton in May 2011 when a load slipped from a forklift.
Stephen Martin, 52, suffered severe injuries while delivering machinery and goods to Custom Cartons.
Martin had delivered a load of goods, including two 1.7 tonne machines. While the first machine was being unloaded by forklift it fell from the tines and crushed him.
Following an investigation by SafeWork SA, Custom Cartons was charged with having failed to provide and maintain, so far as was reasonably practicable, a safe system of work.
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The seriously injured driver’s family had indicated through solicitors an intention to pursue common law damages.
Industrial Magistrate Stephen Leischke noted in his decision that Custom Cartons and its Executive Officer Adam Gerard had shown contrition.
“Custom Cartons made some early enquiries of SafeWork regarding contact with Mr Martin and his family,” Leischke said in his decision.
“It was suggested it would not be appropriate for the defendant to do so. It accepted that advice.”
Leischke said Custom Cartons has since made a payment to the Martin family of $40,000 by way of reparations.
“This is in recognition of the significant financial loss experienced by Mr and Mrs Martin to date.
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“Initially Custom Cartons was wary of demonstrating its contrition to the Martins through making any act of reparations, in view of the foreshadowed common law claim and concern over its insurer’s attitude towards such a payment.
“However to its credit, Custom Cartons sought and obtained clarification from its common law insurer that a payment by way of reparations would not negate or invalidate in any way the company’s indemnity.
“In the Court’s view this is a significant act of reparations which has shown the company’s genuine concern for the victim of the offence and is a clear demonstration of its contrition.
“Custom Cartons also made a statement of apology direct to Mr Martin and to the Court during the sentencing hearing.”
Martin’s injuries are substantial and permanent, the court heard.
“Mr Martin was extricated and conveyed to hospital.
“He remained unconscious for the next two weeks, and under intensive care for one month until he was able to be discharged to a hospital in NSW.
“He underwent numerous surgeries totalling about 36 hours of operations in all. The trauma of the incident caused liver lacerations, punctured lungs, a fractured pelvis, a fractured neck of femur, seven fractured ribs on the right side with four fractured ribs on the left side, a fractured L5 vertebral body, fractures to five thoracic vertebrae, fractures to the left shoulder which ultimately resulted in a replacement of the shoulder joint, a fractured right ankle, a fractured right fibula, a hernia and post traumatic stress.
“As can well be imagined these injuries were extremely painful, extremely debilitating and have resulted in a catastrophic effect on Mr Martin’s life and on his family.”
Statements from the family said Martin’s ongoing severe limitations including a greatly reduced ability to walk and then even only with the aid of a stick, memory loss, ongoing PTSD, ongoing pain, discomfort and restriction.
It is unlikely he will be able to return to work again in any capacity.
The court also heard that despite the injury occurring two and a half years ago, that until the payment of $40,000 from Gerard Corporation, they had received no compensation other than Martin’s reduced income maintenance payments from NSW WorkCover.
The Magistrate said a fine of $120,000 was appropriate, however, he reduced the amount by one third due to “demonstrated contrition, cooperation and early guilty plea”.
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