A concreting business has been fined $375,000 after a worker was crushed to death at its Berkeley site three years ago.
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Jose Martins, 64, died on the morning of June 12, 2020 when a faulty gate fell on him as he arrived to work at the Maluko premises on Berkeley Road.
A little over a week prior, the automated gate had been damaged when a van crashed into it, which bent it out of shape, pulled it off its track and disconnected from the electric motor.
Guideposts fitted with support rollers, which stopped the fence falling, were also damaged and a stopper had become dislodged, meaning the gate could travel past the guideposts.
On the morning of his death, Mr Martins drove up to the gate, unlocked the padlock and attempted to push it open, but the lack of stopper meant it moved too far and came out of the guideposts and support rollers, then fell against a post.
When Mr Martins tried to move the gate back into position, it fell on him and it wasn't until a co-worker arrived some 15 minutes later he was discovered.
In the days between the crash and Mr Martins' death, workers manually opened and closed the gate.
"During this period there was no system of work in place to ensure the safe manual operation of the gate," District Court Judge David Russell said.
"No risk assessment had been done in relation to the presence of the damaged gate or in relation to its manual operation."
The gate was common property at the site, which Maluko had developed and where it leased one of eight units, and after the crash it was not repaired or replaced.
Judge Russell said Maluko did not take steps to ensure the gate was safe, nor did the company raise concerns with the site's owners corporation or strata managing agent Chris Darby Strata.
Maluko's sole director, Steve Ferreira - who had known Mr Martins since 1982 - said in an affidavit that he knew the gate should have been removed and repaired as a priority.
"He also expressed his personal grief over the loss of his close friend and employee. He has seen Mr Martins' wife and daughter on numerous occasions since Mr Martins' death," Judge Russell said.
Judge Russell convicted and fined Maluko $375,000, applying a 25 per cent discount for an early guilty plea to an offence of failing to comply with a work health and safety duty and exposing Mr Martins to a risk of death or serious injury.
He said Maluko had no prior convictions and was unlikely to reoffend.
Judge Russell also noted in his decision that while the complex's owners corporation reported the damaged gate to the strata managing agent Chris Darby Strata the day after the crash and a work order was arranged, neither Chris Darby Strata nor the owners corporation carried out or arranged an immediate risk assessment.
Chris Darby Strata did not tell workers the gate should not be manually operated, Judge Russell said, nor did the owners corporation remove the gate or take any action to prevent people operating it manually.
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Natalie Croxon
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
Reporter at the Illawarra Mercury, mostly covering social affairs. Previously of the Bendigo Advertiser, Northern Daily Leader and Quirindi Advocate. Our Watch award winner.
