- Claim story
Nigel Jones was crushed in the articulation point of a loader. Investigations revealed that the secondary steering lockout which prevents articulation was inoperative. It was found that workers had inadequate training in initial and subsequent safety procedures. The Mines Safety and Inspection Regulations 1995 (WA) further requires that, as part of a safe system of work, employers and mine managers must provide instruction and training for their employees about safety procedures and systems of work. Each responsible person at a mine must make sure that every employee is also assessed before commencing work at the mine to ensure that the employee is competent to perform the tasks he or she is assigned and to operate any plant and equipment they are required to operated. The training needs to be updated regularly and as systems change. The proceedings were against the Site supervisor, Mr Percy Grey, the contractor and the mine operator. Mr Grey pleaded guilty, he had errored in his professional service of providing adequate site supervision in the form of training of staff in the appropriate use of the safety mechanisms. Mr Grey, the site supervisor was fined $25,000 under the Act.
- Insurance application
The Insurer was an International Insurer with a registered Australian company and had a panel of solicitors ready to be appointed at the time of notification to act on behalf of the Insured. Mr Grey’s policy held a suitable Professional Indemnity Insurance policy with wording specifically designed for Resource professionals. His Professional Indemnity policy had a fines and penalties section under the automatic extensions to $250,000 and under the act he had received a fine of $25,000. The policy also provided for his defence costs which were significant and amount to more than the fine itself at $32,000. A policy will indemnify you for fines and penalties arising from claims against you provided that the conduct was not intentional, wilful, reckless or deliberate and indemnification is permitted at law. The policy had a $5,000 costs inclusive excess which was paid by the Insured once the proceedings against him were finalised in this instance.
- Lessons learned
Within a legal context, ensuring that adequate training and induction systems are in place will be an important factor when courts determine responsibility as part of a duty of care owed in either workplace health and safety prosecutions or civil cases.
- It is important to comply with relevant acts and that even if training appears to be adequate, it needs to be implemented for each new employee using the equipment.
- The employee must be assessed before commencing work at the mine to ensure the employee is competent with the equipment they have been assigned.
- The employee must be retrained and reassessed whenever systems of work or plant and equipment are changed or new systems are introduced.
- An accurate record must be kept of instruction, training, retraining, assessment and re-assessment and the records must be kept for 2 years under the WA act (or as relevant for the act in your state).
Of course, your Professional Indemnity Insurance is a form of Risk Management and this needs to be reviewed annually to ensure it is accurate also. It is necessary to ensure you disclose all activities to ensure that the appropriate policy wording and endorsements are in place and suitable extensions and limits are made available to you.
This advice and comments are provided in the capacity as your insurance broker and should not be construed as legal advice. Separate legal advice relating to the interpretation and implication of this article for your individual circumstances should be obtained.
If you would like an Insurance quotation please contact Professionals Australia Insurance and Superannuation services on 1800 800 998 or complete the form on our website – http://abcountrywide.com.au/professional-insurance-home/professional-indemnity/
Claims Administrator – Austbrokers Countrywide
B.Com (Ins Eco), LLB, Fellow ANZIIF (CIP), Dip. F.S (Brok)