September 2018

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Intoxication 'caused worker's death'


by John Reynolds and Kate Tilley, KT Journalism

An experienced almond orchard worker, who was killed when the tractor he was operating ran over him, was intoxicated and entirely responsible for the incident, Victorian Supreme Court Justice Rita Zammit has ruled.

Francesco Puleio, 55, of Robinvale, was found dead, lying beneath the still-running tractor early on 29 August 2013. He had slept at the Wemen orchard overnight to start irrigation equipment repairs early. It was unknown why he decided to operate the tractor and attached slasher to mow a headland, a task assigned to another worker.

He was employed as an orchard technician leading hand. His duties mainly focused on irrigation but he was also involved in other tasks.

Mr Puleio's widow, Sandra Puleio, now 56, sued Olam Orchards Pty Ltd for breaching its duty of care to her as a secondary victim. She alleged she had sustained psychiatric injuries, including nervous shock, post-traumatic stress disorder and depression. Mrs Puleio argued Olam was responsible for her husband's death by failing to prevent him consuming alcohol on the premises after hours, allowing him to sleep there overnight, and failing to adequately train and supervise him.

Olam denied liability, arguing Mr Puleio's death was caused by his "own carelessness in consuming alcohol and forgetting to apply the tractor's handbrake".

On 21 March, Justice Zammit found Olam was not liable for Mr Puleio's actions. It appeared Mr Puleio had decided to mow the headland before other workers arrived. While it was not his assigned duty, she found he was well trained in operating heavy machinery and aware of "common sense" safety precautions like applying handbrakes.

She rejected Mrs Puleio's attempt to suppress a toxicology report that found her husband had a 0.18% blood-alcohol concentration (BAC) when he died.

Justice Zammit said: "That explains how such an experienced farmhand could have made such a basic error of judgement as to exit the tractor cabin without applying the handbrake."

Justice Zammit rejected Mrs Puleio's argument Olam had contributed to Mr Puleio's intoxication.

Employers could not be expected to control staff's after-work or off-duty actions, even if they were on work premises. "That would erode employees' personal autonomy [and] interfere in their private lives in a way unacceptable in a liberal democracy," she said.

Olam had a zero alcohol policy for on-duty employees and Mr Puleio had engaged in conduct "that was not only prohibited by [Olam] but which he understood was prohibited".

"There was no reason for [Olam] to believe [Mr Puleio] would consume alcohol and then operate heavy machinery."

The court heard Mr Puleio had worked a full day at the orchard on 28 August, returning home at about 4.30pm. His wife gave him a saucepan of tripe for his dinner, which he took with him to heat and eat when he returned to the orchard.

He arrived at 6pm and spoke to several people but was not seen again after 8pm until his body was found just before 8am the next day.

During the evening he had set up a swag on the floor of the locker room, which he did "from time to time, usually when his wife was working night shift". Employees regularly stayed overnight, particularly during harvests.

There was no direct evidence about what happened, but Justice Zammit said "it can be inferred" Mr Puleio had been slashing grass and weeds along a fence line. He drove the tractor too close to a ring-lock wire fence, which got entangled with the slasher. He stopped the tractor at the top of a slight rise, disengaged the gearbox and drive shaft, and disembarked. He did not apply the handbrake when he exited the tractor.

There was evidence Mr Puleio had returned to work to mend irrigation lines damaged when bee hives were removed from the property. The accident occurred when he was performing an activity not assigned to him and without his employer's knowledge or consent.

Olam had an onsite accommodation policy and an alcohol and drug management policy. Both stated employees must have zero BAC when operating heavy machinery and could only consume alcohol on the premises "to the extent that would be acceptable in a public space".

"It would be an overreach to impose a blanket prohibition on consumption of alcohol. The situation would be different if the employee was on call [and] might be required to perform employment duties during the night," Justice Zammit said.

While Olam knew employees occasionally drank alcohol on the premises, the drinking was strictly after hours. There was no evidence of a workplace culture, condoned by Olam, that encouraged regular and excessive drinking.

"It is difficult to see how any training of any kind could have prevented [Mr Puleio's] failure to apply the handbrake, since this failure arose out of his own carelessness brought about by his level of intoxication," she said.

He was "an experienced farm hand who knew how to use heavy machinery. He was by all accounts hard-working, highly competent, safety conscious and had no history of breaching safety protocols or company policy."

Puleio v Olam Orchards Pty Ltd [2018], VSC 109, 21/03/2018

 
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