ACT court sentencing begins for Canberra's Capitol Chilled Foods owned by Bega after forklift crushes delivery driver

Griffith-based Capitol Chilled Foods, bought by Bega in January 2021 and two months before the incident, faced sentencing proceedings in the ACT Industrial Court on Thursday.

Capitol had pleaded guilty to one count of failing to comply with a health and safety duty in which the failure exposed a person to the risk of death or serious injury.

The victim impact statement by the injured Matthew Thompson, whom Capitol engaged as a delivery driver at the time, was read out the court, detailing how his lower right leg was broken in six places with his bone breaking "through the skin".

"Initially I wasn't sure what had happened but I remember being petrified," the statement reads.

Mr Thompson, 48, recalled seeing "blood everywhere" when he arrived at the Canberra Hospital.

After four operations, he was left with a shorter right leg, causing him to walk with a limp, and a surgeon told him to not do high-impact exercises again.

"I now have a fear of being crushed and at times feel anxious when seeing live machinery around people," his impact statement reads.

The incident also caused him to have nightmares and to experience deep depression.

Mr Thompson, diagnosed with PTSD after the incident, wrote he is unable to return to work because of the physical limitations.

"Recently I received the fantastic news that I'm going to be a grandfather. Rather than looking forward to kicking a footy around with my grandchild, I'm upset because I won't be able to do this," he wrote.

The statement of facts reads that on March 30 in 2021, Mr Thompson parked his delivery van at the business' back dock area to unload crates.

The 65-year-old Olsen, who at the time was licensed and had more than seven years in the role, drove forwards into Mr Thompson, who was standing behind the van with his back to the forklift, crushing his leg.

Prior to the incident that morning, Olsen's direct supervisor saw him driving the forklift forwards while it was stacked with items and warned him about safety issues.

"It was routine and commonplace for forklifts to be driven both forwards and in reverse on the site," the facts state.

The day after the incident, the company implemented a number of safety measures, including an exclusion zone and a physical barrier for delivery drivers.

An ACT WorkSafe investigation found that while the company had safety policies, including a traffic management plan and those relating to forklift operations, Olsen in an interview said he had not seen most of them.

He said he had not received refresher forklift training in the previous two years and had not done any forklift awareness training or any theory testing.

Similarly, Capitol's operations director said he had never read any of the safety documents provided to WorkSafe.

He said even if the company had a zone or tape on the ground to separate forklifts and people, the incident would have still happened because Olsen was driving forwards blind.

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CCTV footage of the incident was played to the court before Stephen Russell, the barrister for the company, conceded that a conviction and fine would follow.

However, he said it was not a case of recklessness.

"There's no suggestion there was a cost saving factor or some commercial advantage or any of those sorts of things that would put it to an aggravated circumstance," Mr Russell said.

Mr Russell said Bega had now improved safety programs at the Capitol site as with its other businesses across Australia.

"The major fact that we would rely upon here is that Bega only had a very short period of time [after purchasing Capitol] to make changes at the location," he said.

"It [Capitol] takes responsibility for the offending ... and your honour can take into account the substantial changes that have been made subsequently," he said.

Prosecutor Sofia Janackovic "some simple measures" could have elevated the risk of being struck by a forklift.

"Indeed the defendant had the ability to do that and that is evidenced by the immediacy by which the defendant installed all those temporary measures the following day," Ms Janackovic said.

She said the company's breach of duty was multifaceted with the lack of a traffic management plan being in place for the back dock area being the major failure.

The prosecutor said other breaches were inadequate provision in information and training, inadequate supervision, and the company's non-compliance with its own policies.

She said Olsen's actions were negligent and "that's the reason why there's actually a charge outstanding for him".

She noted Capitol's good corporate citizenship and the company having no previous convictions.

"The defendant's obviously done a lot of post-incident remedial work, so your honour can have quite a good amount of confidence this sort of incident wouldn't occur again," Ms Janackovic said.

Magistrate James Lawton has reserved his sentence until February.

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