Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Brooks v Standfast Tree Service Pty Ltd. [2003] NSWIRComm 178 PROSECUTOR: PARTIES : Inspector William Brooks DEFENDANT: Standfast Tree Services Pty Ltd. FILE NUMBER: IRC 7888 of 2001 CORAM: Haylen J CATCHWORDS : Occupational Heath and Safety Act, 1983 - s 15(1) - alleged failure to provide and maintain safe plant and safe system of work - use of woodchipper machine - defendant in liquidation - limited evidence as to particlars of plant aspect of charge - charge not made out - evidence in relation to unsafe system supports finding of guilt - direct evidence of senior manager and staff ignoring system of safety otherwise laid down - defendant found guilty of breach of Act Jones v Dunkel (1959) 101 CLR 295 CASES CITED : WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 HEARING DATES: 03/31/2003 DATE OF JUDGMENT: 06/06/2003 PROSECUTOR: Mr R Reitano of counsel SOLICITOR: Mr G. Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr P Macken, solicitor Leigh Virtue and Associates JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 6 June 2003 Matter No. IRC 7888 of 2001 Inspector William Brooks v Standfast Tree Services Pty Ltd. Prosecution under s 15(1) of Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 178 1 Inspector Brooks is an Inspector with the WorkCover Authority of New South Wales and has commenced proceedings against Standfast Tree Services Pty Ltd alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983. As prosecutor, Inspector Brooks alleges that, on 13 December 1999, the defendant was an employer who failed to ensure the health, safety and welfare of all its employees at work and in particular, Mr Marcus Slight. It was alleged that the defendant had failed to provide and/or maintain systems of work that were safe and without risk to health in relation to the use and operation of a Morbark Eeger Beever Woodchipping Machine and that the defendant had failed to provide or maintain plant that was safe and without risk to health, namely the woodchipping machine. 2 The particulars of the alleged offence stated that the defendant, at all material times, undertook various tree lopping, woodchipping, tree cutting, disposal and removal activities at various sites in New South Wales. In carrying out these activities, the defendant owned and operated the woodchipping machine which was transported to various sites in order to carry out those activities. It was said that the woodchipping machine was operated by workers such as Mr Slight, feeding pieces of wood, branches and other refuse into a rotating feed-roller which crushed the material and fed it onto a rotating cutting disc. The rotating cutting disc was enclosed by a guard or cowling so as to prevent operator access to the rotating cutting disc while the machine was in operation. The guard or cowling was said to weigh approximately 40 kilograms. 3 The defendant was said to employ a number of persons, including Mr Slight, to perform this work generally, using various pieces of equipment including the woodchipping machine. 4 On 13 December 1999, Mr Slight and another employee, Mr Tasman Vance, were using the woodchipping machine at a site in Naremburn in the course of their employment with the defendant. In the course of operating the woodchipping machine, the guard or cowling which covered the rotating cutting disc flew open whilst the machine was in operation. Mr Slight attempted to close the guard or cowling while the machine was still in operation and, in the process of so doing, one of the knives on the rotating cutting disc caught the guard or cowling causing it to explode or fly off the machine, striking Mr Slight in the face. Mr Slight was knocked unconscious for a short period of time and was taken to hospital for treatment. Mr Slight, as a result of the accident, lost the sight of his right eye due to nerve damage, suffered six facial fractures, a fractured skull, severe facial lacerations, a fractured palate, loss of teeth, a lacerated thumb and elbow and tendon damage to the right ring finger. 5 It was alleged that the guard or cowling flew loose because the safety pin, holding the guard in place had vibrated loose. The defendant, it was alleged, had failed to provide or maintain plant, namely the woodchipping machine, that was safe and without risk to health in that the defendant had failed to appropriately maintain or monitor the state of the woodchipping machine and, in particular, the safety pin holding the guard or pin in place so as to ensure that the pin did not come loose while the machine was in operation. 6 The particulars also alleged that the defendant had in force at the time of the accident a broad instruction to the staff, namely that they were to - "never attempt to make any repairs or adjustments to the chipper whilst in operation". This instruction was said to appear on the side of the machine and, with nine other directions, were referred to as "the ten commandments". It was alleged that the defendant failed to enforce this instruction and in the circumstances failed to provide and/or maintain a system of work which was safe and without risk to health in relation to the operation and use of the woodchipping machine. 7 The particulars noted that, following the accident, the defendant sent the woodchipping machine to the Sydney distributors where, at a cost of $634, welding work was performed, new blades installed and all settings were accurately positioned. Further, a few days after the accident, on 15 December 1999, the defendant conducted a meeting of all workers other than Mr Slight, to discuss in detail the safe usage of the woodchipping machine. This meeting was said to have been supplemented by a further meeting and training on 18 January 2000 in relation to the safe use of the woodchipping machine. 8 The failure to provide or maintain systems of work that were safe and without risk were particularised as the failure of the defendant to enforce its own requirements that the repairs or adjustments were not made to the machine whilst the machine was in operation. The failure to provide and/or maintain plant that was safe and without risk to health was particularised as the defendant's failure to maintain the guard or cowling cover on the woodchipping machine so as to ensure that the safety pin which attached the guard or cowling to the machine did not work loose as a result of continued use and/or vibration. 9 At the time of the hearing of this prosecution the defendant was in the hands of a liquidator. When queried as to the utility of the prosecution in these circumstances, the prosecutor cast doubt on the genuineness of the liquidation considering the apparently small amounts of money involved, and indicated that there was a suspicion that this step had been taken either to avoid or minimise the effect of the prosecution. The prosecutor was unable to inform the Court whether, if the prosecution case succeeded, there would be funds available to satisfy any penalty and whether the penalty would obtain any priority for payment: it was thought that a penalty, if imposed, would probably stand in line with other unsecured debtors. Solicitors engaged by the liquidator appeared at the calling of the matter for hearing and announced the defendant's preparedness to meet the case. In those circumstances, the matter proceeded. 10 Mr Slight was called to give evidence in the proceedings. With the exception of certain matters to which objection was taken, his statement to Inspector Brooks was tendered. This statement was taken on 12 September 2001. 11 In that statement, Mr Slight confirmed that on 13 December 1999 he had been employed by the defendant, Stand Fast Tree Services Pty Ltd, having commenced employment with that company around March 1999. Mr Slight said that his employment history included working for the defendant company, then being employed by Active Tree Services, undertaking a building apprenticeship, working in erecting office interiors and then a return to the defendant company. 12 On 13 December 1999, about 4.00 pm he was working with Mr Vance using the woodchipper. He said that the operation of the chipper required the logs to be placed in the machine "pretty slowly". During the course of performing this work, the safety guard blew open exposing all the blades. Mr Slight said: I just walked around, I had the shits, I just slammed the safety guard down. And I pushed it, it turned a bit and must have hit the blades. It happened so fast. I just saw this big green thing flying at me. It was the safety guard … the next thing I was on the ground about 6 metres away. 13 As a result of the accident, Mr Slight said he lost the sight of his right eye due to nerve damage, suffered six facial fractures, a fractured skull, severe facial lacerations, a fractured palate, loss of teeth, lacerated thumb, elbow and tendon damage to the right ring finger. 14 At the time of the accident Mr Slight was employed by the defendant as a groundsman but had never been given a position description. The job involved him dragging branches, feeding the chipper machine, using a chainsaw, trimming branches and doing rope work, "basically everything on the ground". 15 While employed by the defendant he did a First Aid course and an electricity course stating that most of his training was with Active Tree Services. The courses he did with the defendant were conducted by other bodies but the defendant paid for them. This training took place about two months before the accident and was conducted over two or three days. 16 Mr Slight had been shown how to perform work using the woodchipping machine by Mr Dean, who was his stepfather. He had been shown no written instructions prior to operating the chipping machine nor had he read or seen any operating instructions or procedures for the Eeger Beever Woodchipping Machine prior to performing work with the machine on 13 December 1999. Mr Slight thought there were no instructions displayed on the chipping machine but, if there were any, they could not be seen because of dirt or grime. 17 On 13 December 1999, Mr Slight said the supervisors on the job were the climber, Ray Hernandez (apparently a reference to Mr Fernandez) and Mr Dean. The instructions he had been given in relation to the job was to do "what had to be done". Four trees had to be taken down and the tree lopper had been at work before he had arrived. The instructions for the job had been given to him by Mr Dean. While working for the defendant, Mr Slight received his instructions from Mr Dean who would meet the employees at the work place and tell them what to do. 18 On 13 December 1999, Mr Dean had given Mr Slight the responsibility of looking after the ground work. He said the accident was witnessed by Mr Vance, the owner of the property and "some other lady down the road". 19 On 13 December 1999, the defendant had supplied Mr Slight with a helmet and earmuffs, a safety vest, gloves, work clothes and boots. This equipment had been given to him a month or two before the accident. Mr Slight confirmed that he was wearing this protective equipment at the time of the accident. 20 Prior to 13 December 1999, Mr Slight said that the woodchipping machine had been "playing up a lot, the blades had been popping out, coming adrift and flying out of the machine". A few weeks before the accident one of the blades flew out through the safety guard putting a big hole in it. He was aware of damage done to the protective guard on the chipping machine prior to working with it on 13 December 1999 but it had been fixed. 21 Mr Slight had seen Mr Dean opening the guard while it was still operating "a couple of times", at the yard when it was just "ticking over" and sometimes "when the chute got blocked". This had occurred on about half a dozen occasions and mainly when the chute had blocked. When the safety guard was lifted there was no cut out device: the machine had to be manually turned off before the safety guard was opened. Mr Slight said it was not common practice for employees to lift the safety guard while it was operating and it only occurred if the chipper blocked at the blades - when that occurred the guard would be lifted and it would throw the rubbish out while work continued. Mr Slight was only aware of problems with the blades and that the engine was over heating and was not idling properly. He was not aware of this type of incident occurring before and he did not think it could happen. It was Mr Slight's opinion that other people were aware that if the guard was lifted then the chipping machine would continue to operate, exposing the blade. He was aware of this because several people had unblocked it even on that day and he had seen Mr Dean lift the guard in those circumstances. He had seen Mr Hernandez and Mr Vance do the same thing. 22 In oral evidence, Mr Slight said that Mr Vance was another work colleague whom he thought was new to the job: he had worked with Mr Vance a couple of times the week before the accident. At the time of the accident, they were both dragging branches from the tree to the chipper and putting them through the machine. The chipper had a hydraulic feed which would take branches anything up to nine inches in diameter on a continuous feed. There was a bar which reversed the hydraulic feed so that if it slowed down the reverse bar enabled the logs to be pulled back and the blades to speed up again. The logs had to be fed in slowly because it was an old chipping machine and it was dangerous. 23 When asked to describe what happened at the time of the incident, Mr Slight gave the following answer: Q. Did something happen to the safety guard of the machine while you were doing that? A. Yeah, it blew open, right next to me. 24 Mr Slight had drawn to his attention the statement he had given to Inspector Brooks where he said that the safety guard blew open exposing all the blades and he had walked around and just slammed the safety guard down because he had "the shits" - he had pushed it and the guard must have turned in and hit the blades. Mr Slight accepted that he had slammed the safety guard down because it had scared him, "… and as I hit it, it sort of just slammed. I haven't worded it very well". 25 Mr Slight explained that the safety guard was on a hinge held by a "pretty big bolt" and lifted sideways. There were safety pins at the top and when the safety pins were "on" the guard could not be lifted up. Mr Slight said that he had lifted the guard up on other occasions to change the blade or to help Mr Dean change the blades but he had not lifted the guard while the chipper was operating - only while it was off. Mr Dean had lifted the guard while the machine was operating a couple of times, but Mr Slight confirmed that he had not. About two months before, Mr Slight had seen Mr Dean, when the chute was blocked, take the safety pin out and open the guard and that let out the material that was blocking the blades. That was how Mr Dean unclogged the machine. When the machine was unclogged, Mr Dean would close the guard and re-attach the safety pin while the machine was still in operation. 26 In cross-examination, Mr Slight said that he knew that the guard should not be lifted while the machine was in operation but on this occasion "it didn't open like that, it just - it happened so quickly". 27 He said that he thought the cover opened because it vibrated loose but agreed that he was too busy working and did not see it vibrating loose: he though that was how the cover came loose. He also agreed that it was possible that while he was away someone had removed the pin but he did not know why they would do so. It was put to Mr Slight that he agreed with that possibility because he did not know why the pin came out, to which he replied, "I guess so, I didn't see". 28 Mr Slight agreed in his oral evidence that the reason he hit the guard with his arm was because of shock and fear - it was just a reflex action to hit the guard. He also agreed that his recollection now was not the best but he still suffered from nightmares about the accident. He agreed that he was a bit surprised by the answers that he had given in his statement to Inspector Brooks "because it was not worded very well. I was in a rush … it was not worded correctly … I was too rushed". 29 He denied that he deliberately walked around to shut the guard - he thought he was walking away from the guard around the machine to switch it off. He accepted that on that afternoon he had "the shits" and was running out of patience and also accepted that he told that to the Inspector because he knew he should not have done what he did. He knew he should not try to shut the guard while the machine was still running and he had been taught not to do that. It was put to him that he ignored the instruction and just tried to slam it shut but stated that it blew open and it happened quickly. He also seemed to accept that, in the process of slamming the guard, it somehow came off the machine although he did not know how it had come off the machine. 30 The electricity course he had attended before the accident was paid for by Mr Dean and dealt with safety around electricity wires but had nothing to do with tree lopping. He had not been shown much about how to operate the chipper by Mr Dean but he had done this work with Active Tree Services. He had been supervised by Mr Fernandez who had shown him how to do things and had given him training in that sense. 31 Mr Slight agreed that on the day he had with him and was wearing the protective equipment being the gloves, the protective clothing, the safety boots, hard hat, goggles and earmuffs. He knew that as an operator he had to stand to one side while feeding the chipper and he knew that one operator should feed the chipper at any one time. He knew that the branches should be fed into the chipper butt end first, and he was never to throw sweepings containing stones and nails or dead wood into the chipper. He knew he was never to use anything like a rake or broom to feed small branches or twigs into the machine and he knew he was never to attempt to make any repairs or adjustments to the chipper whilst it was in operation. While he knew these things, he was not aware of the expression "the ten commandments" of operating a chipper. Mr Slight disagreed that those ten matters were on the side of the chipper. He had not see them and there was no warning on the chipper. He said he had looked at the machine and there was no safety writing on it although there was other writing. 32 Mr Slight was then asked the following question and gave the following answer: Q. You knew how to operate it and you knew what to do and, unfortunately, on this day you went against those instructions, you would agree with that wouldn't you? A. Yeah, I guess so. In cross-examination, Mr Slight also agreed that the machine was fairly regularly maintained and when it was broken it was then fixed, although he thought it should have been maintained more regularly. He had been told, while working at Active Tree Services, that such machines were to be maintained three times a week. He did not know how many times this particular machine was maintained but accepted that any time it was in need of fixing, it was fixed. 33 In re-examination, Mr Slight said that it was not normal, in the usual operation of the machine, for the guard to come up in the way it did on 13 December 1999. That had not happened before. He said he was not responsible for maintaining the machine and he was not repairing the machine on the day or making adjustments to it. 34 When the prosecutor sought to call Mr Dean as a witness, having served him with a summons for that purpose, Mr Dean was not present in the precincts of the Court. An affidavit of service of the summons was tendered and the prosecutor requested an adjournment in order to seek a bench warrant in relation to Mr Dean's failure to attend to give evidence in response to the summons. The defendant opposed the adjournment and sought to have the matter proceed and be completed on the basis of the evidence available. When the Court ruled that the adjournment would be granted in order to obtain the evidence of Mr Dean, the defendant indicated that it would not oppose the statement by Mr Dean to Inspector Brooks being admitted and would not require Mr Dean for cross-examination. That course was acceptable to the prosecutor and the statement of Mr Dean made on 17 September 2001 was admitted without objection. 35 In the statement, Mr Dean said he was the sole director of the defendant. He said his understanding of the accident was that the cover of the chipper had opened and Mr Slight had slammed it shut while the machine was going, in spite of being told not to do so before shutting the machine off before working on it. Mr Dean agreed that the defendant owned this Eeger Beever Woodchipping machine. 36 Mr Dean confirmed advice previously supplied to the WorkCover Authority that the following matters were the documented system of work current at the date of the accident in relation to the use and operation of the Eeger Beever chipper: · A pamphlet outlining procedures was placed in all vehicles and was shown to operators. All who received this pamphlet confirmed they understood its meaning. There were more than 10 copies made; · a "Ten Commandments" plaque on the side of the machine had ten operating procedures which had to be strictly adhered to for the safe running of the machine. This plaque was kept clean and visible at all times; · Operators were under instructions to wear their helmets, day-glo vests, eye wear and gloves when working. The company provided these items to all workers; · Witches hats had to be positioned at appropriate intervals around the truck/chipper and along the road front and back; · Before a job was commenced, a safety status report had to be filled out. This was to identify any likely danger areas associated with that particular situation. There was a box to tick regarding the status of equipment and machinery; · Incidental training schedules. On site/informal training and demonstration explaining correct procedures to fix a problem when it occurred, use of equipment and safe techniques. 37 The pamphlet outlining the operating procedures for the chipper stated that there was no cut out switch or temperature gauge and these things had to be checked regularly in operating the machine. The water level in the radiator had to be checked hourly and there was to be a check for water or oil leaks with the engine to be shut down if a leak became visible. Operators were told to listen for change in engine or operating noise which could signify damage occurring to the motor or running gear, to check the oil level every day before starting and to check the sharpness of the knives every day before starting. They were advised to clean the first air filter while the machine was warming up on low revs once a day and to always warm up the machine for a few minutes when it was cold. The clutch was to be eased in at its lowest revs and the clutch was to be taken out on its lowest revs when it was shutting down, and the engine was to run on lowest revs when finished for a period of five minutes to allow the turbo to cool down. Operators were advised that the rake up material was to be thrown on to the truck to be lost in the mulch and so as not to carry stones through the machine. The operators were also advised by this document to keep down the size of the logs inserted in the machine as much as possible as big bits of log put a strain "on the old girl". The advice was that the bigger bits would be fed through with stops along the way so the machine could keep up. 38 An example of the defendant's safety status report was forwarded to the WorkCover Authority but the documents before the Court did not contain a status report in relation to the job undertaken by the defendant on 13 December 1999. Mr Dean confirmed that the system of work was introduced when the defendant purchased the chipper, about May 1999. 39 One of the documents supplied by the defendant to the WorkCover Authority was the "ten commandments" which was said to appear on the side of the chipper. The sign was said to be 20.5 centimetres by 20.5 centimetres and concluded with the words: If in doubt read T.1.5001 or discuss with your supervisor. Mr Dean said that the T.1.5001 document was an electricity document used by the previous owners and he did not have a copy of it. He said the most important thing however was that if there were any doubts then they should be discussed with the supervisor. 40 Mr Dean said that the ten commandments clearly stated that the operator should not attempt to make any repairs or adjustments to the chipper while it was in operation and that meant not removing any guard or putting a spanner in the machine or attempting to make any adjustments. There was a broad instruction that if there was any obstruction or repair needed then the machine should be shut down. He stated that the defendant could not take into consideration everything that was likely to go wrong but it was just commonsense for the machine to be stopped. He did not believe that the guard could come loose but having come loose, the operating instructions required that the machine be shut down. 41 Mr Dean confirmed that it was a second hand and old machine when purchased by the defendant and for that reason there were no manufacturer's instructions able to be made available to the operators. In his view, it was a machine simple to operate and it was left up to the operator to use his previous experience supplemented with training provided by the company. It was because of the absence of such manuals that there were no manufacturing instructions that could have been shown to operators such as Mr Slight. 42 In Mr Dean's opinion, Mr Slight was an experienced chipper operator having worked and trained at Active Tree Services prior to working with the defendant. He had confidence in his abilities and, while he was supervised he was regarded as a competent worker. It was stated that no one was allowed to perform the chipping operation by themselves and the defendant expected people to be sober and mindful of the machine at all times. If an operator had been seen to be unmindful he would have been spoken to by the supervisor. 43 Mr Slight was supervised on the day of the accident by Mr Vance. The defendant ensured that Mr Slight would follow the operating instructions by being told to alter his work practices by the supervisor if he was found not to be following safe work practices. Mr Dean was not aware that, on a couple of occasions, the guard had become loose. 44 Mr Dean said he was unaware that it was considered normal practice for employees of the defendant to replace the guard on this machine when it became loose without stopping the machine. He denied that he had ever replaced the guard without stopping the machine. He observed: "the first person to do that would have ripped off the guard as it has happened". 45 Mr Dean said that he had trained the operators in the use of the safety status report and had done so several times. Training was given on the report on induction and, on several occasions, Mr Dean had trained the operators himself. During the course of the interview, Mr Dean was asked to supply the safety status report for 13 December 1999 and replied that the defendant was looking for it and would get it to the WorkCover Authority as soon as possible. 46 A document had been produced by the defendant showing that, on 3 May 1999, there was a monthly training schedule dealing (on this day) with the chipper. Mr Dean said that an extensive "run through" had been given on the chipper and it was the first monthly training session on the chipper. There was no record kept of what was dealt with in that training session or who attended. 47 The general overall condition of the chipping machine was thought to be very good in Mr Dean's view. He regarded the fact that there had been 14 recorded instances of repairs since the purchase of the machine as normal maintenance. The machine had been sold in September 2000 and Mr Dean understood that since then the machine had been stolen and its whereabouts were unknown at the time of giving his statement to Inspector Brooks. 48 The accident was investigated by the defendant company, and Mr Dean confirmed that the incident was discussed and all those on site were interviewed. He stated that it was found that Mr Slight did not follow procedure and that it was agreed that he had done something silly. He noted that "Tas" was actually screaming at him to stop him from "doing it". SUBMISSIONS FOR THE PROSECUTION 49 The prosecutor submitted that the so-called "ten commandments" could not satisfy the defendant's requirement to implement a safe system of work. There was no evidence of the steps taken by the defendant to ensure that whatever system was in place was one that was maintained. 50 In addition, the ten rules, with which Mr Slight was familiar, appeared to have no relevant operation in the circumstances which confronted Mr Slight on 13 December 1999. He was not adjusting or repairing the machine. In any event, it was submitted, no steps were taken by the employer to ensure that Mr Slight did not repair or adjust the machine whilst it was operating. 51 To the extent that there was a system, the evidence demonstrated that the system appeared to be one that invited employees to keep working and do things while the guard was raised. Mr Slight's evidence was that Mr Dean had performed tasks on the machine with the guard up, including clearing blades which had become clogged. 52 In his interview with the Inspector, Mr Dean seemed to suggest that the system was one whereby a supervisor would correct an employee who was operating the machine in a way that would be a risk to safety. Thus, if Mr Slight had been seen not to be following safe work practices he would have been told to alter his work practices by the supervisor. In this case, Mr Slight's co-worker on the day was Mr Vance who was not his supervisor: Mr Fernandez had been identified by Mr Slight as the supervisor and there was no evidence that he did anything at all on this particular day by way of supervision. 53 It was important to note that nothing was said to Mr Slight at any relevant time as to what should happen if the guard opened while the machine was operating as it did on this particular day. 54 It was relevant to both the plant count and the system count that the defendant failed to provide a simple lock out device which would have turned off the blades when the protective guard opened. Such guards were frequently referred to in the cases and were common in industry. The use of such a device would have ensured the safe system of work and would have ensured that the plant itself was safe. 55 The WorkCover accident report was evidence that the safety pin had vibrated loose and permitted the guard to rise in the way described in Mr Slight's evidence. Mr Slight's evidence was supported by this document in identifying the way in which the accident occurred. SUBMISSIONS FOR THE DEFENDANT 56 For the defendant, it was submitted that there was no evidence to support a finding that the plant was defective or deficient in any way. To make out that case normally involved expert evidence but here there was no such evidence. Indeed, it was submitted that Mr Slight gave no evidence of any actual defect of the plant. In relation to the allegation of a failure to maintain the plant, again, there was no evidence of such a failure. In fact, the only evidence was to the contrary: Mr Slight stated that any time there was a problem with the machine it was fixed and it was maintained at all relevant times. His attempt to give evidence as to how frequently the machine should be the subject of maintenance attention was, in effect, an attempt to give expert evidence for which Mr Slight was not qualified. 57 It was submitted that it was a matter of guesswork as to how this guard detached from the woodchipping machine. Mr Slight had properly conceded that he did not actually see what had happened although in his mind he appeared to have come to the conclusion that the safety pin vibrated loose. In the end, he did not know how the pin had come out or if it had come out at all. Insofar as this evidence went to the allegation of a failure to maintain the plant, it did not amount to evidence which would sustain a conviction. 58 In relation to the alleged failure to maintain a safe system of work, all that had been established was that the machine broke. There was no evidence that the defendant knew or ought to have known that this machine would break either in the manner that it did, or at all. There was no evidence, or expert evidence, to establish that the defendant should have anticipated a breakdown of the woodchipping machine or a breakdown of the nature that occurred on 13 December 1999. The evidence of Mr Slight was that it came as something of a shock to him that the guard or cover came off the machine in the manner it did. The evidence properly raised the question of what the defendant could do to guard against this eventuality. 59 In this respect it was significant that Mr Slight had been trained both as to his employment generally and in the requirements of the defendant in the operation of this particular machine. Mr Slight accepted that he had been trained in the "ten commandments". In his evidence, Mr Slight accepted that he knew that he should not repair or adjust the machine under his employer's rules and in accordance with his training, but to his credit admitted what he had done was something he had been trained not to do. The employer had a system, had trained its employees in that system and an employee went outside that training quite specifically ignoring it: there was nothing the employer could do in such circumstances. 60 This was not a case where the employee involved was known to be inattentive in his duty or where there was reported to the employer a failure by Mr Slight to adhere to the defendant's safety rules. There was nothing in the evidence to suggest that the defendant should be concerned in any way about Mr Slight's understanding of the requirements of his job, including the operation of the woodchipping machine. In this case, the evidence was that Mr Slight was experienced in this work. Mr Dean had confidence in Mr Slight performing the work. Mr Dean had said in his statement to the Inspector that, while Mr Slight was an experienced chipper operator, he also had confidence in his abilities. He was supervised even though he was a competent worker. That supervision apparently came about because no one was allowed to operate the chipper by themselves. 61 In relation to the absence of a cut out or lock out device on the woodchipper, it was submitted that normally the use of such a device would be the subject of expert evidence, including whether the use of such a device should have been required and whether it would have had any effect at all in relation to this particular accident. 62 For the defendant, it was pointed out that Mr Vance and Mr Fernandez, known to be the supervisor, had not been called. In those circumstances, the defendant submitted that it was entitled to the "inference" arising out of the absence of those witnesses and the inference assumed a persuasive importance in light of the heavy onus of proof which rested with the prosecution. 63 This aspect also had significance for the manner in which the Court would treat Mr Slight's evidence. Mr Slight's oral evidence was a reconstruction based on a statement which he had given a very considerable period after the accident. This was not put as a criticism of Mr Slight but the fact was that his evidence was, in some respects, unsatisfactory. His recollection of what happened as given in the witness box was different to what was in his statement. In his oral evidence, Mr Slight said that it was a reflex action which led to him hitting or slamming the cover of the woodchipping machine so that it would shut. In his statement, he said that when the safety guard blew open he just walked around, having "the shits", and just slammed the safety guard down. The evidence was inconsistent. 64 If the Court, nevertheless, came to the view that the defendant had committed the offence in any respect, then the defendant raised a defence under s 53: again, it was submitted that this was clearly a case where there was nothing that the defendant could reasonably have done to prevent the occurrence of this accident, especially against the background of the training given to the worker, the machine breaking without explanation and the absence of any previous difficulty with the woodchipping machine. 65 In relation to the s 53 defence, the prosecutor submitted that there was simply no evidence to support the bare submission made by the defendant. The obligation on the defendant was to ensure a safe system of work was in operation bearing in mind that there would be competent employees as well as careless and negligent employees. 66 Expert evidence was not required to take the commonsense step of attaching a lock out device on this piece of plant. It was not unreasonable for a simple instruction to be given to the effect that if the guard comes up while the machine is operating, employees are to turn the machine off. 67 In relation to the submission that the machine broke, the evidence was to the contrary. Nothing, in fact, "broke". The evidence supported a finding that the safety pin simply vibrated loose. The safety pin was there for a clear purpose. The employer must have known that there was a danger in the guard or cowling not being in position if the pin vibrated loose. A guard that could not be kept in place could hardly be in compliance with the requirements of the Act. DELIBERATION 68 In relation to the allegation that the defendant failed to provide or maintain plant that was safe and without risk to health, the particulars supplied stated that the defendant had failed to appropriately "maintain or monitor" the state of the machine and, in particular, the safety pin to ensure that it did not come loose while the machine was in operation. The defendant put in issue the fact that the safety pin had vibrated loose and submitted that there was no evidence to support that proposition. 69 In the statement given to the Inspector, Mr Slight said that the safety pin vibrated loose and that was the pin holding the safety guard in place. That part of the statement was objected to by the defendant and was struck from the statement but the prosecutor was given leave to clarify that matter in oral evidence. 70 In evidence in chief, Mr Slight said in answer to the question "Did you see why the cowling blew off"? A. "The safety pin came off". When asked if he saw the safety pin come off, he replied: It just come out, it was still dangling where it was supposed to be and it vibrated out. In cross-examination, it was put to him that he did not really know why the cowling opened to which he replied: I think it opened up because it vibrated loose. It was then put to him that he was guessing and did not see the pin vibrating loose, to which he replied: Yeah, I was too busy working. It was then put to him that he was simply reconstructing what had happened, to which he replied that he did not think he was reconstructing how it opened but he "guessed so". He later agreed to a proposition, which unfortunately had at least three elements, that he did not know how the guard came off the machine. 71 This evidence is critical, in my view, to the charge of a failure to maintain safe plant. I have formed this view because the evidence was that the machine was maintained regularly and repaired whenever something went wrong with it. The guard had not previously opened during operation and Mr Slight said that he did not think that it could happen until this accident occurred. 72 In assessing the evidence, I take into account the demeanour of Mr Slight during the course of giving his evidence, and the clear picture I have of him as a witness who was in a totally alien environment, overawed by the situation and, at times, seemingly prepared to accept any proposition put to him in cross-examination, including accepting the fact that the accident occurred because of his own failures and failure to obey instructions. I formed the view that, nevertheless, Mr Slight was giving his evidence to the best of his ability and recollection, even though it was distressing to him. During his evidence, Mr Slight spoke of the fact that he still experienced nightmares in relation to the accident and, during the course of his evidence and immediately afterwards he was unable to maintain his composure. His work appeared to be simple labouring work and he was regarded as competent in its performance. Even taking these matters into account, I am unable to be satisfied to the requisite standard that Mr Slight actually saw the safety pin vibrating loose immediately before the guard opened. It could just as easily have been a conclusion he reached because, in his experience, the safety pin kept the guard closed. The evidentiary position is not advanced by the accident report signed by Mr Dean - he was not a witness to the accident and the scope of his investigation of the accident was not the subject of any evidence. Mr Dean's untested assertion as to the cause of the accident is not acceptable as discharging the onus of the prosecutor in light of Mr Slight's evidence. 73 Ordinary logic may support Mr Slight's view of how the accident happened. The evidence is that the pin was present and remained there after the guard opened. The real issue is whether it vibrated loose or whether it was not attached or not effectively attached. The evidence does not allow that question to be answered. In those circumstances, I am unable to find the so-called "plant" aspect of the charge made out by the prosecutor. 74 In relation to the unsafe system of work element of the charge, the particulars noted that, at the time of the accident, a broad instruction to staff was that they were to: "Never attempt to make any repairs or adjustments to the chipper while in operation". The particulars continued that the instruction appeared on the side of the machine and were titled the "ten commandments", but the defendant failed to enforce this instruction and, in the circumstances, failed to provide and/maintain a system of work that was safe and without risk to health in relation to the use and operation of the machine. 75 What then can be gleaned from the evidence as to a safe system of work? Mr Slight knew of the ten rules referred to as "the ten commandments" but not by that name. He denied quite strongly in his oral evidence that the ten commandments were on the side of the chipping machine - he had not read them there. It was possible that they were covered by dirt but he did not believe that they were to be found on the side of the chipping machine. He was quite firm about this matter despite his otherwise largely compliant response to some propositions put to him in cross-examination. 76 It also appears to have been part of the system, according to Mr Dean, for a safety status report to be filled in at the commencement of each job. Examples of such reports were in evidence but none where produced referring to the work to be performed on 13 December 1999. In his interview with Inspector Brooks in September 2001, Mr Dean said that he was looking for that report and while it had not yet been found he would send it to the Inspector when it was found. There was no suggestion in the evidence that such a report was completed on this day or that a copy of it was provided to the Inspector. 77 Mr Dean had informed the Inspector in his interview that working on the woodchipping machine, because of its nature, was a two person operation under the defendant's approach. Mr Dean accepted that Mr Slight was competent in his work and had been doing it for a long time but said that he was supervised and under the company's safety system, if Mr Slight was observed to be performing his duties in a way which was inconsistent with the company's safety policy, he would be corrected. 78 That statement leads to the issue of who was Mr Slight's supervisor on 13 December 1999. In his evidence, Mr Slight said that Mr Vance was the chipper and truck driver on the day - a statement which was unclear and not clarified in the evidence. Mr Slight did say that Mr Vance was another work colleague but he thought he was "new", and he had worked with him a couple of times in the week before the accident. Mr Slight believed that he was the supervisor that day and that he had been made so by Mr Dean. He said that he was responsible for the ground work and the site safety. This statement was not challenged in cross-examination. 79 "Ray", apparently a reference to Ray Fernandez, was accepted as a supervisor with the defendant and was referred to as such in submissions for the defendant. Mr Fernandez was present at the worksite on 13 December 1999 but, according to Mr Slight's evidence, was cutting the trees and therefore presumably not working on the chipper. 80 There was no suggestion in the cross-examination of Mr Slight suggesting that Mr Vance was other than a relatively new employee nor that Mr Fernandez or Vance were supervising Mr Slight on the day. What emerges is a very confused picture as to who was to be a supervisor on any day, and no particular system for making that choice emerged from the evidence. The significance of this fact is that Mr Dean, in his statement to the Inspector, made much of the fact that the operation of the chipper was a two person job and that if any unsafe or unauthorised actions were taken by an employee of the defendant, then they would be reprimanded and properly directed by the supervisor. This system totally collapses if, from day to day, job to job, it is quite unclear who is the supervisor for the particular job. 81 Of equal if not greater significance is the system of operation which came out in the sworn evidence of Mr Slight. Mr Slight attested to the accuracy of his statement to the Inspector and gave further evidence under oath. He was cross-examined upon both the statement and his oral evidence. As can be seen from the summary of proceedings earlier set out, the defendant sought to make much of the fact that Mr Slight was out of sorts on this day and had slammed down the protective guard on the chipper after it flew open. Mr Slight stated that the impression given in his statement was not correct and that he had rushed in giving his answers to the Inspector and that it was more accurate to say that he had reacted out of shock in hitting the cover back down on the woodchipper. For reasons I have stated earlier in relation to Mr Slight's demeanour in the witness box and shortly thereafter, I am inclined to believe his version of events that his reaction was one resulting more out of shock rather than a determined act arising out of anger or being out of sorts. Ultimately, it is unnecessary to resolve which version is likely to be the correct description of events because I was impressed by Mr Slight's evidence, which he would not step back from, that he had witnessed Mr Dean clearing clogs in the chipper by opening the cover and allowing the clogged material to spray out thus freeing the internal cutters. Mr Slight also gave evidence that he had seen other employees operate the machine in the same way - clearing clogged cutters by opening the cover while the chipper was still in operation. Accepting that evidence as I do, it follows that, whatever system was in operation including the "ten commandments", that systems appears to be little more than a paper system (much like the site report system) and was one which was observed in the breach. It is pointless to lay down a system of instruction if senior members of the business operate the machinery in a way which is inconsistent with those rules or in a way that is unsafe: they provide the workplace example in matters of safety which demonstrates to employees what is acceptable safety practice. I am satisfied, therefore, that the prosecutor has made out that element of the charge relating to the defendant's failure to implement and maintain a safe system of work. 82 It will be recalled that the defendant pointed out that Mr Vance and Mr Ray Fernandez had not been called to give evidence and in those circumstances the defendant was entitled to the inference arising out of the absence of those witnesses. The defendant did not suggest precisely what inference was to be drawn and how such an inference, if drawn, detracted from the prosecutor's case. 83 In many versions of Cross on Evidence, the rule in Jones v Dunkel has been stated, in its many aspects, to include the proposition that the unexplained failure by a party to call witnesses may, but not must, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. It is often said that the significance to be attributed to the fact that a witness did not give evidence would in the end depend upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call him feared to do so. However, there are circumstances where it has been recognised that such an inference is not available or, if available, is of little significance. The party may not be in a position to call the witness or may not be sufficiently aware of what the witness would say to warrant the inference, that in a relevant sense, he feared to call him. The significance of the inference depends upon the closeness of the relationship of the absent witness with the party who did not call the witness. The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. Further, it has been said that the rule only applies where a party is required to explain or contradict something - what a party is required to explain or contradict depends on the issues in the case thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given that requires an answer. If there is no issue between the parties on the matter, there is nothing to answer: if there is an issue between them, that the party bearing the burden of proof has tendered no evidence of, the opponent is not required to answer. 84 In the present proceedings, the defendant did not identify an issue in contest which was likely to be affected by the evidence of either Mr Vance or Mr Fernandez. Bearing in mind that there is little contest about what actually happened and further bearing in mind that I have decided that an offence has been proved only in relation to the unsafe system element of the charge, I am unable to see in what respect the prosecutor's case is diminished by the absence of Mr Vance and Mr Fernandez. 85 In relation to the s 53 defence, it is relevant that the defendant called no evidence. As the Full Court makes clear in WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59, the test is whether it was not reasonably practicable to comply with the Act. The onus is on the defendant to establish that it was not reasonably practicable to have prevented a breach of s 15(1) in relation to the operation of this machine. The defendant simply states that having provided protective equipment, having the safety status report, training and the ten commandments, that there was nothing more it could do. The real difficulty for the defendant is the finding that I have made that this system of safety, such as it was, was not in fact maintained by the defendant and amounted to no more than a paper system. In this regard it is of some relevance that safety instruction was given shortly after the accident and apparently continued. The defendant's s 53 defence therefore fails. 86 The defendant is found guilty of a breach of s 15(1) of the Act. oo00oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.