Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Steven McMartin v The Crown in Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 364 PROSECUTOR Inspector Steven McMartin PARTIES : DEFENDANT: The Crown in Right of the State of New South Wales (National Parks andWildlife Service) FILE NUMBER: IRC 6889 of 2002 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act, 1983 - s 15(1) - plea of guilty - fitting of a bucket to front end loader - bucket falls injuring two employees - lack of safe system of work, instruction and supervision - risk foreseeable - serious nature of breach not in issue - consideration of previous convictions - significant subjective features - early plea - primary penalty discounted by 35 per cent - fine imposed Supreme Court (Summary Jurisdiction) Act 1967 LEGISLATION CITED : Industrial Relations Act 1996 s 168 HEARING DATES: 10/03/2003 DATE OF JUDGMENT: 10/30/2003 PROSECUTOR: Mr D O'Neil of counsel SOLICITOR: Mr David Morris Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr P Whitford of counsel SOLICITOR: Ms Vivienne Ingram NSW National Parks & Wildlife Service JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 30 October 2003 Matter No. IRC 6889 of 2002 Inspector Steven McMartin v The Crown in Right of the State of New South Wales (National Parks and Wildlife Service) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 364 1 On 16 December 2002, pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 as applied by s 168 of the Industrial Relations Act 1996, the Court ordered the defendant to answer a charge brought by the prosecutor, a WorkCover Inspector, under s 15(1) of the Occupational Health and Safety Act 1983. The charge alleged that on 10 April 2001 at Bombah Point Depot in the Myall Lakes National Park, the defendant failed to ensure the health, safety and welfare at work of its employees, in particular Terry Tooze and Terry Yarnold contrary to s 15(1) of the Act. The particulars of the alleged breach were: (i) failure to ensure a system of work that was safe and without risk to health for fitting of a front end loader bucket to the quick hitch mechanism frame of a Massey Ferguson tractor at the premises; (ii) failure to maintain a frame in a condition that ensured the fitting procedure could be carried out safely; (iii) failure to provide adequate instruction, training and supervision of the safe conduct of the fitting procedure; (iv) failure to establish a procedure for the safe conduct of the fitting procedure; (v) failure to conduct a risk assessment sufficient to identify and minimise or remove the risks to health and safety posed by the fitting procedure. 2 On the second occasion that the matter was listed for plea and directions, the defendant entered a plea of guilty. On the hearing of that plea, an Agreed Statement of Facts was tendered together with a number of photographs which assisted in understanding the nature of the task being performed at the time of the accident. 3 At the relevant time, the defendant was responsible for the management and maintenance associated with the Myall Lakes National Park. It owned and operated a Massey Ferguson tractor with attachments which included a front end loader bucket. On 10 April 2001, the defendant employed Mr Mason as a senior field officer and Mr Tooze and Mr Yarnold as field officers. Mr Mason instructed Mr Tooze and Mr Yarnold to relocate a ground gravel base for a water tank which had been incorrectly positioned the previous week. The gravel base was to be used to support a water tank which was to arrive later in the morning that day. The base was to be relocated approximately 600mm to the west of its position and the task required levelling the ground and removing the base, a distance of about four metres. Mr Mason returned to the office but told the two employees that he would come back at a later time to assist them in this task. Mr Tooze and Mr Yarnold decided that the gravel base was so compacted that it would require the use of a tractor fitted with the bucket to relocate the gravel base. 4 In an interview with the Inspector, Mr Mason said that he had asked Mr Yarnold and Mr Tooze to get three shovels and to wait on site and that he had rejected a suggestion raised by Mr Tooze that they use a tractor to move the gravel. Mr Mason told them that it would take the three of them about ten minutes to do the job by hand with shovels. 5 Mr Tooze, in an interview with the Inspector, said that there were no specific instructions provided on the day to assist him in carrying out his task. He said they were told what job had to be done and were left to use their own initiative, "as usual", - they were just given a job and they did it. 6 Mr Yarnold, in his interview with the Inspector, said that the instructions he had received were verbal instructions to relocate the gravel pad for the water tank. Mr Yarnold stated that it was normally left to the employees how to undertake the task unless the supervisor wished it to be done in a certain way in which case the supervisor would tell them - there were no written instructions. 7 Mr Tooze proposed that he would bring the tractor to the worksite from a nearby shed. After a short while, Mr Yarnold joined Mr Tooze at the shed by which time Mr Tooze had removed a forklift attachment from the "quick hitch" mechanism frame of the tractor and was attempting to fit the bucket to the frame. Mr Tooze had changed attachments to the frame of the tractor on approximately two previous occasions since the tractor was purchased by the defendant in June 1996. Mr Yarnold, however, had never observed or carried out the fitting of the bucket to the tractor. 8 To attach the bucket to the frame involved some manipulation of the frame and tilting of the frame backwards, to align brackets with pins in order to secure the bucket to the frame. The bucket weighed approximately 300 kgs. 9 Mr Tooze had made several attempts to attach the bucket to the frame and believed it had been properly secured. On inspection it was found that one of the hooks had not fully attached, although it was very close to being fully attached. Mr Tooze then attempted to align it by using a hammer to jar the bucket into position while the bucket was raised from the ground on the frame, rather than lowering the bucket to the ground. This hammering action failed to achieve attachment and Mr Tooze observed that the pin was approximately 5mm out of alignment with the hook. He then used a crowbar to lever the hook and pin properly into position and, in order to do this, raised the bucket on the frame to allow for movement of the crowbar. Mr Tooze also tilted the bucket back in the belief that when he levered the bucket it would have nowhere to go but into the correct position. 10 Mr Yarnold stood on the opposite side of the bucket to Mr Tooze, watching his attempts to line up the hook. As Mr Tooze lowered the bucket, instead of dropping into position, the bucket fell from the frame landing on him. Mr Tooze called for help and Mr Yarnold ran to the front of the bucket and lifted it so that Mr Tooze could crawl from underneath. After freeing Mr Tooze, Mr Yarnold could not hold the bucket any longer because of its weight and, in attempting to lower it to the ground, dropped it on to his left foot. Mr Yarnold called for help but Mr Tooze was himself too injured to assist. It was Mr Mason who heard the cries for help and came to the shed from the office and lifted the bucket from Mr Yarnold's foot using the crowbar. After checking the state of the two employees, Mr Mason then called an ambulance. Ultimately, a rescue helicopter was called and both men were airlifted to John Hunter Hospital in Newcastle. 11 As a result of the accident, Mr Yarnold received crushed nerve damage, muscle damage and contusions to his upper left foot and was off work for approximately one month. Mr Tooze received three broken vertebrae in his spine, two fractured ribs on the left side, a bruised right foot, a strained right knee and lacerations to his back between the shoulder region. He did not return to work and had been medically retired. 12 An investigation into the accident conducted by the defendant in April 2001 found that: (i) the bucket's locating lugs did not sit correctly due to damage to the frame; (ii) a lower horizontal cross member of the frame was cracked and bent and the frame was canted slightly to the left of the tractor; (iii) the bucket could not line up with the locating pins and the frame due to the damage to the frame; (iv) Mr Tooze used an unsafe practice of applying leverage to the bucket with a crow bar when the bucket was not correctly seated in position on the frame and in a raised position. 13 Having investigated the accident, the report contained the following recommendations: (i) the "quick hitch" mechanism frame be replaced; (ii) any future damage to the equipment likely to pose a safety risk must be reported and the equipment taken out of service until repaired; (iii) staff be warned of the danger of working under/adjacent to raised equipment such as the bucket of a front end loader type machine; (iv) all attachment works should be carried out at ground level; (v) staff to undertake a walk around inspection of the tractor prior to each day's use or each time they take over operation of the tractor; (vi) any deficiency or unsafe condition must be rectified or reported and the tractor not operated until it is in good safe working order. 14 The Inspector's observations and investigations revealed the following: (i) the "quick hitch" mechanism had been damaged when the tractor was used for fire fighting in early 2001; (ii) Mr Tooze had reported the damage to the extent that he informed his supervisor that the hydraulic ram that raised and lowered the frame was damaged; (iii) the hydraulic ram was repaired but the damage to the lower horizontal cross member of the frame had not been repaired, causing the frame to be out of alignment; (iv) while Mr Tooze and Mr Yarnold held certificates of competency as loader operators, they had not received adequate instruction and training in the task of fitting attachments to the frame of the defendant's tractor; (v) prior to the incident, Mr Tooze had limited experience (approximately two occasions) and Mr Yarnold had no experience in undertaking the task of fitting attachments to the frame of the defendant's tractor; (vi) on 10 April 2001, Mr Tooze and Mr Yarnold were not supervised in their attempt to fit the bucket to the tractor; (vii) the defendant did not have in place a safe system of work nor had it conducted a risk assessment in relation to the fitting of the bucket to the tractor; (viii) there were no documented policies or procedures in place concerning the use or attachment of the bucket to the tractor; (vix) following the accident, the bucket was refitted to the tractor and an instruction given to employees that it was not to be changed unless a new frame was obtained and fitted. On 20 April 2001, the defendant issued a safety alert to staff concerning this action. 15 There were two further matters in the Agreed Statement of Facts: (i) Mr Tooze was the holder of a WorkCover certificate of competency issued in July 1996 for a LB Loader/backhoe, but had limited experience in operating and fitting attachments to the defendant's tractor; (ii) while damage to the tractor during its use in bush fire fighting was reported and repaired, those repairs were confined to the ram and apparently overlooked the damage to the "quick hitch" mechanism. 16 The prosecutor also tended a certificate of prior convictions in relation to the defendant, which was established in 1967. That record showed two convictions in 2003 under s 15(1) of the Act: the first resulted in a penalty of $292,500 imposed by the Industrial Relations Commission and the second involved a penalty of $26,000 imposed by the Chief Industrial Magistrate. The judgments in both matters were made available to the Court in order to assist in fully understanding the background to the penalties imposed. The matter before the Chief Industrial Magistrate involved hot water burns received by an employee while disconnecting a hose from a pump at the Kosciuszko National Park. This incident arose out of a particular use of the pump and, in the experience of the Service, this was the first and only accident involving, what was referred to as "a dangerously cavitating pump". The Chief Industrial Magistrate assessed the nature and gravity of the offence in the medium range of matters coming before the court and imposed a fine of $26,000 where the court's jurisdictional limit was $55,000. The fine of $26,000 represented a discount of 35 per cent in recognition of the early plea and other subjective factors. The considerable penalty imposed by this Court arose in circumstances of a burning operation within the Ku-ring-gai Chase National Park where a crew was over run by fire, leaving four members dead and the three remaining members with serious and extensive burns. The Court noted that the Statement of Agreed Facts and other documents tendered by the parties highlighted the inadequacies of the defendant in undertaking this prescribed burn operation and the fact that it was inadequate in significant respects. The judgment stated that the defendant had taken extensive and wide ranging steps to address the deficiencies exposed by this incident, although it was also noted that there were existing protections which suffered, amongst other things, from being ineffectively communicated to all employees and underpinned by relevant and timely instruction and training. The penalty imposed was discounted by 25 per cent for the benefit of the plea and a further 10 per cent for subjective features resulting in a final penalty of $292,500. 17 For the defendant, an affidavit was read of Mr Stephen Smith, an employee of the National Parks and Wildlife Service, who was the Great Lakes area manager and responsible for Myall Lakes National Park. This affidavit dealt with steps taken in relation to training for plant operation which did not require an operator's ticket. Mr Smith stated that officers were not to operate new plant until familiarisation and training had been taken and, where appropriate, that training was to be undertaken by a representative of the manufacturer or supplier of equipment. Officers who did not attend that training would receive on the job training. Where there was new plant or equipment which had not been operated before, all officers were to read the manufacturer's instructions prior to operating the equipment and were then to be required to demonstrate competency before operating the new plant. Competency would be demonstrated by answering a series of questions based on the information in the manual and demonstrating practical ability to operate the machine. 18 Mr Smith also spoke of the National Parks and Wildlife Services Occupational Health and Safety Hazard Risk Management System Reporting Policy and the fact that in the Hunter region steps were taken to ensure that any hazards, including damage to plant and equipment, were formally reported, recorded and remedied as soon as possible after they were observed. In addition, area field staff had been instructed to maintain a plant and equipment defect log book to record defects and actions taken to rectify them. Occupational health and safety and training were standard agenda items at all staff meetings in the area. All supervisory staff in the area were required to attend the Service's occupational health and safety awareness supervisor's training and incident reporting and investigating training. 19 In relation to the use of the tractor, a safe working practice for removing and attaching front end loader bucket/forks on Massey Ferguson tractor MF399 had been developed for the safe changing of implements on the tractor which was involved in this accident. That practice is now used throughout the Hunter region and all area field staff are advised of the practice at the beginning of the period of work when a particular item of plant may not have been used for some time. 20 The Court also received a letter from the Director General of the National Parks and Wildlife Service expressing his deep concern and regret in relation to the injuries suffered by the two Service employees, Mr Tooze and Mr Yarnold. The Director General assured the Court that the Service had implemented measures to ensure that appropriate training and defective reporting mechanisms were in place so that, as far as possible, such an accident would not occur in the future. He stated that the Service was strongly committed to the protection of the health and safety of its employees and was therefore always striving to improve its occupational health and safety performance. In that regard, the Service was one of 12 government agencies involved in a six year old occupational health and safety and injury management and improvement initiative conducted by the Premier's Department. In October 2002, the Premier's Department formally reviewed the Service's progress as part of this process and found that the Service had a system that met and/or exceeded all minimum key elemental requirements and was moving towards best practice in some key areas. The Service was striving to continue this progress and ultimately sought to achieve best practice in all areas. The Director General stated that he was particularly disturbed about this incident and offered his sincere contrition personally and on behalf of the Service. 21 In submissions for the prosecutor, the following matters were identified as relevant to assessing the effective seriousness of the offence: (i) the breach was multi-faceted; (ii) there was no system of work ever put in place prior to the relevant incident; (iii) no instruction or training had ever been given in relation to the fitting process; (iv) no risk assessment was ever conducted; (v) the approach to supervision too lax. Whilst in this instance employees were told to wait until the supervisor returned, the general approach was that employees would go about their own business once a job was indicated to them. Furthermore, if an employee was qualified to operate machinery he was considered "qualified" to do whatever he though necessary in relation to that machinery; (vi) there were insufficient reporting and maintenance systems to identify and repair damaged machinery. 22 It was further submitted that the risk of workers being injured in the process of moving such heavy equipment was readily foreseeable. The existence of simple and straightforward remedial steps which could have been taken by the defendant to avoid the accident were relevant in assessing the seriousness of the offence. The defendant was capable of establishing a safe system or procedure for fitting the front end loader bucket to the quick hitch mechanism. The defendant was clearly capable of providing sufficient instruction, training and supervision and was capable of setting up appropriate reporting and maintenance systems so that damage to equipment was identified and repaired. The defendant was also readily able to conduct a risk assessment of the relevant task. 23 In relation to the plea of guilty, counsel for the prosecutor submitted that the defendant's plea had "… a substantial quality of facilitating the administration of justice". The plea was to be regarded as an early plea and the defendant was therefore entitled to a reduction in penalty up to 25 per cent. 24 It was pointed out that, immediately after the incident, the defendant stopped employees changing or attempting to change the bucket on the tractor until a new frame was obtained and fitted. Additionally, the defendant set up a procedure or work method for removing and attaching buckets, and informed and instructed all employees in relation to the safe work method. Thus, the defendant clearly took steps after the relevant incident to develop an extended approach to safety in its workplace. Whilst due credit was to be given to the defendant for its efforts since the incident, these very steps revealed what could have been achieved by a more pro-active approach prior to the relevant incident - this must be put in the context of the defendant's record. It had been in existence in its current form since 1967 and this was its third breach but it was conceded to be a very large organisation involving a great deal of people. 25 For the defendant, it was accepted that the incident involved in this breach was "obviously serious as the injuries to Mr Tooze attested". While the defendant accepted its obligations under the Act, it was not always possible to foresee various acts of inadvertence in which employees might engage. 26 Without quibbling with the Agreed Statement of Facts, Mr Tooze had some experience in operating and fitting attachments to this particular tractor and he had reported damage to the tractor. Usually, such damage was attended to but only one element of the damage was identified in relation to this tractor. It seemed to follow that the relevant damage to the tractor was not readily apparent: until there was cause to change the attachments this damage would not be discovered. Further, it was not as if Mr Tooze was untrained, and his loader/back hoe certificate should be taken into account. 27 There was supervision in this case provided by Mr Mason. It was agreed between the parties that the lack of supervision did not loom large as an element in this particular offence. The employees were specifically asked to wait until Mr Mason returned, but did not do so. It was accepted, however, that there was no system in place in relation to this particular mechanism and the way in which the bucket would be changed. 28 In relation to subjective matters, here there was an early plea and the Service had demonstrated its contrition and remorse through the letter written by the Director General. A number of steps had been taken following the accident to address this particular risk and to train employees in relation to the use of equipment and attachments to the tractor. This demonstrated that the Service had learnt from this particular incident and had addressed the danger exposed in future operations. 29 It was also appropriate to take into account when considering the defendant's record, the nature, size and diversity of the defendant's operations. The activities of the defendant were diverse and carried on over a number of locations involving numerous employees. There was a staff of approximately 1800 employed. Viewed in this context, the Department had a good record and this aspect was a proper consideration in assessing penalty. In the case of the Service, the previous offences did not disclose a continuing attitude of disobedience and flouting the law: rather, the particular offence constituted an uncharacteristic aberration. DELIBERATION 30 There was no dispute that the risk to health and safety demonstrated by this incident was serious. The tractor was a piece of heavy equipment and the bucket attachment itself weighed 300 kgs - the employee was basically uninstructed in the method of changing attachments and elevated the bucket in order to secure attachment rather than placing it on the ground. The risks were obvious and foreseeable. They now have been addressed by the defendant but in doing so the defendant has also demonstrated the availability of simple steps to avoid this type of risk to safety. 31 The use of this type of machinery is widespread and the need to change the attachments undoubtedly occurs frequently in industry. There is clearly a role for both general and specific deterrents in assessing the penalty to be imposed in relation to this particular offence. It says something about the nature of this part of the operation of the defendant that the employee concerned resorted to a fairly basic method of securing the bucket to the lifting arms of this tractor - the use of a hammer and a crowbar did not suggest a high level of training and instruction in the operation of mechanical equipment. 32 In relation to the defendant's previous record, it appears that, since the Service commenced in 1967, it has had no convictions recorded against it under occupational health and safety or related legislation until relatively recently. This appears to be the third offence within the last year or two and therefore raises some concern. Having regard to these matters, I would set a primary penalty of $175,000. 33 In relation to subjective features, I accept the defendant's submission that, overall, having regard to the nature of its operations and the size of its workforce, it has in the past demonstrated a good occupational health and safety record. This particular incident is distinctly different to the other two incidents which have brought this defendant before the Court, but the diversity of its operation requires the defendant, nevertheless, to be active in all areas of its operation to ensure the safety of its employees and others who come to its workplace. The defendant appears to have quickly addressed the risk exposed by this incident and there is evidence that it continues to participate with other departments, in a process designed to improve and enhance safety measures in the workplace. The defendant is to be given credit for these matters as well as for the contrition demonstrated by the Director General's letter to the Court. For these factors, the defendant should be given a discount of 10 per cent. It is entitled to a full measure of discount in relation to its early plea and a further 25 per cent discount shall be granted, resulting in a total discount of 35 per cent for these subjective factors. ORDERS 1. The defendant is convicted of the offence under s 15(1) of the Occupational Health and Safety Act 1983 to which it has pleaded guilty in Matter IRC 6889 of 2002. 2. The defendant is fined the sum of $113,750 with moiety thereof to the prosecutor. 3. The defendant is to pay the costs of the prosecutor as agreed, or in the absence of agreement, as assessed in accordance with the Rules of the Court. 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.