Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Gary Mason v Namoi Cotton Co-Operative Ltd [2003] NSWIRComm 412 PARTIES : Inspector Gary Mason Namoi Cotton Co-Operative Ltd FILE NUMBER: IRC 1948 of 2003 CORAM: Curtis AJ CATCHWORDS : Occupational health and safety - plea of guilty LEGISLATION CITED : Occupational Health and Safety Act 2000 CASES CITED : R v Dodd (1991) 57 A Crim R 349 HEARING DATES: 11/17/2003 EXTEMPORE JUDGMENT DATE : 11/17/2003 PROSECUTOR: Miss P F Lowson of counsel SOLICITORS: Moray and Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr R F Crow of counsel SOLICITORS: Mallesons Stephen Jacques JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : CURTIS AJ 17 NOVEMBER 2003 IRC1948 of 2003 INSPECTOR GARY MASON v NAMOI COTTON CO-OPERATIVE LIMITED Prosecution under s 8(1) of the Occupational Health and Safety Act 2000. EX TEMPORE JUDGMENT THE CHARGE 1 The defendant company pleads guilty to a charge that on 18 April 2002 it failed to ensure the health, safety and welfare of its employee Neville McKnight at its cotton ginning mill at Mungendi Road, Ashley. THE FACTS 2 On 18 April 2002 Mr McKnight was employed to work as the supervisor at cotton ginning mills which included a mill described as "number 2 ginning mill." This machine, by a combination of blades and brushes mounted on revolving cylinders, removes impurities and cotton seed from the cotton bolls and produces lint. 3 At or about 12 midday on the day in question, a fire broke out within the machine. Water was poured into the machine to extinguish the blaze. Wet cotton then clogged the machine. A mechanised system of jogging rollers failed to clear this clog. 4 Mr McKnight then signalled to Mr Townes, the site manager, who was within the control room, that he should turn off the machine, and climbed on to the apron of the machine into a very awkward position, with his feet off the ground. He reached up with his left hand to remove burnt cotton jammed between a cowling and a revolving drum called a doffing cylinder to which were attached saw blades at one centimetre centres across its width. 5 The run down time of the machine is forty seconds after the power is turned off. The doffing cylinder continued to revolve as Mr McKnight's hand entered the nip point between the blades and the cowling. The saw blades were drawn across his hand in consequence of which he suffered serious injuries to his hand requiring amputation of his middle finger and later an amputation of part of his index finger. 6 The causes of the accident were: 1. The failure to guard a dangerous part of the machine. 2. The failure to install a lock out device by which no access may be gained to any part of the machine before the cylinder had stopped revolving. 3. The failure by the company to ensure that the prescribed lock out procedures were followed by Mr Townes and Mr McKnight. 7 The lock out procedures required that before work was done upon a machine, the electrical power be disconnected at a master switch secured by a common padlock. The person doing the work turned off the power, secured the padlock and kept the only key upon his person. This procedure, which was detailed in the company work practice instructions, also required that the machine not be approached until all moving parts had come to a stop. GRAVITY OF THE OFFENCE 8 "Each crime ... has it own objective gravity importing at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentences for cases in the most grave category." (R v. Dodd (1991) 57 A Crim R 349 at 354). 9 Subjective factors must not be permitted to result in a sentence which does not reflect the objective gravity of the offence. 10 Two measures bear upon the objective gravity of the offence. First, the degree to which the health and safety of employees was compromised by the act or omission constituting the offence. A risk of death is graver than the risk of losing a finger. Second, the culpability of the defendant as revealed by weighing the foreseeability of the risk and the extent to which the defendant may have been burdened in taking appropriate steps against that risk. 11 In the instant case, the defendant's criminal record illustrates the particular gravity of this offence in relation to each of those parameters. 12 On 30 April 1995 an employee of the defendant suffered a crushing injury to the finger in a baling machine. On 14 July 1998 the defendant was convicted before the Chief Industrial Magistrate and fined $15,000. Following this injury, the defendant installed lock out devices to some machines but not to all of them. 13 On 17 April 1998 an employee cleaning cotton from a press also had his hand caught in a machine leading to amputation of his right index finger between the first and second joints. On 3 October 2000 the defendant was fined $15,000 before the Chief Industrial Magistrate. 14 On 29 April 2000 an employee of the defendant sustained fatal head injuries when caught between a cotton bale and the underside of the top of the cotton press. On 17 February 2003 the defendant was fined $247,000 in this Commission by Boland J. That fatality would not have occurred had interlocking devices or other engineering solutions been fitted to that press. This necessity was illustrated by the earlier and relatively trivial injuries caused by the lack of them on other machines. 15 In the year ending 28 February 2003 the defendant made a net profit of $9.8 million and the anticipated profits for this year are in the vicinity of $6 million. 16 On 17 June 1999, Mr Veness, an employee of the defendant, suffered injuries in circumstances very similar to the present, after a fire had been extinguished in a cotton gin. He reached his arm down into the machine to check upon the blades when the machine was started in contravention of lock out procedures. He suffered amputation of his arm. 17 On 18 April 2001, precisely one year before the current accident, the defendant pleaded guilty before the Chief Industrial Magistrate, Mr Miller to a charge laid in respect of that incident. Mr Robert Arthur Bell, the Chief Executive Officer of the defendant, was present before Mr Miller when Mr Miller gave his reasons upon sentence. Mr Miller accepted evidence in report form from the defendant's former operations manager, Mr Gary Wright, "that on the day of the accident and most probably on many occasions previously the company policy re permitting staff to lock out any machine before any part of their body is placed inside the guard of that machine was not being adhered to." 18 Mr Miller pointed out that "despite its procedures, systems of work and training of its employees the defendant failed to ensure tag and lock out procedures were being implemented and adhered to by its employees". 19 He went on to observe that the accident highlighted the failure of the defendant to provide an interlock system so as to positively isolate the machine while the dangerous parts were exposed. He noted that if an interlock guarding had been provided, the accident would not have occurred. 20 The defendant, after this accident and before the plea, did install electric beams to cut power if the beams were broken by reaching down into the dangerous parts of the gin machine, which parts injured Mr Veness. No such beam guarded those dangerous parts of the machine which injured Mr McKnight. 21 Mr Miller, as is apparent from his judgment, was advised in evidence that "The company is in the course of providing capital investment programs to improve lock out procedures at all its work places at a cost of some $50,000 per gin." 22 The kind of risk the subject of the present charge was not only foreseeable, it was foreseen four years earlier after Mr Veness' accident. Not only was the risk foreseen, but the serious nature of possible consequence was foreseen. Further, the means of obviation, both general, by training as to safe work practices, and specific, by the installation of lock out devices on all machines was then recognised by the defendant. Yet it failed to act. 23 The objective gravity of this offence then both in relation to the seriousness of the possible consequences and the culpability of the defendant in failing to respond to a risk which was foreseen, and which twelve months prior to the accident had been the subject of an implied undertaking to the Chief Industrial Magistrate, places the offence in the proportion of sixty per cent of a most extreme case, a most extreme case being one in which the possible consequences included death. GENERAL DETERRENCE 24 Because of increasing community and industrial awareness of the need for occupational health and safety measures to be actively pursued as part of an employer's responsibility, it is now more uncommon for injuries to result from a total failure to devise, institute and maintain some system to ensure safety. In consequence, general deterrence whilst still relevant, in normal circumstances has less weight where a system fails in an instant case, because of some lack of imagination or a casual act of negligence by an employee. 25 Where the facts reveal, however, that an employer was on notice of circumstances giving rise to a risk where its system had seriously failed and yet did nothing to obviate that risk, the call upon general deterrence is powerful. Warnings constituted by the earlier injuries and convictions could not have been stronger had they been specific instructions from an inspector. 26 Enterprises using dangerous machinery must draw from the sentence imposed in this matter the most emphatic message that a failure to address a known danger already the subject of one prosecution, will not be tolerated. SPECIFIC DETERRENCE 27 Ms Lowson for the prosecutor submits, I think not unreasonably, that the criminal record of the defendant indicates that following upon injuries, the particular item of machinery causative of the breach will be the subject of expenditure, but that no general response across the width of its operations will follow. 28 Given the serial submissions placed before members of the Commission and before the Chief Industrial Magistrate concerning improvements to procedures and subsequent failures, I am convinced that a strong signal must be sent to this defendant to ensure that its duty to adopt a methodical risk assessment of every item of machinery is discharged. 29 I am particularly concerned by the fact that on 18 April 2001, Mr Miller was told that as a result of the accident involving the loss of Mr Veness' arm, the company was then in the course of providing capital investment programs to improve lock out procedures at all its work places at a cost of $50,000 per gin. Mr Bell has given evidence before me that the board of the defendant did not approve this capital expenditure until after the injury to Mr McKnight. SUBJECTIVE FACTORS 30 Prevention of industrial accidents may be achieved by addressing behavioural causes, and in addition, devising engineering solutions to mechanical risks. I accept that the defendant has a very active occupational health and safety regime designed to modify behaviour and ensure that workers are cognisant of the need for safety in their own circumstances and in the interests of their work mates. 31 The defendant has caused to be published and applied, manuals, instructions, training courses, assessments and all manner of things which are designed to effect behavioural changes in the interests of safety. 32 Nevertheless, as long ago as June 1999 the defendant knew that despite its procedures and systems of work and training, responsible employees continued to fail to apply tag and lock out procedures. No evidence has been led before me that after the accident to Mr Veness, there was any change in those procedures. 33 After the injury to Mr McKnight, the defendant proposed as a desperate measure a link between the income of its permanent staff by way of bonuses and safety records of their plant. The defendant has also made observance of safety a relevant factor in determining those persons who are to be made redundant or retrenched. It is a pity that Mr Townes, as site manager, was not so motivated before this accident. 34 It was Mr Bell's evidence as I understood him, that he found difficult to explain why a person as trained and responsible as Mr McKnight would put himself into such a dangerous position. This evidence would carry more weight were it not for the fact that Mr Bell was present before Mr Miller a year before Mr McKnight's injury and knew then that such circumstances were not uncommon. 35 I do take into account the subjective factors and believe that a diminution in the objective nature of the penalty ought be afforded in the order of ten per cent. 36 I take into account the useful and cogent submissions of Mr Crow, counsel for the defendant who has not attempted to minimise the seriousness of the offence, and who draws my attention to various matters which I accept are relevant. 37 He pointed out there are inherent dangers in the cotton industry against which it may be difficult to guard. I understand that as a general proposition, but in the instant case the dangers were not unknown and latent. They were patent, obvious, predictable and preventable. 38 He submits that the defendant has a large work force during the cotton ginning season and that in consequence, the number of offences ought to be perhaps amortised over the number of employees. He pointed out the geographical dispersal and remoteness of its cotton gins. I do not regard these matters as relevant to the present situation. 39 He further submits that the seriousness of the matter is less than it might otherwise have been because there was in place a system which would have prevented the accident if the injured worker had adhered to it. I do take that into account. Accepting that such behaviour was foreseen in relation to the earlier injury, it is still the case that in this particular incident, Mr McKnight was in part the author of his own misfortune. 40 Mr Crow points out that the extent of the injury to the worker is relevant. I accept that. The risk inherent in the circumstances of this accident did not include death. I accept his submission that subjectively the defendant's extensive and detailed policy on occupational health and safety and promulgation of policies are relevant. I have taken this into account in the subjective discount. 41 I accept the defendant has demonstrated contrition. It acted well in relation to Mr McKnight, paying for the accommodation of his family in Sydney and offering to pay for their accommodation if they wished to join him on subsequent occasions when treatment was necessary. 42 The defendant's contrition is also demonstrated in part by its prompt assessment of and completion of remedial work. The day after the accident a bar and shield were applied to the machine to prevent access in the manner of Mr McKnight. 43 A significant factor in the present case though, is that if an engineering solution to the risk had been effected before his injury, Mr McKnight would not have suffered. Alterations to the machine effected the day after the accident would have occupied the time of a tradesman for one or two days. 44 I want to make it clear that I have not regarded the defendant's criminal antecedents as a manifestation of "a continuing attitude of disobedience to the law" but rather that the defendant's policy which has been evident now for several years, is that it fixes problems as they occur, but not before. This incident illustrates those engineering deficiencies in its system which had been apparent in each of the earlier offences. The defendant, after those offences, did not carry out any adequate risk assessment over each and every machine employed in its enterprise. It is because the defendant engages a work force, many of whom are young, inexperienced, relatively uneducated and on the evidence partially illiterate, that it was the duty of the defendant to eliminate risks to safety by engineering methods. Prior events had proved that it could not rely upon behaviour modification. 45 The maximum penalty in the present case is $825,000. Given the gravity of the offence in which an arm may have been lost and in which the defendant is in my opinion significantly culpable, I believe that subject to discount the penalty should be $400,000. 46 I discount that sum by ten per cent because of subjective factors and twenty-five per cent because of the plea of guilty, that is by thirty-five per cent. 47 The defendant is convicted and fined $260,000. The defendant is to pay the prosecutor's costs as agreed or taxed or subject to further order. I direct that a moiety of the fine be remitted to the prosecutor. 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.