Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Ian Blume v Woolworths Limited t/as Woolworths Supermarkets, a division of Woolworths Limited [2002] NSWIRComm 227 PROSECUTOR: Inspector Ian Blume PARTIES : DEFENDANT Woolworths Limited (trading as Woolworths Supermarkets, a division of Woolworths Limited) FILE NUMBER: IRC5982 of 2002 CORAM: Walton J Vice-President CATCHWORDS : Occupational Health and Safety - Plea of guilty - Crushing injury - Failure of safety devices - Failure to maintain safe operation of machinery - Failure to adequately train, instruct and supervise - Reasonable foreseeability - Mitigation - General deterrence - Specific deterrence - Subjective features - Prior Record - Costs - Penalty imposed Occupational Health and Safety Act 1983 LEGISLATION CITED : s15 Occupational Health and Safety Act 2000 Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610 CASES CITED : Inspector Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155 Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Stylewise Interiors [2002] NSWIRComm 64 R vThomson (2000) 49 NSWLR 383 HEARING DATES: 08/05/2002 EXTEMPORE JUDGMENT DATE : 08/05/2002 PROSECUTOR Mr P Punch Carroll & O'Dea Solictors LEGAL REPRESENTATIVES: DEFENDANT Mr P Morris of counsel SOLICITOR T Crisafulli Moray & Agnew, Solicitors JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, VICE-PRESIDENT 5 AUGUST 2002 MATTER NO. IRC 5982 OF 2001 INSPECTOR IAN BLUME v WOOLWORTHS LTD T/AS WOOLWORTHS SUPERMARKETS, A DIVISION OF WOOLWORTHS LTD Prosecution under s15(1) of the Occupational Health & Safety Act 1983. JUDGMENT Extempore [2002] NSWIRComm 227 1 This matter concerns a prosecution by Inspector Ian Blume of the WorkCover Authority of New South Wales ("the prosecutor") of Woolworths Limited (trading as Woolworths Supermarkets, a division of Woolworths Ltd ACN 000 014 675), alleging a breach of s15(1) of the Occupational Health and Safety Act 1983. The defendant was charged as follows: Woolworths Limited (trading as Woolworths Supermarkets, a division of Woolworths Limited) (ACN 000 014 675) ("the Defendant"), a body corporate with its principle place of business and registered office being Level 5, 540 George Street, Sydney in the State of New South Wales on 6 October, 1999 being an employer at Cnr Condamine Street and Old Pittwater Road, Brookvale in the said State Did fail, contrary to Section 15(1) of the Occupational Health and Safety Act 1983 (NSW) to ensure the health, safety and welfare at work of all of the Defendant's employees and, in particular, Mr Petar Vujasinovic, in that the Defendant failed to provide or maintain plant, to wit one Hydra Pac Model PB48 Baling Press Machine ("the machine") that was safe and without risk to health in that access was possible to moving parts of the machine whilst the machine was in operation. It is further alleged that the defendant failed to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of all of the Defendant's employees and, in particular, Mr Petar Vujasinovic ("Vujasinovic") in that the Defendant failed to provide appropriate instruction, or any adequate information, instruction, and training to Vujasinovic in relation to the safe operation of the machine. The Defendant failed to ensure by way of supervising Vujasinovic that the instruction on the outside of the machine, namely "keep out of machine", was observed and complied with by employees such as Vujasinovic. The Defendant failed to provide any or adequate supervision of Vujasinovic in the discharge of his duties. 2 The prosecution continues, notwithstanding the passage of the Occupational Health and Safety Act 2000, by virtue of the transitional provisions of that legislation. 3 The prosecution arises out of injuries sustained by a 42 year old employee of the defendant whilst working at a supermarket operated by the defendant on 6 October 1999. On that occasion, at approximately 5 am, the victim, Mr Vujasinovic, placed a number of cardboard boxes which had been flattened out into a machine known as a Hydra-Pac (the machine), closed the door of the machine and pressed a start button. The steel plate within the machine which presses down the cardboard then pressed. During this process the upper door of the machine opened and the steel plate began to rise. Mr Vujasinovic noticed that two or three cardboard pieces were jammed behind the steel plate and he placed his right arm into the back of the steel plate to pull out the jammed cardboard. The pressure plate continued to rise whilst the door to the machine was opened and the victim's arm was inside the machine. He attempted to stop the machine rising by pressing a stop button but the pressure plate continue to rise and crush his arm between the plate and the machine. 4 The precise reasons for the accident, so described, remain slightly clouded by the circumstances under which the victim was ultimately removed from the machine. Mr Morris, of counsel, who appeared for the defendant, revealed that many of the operating components of the machine were destroyed by the operation of the "jaws of life" to release the victim, thereby robbing the opportunity of some more detailed inquiry as to the nature of any operating defects within the machine. 5 However, it is sufficiently clear from the evidence, and ultimately accepted by the defendant, that there were two defects in the machine which gave rise to the accident here under consideration. Firstly, there was a failure of an interlock switch which, if operating correctly, would disengage the ramming operation or pressing operation of the machine once the door of the machine was open. I note, in this respect, that the injuries sustained by the employee in this case occurred whilst the door of the machine was open. Secondly, there was the failure of the emergency stop button to disengage the machine when pressed by the employee. 6 There was a slight doubt raised by the defendant as to whether the employee had operated the emergency stop button, however, I am satisfied to the requisite standard the employee did engage the device prior to sustaining the crushing injury. I am also satisfied to the requisite standard that there was a gap in time sufficient to enable the employee to know of the working of the machine slightly before he sustained the crushing injury in this case. That would seem to be indicated by his attempt to operate the stopping device. 7 I should say at the outset, in considering the sentence to be imposed in this matter, that I am impressed by the candid manner in which the defendant put its case as to the objective features of this matter (in addition to its acceptance of a statement of agreed facts) and as to a number of subjective features in favour of the defendant which, in my view, are substantial in nature and should result in a substantial discount in penalty. 8 As has been often stated in decisions of this Court, the primary consideration in sentencing is the objective features of the offence. As to that matter and having regard to the submissions of the defendant today, I consider there are three relevant failures resulting in the risk to safety of the employees. Before referring to these, I observe that the actual risk to safety was the risk of a crushing injury resulting from a pressing machine which could continue to operate in circumstances where an employee had clear access to the moving parts (and where no emergency stop feature was operational). 9 Those three failures were as follows: 1. There was a failure to operate a safety audit or maintenance review system by the defendant in relation to the machine, such as would have alerted it to the deficiencies in the machine (that is, the machine would operate, notwithstanding that the door of the machine was open and notwithstanding that the safety switch or emergency stop switch was operated by an employee). 2. There was a failure to recalibrate the gap between the top of the press plate and the machine so as to avoid the crush point which was present at the time of the accident. 3. There was a failure to sufficiently train, instruct and supervise the employee so as to ensure that the employee would remove himself from the machine in any circumstances where the machine demonstrated any sign of operation after the door to the machine was opened by the employee. 10 Each of those failures are matters which, in my view, were reasonably foreseeable by the defendant and to that extent represent a matter going to the seriousness of the offence, see Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610. 11 However, there are a number of points in mitigation in relation to those objective features that I consider should be taken into account in the assessment of penalty in this matter and to which I will turn to before a review of the subjective features: 1. This is not a case where the defendant had entirely avoided its responsibilities to put in place systems which were designed to detect and rectify deficiencies in safety, whether associated with the operation of machinery or otherwise. There were plainly safety audit systems operating which, in the circumstances of this matter, proved insufficient. The defendant made a submission as to the steps taken by it after the accident. Those steps are laudable and consistent with the strenuous approach generally adopted by this defendant in attempting to achieve a safe system of work. However, the changes which were introduced after the accident also indicate why the risk occasioned in this matter was foreseeable and why remedial measures were clearly available to avoid it. The steps taken after the accident demonstrate the deficiencies in the system which was operated. 2. The defendant did attempt to assess the safety of its machinery and engaged for that purpose expert assistance as to the operating system. It was advised (wrongly, it would appear) that the machine represented a low risk of injury. That is a factor relevant in mitigation, although in a measured and restricted way (in the manner that I identified in Inspector Mansell v Orica Australia Pty Limited [2002] NSWIRComm 155 at [72] and [73]). At the end of the day, it is the defendant's responsibility to make sufficient inquiries and to take sufficient pro-active steps to avoid the risks to safety of the kind occasioned in relation to this machine. 3. The machine in question has been operated over a substantial period of time in a substantial number of places without any record of defect or risk to safety of the kind identified in this case. In short, a machine of this kind has been in constant use without the deficiencies here identified coming to notice. It should also be noted in this respect that some maintenance was undertaken in relation to the machine without report of defect approximately one month prior to the accident. 4. It was submitted that the failure of the isolation switch arose from an idiosyncratic manufacturing fault. To some extent this would appear to be correct, as on the available evidence there would appear to be a defect in the welding of that device which gave rise to the failure. However, that defect was not identified by the defendant in its review procedures. 5. I should turn to two other matters concerning the objective features of the matter of a direct kind relating to the operation of the machine. Firstly, as to the failure concerning the calibration of the machine, it was put that the defendant was simply unaware at the requisite time of the capacity to take that step. In my view, that explanation is insufficient as it represents an absence of a diligent approach to identifying safety measures which may have been taken by the defendant to remove the risk. This factor should receive only a minor discount in mitigation in relation to the objective considerations. 6. As to the question of training, instruction and supervision, I agree with the submission of Mr Morris that the deficiency there identified was of a particular kind, namely, a deficiency in relation to steps which should be taken in the event that the employee noticed some operation of the machine or some unusual activity in the machine after its doors had been opened. It would appear that the injured employee received some initial general induction training which went to the basic operating procedures, as well as some safety aspects. The machine in question represented a small part of the duties of the employee, who was trained by an operator as to the use of the machine (the employee carried out the functions of the machine under the observations of that operator). However, the employee was not given specific safety instructions in relation to any possible malfunction of the machine or any of the problems identified in this case. In that respect, I note the statement of agreed facts states the defendant was supplied no instruction, information or training in relation to the safe operation of the machine and that, in particular, the employee was given no information or instruction as to what to do in the event of the machine malfunctioning (and was not provided with the user manual for the machine). Further, the statement of agreed facts states that the employee did not receive any adequate or proper training in relation to the safe way to use the machine (which I understand to be a statement made in the context that I have identified thus far). 12 There is one final matter going to the objective features, that is, the question of general deterrence. In my view, having regard to the decision in Capral Aluminium, I should apply the principle of general deterrence in relation to this matter and note, that in doing so, I have had regard to the fact that the machine in question, together with machines of this kind, namely, the machines designed to crush cardboard for use in or in connection with the retail industry, are of wide application. 13 I turn then to the subjective features of the matter. At the outset I could observe that, notwithstanding the strenuous steps taken by the defendant after the accident, specific deterrence is warranted in this case, having regard to the nature and size of the defendant's operations and its continuing role as a significant employer in the retail sector in this State engaging in operations of the kind and character which were engaged in at the time of the accident. In that respect, I also apply the decision in Capral Aluminium. 14 I note, before proceeding further, the relevant general principles which I apply in this judgment are those stated by me in recent judgment in Inspector Jose Barbosa v Newstart 150 Pty Ltd t/as Stylewise Interiors [2002] NSWIRComm 64 at [61] - [63]. 15 The subjective features, as I noted at the outset, are very substantial in this case. The particular subjective features which I have had regard to in sentencing in this matter are as follows: 1. The defendant entered a plea of guilty and, in my view, having regard to the record of these proceedings, did so at an early time or at the earliest opportunity. 2. The defendant has shown by its conduct (and as evidenced in these proceedings) that it is contrite and has genuine remorse in relation to the incident. 3. I consider that the defendant has co-operated with the WorkCover Authority of NSW in relation to the prosecution. 4. As earlier noted, the defendant has taken a number of laudable steps after the accident in order to eliminate any risk of further incidents of this kind, particularly in relation to the operation of a bale press. Adjustments have been made to the machinery itself as well as alterations to the system of safety review, including amendments to the safety procedures for the use of the machine. More generally, I observe that the defendant has in operation a very substantial system of safety management which is multi-layered in an effort by the defendant, genuinely in my view, to eliminate risks to safety from its workplace. 5. I have had regard to the substantial systems of safety operated by the defendant. I am particularly impressed, in that respect, with the decision by the defendant to monitor, control and implement safety systems at a senior corporate executive level. I also note that the defendant plays a role in relation to rehabilitation. In all respects, I have had regard to the evidence by affidavit of Deborah Salkeld, who is the Customer and Employee Manager of the defendant. 16 Before turning to the prior record of the defendant I note that I have allowed under the principles in R v Thomson (2000) 49 NSWLR 383, a discount of 25 percent. 17 I turn then to the prior record of the defendant. The defendant has quite a number of convictions recorded over a lengthy period of time. The defendant's prior record is, of course, reflected in the maximum penalty in this matter (namely, a maximum penalty of $825,000). I note the submission of Mr Punch, who appeared for the prosecutor, that despite the record extending well over 30 years, there has been a recent apparent increase in the number of penalties given to the defendant under the Act. 18 However, on the evidence before me, and having regard to the entirety of the defendant's operations and the history of those penalties including their longevity, I consider that the defendant has a relatively good record. The defendant's record should be judged against its very substantial operations in a large number of locations with a large number of employees. In short, on the present record of the defendant, that is the record prior to this occurrence, I consider the defendant to be good industrial citizen in the sense that that expression is used in the various judgments of this Court when assessing the prior record of a defendant in prosecutions brought under the Act. 19 Having regard to the entirety of these circumstances and further having regard to both the maximum penalty in this matter and the subjective features of the offence, I consider that the appropriate penalty with regard to the offence under section 15(1) of the Act to be a fine of $105,000. I make it clear that the penalty imposed would have been greater but for the factors in mitigation raised by the defendant. 20 I make the following orders: 1. The defendant is fined the amount of $105,000 for a moiety thereof to the prosecutor. 2. The defendant shall pay the costs of the prosecutor in these proceedings. (Parties heard on costs. Quantum of costs agreed). 21 In the circumstances, I order, by amendment to Order 2, that the defendant shall pay the costs of the prosecutor in the sum of $7,350. 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.