Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Woodington v Thiess Services Pty Ltd (No 2) [2004] NSWIRComm 126 PROSECUTOR Inspector Clive Woodington PARTIES : DEFENDANT Thiess Services Pty Limited FILE NUMBER: IRC 4142 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 - Employee injured when attempting to remove blockage from conveyor system - Employee sustained injuries to lower forearm - Plea of not guilty - Conviction recorded - Penalty imposed LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 1983 Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 CASES CITED : Fletcher Constructions Australia v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Inspector Clive Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 Inspector Tyler v Sydney Electricity (1993) 47 IR 1 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 HEARING DATES: 04/23/2004 DATE OF JUDGMENT: 05/24/2004 PROSECUTOR Mr R Reitano of counsel Solicitor: Ms M Simpson Phillip Fox LEGAL REPRESENTATIVES: DEFENDANT Mr R E Dubler of counsel Solicitor: Mr N Sadhu Crisp Solicitors JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Monday 24 May 2004 Matter No IRC 4142 of 2002 INSPECTOR CLIVE WOODINGTON v THIESS SERVICES PTY LIMITED (NO 2) Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 126 1 In Inspector Clive Woodington v Thiess Services Pty Ltd [2004] NSWIRComm 20 the defendant was found guilty of an offence under s 16(1) of the Occupational Health and Safety Act 1983. The defendant operated a lime stabilisation plant facility located at the North Head Sewerage Treatment Plant at Manly in the State. The defendant contracted with Renbec International Pty Limited to provide the services of Renbec's employee, Mr Martin Turner, as a shift supervisor at the plant. 2 The incident giving rise to the breach was described in the judgment at [2] in the following terms: On 27 December 2000 Mr Turner was carrying out his duties as a relief shift supervisor at the plant. Shortly after 9.00 pm Mr Turner commenced an inspection of the plant. During the course of the inspection he noticed that one of the conveyor belts had product (treated sewage or biosolids) falling from it. This was caused by a build-up of product on a moving tail end roller on conveyor ME011 that was part of the conveyor system at the premises. Mr Turner said he attempted to clear the product build-up by laying on a walkway adjacent to the conveyor belt and scraping it off with a broom handle. Whilst doing so his gloves came into contact with the belt and his right arm was drawn into the metal framework. His arm became trapped between the conveyor belt, the framework and the roller. Mr Turner was working alone at the time. He took about 10 minutes to free himself. He suffered injuries to his right lower forearm and wrist, including three lacerations, four to five damaged tendons with 50 to 80 per cent damage and third degree friction burns. 3 The charge and particulars were that the defendant failed to: [E]nsure that persons not in its employment at the premises, in particular, Martin Turner, were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to Section 16(1) of the Occupational Health and Safety Act 1983. Particulars of the Defendant's breach are that it: 1.1 failed to properly guard the moving parts of conveyor ME011; 1.2 failed to provide an adequate emergency stop mechanism for conveyor ME011; 1.3 failed to carry out adequate maintenance to belt skirting on conveyor ME011; 1.4 failed to ensure a system for cleaning product buildup from conveyor ME011 that was safe and without risks to health; 1.5 failed to ensure that shift supervisors at the premises were adequately trained and instructed in emergency procedures; 1.6 failed to ensure that shift supervisors were adequately trained and instructed in procedures for cleaning product buildup from conveyors; 1.7 failed to ensure that shift supervisors were provided with adequate emergency communication equipment when working alone; 1.8 failed to ensure that conveyors were isolated or stopped prior to commencing the cleaning of product buildup; 1.9 failed to ensure that Turner was adequately supervised when working as night shift supervisor; 1.10 failed to ensure an adequate assessment of the risks posed to operators required to clear product buildup from the conveyor. 4 In finding the offence proven the Court said: 87 I am satisfied beyond reasonable doubt that on 27 December 2000 the defendant failed to ensure that persons not in its employment at the premises, in particular, Martin Turner, were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to Section 16(1) of the Occupational Health and Safety Act 1983 in the manner particularised in particulars 1.1, 1.2, 1.4, 1.6, 1.9 and 1.10 of the charge. 5 This judgment deals with the question of penalty and costs. 6 The primary consideration in sentencing is the gravity of the offence viewed objectively: Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; Fletcher Constructions Australia v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 77-81. Having determined the relative seriousness of the offence, the penalty to be imposed is that which approximately correlates upon the scale of penalties set by the legislature from zero to the maximum: WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Limited (No 2) (2000) 99 IR 163 at 196. The maximum penalty in this case is $550,000. 7 Matters that are relevant to a consideration of the objective seriousness of the offence are the nature and quality of the offence and whether it involved obvious or foreseeable risks, whether there were simple and straightforward steps available to remedy any failures on the part of the defendant and, the practical and potential consequences flowing from the commission of the offence including whether injuries sustained by an employee or person manifested the degree of seriousness of the relevant detriment to safety. The Court is also required, in fixing any penalty, to consider the need for both general and specific deterrence: Capral Aluminium v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at [71]–[80]. 8 A secondary consideration is the subjective features of the offence, that is, the facts concerning the offender. This will assist the Court in determining whether any penalty justified by the objective circumstances of the offence should be modified. The penalty to be imposed must generally be such as to compel attention to occupational health and safety generally so as to ensure that workers whilst at work will not be exposed to risks to their health and safety: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388; Capral Aluminium. 9 In sentencing an offender the Court is also required by s 21A of the Crimes (Sentencing Procedure) Act 1999, to take into account prescribed aggravating and mitigating factors where they are relevant and known to the Court. 10 In considering the nature and quality of the offence, there are a number of relevant matters to be taken into account that are referred to in the earlier judgment and in the submissions of the parties. Firstly, Mr Turner was an experienced worker who had performed the task of writing the quality assurance procedures, including safety procedures, relevant to the Plant. Mr Turner drafted both the work clearance certificate procedure and the isolation procedure and was very familiar with them. He had applied the procedures in a 'hands on' way and was involved in 'buddy' training to be a relief shift supervisor. Mr Turner had conducted a risk assessment on conveyor ME011 only 5 days before the incident that gave rise to the prosecution. Mr Turner understood that it was not his role as night shift supervisor to engage in maintenance work. The Court observed at [70] of the earlier judgment that although Mr Turner did not set about to intentionally injure himself, his action in using a broom handle to clear excess build-up on the tail end roller was "the height of foolishness". This must especially be so in light of Mr Turner's familiarity with safety procedures. These considerations tend to mitigate the seriousness of the offence. 11 It must also be said in the defendant's favour that this is not a case of an employer completely ignoring a known risk to safety. Whilst the defendant was aware of the position of conveyor ME011 and the tail end roller in relation to the walkway and the risk to safety of moving machinery, it considered that anyone deliberately attempting to clean the roller in the manner adopted by Mr Turner was so remote as to not constitute a risk and, further, that accidental contact by a person with the moving parts of the conveyor was not reasonably foreseeable given the location of the tail end roller. Whilst the Court rejected these contentions, it is apparent that the defendant had, as part of what was otherwise a very good approach to occupational health and safety in the Plant, actively considered the question of safety and was conscious of risks to safety. The defendant failed, however, to ensure the safety of persons not only from accidental contact with moving machinery but also contact that might occur through the foolish or careless actions of persons working in the Plant. 12 The defendant contended that it was open to the Court to fix a penalty at the low end of the range because the defendant's failures should be seen as an aberration when account is taken of the overall circumstances of the offence, the defendant's good record and its comprehensive policies and detailed occupational health and safety practices in place at the Plant. There is some force in this submission. However, there are other considerations that tell against taking too lenient a view about the offence committed by the defendant. These are summarised at [70] of the earlier judgment as follows: 1. In the absence of any guard or covering, Mr Turner was able to access the moving machinery of the conveyor with relative ease. 2. The defendant was aware of the risk to safety of the moving parts of the conveyor. 3. The defendant did not guard the relevant parts of ME011 because the defendant considered it was not foreseeable that any person would come into accidental contact with its moving parts. However, the defendant failed to properly consider the prospect of non-accidental contact by a person trying to clean the belt and roller of the conveyor. 4. The defendant was aware since at least 24 December 2000 that a build-up of product was occurring that adversely affected the operation of that part of the conveyor ME011 between the transition chute from ME09 to the tail end roller of ME011, including the roller. 5. The shift supervisors were reporting the constant need to clean down the belt and the roller. 6. The defendant made no assessment of the risks that might be associated with the cleaning down work of the affected area of the belt and roller in circumstances where night shift supervisors were working alone. 13 Further, at [71] and [73] of the earlier judgment the Court said: 71 The defendant submitted that the build-up of product on ME011 had never occurred prior to 24 December and, therefore, no risk assessment had been carried out. The fact, however, that this was an unprecedented occurrence should have alerted the defendant to take steps on or after 24 December to ensure that the occurrence was not going to present an unanticipated risk to health and safety. … 73 Notwithstanding Mr Turner's training and his instructions as to safe working, the flaw in the defendant's approach to safety was that in failing to follow up and deal expeditiously with reports regarding the unprecedented spillage of product, and the implications that might have for health and safety in the absence of proper guarding, the defendant failed to ensure that persons were not exposed to risks to their health and safety. 14 The defendant was aware of the risk of moving machinery in the Plant by virtue of its rule that persons were not to place any part of their body within one metre of moving machinery. The defendant was also aware that the tail end roller on ME011 was not guarded but it had taken the view that because of the location of the roller, vis a vis the walkway and the distance of the roller from the floor, there was no risk of accidental contact. Further, the Court found that the defendant was aware of the unprecedented build up of product on the roller and the constant need to clean down the belt and the roller. However, the defendant took no steps to assess the risks that might be associated with the cleaning down work of the affected area of the belt and roller in circumstances where night shift supervisors were working alone. 15 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting at 476; Capral Aluminium at [81]; Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27. In circumstances where the defendant was aware of the danger presented by moving machinery, was aware that at a location of the conveyor that was not guarded there was a problem that had not previously arisen and that required special attention by the lone night shift supervisor, including constant cleaning up, it was foreseeable, in my opinion, that a risk to safety might arise if a supervisor attempted to deal with the problem in the absence of full guarding. The expression of this opinion is not an exercise in hindsight when it is understood that the obligation on employers under the Act is to ensure workers are not exposed to risks and that this obligation requires employers to actively search out risks and to eliminate them. 16 The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant to assessing the seriousness of the offence in this case: Kembla Coal & Coke at 36. It is clear from the steps taken by the defendant following the accident that the measures available to avoid any risk to safety were relatively simple and straightforward. These included: (a) Fitting an additional guard to conveyor ME011 with the result that the conveyor was guarded throughout its full length from tail to end and all nip points were guarded; (b) Installing an additional emergency stop cable; (c) Posting signage to the front cover of conveyor ME009, informing operators of hand tools for cleaning purposes. 17 The seriousness of an injury does not dictate the size of any penalty but it does demonstrate the seriousness of the detriment to safety occasioned by the offence: Inspector Tyler v Sydney Electricity (1993) 47 IR 1 at 5. Mr Turner took about 10 minutes to free himself from the roller. He suffered injuries to his right lower forearm and wrist, including three lacerations, four to five damaged tendons with 50 to 80 per cent damage and third degree friction burns. He was able to return to work relatively quickly. 18 The prosecution conceded that: However, having regard to the serious nature of other matters coming before the Commission under the Act, it cannot be said that the consequences in this matter place it at the higher or highest range of seriousness of offences under the Act. 19 In Capral Aluminium at [74] the Full Bench observed that both general and specific deterrence are matters "which should normally be given weight of some substance in the sentencing process". In relation to general deterrence the Full Bench added at [75] that "The need for general deterrence in relation to serious offences under the Act is undeniable." 20 Failure to guard machinery continues to be a cause of injuries to workers in New South Wales and, consequently, prosecutions under the Occupational Health and Safety Act. It is appropriate that I include in the penalty and element for general deterrence. 21 As for specific deterrence the defendant has no prior record of convictions, its occupational health and safety policies and practices are generally of a high standard and it is evident from the affidavit of Peter Charles King, the defendant's state manager for New South Wales, the defendant took prompt and appropriate steps to avoid a re-occurrence of the accident. I do not propose to include in any penalty a significant element for specific deterrence. 22 There are a number of relevant subjective considerations. Firstly, the defendant has no prior convictions. Secondly, as I have already adverted to, I consider the defendant's policies and practices relating to occupational health and safety are of a high standard. The details of these policies and practices are set out in the affidavit of Mr King. It is evident that the defendant gives high priority to workplace safety. 23 Thirdly, the defendant has a commendable injury and rehabilitation regime in which injured workers receive immediate medical attention. In relation to Mr Turner he was provided with paid leave to attend rehabilitation sessions, reallocated to light duties and provided with a motor vehicle to help with his transport needs. Mr Turner returned to normal duties on 22 January 2001 as the operations supervisor. 24 I have taken into account the following mitigating factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act: (f) the offender was a person of good character; (g) the offender is unlikely to re-offend; (h) the offender has good prospects of rehabilitation. 25 Given the objective seriousness of the offence I consider an appropriate penalty in this case to be $65,000. This amount is to be reduced by 10 per cent having regard to relevant subjective factors resulting in a fine of $58,500. Orders 26 The Court makes the following orders: 1) A verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $58,500 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. ___________________________ 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.