Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Martin) v GrainCorp Operations Limited [2002] NSWIRComm 312 PROSECUTOR: PARTIES : Inspector Brett Martin DEFENDANT: GrainCorp Operations Limited FILE NUMBER: 7828 of 2001 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - foreseeability of risk and harm - hazard indication assessment - objective seriousness of the offence - prior convictions - penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15 Batty v Graincorp Operations Limited [2002] NSWIRComm 49 CASES CITED : Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo Ramsay) (2000) 49 NSWLR 610 Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 HEARING DATES: 11/14/2002 EXTEMPORE JUDGMENT DATE : 11/14/2002 PROSECUTOR: Mr J. A. Kernick of Counsel SOLICITORS: Phillips Fox Lawyers LEGAL REPRESENTATIVES: DEFENDANT: Mr P. M. Skinner of Counsel SOLICITORS: Goldbergs Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J 14 November 2002 Matter No. IRC 7828 of 2001 WorkCover Authority of New South Wales (Inspector Brett Martin) v GrainCorp Operations Limited Prosecution under s 15 (1) of the Occupational Health and Safety Act 1983 JUDGMENT (Extempore) [2002] NSWIRComm 312 1 The matter before me this morning concerns a prosecution laid by the WorkCover Authority, the informant being Inspector Brett Martin, against Graincorp Operations Limited. 2 The offence involves a breach of s 15(1) of the Occupational Health and Safety Act 1983 in that it says that, on 28 November 1999 at premises located at Graincorp Tocumwal Silos, Silo Road in the State of New Wales, the defendant: "FAILED TO ensure the health, safety and welfare of its employee, in particular Natalie Seibold, and that it failed to provide or maintain a system of work that was safe and without risks to health for the operation of grain drive over hopper ("the hopper") at the premises. In particular the defendant failed to: (a) Conduct an adequate risk assessment to evaluate the risk of a person with small feet coming into contact with moving parts of the hopper; (b) Adequately guard the hopper platform to prevent employees contacting the moving parts of the hopper; (c) As a result of those failures, Natalie Seibold sustained a serious laceration to her left foot. 3 The defendant formally entered a plea of guilty before this Court on 1 August last. As the matter proceeded before me, the prosecution tendered an agreed statement of facts together with a number of photographs numbered 1 to 20. I also have a statement of the defendant's prior convictions and I will return to the question of prior convictions in due course. 4 In relation to the agreed statement of facts placed before me, it is not my intention to read those onto the record. They are clearly before all parties and are not in dispute. 5 In short, having regard to them, the facts disclose that on 28 November at the defendant's premises at Tocumwal the defendant's employees were involved in dealing with the storage and handling of bulk grain. Ms Seibold, was employed at that time as a casual grain handler and was doing duties of a general labouring nature. That involved carrying out normal duties on the hopper. In doing so, she started to walk around the rear of a truck to stand on the other side to allow another vehicle into the hopper. As she did this, her left foot slipped through the pipe grid system, allowing her foot and boot to come into contact with a screw auger. Ms Seibold's boot was torn from her left foot and she suffered severe lacerations to her left foot. She subsequently underwent six hours of surgery in Shepparton Hospital and was transferred to Melbourne for further specialist treatment for tendon and nerve damage. 6 It seems that Ms Seibold sustained her injury in what is referred to as the first section of steel tubular and beam construction of the drive over part of the hopper. To make sense of that, one has to come to the bundle of photographs that were tendered by the prosecution as part of the material before me today. The photographs greatly assisted in understanding the way in which this particular mobile or drive over hopper is assembled and operates. 7 In relation to the precise circumstances giving rise to Ms Seibold's injury, photographs 3, 6, 9, 10, 11 and 12 are the ones that most assist in being able to visualise the way in which this accident occurred and the location in which it occurred within the overall operation of the hopper on the day in question. Photographs 16, 17, 18 and 19 again assist in demonstrating the tests that were undertaken concerning the particular issue as to the size of Ms Seibold's boot and feet relevant to the circumstances of the accident. I will refer to that again shortly. As part of the statement of facts it is also pertinent, I believe, on the question of foreseeability to highlight paragraph [22] of that document. 8 That paragraph identifies a hazard assessment that had been conducted for the defendant by Country Management Systems of VicGrain Limited on 19 August 1999 and 15 October 1999 about this particular piece of machinery. That Hazard Indication assessment was conducted prior to the accident and said that: "Horizontal augers under the grain dump area pose a hazard." 9 For more detailed elaboration of what that means, one must go to annexure B of the affidavit of Mr John Edwin Taber sworn 11 November 2002. Mr Taber is the Risk and Safety Advisor for the Central Division of Graincorp. Annexure B to his affidavit was the complete Hazard Indication assessment report and at page 3 it says: "Access to the augers is limited and on testing, entry to the augers by a foot was not possible. Hand access could be possible. The plant was not viewed in an operating capacity so it was not possible to ascertain at the time of the inspection if there is a risk exposure under operating conditions." 10 Given that that Hazard Indication assessment was undertaken prior to the accident it was somewhat prescient in that it actually comments on the fact that an entry of a foot was not possible but that hand entry could be possible. What that comment does, I believe, is highlight the foreseeability of risk of injury within the defendant's workplace in relation to the operational circumstances of the hopper. 11 Counsel for the defendant placed before the Court an affidavit from Mr Taber to which I have already referred. He also assisted by tendering a number of additional statements from the prosecution brief. 12 Those additional statements included the factual report prepared by Inspector Martin dated 21 December 1999 and a number of statements obtained by Inspector Martin from persons relevant to his investigation of this incident. The first was a statement of Mr Richard Gale. He is identified as the Operator in Charge with the defendant when this accident occurred in 1999. It was he who trained and instructed Ms Seibold in the use of the drive over hopper. 13 There was also a statement from Ms Seibold as well as a statement from Mr Ian Samson. Mr Samson was a truck driver employed by a company who was utilising the defendant's drive over hopper at the time of the accident. I will refer to his statement in due course. 14 Finally, the statement from Mr Klemke, who was the Central State manager for Graincorp based in Wagga Wagga at the time the statement was taken. All of the above statements have assisted me in some of the conclusions I have come to. 15 Returning if I could to Mr Taber's affidavit. His affidavit confirms the entry of the early plea of guilty by the defendant and the co-operation by the defendant with the WorkCover Authority after the accident. He also outlines, which is of assistance to my understanding of the defendant's operations, the operational divisions of Graincorp throughout New South Wales and Victoria. Mr Taber quite properly and helpfully provided a copy of the relevant pre accident Hazard Indication assessment that I have already referred to. He also comments relevantly on the issue of shoe sizes, given the part that they have played in consideration of the facts and circumstances surrounding this particular incident and the offence before me. 16 Mr Taber concludes his affidavit by detailing the remedial steps the defendant has undertaken in relation to this piece of machinery. That is to be found in para [18] of his affidavit. As well, the defendant facilitated immediate and ongoing assistance to Ms Seibold following the incident. 17 The relevant considerations I am required to take into account on the question of penalty are well known. I start by considering the objective seriousness of the offence enunciated in the decision of this Court in Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464. 18 In assessing the objective seriousness of an offence, foreseeability of risk is particularly relevant. In looking at this particular incident before me, the question of foreseeability of risk and of harm occurring as a result of that risk seems, in the first instance, to centre around the presence of Ms Seibold on the hopper on the day of the accident. 19 On one view, counsel for the defendant submitted that Ms Seibold should not have been in the place where she was on the hopper when she suffered the injury that she did. As he said, it was not entirely clear as to what she was doing there and that she should not have been there. In support of that he took me to photo number 8 that shows a sign "Danger Don't Enter Hopper" that is attached to one of the external sides of the hopper. 20 That may well be a sign that the defendant has but, on all the other evidence before me, even if the defendant's view was that their employee should not be where Ms Seibold was, the reality is that she was. Further it is clear that, by way of her work routine, it was accepted, indeed expected, for her to be there. 21 Support for that view comes from the following extract from the statement of Mr Gale: Q. Why is it necessary for a person to be inside the hopper area? A. For the opening and closing of the tailgate of vehicles, general site cleaning and maintaining an even flow of the grain. 22 In further support of the proposition that the defendant at least acknowledged the need for the employees to be in that area, the statement of Mr Klemke, the Central State manager for Graincorp put it into context in the following extract from his statement: Q. Was the slippery condition of the polished steel pipes in the grid system above the auger reported to management prior to the accident? A. No, the auger guarding is polished by the flow of grain through it. Q. What is currently in place to prevent persons slipping whilst in this area? A. We discourage people from walking or entering the hopper area. 23 While there seems to be some general discouragement given to enter the hopper area, Mr Gale on behalf of the defendant acknowledged that it was necessary, and that the defendant's employees, in the role that Ms Seibold was performing on the day of the accident, would be in the area within and around the hopper while it was operational. 24 Mr Samson, the truck driver who was waiting in line to enter the hopper area when this accident occurred, saw Ms Seibold working within the hopper as he described thus: "I was sitting in the truck waiting for my turn to unload over the pit. I was the next truck to unload and was about 20 metres from the pit. I could see that Natalie was working at the back of the truck when she put her foot down in the grate. She pulled it out and tried to walk away off the grate but couldn't walk." 25 Ms Seibold herself explains her actions as follows: Q. "Explain to me what occurred on the day of your accident? A. I had finished unloading a truck at the mobile drive over hopper. I was standing on the right hand side at the rear of the truck. I started to walk around the rear of the truck to stand on the other side of the hopper. This is to allow another vehicle onto the hopper. As I did this my foot slipped through the grid of the hopper striking the auger. I fell down onto the checker plate door at the entrance to the hopper. I then pulled my foot out and moved myself back to the right of the hopper. I started to yell out for assistance from the driver who got help via the two-way radio." 26 What those statements amply demonstrate is that Ms Seibold was within the hopper that day during its operations performing work on behalf of the defendant. As Mr Gale indicated, with the acknowledgment by the defendant's relevant supervisory employees, she was doing tasks that were clearly understood to be part of her role. 27 That brings me to the question of the foreseeability of risk of injury. On that point Mr Taber's affidavit highlights what I have already referred to, that is, the extract from annexure B, p 3, under the heading B (f) Identified Hazard. 28 What is clear to me on the evidence as I have viewed it is that, in relation to this particular machinery, particularly access to the horizontal augers, as well as the location of Ms Seibold within the hopper, there was a foreseeable risk of an injury of the type that is identified within the ambit of that Identified Hazard marked as annexure B to Mr Taber's affidavit i.e. a body part being able to access the augers and injury occurring. 29 In other words, that Hazard Identification assessment highlighted that there was a foreseeable risk of injury as almost exactly occurred to Ms Seibold. It is true that what was identified more precisely was the possible risk of injury to a hand. It could be said this risk assessment presumed the most likely type of injury would be that someone would slip and fall and their hand would enter that particular space between the tubes that are shown so well in the photographs I have already referred to. 30 While there was an identified foreseeable risk, it is clear that the defendant did not turn its mind to the fact that a foot might get caught in the way Ms Seibold's did. The defendant seemingly did not turn its mind to the question of a foot being caught in the way Ms Seibold's was. The reason for that, as the circumstances so clearly demonstrated, Ms Seibold had smaller feet than the great majority of people employed by the defendant. The predominance of persons employed by the defendant in the type of role Ms Seibold was undertaking are men. Nevertheless, as counsel for the defendant conceded, it also employs women. As a general proposition it can be said, women have, overall, smaller foot sizes than men. As the photographs that I have referred to indicate [16, 17, 18 and 19], all the tests that were carried out demonstrated that Ms Seibold's shoe was of such a size that it was able, at the angle at which Ms Seibold slipped, to enter the gap between the steel bars and access the augers. 31 It is relevant to the objective seriousness of an offence to consider if there were readily and easily available remedial steps that could have been undertaken by the defendant before the accident to prevent the injury occurring. To put it another way, one could have regard to the remediation or the extent of the remediation that is done post an accident as an indication of the extent to which foreseeability of injury was readily identifiable. 32 In this matter the defendant has taken steps to put bars in place to limit the hazard in the first and last openings of the hopper. As well a safety bulletin was issued to all staff to reinforce the dangers of the Screw Feed Dump Hopper. 33 In coming to the determination of penalty one must have regard, in the circumstances before me, both to general and specific deterrence. It is my view that the decision in Capral Aluminium Ltd v WorkCover Authority of NSW (Inspector Mayo Ramsay) (2000) 49 NSWLR 610 clearly reinforces such an approach here. 34 On any view the matter is objectively a serious one and I propose to approach the consideration of penalty on that basis. 35 The defendant, as acknowledged by the prosecution, has entered its plea at the first reasonable opportunity and is entitled to an appropriate discount for its early plea. I assess that discount at 25 percent. 36 There are other subjective features that I also take into account. The defendant has prior convictions. There have been some submissions about that. The first concerned a matter dealt with in September 1999 in which a penalty of $2,500 was imposed by the Chief Industrial Magistrate. The second was an offence dealt with in the first instance by her Honour Glynn J, who imposed a penalty of $26,000. That was altered on appeal to a penalty of $65,000. 37 Both of those offences and the penalties that flowed revolved around the operation of an electrically powered tarpaulin rolling machine. Counsel for the defendant referred me to that appeal decision: Batty v Graincorp Operations Limited [2002] NSWIRComm 49. In doing so, he highlighted the reason the Full Bench overturned the initial decision of her Honour Glynn J. Specifically that point is identified in para [5] of that judgment when the Full Bench said: "The penalty was not, in our view, an adequate reflection of the objective seriousness of the factual circumstances of the offence. That is specifically shown as her Honour failed to give sufficient weight to the fact that there had occurred a recent prior risk to safety comparable to the incident giving rise to the prosecution which meant that in assessing the objective seriousness of the offence, due weight had to be given to the fact that the risk to safety was very clear and deterrence was also a significant consideration in the sentencing process." 38 The matter before me is not an offence surrounding an electrically powered tarpaulin rolling machine. It is quite factually different, both in nature and in the type of machine that we are talking about. 39 As is well established, while the defendant has prior convictions, such prior convictions do not of themselves justify a greater penalty than the offence before me warrants. They merely disentitle the defendant to the full measure of leniency that it would normally be given in the absence of a prior criminal record. What these prior convictions do is activate the provisions of s 51A of the Act and raise the maximum penalty for the offence before me to $825,000. 40 I also take it into account, by way of other subjective factors, the clear co-operation of the defendant in relation to this matter and the remedial steps that it has taken to further address this type of risk. The defendant has actively assisted Ms Seibold in the appropriate way and, on all accounts, it is an organisation that, given its presence within our rural community, takes its community obligations seriously. In considering all the factors that I have just identified, I determine a further discount of ten percent. 41 Taking into account all that I have had to say on this matter, I impose a notional penalty of $120,000. In applying the discounts as determined, I impose a final penalty of $78,000. 42 In conclusion I make the following orders: · the defendant is convicted of the offence as charged; · I impose a penalty of $78,000; · I allocate a moiety in the usual terms to WorkCover; · I make an order for costs of $8000 in favour of WorkCover. ----------------------------------------------- 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.