Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales v Kennards Hire Pty Ltd [2003] NSWIRComm 378 PARTIES : WorkCover Authority of New South Wales (Inspector Henry) Kennards Hire Pty Ltd FILE NUMBER: IRC 3413 of 2003 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 11/03/2003 EXTEMPORE JUDGMENT DATE : 11/03/2003 Prosecutor: Mr G Phillips Solicitors: Carroll and O'Dea LEGAL REPRESENTATIVES: Defendant: Mr S Coleman Solicitors: Owen Hodge Lawyers JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Curtis AJ 3 November 2003 Matter No IRC 3413 of 2003 WORKCOVER AUTHORITY OF NSW (INSPECTOR PAUL HENRY) v KENNARDS HIRE PTY LIMITED (ACN 001740727) Prosecution under s 18(1) of the Occupational Health and Safety Act 1983 EX TEMPORE JUDGMENT [2003]NSWIRComm 378 1 The defendant Kennards Hire Pty Ltd (Kennards) pleads guilty to contravening s18(1) of the Occupational Health and Safety Act 1983 on 28 June 2001 when it supplied a stump grinder to Michael Jones, a foreman of Asplundh Tree Expert (Australia) Pty Limited (ACN 055140424), without first ensuring that the stump grinder was safe and without risks to health when properly used, and further, failing to provide to the person to whom it was supplied adequate information to ensure its safe use. 2 On the day in question the stump grinder was used by Mr Richard Austin, an employee of Asplundh, who was instructed to grind a stump located on a property at Austral. Mr Austin had completed ninety-five percent of the grinding of the stump when Mr Jones, under whose direction he was working, noticed the grinding wheel was starting to eat into a mowing strip which divided the property from council property. Mr Austin withdrew the stump grinder from the stump and without stopping the engine which drove the cutting head, tilted the machine backwards so it may rest upon a metal bar attached to the back of the machine. The stump grinder continued at full throttle with the cutting head elevated and exposed. 3 After Mr Austin walked in front of the machine to take a closer look, either the stump grinder moved or Mr Austin inadvertently moved against the cutting head in consequence of which he suffered massive soft tissue injuries to his left leg, including the severing of his femoral artery. 4 The accident had several causes, one of which was the inattention of Mr Austin, and another a unique feature of the stump grinding machine. 5 The stump grinder was manufactured to the specification of Kennards Hire Pty Ltd following the general plan of a similar machine produced in America. It consisted of a rotary steel cutting head on a short jib which was driven by a petrol motor. The machine when not in use rested upon the two wheels which bore its weight, and the cutting head in front of those wheels, the centre of gravity being towards the cutting head. In consequence it would not normally, reasonably or foreseeably be left unattended with the motor running because the cutting head would then rotate upon the ground. 6 Some time after 1990 when the machines first came into use, clients of Kennards experienced several engine failures. It was found that the oil sump drained when the machine was tilted back beyond a certain distance in order to elevate the cutting head to cut high stumps. To solve this problem Kennards modified the machines by fixing a horizontal metal bar at the rear of the machine to prevent elevation beyond that angle at which the sump would drain. 7 This angle was also coincidentally beyond that at which the centre of gravity passed from the cutting head to the rear of the machine. The machine in consequence could be rested on the limiting bar at its rear with the cutting head elevated some distance above the ground. 8 In normal circumstances the guard placed over the cutting head of the machine was adequate. It was the fixing of the limiting bar at the rear of the machine which created an unusual danger. 9 The defendant has pleaded guilty to the offences as charged. It is convenient to consider separately the two offences constituted by the charge. 10 The substance of the contravention of s18(1)(b) is that the defendant did not make available written material about the stump grinder to the person to whom it was supplied to ensure its safe use by others. The substance of the contravention of s18(1)(a) is that the machine as modified constituted a risk to safety when properly used. 11 In relation to the charge that Kennards failed to provide or arrange for the provision of adequate information to the person to whom it supplied the stump grinder to ensure its safe use, it is agreed that when the machine was provided to Mr Jones, Mr Austin's foreman, by Mr Andaur, the responsible employee of Kennards, following the practice maintained by Kennards, Mr Andaur instructed him in its use. Mr Andaur instructed Mr Jones that the machine was never to be left running on its own, that he should always stop the machine if it was to be unattended, and if he wished to stop or have a break, he was to press the kill switch. 12 The machine had attached to it a warning in these terms: "Rotating cutter wheel can kill or cut off arm or leg." 13 It is to the credit of the defendant that it has not sought to suggest the method in which Mr Austin used the machine was other than proper. In normal use this danger would not occur. 14 I turn to the elements relevant to sentence. Gravity of the Offence 15 I have evidence before me that before this accident Kennards had taken steps, both general and particular, in order to ensure that machines which it hired were safe for use. Having purchased or designed a machine, Kennards maintained a system to continuously review its operation. Pursuant to this system, meetings were held regularly to assess the various machines hired by Kennards in respect of function and safety. 16 The minutes of one such meeting held prior to the injury, in relation to the stump grinder record that operator protection was in some sense inadequate; that the brake needed to be stronger; the height adjuster needed to be stronger, and that the pull starter should be moved to the handle. These modifications were effected. 17 On 26 February 2001, after a similar meeting, it was determined that because there was no safety switch on many of the existing stump grinders and none on the newer ones: "Any machine with this power and damaging effect should be equipped with a safety switch." Action was taken pursuant to this resolution and by the time this machine was hired on 28 June, safety switches had been installed on all stump grinders. 18 There is a correlation between the extent to which a defendant departs from the standards of a reasonable man and the gravity of the offence thereby committed. Thus an offence is seen as more grave when a defendant fails to deal promptly with obvious dangers, particularly when the remedy is inexpensive and simple. In the present case the issue of foreseeability is problematic. 19 Mr Alan Lawrence Besseling who was the relevant General Manager of Kennards at the time has eighteen years in the industry. He has completed a Graduate Diploma in Industrial Relations, and I would assume this course would have included aspects of safety. As a practical man he attended the meetings in which the stump grinder was assessed for function and safety. He would be in as good a position as anyone to bring a critical eye to the consequences of the modification of this machine. He didn't foresee the problem, although had he done so it is clear that modifications would immediately have ensued. 20 Mr Neville Pritchard was general foreman of Asplundh Tree Expert (Australia) Pty Limited at the relevant time. Mr Pritchard had completed two certificates in Occupational Health and Safety at TAFE colleges, each of which took a year. He had also gained accreditation as a level 4 trainer and assessor of Occupational Health and Safety after a five day course at the University of Western Sydney. Mr Pritchard showed Mr Austin how to use the particular machine. Mr Pritchard also failed to foresee the manner in which this accident would occur. 21 So far as the gravity of this offence is concerned and the causal omissions of Kennards, I take into account that Kennards had taken general and particular steps to obviate the dangers which they believed were posed by the operation of the stump grinder. I take into account that Kennards through Mr Andaur had given specific instructions which, had they been complied with, would have prevented the injury. I take into account the circumstance that although the circumstances of the accident were not farfetched or fanciful, it was not an event readily foreseen by experienced persons who turned their mind to safety. General Deterrence 22 Kennards operate a business supplying many power driven machines which are capable of causing a considerable degree of harm if improperly designed or used without adequate instruction. I believe that a general message should be sent to the hiring industry. The industry should be aware that any departure from the very high standards which are appropriate to the dangers inherent in powerful machines will be gravely reflected in the sentencing process. 23 In the circumstances of this offence I believe that it is the question of general deterrence which has the greatest call upon the exercise of my discretion. Specific Deterrence 24 Given the systems which had already been instituted by Kennards, the fact that the opportunities for this particular offence to be repeated have been negated by the installation of the dead mans handle on the machine, and the provision of a written manual containing specific warnings, I do not believe that specific deterrence is further warranted. Conclusion 25 On the evidence Kennards Hire Pty Limited have an honourable and enviable record in relation to matters of occupational health and safety. 26 Kennards has been in operation for fifty-five years and has no convictions. It currently has seventy five branches Australia wide with more than 400 employees, hiring about one million items of plant each year. In all that time Kennards is aware of only eighteen instances of personal injury, this because there have been eighteen claims upon its public liability insurers, including the present claim. Nothing of course is known as to whether the claims having been made, fault was established on the part of Kennards or not. 27 Given the dangerous nature of the industry, this record stands firmly in support of the defendant's contention that the particular occurrence was a wholly isolated incident which, acting not entirely unreasonably, it failed to foresee. 28 I have concluded that the offence is proportional to a most extreme case in the proportion of one tenth so that a fine of $55,000 would otherwise be appropriate. I discount this by twenty-five percent because of the plea of guilty. 29 The defendant is convicted and fined $41,250 with a moiety to WorkCover. 30 I order the defendant to pay the prosecutor's costs agreed in the sum of $7,000. 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.