Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Ruth Buggy v William Munton [2005] NSWIRComm 159 PROSECUTOR: Inspector Ruth Buggy PARTIES: DEFENDANT: William Andrew Munton FILE NUMBER(S): IRC 5075 of 2004 CORAM: Schmidt J Occupational Health and Safety - prosecution under s15(1) of the Occupational Health and Safety Act 1983 - defendant operated a livestock transport and rural fencing business - use of a Lyco hydraulically powered fence post driving machine - fatality - no witnesses - early plea entered - first offence - co-operation with prosecutor - prosecutor's costs agreed - deterrence - defendant guilty of charge - penalty imposed - moiety to prosecutor and the prosecutor's costs CATCHWORDS: Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983 McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 R v Thomson, R v Houlton (2001) 49 NSWLR 383 CASES CITED: Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 HEARING DATES: 05/04/2005 DATE OF JUDGMENT: 05/18/2005 PROSECUTOR: Mr R Reitano of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr RS Warren of counsel SOLICITORS: Cunningham & Adam JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J 18 May 2005 Matter No IRC 5075 of 2004 INSPECTOR RUTH BUGGY v WILLIAM MUNTON Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2005] NSWIRComm 159 1 On 23 May 2001, Mr Caine Hayward was fatally injured while working as a casual employee of the defendant, Mr William Munton, at a property at Millers Forest. The fencing work being undertaken involved use of a Lyco hydraulically powered fence post driving machine. There was no witness to how Mr Hayward received a fatal crush injury to his head, while working unsupervised with another casual employee. The investigation showed that the machine was being operated with a guard placed in a folded posting, which allowed the machine's hammer control mechanism to be operated, while the operator was at risk of being crushed by the falling hammer. Mr Munton pleaded guilty to the charge brought against him under s15(1) of the Occupational Health and Safety Act 1983 ('the Act') 2 This judgment deals with the questions of penalty and costs. 3 The charge was that the defendant: FAILED TO ensure the health, safety and welfare at work of all his employees, in particular Caine Hayward, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. 4 The particulars of the charge are: a) The defendant, at all material times, was an employer; b) The defendant, at all material times, conducted a business of livestock transport and rural fencing; c) The defendant failed to provide and maintain a safe system of work for persons working at his place of work who were undertaking fence posting duties using a hydraulically powered Lyco post driving machine ("the machine"); d) The defendant failed to provide adequate supervision so as to ensure employees who were working with the machine were not placed at risk whilst using the machine; e) The defendant failed to provide plant, in particular the machine, that was safe and without risks to health and safety.; f) The defendant failed to provide such information, instruction and training as was necessary to ensure the health and safety at work of the defendant's employees whilst they were using the machine; g) The defendant failed to provide plant, in particular the machine, that was adequately guarded so as to ensure that employees working with the said plant were able to work with it in a manner that was safe and without risks to health; h) As a result of the said failures, Caine Hayward was placed at risk of injury and was fatally injured. 5 The agreed statement of facts was: 1. The prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. 2. At all material times the defendant operated a business involving livestock transport and rural fencing ("the business") at premises at 181 Woodberry Road, Millers Forest New South Wales ("the premises"). 3. At all material times in the conduct of the business the defendant employed Mr Caine Hayward and Mr Owen Suters. 4. At approximately 8.30am on 23 May 2001 Mr Caine Hayward, a 26 year old labourer, sustained fatal injuries when he seemingly was crushed between the hammer of a Lyco hydraulically powered fence-post driving machine ("the machine") and a wooden fence post. 5. Both Mr Hayward and Mr Suters were employed by the defendant on a casual basis. Both Mr Hayward and Mr Suters had commenced paid employment with the defendant on 22 May 2001. 6. Prior to commencing employment with the defendant both Mr Hayward and Mr Suters had attended at the defendant's property on 15 May 2001 in order to familiarise themselves with the machinery they would be using whilst employed by the defendant. This machinery included chainsaws, the Lyco hydraulically powered fence-post driving machine and the tractor to which the machine was affixed. 7. Both the tractor and the machine were owned by the defendant. The defendant had purchased the machine new in 1999. 8. Mr Suters had no prior experience in the use of such machinery. As regards the experience of Mr Hayward, the Court's attention is drawn to the following: a. the resume of Mr Hayward (annexure A) b. the Defendant's answer to question 86 on page 16 of his Police ERISP Interview on 24 May 2001 (annexure B) c. the answers of the defendant on pages 71, 93 and 94 of the transcript for the first day (19 July 2002) of the Coronial Inquest into the death of Mr Hayward (annexure C) 9. The design purpose of the machine is to drive posts (either timber, concrete or steel) into the ground. Such posts then serve as the means for the mounting and tensioning of wire in the construction of fences. The manner of operation of the machine was that once the tractor was driven to the required position, the machine operator would side shift the machine into the correct location for post driving, load the post in the driver implement, secure it with a chain and crowbar, level the post vertically with a hydraulic tilt mechanism and then drive the post into the ground to the required depth. The driving mechanism of the machine is a 600 pound (272 kilogram) hydraulic hammer that operated by striking the top of the post being installed 10. On 22 May 2001 both Mr Hayward and Mr Suters worked with the defendant for half a day performing rural fencing duties at the premises. Mr Hayward undertook the task of post driver operator using the machine. Mr Suters drove the tractor to which the machine was attached. 11. On 23 May 2001 both employees resumed work at the premises. They began work at about 7am and initially were supervised by the defendant. The allocation of functions was the same as the previous day. 12. Shortly after 8.00am on 23 May 2001 the defendant, after observing and assisting Mr Hayward in sinking approximately seven posts, left the work area and returned to the homestead in order to obtain additional material that was required for the work that was being undertaken and provisions for morning tea. The homestead was approximately 250 metres away from where the fence posting work was being undertaken. 13. The defendant was not present at the time of the incident that resulted in Mr Hayward's death. Mr Hayward and Mr Suters were working unsupervised. 14. Mr Suters and Mr Hayward continued with the work of sinking and placing fence posts using the machine after the defendant left them. After sinking a particular fence post Mr Suters prepared to drive the tractor to the location of a mark which identified the location where the next fence post was to be driven. The location of this mark was approximately ten metres away. 15. Mr Suters commenced to climb into the tractor and upon looking back over his right shoulder saw Mr Hayward on the ground. Mr Suters went to Mr Hayward to determine his condition. After receiving no response Mr Suters immediately proceeded to go for help. 16. Mr Hayward died as a result of a crush injury he had received to his head. 17. On 23 May 2001, Inspector Buggy inspected the machine as part of her investigation into the circumstances of the death of Mr Hayward. A copy of the factual inspection report of Inspector Buggy dated 29 May 2001 is annexed hereto and marked with the letter "D". 18. Inspector Buggy observed that a bi-fold guard provided as part of the machine had been fixed in a folded position against a section of the hydraulic operating control station located at the rear of the machine (see paragraphs 26 to 28 of Annexure D). 19. At all material times, the machine was operated while the guard was in the folded position. 20. Mr Tony Martin, a mechanical engineer employed by TestSafe Australia, conducted an inspection of the machine on 25 May 2001 and prepared a report dated 30 August 2001 ("the TestSafe report"). A copy of the TestSafe report is annexed hereto and marked with the letter "E". 21. In the TestSafe report Mr Martin considered a hypothesis that Mr Hayward, while standing in a location adjacent to the post being driven, had reached under the bi-fold guard in an attempt to operate the machine's side-shift control lever and mistakenly operated the machine's hammer control lever causing the hammer to fall upon his head. In considering this hypothesis Mr Martin commented: "The fact that the operator could reach and operate the controls when located on the incorrect side of the guard is a cause for concern. The concept of the guard is to keep body parts away from moving equipment, so as to as far as possible eliminate the risk of injury. The guard on this machine would appear to have been ineffective…" (see Annexure E, page 5). 22. A Coronial inquest into the death of Mr Hayward was conducted on 19 July 2002 and 3 September 2002. In the course of that inquest, 2 police officers, Detective Constable Glen Ward and Senior Constable Peter Rhodes, gave evidence that in the course of their respective inspections of the machine they were able to access the machine's hammer control lever while standing in the position where, in the hypothesis set out in paragraph 21 above, Mr Hayward was standing. Detective Constable Ward said that he could perform such an action comfortably. Senior Constable Rhodes said that his recollection was that while performing such an action he could reach beyond the hammer control lever to other levers located further away. 23. The lever that activated the hammer of the machine was accessible from a position that placed the operator between the hammer and the post being driven by it. There was no guard around the machine's moving hammer mechanism that prevented such access. 24. There was no "dead man" facility, control lever, push-button or switch, or any other safety device associated with the machine's hammer mechanism that prevented the possibility of a person placing any part of their body between the hammer and a post while the machine was operating. 25. It was therefore possible for the operator of the machine to come into contact with its moving hammer mechanism while the machine was operating. 26. There was no direct witness to Mr Hayward's injury. It appears however that a person could place her or his head in a position between the hammer section of the machine and the top of the fence post and unintentionally activate the hammer by moving the hammer control lever instead of the adjacent side shift lever. 27. Subsequent to 23 May 2001 the defendant modified the bi-fold guard that was fitted to the machine. These modifications consisted of: a. Lowering it a couple of inches b. Re-positioning it so that it was no longer fixed in a folded position behind the hydraulic operating control station at the rear of the machine c. The welding of a metal pipe between the hinge mechanism of the bi-fold guard and the machine 28. Annexed hereto and marked with the letter "F" is a series of 5 colour photographs exposed by the Prosecutor which demonstrate the modifications identified in paragraph 29 above. 29. The modifications referred to above had the effect of preventing access by the operator of the machine to the levers of the hydraulic operating control station at the rear of the machine while standing in a position potentially in the path of the machine's moving hammer mechanism. 30. The machine when purchased by the defendant was supplied with an instruction manual. This manual provided some guidance in relation to the use and operation of the machine including the installation and operation of the bi-fold guard. 31. At no stage prior to 23 May 2001 had the defendant read the instruction manual referred to in paragraph 32 above. 32. At no stage did the defendant provide a copy of the instruction material to Mr Hayward. 33. At no stage did the defendant provide any instruction or training to Mr Hayward or Mr Suters concerning the use and operation of the bi-fold guard other than to instruct them to stand behind it in the folded and fixed position in which it was fitted to the machine. 34. Annexed hereto and marked with the letter "G" is a series of 18 colour photographs exposed by Senior Constable Glen Ward on 23 May 2001 with annotations of Inspector Buggy. 35. Exhibited herewith is a copy of a video recording taken by Inspector Buggy of a demonstration of the operation of the machine by the defendant on 25 May 2001. ANNEXURES A The resume of Mr Caine Hayward B The defendant's Police ERISP Interview on 24 May 2001 C The transcript of the Coronial Inquest into the death of Mr Hayward D The factual inspection report of Inspector Buggy dated 29 May 2001 E Report of Mr Tony Martin (TestSafe Australia) dated 30 August 2001 F Series of 5 colour photographs exposed by Inspector Buggy on 3 October 2001 G Series of 18 colour photographs exposed by Senior Constable Glen Ward on 23 May 2001 with annotations of Inspector Buggy. 6 A video was tendered. It showed Mr Munton operating the equipment to demonstrate the work being undertaken at the time of the accident. 7 Mr Munton gave evidence. He was not required for cross examination. He was self employed, operating a partnership with his wife. The partnership business involved rural fencing, slashing fields and livestock transport. It had operated for about 8 years prior to the accident. 8 Mr Hayward and Mr Suters had been employed as casuals in March/April 2001. In May, Mr Munton gave the two employees training in safe operation of a tractor, chainsaw and the Lyco machine. The following day, Mr Hayward and Mr Suters returned in order to practice fencing work. Mr Suters drove the tractor and Mr Hayward operated the Lyco machine with Mr Munton. Mr Munton explained and demonstrated the operation of the levers on the machine. He instructed Mr Suters and Mr Hayward not to put their hands on the lever which operated the hammer, as it might fall. Mr Hayward then operated the Lyco machine to ram about 5 posts, while Mr Munton observed his work. 9 The following day Mr Munton again observed Mr Hayward operate the Lyco machine, to ram a further 5 posts, while Mr Suters drove the tractor. He was satisfied as to their competence to do the work and left Mr Suter and Mr Hayward, while he went to collect more barbed wire. The accident occurred during his absence, while Mr Suters continued driving the tractor and Mr Hayward operated the Lyco machine. Neither Mr Munton nor Mr Suters saw what happened, but nothing could be done for Mr Hayward, when he was found. 10 Mr Munton gave evidence as to steps taken to assist Mr Hayward's family; his own distress over the accident; the impact of the accident upon his life and work, as well as his financial circumstances and the impact of a penalty being imposed on he and his wife. Considerable evidence as to Mr Munton's standing in the community was also tendered without objection. 11 The parties were agreed that the maximum penalty for this offence was $55,000; that Mr Munton had given the prosecutor considerable assistance and had entered a guilty plea at the earliest opportunity. The prosecutor's costs were also agreed. 12 The parties were also in agreement as to the applicable law. Consideration 13 The evidence demonstrated why it was that a guilty plea was entered in this case. The machine in question; its manner of guarding and operation made clear that Mr Munton failed to meet the obligation imposed upon him by s15 of the Act, in the circumstances which occurred in May 2001, which led to Mr Hayward's most regrettable death. 14 The starting point for a determination of the appropriate penalty consistently with the provisions of the Crimes (Sentencing Procedure) Act 1999, is the nature and quality of the offence in question. The evidence showed that the offence was undoubtedly a serious one. It was submitted for Mr Munton by Mr Warren of counsel, that the accident was not foreseeable. While it is relevant that the risk to safety was not foreseen, I am unable to conclude, on the evidence, that it was not foreseeable. 15 The evidence showed that the machine which Mr Munton purchased new, was delivered with the safety guard wedged into a position which was plainly unsafe. Its position permitted operation of the lever controlling the hydraulic hammer, while a person was stationed in close proximity to the hammer as it fell, by the simple means of reaching around the fixed guard. The instruction given by Mr Munton, that Mr Hayward should not place his hands on the hammer lever, was not sufficient to ensure that Mr Hayward did not reach for a control, in such a way, so that presumably mistakenly, the hammer lever was engaged, with fatal consequences when the hammer then fell onto his head. That lever was the first of several levers within reach. The fatal consequences of engaging that lever, when stationed as Mr Hayward was, were entirely foreseeable, given the pressure under which the hammer was operating. The obvious risks that are apparent from the inadequate guarding of the machine in fact materialized. This is a matter which also goes to demonstrate the serious nature of the risks in question; they have resulted in a death. (See Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 at [32].) 16 It must also be concluded that the risks which resulted from the way in which the guard was wedged, could easily have been precluded, by the modifications which were subsequently made by Mr Munton after the accident. There was no suggestion that there was any difficulty or impediment in those modifications being made. 17 It follows that the objective nature and quality of this offence must be assessed as being serious. I accept that it is relevant that the machine was supplied as Mr Munton operated it, when he purchased it new. As supplied, it was inherently unsafe. Mr Munton was not aware that the wedged guard could or should be moved, when the machine was operated. That does not absolve him of responsibility for the offence with which he has been charged, as his guilty plea accepts. Nevertheless, I accept that this is a factor relevant to be taken into account in determining penalty in this case. 18 I am satisfied that the evidence made out all of the particulars of the charge alleged, while noting the prosecutor's submission that the particulars relating to the guarding of the machine, lay at the heart of this prosecution. 19 It was agreed by the prosecutor that various subjective matters must also be taken into account in determining penalty. This, too, is consistent with the provisions of the Crimes (Sentencing Procedure) Act. Those matters included that this was a first offence; that the guilty plea had been entered at the earliest opportunity and that there had been thorough co-operation with the prosecutor from the outset, as well as evidence led going to Mr Munton's good character. I also accept Mr Munton's evidence as to his remorse and contrition for what occurred. 20 I have taken account of all of these factors in assessing penalty, although noting that they must be secondary considerations, to the objective nature and seriousness of the offence. 21 It was accepted that deterrence must also play a part in the sentence imposed. As to specific deterrence, it was submitted that attention would be paid to the evidence that Mr Munton had not engaged in fencing work for a time after the accident, but was forced to resume that work because of his financial circumstances. More recently, he has undertaken different work as a job agent for an organic fertiliser supplier and hoped to have completely ceased fencing work, within six months or less. At the time of the hearing, Mr Munton was doing approximately one day per week of that work. 22 I am satisfied that general deterrence has a role to play in the determination of penalty in this case. I also take the view that specific deterrence has a role to play, although I accept a lesser role than would have been the case, had Mr Munton intended to continue pursuing his fencing business and had he not taken positive steps to ensure that he could cease undertaking that work, in the near future. 23 The prosecutor accepted that account would properly be taken of Mr Munton's financial circumstances, so that an oppressively high penalty would not be imposed. Nevertheless, it was submitted that this did not mean that a heavy penalty was not appropriate. 24 The evidence showed that assets owned by Mr Munton and his wife were valued at over $400,000, and that they had loans of over $180,000 and Mr Munton's income in the past three years, ranged from $6,461.00 to $14,581.00. Section 6 of the Fines Act 1996 requires the Court to have proper regard to this evidence in determining penalty. (McColl v John Watson Building Services Pty Ltd and Dowdon Contracting Pty Ltd [2004] NSWIRComm 353 at [22] to [27].) 25 Mr Munton's evidence was that any penalty imposed would result in some financial hardship and would necessitate him selling assets, or taking on further loans. I have considered this in the context of the nature and seriousness of this offence. I have concluded that an appropriate penalty, which is reduced so as not to be oppressive in the circumstances, having regard to the defendant's assets, liabilities and relatively small income, is $20,000. 26 I am also satisfied that the circumstances are such that the penalty must be discounted by 25% to reflect the utilitarian saving flowing from Mr Munton's early plea and co-operation and a further 10% for subjective factors (see R v Thomson; R v Houlton (2001) 49 NSWLR 383). This results in a final penalty of $13,000 Orders 27 For all of the reasons given, I find Mr Munton guilty of the charge, enter a conviction accordingly and order him to pay a penalty of $13,000, with a moiety to the prosecutor and the prosecutor's costs, agreed to be $6,140.50. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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