Inspector Ian Davidson v L M Hayter &Sons Pty Ltd. [2004] NSWIRComm 330

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Ian Davidson v L M Hayter &Sons Pty Ltd. [2004] NSWIRComm 330 PROSECUTOR: Inspector Ian Davidson PARTIES : DEFENDANT: L M Hayter & Sons Pty Ltd FILE NUMBER: IRC 6022 of 2003 CORAM: Haylen J CATCHWORDS : Occupational Health and Safety Act 2000 - s 8(1) - unguarded machine - severe crush injuries suffered by employee - prior expert consideration of machine raises no issue of the need to guard - degree of foreseeability - use of victim's impact statement - serious breach - substantial subjective considerations - penalty imposed. HEARING DATES: 10/26/2004 EXTEMPORE JUDGMENT DATE : 10/26/2004

PROSECUTOR: Mr Docking of counsel SOLICITORS: Dibbs Barker Gosling

LEGAL REPRESENTATIVES: DEFENDANT: Mr Shume of counsel instructed by Timber Trade Industrial Association

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: HAYLEN J 26 October 2004 Matter No. IRC 6022 of 2003 Inspector Ian Davidson v L M Hayter & Sons Pty Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

EX TEMPORE JUDGMENT [2004] NSWIRComm 330 1 The defendant, L M Hayter & Sons Pty Ltd, has pleaded guilty to a charge brought by Inspector Davidson under s 8 (1) of the Occupational Health & Safety Act 2000. This judgment deals with the evidence and submissions directed to the appropriate penalty to be imposed in this particular case. 2 The defendant, for some considerable period, has operated a saw mill. In November 2002 it employed Mr Matthew Beard as a laborer. He was 17 years old but had some experience of the defendant's saw milling operation through the employment of his father at the sawmill and his own participation during school holidays helping his father split firewood. 3 On the 13 November 2002, the third day of his full time employment by the defendant, Matthew Beard was attempting to clear a blockage on a machine known as the firewood re-splitter when his hand and forearm were drawn into the machine causing severe crush injuries. The charge to which a plea of guilty has been entered, particularised the offence in the following way: (a) failure to ensure that plant, to wit the two conveyors used, respectively, to convey wood to and from the defendant's firewood re-splitting machine, provided for use by its employees were safe and without risk to health when properly used; (b) a failure to ensure that systems of work, to wit systems of work for the placing of the firewood re-splitting machine and associated conveyors were safe and without risk to health; (c) a failure to provide instruction and training necessary to ensure the health and safety of its employees at work, to wit, instruction and training regarding the operation of the firewood re-splitting machine and its associated conveyor; (d) a failure to provide supervision necessary to ensure the health and safety of any employees at work, to wit, instruction and training regarding the operation of a firewood re-splitting machine and its associated conveyors. 4 The charge draws attention generally to the failure to ensure the health, safety and welfare at work of all the defendant's employees and in particular Mr Matthew Beard. 5 On the hearing in relation to penalty, I have been provided with a comprehensive agreed statement of facts together with a bundle of documents provided by the prosecutor containing photographs of the machinery and the location of the machinery, giving other factual material and setting out a number of details in relation to Australian Standards and Codes of Practice. I have been taken to that material in the course of addresses.