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. For the defendant, a large bundle of documents has also been tendered together with the affidavit of Mr Kim Raymond Hayter who is the Managing Director of the defendant. Those documents also contain some photographs of the machine following a number of modifications and indicate the nature of the safe system of work in operation both at the time of the incident involving Mr Beard and following. There are a number of other documents to which I will return shortly indicating the extensive community involvement of the defendant. 6 In relation to the agreed statement of facts, some of those matters are worthy of recounting in this judgment although I do not propose to reproduce the entirety of the agreed statement of facts. It is agreed for instance that as at 10 December 2002 the defendant had been in business for 42 years and employed 21 persons at the site. Mr Beard had been employed on the 13 November, the day of the accident, for three days on a full-time basis although he had worked at the site as a casual employee helping his father, as I have earlier indicated. At the site the defendant possessed and operated a machine known as the firewood re-splitting machine. That was a machine that was situated in an open field, as the photographs show. 7 It is agreed that a number of employees operated the firewood re-splitting machine since it was initially installed, which was approximately 5 or 6 years before December 2002, and the machine operated between 2 or 3 days a week. There is a description of the machine which I don't reproduce in this judgment but together with the photographs and the assistance of counsel for the defendant I have been able to obtain sufficient appreciation of its workings for the purpose of this sentencing task. 8 Of significance was that part of the machinery which contained rollers, a head drive roller and a tension snub roller. The gap between the roller is agreed to be approximately 20mm. The space where these rollers operated adjacent to each other was unguarded and was such that it allowed a person access to the moving rollers. There was an operating control box. It had a stop button and there was, it is agreed, an absence of description as to how the stop button and the grey button which operated the machine was to be used. In this case young Mr Beard had said to the Inspector that he pressed the stop button to stop the conveyor in order to remove a piece of wood that was jamming the rollers. He put his left hand into the space in the side of the conveyor and removed a scrap of timber and then the main outfeed conveyor and roller started moving. Mr Beard's left hand and arm were drawn in between the head and tension rollers. He called for help immediately. He tried to reach the stop button. He was unable to do so as it was not within reach and he could not stop the conveyor rollers. Another person at the site stopped the machine and it took a little while and dismantling parts of the machine for over a period of approximately 15 minutes before his trapped arm could be released. 9 The injuries caused by this incident were described as a degloving and serious crush injury to Mr Beard's arm. He was hospitalised, undergoing surgery including the insertion of a metal plate in his arm and requiring treatment from an orthopedic surgeon, plastic surgeon and physiotherapist. He was unable to work between the 13 November 2002 and the 30 January 2003. On 10 July 2003 he was working for the defendant on suitable duties and had been placed on a rehabilitation programme working 6 hours a day. 10 Inspector Davidson was informed that as at 10 July 2003 the injured employee attended a physiotherapist four to five times a week for treatment and it was expected he would be required to undergo further surgery to his fingers and arm in the future. On the 14 November 2003 the Inspector was further informed that Mr Beard's arm was operated on and the metal plate was removed. The injured employee, as at the middle of June this year, according to information given to the Inspector, could not make a full fist. He continues to suffer cramping of his hand and experiences pain and he continues to see a physiotherapist, at least at June 2004, approximately twice per week. 11 In relation to this piece of machinery, the agreed statement notes that the re-splitting machine and two conveyors were not adequately guarded because of what is described as "drawing in" - a person could access what has been described, in codes and in standards issued for industry as "nip points" and there existed the hazard of entanglement caused by contact with rotating surfaces. It was possible for Mr Beard to access the roller and sustain this injury. The "drawing in" hazard, the existence of "nip points" and hazards associated with entanglement were said to be well-known industry risks. The Standards documents presented in evidence and the Codes of Practice verify that statement. 12 It is particularly recorded that Mr Kim Raymond Hayter, the Managing Director of the defendant, was not aware at the time of this accident of the roller "nip points" providing this risk and he had said to the Inspector that if he had known of the risk he would have guarded against it. Mr Leslie Beard operated the machinery, on the evidence, regularly and he was aware of the moving parts being unguarded and the possibility of access to the moving parts but it was never discussed nor its guarding with any manager from the defendant. 13 It was accepted in the statement of the Managing Director that no guarding had been removed from this machine since it was initially installed five or six years before the injury. Attention was drawn to a second conveyor used for removing rubbish and scrap timber running from the work station to ground level having a similar head and tension roller at ground level not protected or controlled by guarding. Further, the drive shaft of the electric motor used to drive the main conveyor roller was not adequately guarded and it was situated at ground level. It was accepted that the following safety features have been implemented in relation to this machine after the incident: firstly, the guarding of nip points at the outfeed and conveyor belt and secondly, the installation of a bolted removable guard/screen fitted to the lower section of the outfeed conveyor. In relation to the control levers of the hydraulic splitter and feed conveyor, it was noted these were not labelled by words or symbols to show function or consequence of use nor to illustrate the function or each of the control levers. Identification of controls was required by a Code of Practice that was in evidence. The control box on which the stop start reset buttons were located was not secured to the frame of the machine in any way and was hanging loose by electrical cable. Although the employee said he hit the stop control button before attempting to remove the scrap timber, nevertheless these rollers commenced and the machine started of its own accord, once the timber jamming the equipment was removed. The stop, start and reset control button had been tested by Inspector Davidson and found to have worked during two inspections. There was other evidence of investigations by the defendant which confirmed that the buttons operated. There is discussion of a number of hypotheses as to how the incident might have occurred and I note but do not record them here. 14 There is also reference in the agreed statement of facts to the general area around the re-splitter and conveyor being unkempt and since the accident other measures have been taken; they were recorded as being relocation of the stop switch to a position more visible and accessible from the head and tension rollers at the base of the conveyor; the installation of a two handed control being fitted to the hydraulic cutting blade part of the machine to ensure both hands are required to operate the control levers for the log cutting blade. The evidence shows that the general site has since been tidied and cleared and arrangements made for fencing for the operation of the machinery. 15 The work performed by young Mr Beard occurred in these circumstances; there were no written procedures, information or instruction regarding the safe operation of the re-splitter and conveyor made available to him. His father instructed Mr Beard in how to operate the machine and he was shown the controls on the machine and how to operate the machine. Those instructions included, when wood fell on to the rollers on the conveyor, to turn the machine off by pressing the stop button, removing the wood from the rollers and then turning the machine back on again. This part of the Agreed Statement of Facts and other evidence suggests that it was not unusual (but the frequency is not necessarily established) to find that the machine would jam because of wood falling on to the conveyor and the rollers. 16 It is noted in the agreed statement of facts that basic training and retraining of operators and upgrading of safe operating procedures have been implemented since 13 November 2002. Prior to the injury and about three months before this accident occupational health and safety training in the form of a TAFE timber industry course was provided to the majority of employees. In August 2000, a representative of the Timber Trade Industrial Association carried out a risk assessment of the entire mill, including the re-splitter but there was no indication of the need to guard areas of the firewood re-splitting and conveyor, in particular the unguarded access point to the conveyor rollers. 17 In this case it is agreed that the defendant has no prior convictions under the Occupational Health & Safety legislation. It is also accepted by WorkCover Authority, that the defendant co-operated in its investigation and in instituting improvements so that the Authority was able to lift a prohibition notice which was issued following the accident. 18 For the defendant, affidavit evidence was given by its Managing Director, Mr Hayter. He was briefly cross-examined. He describes in that affidavit some of the history of the business and notes that it was incorporated in June 1997, over 25 years ago. He states in that affidavit that from the time that his parents owned the sawmill it had been upgraded to keep up with modern technology and changes in industry trends. The business continued to be run from the original premises as a small sawmill supplying product to the outer western Sydney market. He confirmed that the business employed approximately 25 people in various capacities. They appear to be workers drawn from the local community. The firewood re-splitter had been at the site for approximately 10 years. It had been independently owned and operated but in 1998 it was purchased by the defendant. Mr Hayter insisted that the previous owner overhaul the machine to make sure it was in good working order and safe to operate. He records that it had been inspected since purchase on a number of occasions both internally and externally for safety and that no one had ever raised with him or anyone in management the possibility that the machine was unsafe to operate especially in relation to being unguarded. He refers to WorkCover inspectors looking at the mill and this machinery and independent consultants - one who in 1996 assisted in a risk assessment - and making no mention of a need to guard the firewood re-splitting machine. That consultant provided an Occupational Health & Safety report and an induction manual but nothing in those documents drew attention to this open part of the re-splitter machine and the need to have it guarded. The affidavit also deals with the inspection and reports to similar effect during the course of the year 2000 some three months and two years or so before this accident, carried out by the representative of the Timber Trade Industrial Association. 19 It was explained that the re-splitting machine was a minor part of the business: it depended on the amount of wood available for making firewood and the market for firewood, drawing attention to the seasonal nature of that market. 20 Mr Hayter said in approximately 1985 he took on the task of being the Occupational Health & Safety manager and said like his parents before him he was diligent in the task. He had made it an area of serious focus for the company. He attended Occupational Health & Safety courses to assist in his understanding of this area and he sought assistance from specialised personnel including the Timber Trade Industrial Association and others including WorkCover. Later, because of his other responsibilities, he had two employees trained in relation to workplace safety to continue an effective focus on Occupational Health & Safety. 21 He describes in the affidavit the shock that was felt by both himself and his family in relation to the accident that involved Mr Matthew Beard. He describes the association with Mr Beard's father and mutual sporting interests and participation in those interests and what appears to have been their closeness as a result of their work and sporting interests and notes that since Matthew Beard was approximately 12 years old he had been spending weekends and school holidays helping his father cutting firewood on the re-splitter machine. Matthew's participation was well regarded and Mr Hayter would have used him to train any new personnel on the use of this piece of machinery because of his experience and because of his competency and being a good worker. 22 When Matthew Beard was given full-time work he was put on the firewood re-splitting machine because of his previous experience. It was pointed out that the machine was simple to operate and when the machine jams, the operator was required to turn off the machine and remove the obstruction. Mr Hayter understood that was the procedure that Matthew Beard adopted on the day of the incident but it was not effective. 23 Mr Hayter gives some views as to what may have happened with the machine. Of the three or four hypotheses propounded I do not need to reach a final conclusion in order to properly carry out the sentencing task, but it is noted that if the machine now became jammed the work rules would require the machine to be turned off. The guard which is now fitted would need to be removed and then the piece of wood would be removed. The guard would then have to be replaced before the machine could be started again. There is also an attempt to make the system fail safe, where any obstructions are now dealt with by maintenance fitters using a push stick. The isolation of power on the machine is still required during this procedure. 24 The defendant's own investigation of the incident commenced on the day of the accident. Mr Hayter refers to travelling to Penrith where Mr Matthew Beard was hospitalised spending quite a bit of time with him and his parents and assuring them that the company would do everything to ensure Matthew Beard's well-being. His progress was monitored through his father and it is said that arrangements were made when Matthew returned home from hospital to ensure he was provided for and not financially out of pocket. Employment was continued with the defendant: there was a rehabilitation programme and there is a note of Mr Matthew Beard being encouraged to take up studies in TAFE and his success in those studies. 25 The affidavit then refers to a number of actions taken by the company; its systems that had been in operation before and after the accident; a number of courses attended by employees relating to the safe operation of machinery and Occupational Health & Safety matters and there is also a list of amounts of money totalling nearly $132,000 spent in the last 12 months in relation to Occupational Health & Safety matters. About $25,000, for instance, was involved in upgrading and guarding the machinery and equipment. There are consultants fees of $25,000 in relation to Occupational Health & Safety; the employment of an Occupational Health & Safety co-ordinator and other matters. 26 The company clearly prides itself on its support of the local community. There are a number of community bodies in relation to which the company has been a prominent supporter and through members of the family have received direct assistance in their operation. Mr Hayter notes he has been a Deputy Fire Captain for 27 years in the Voluntary Bush Fire Brigade and in recent severe fires around Sydney in the years 2000 and 2002 he had become heavily involved. He notes his brothers membership of the Voluntary Bush Fire Brigade. He also makes the point that this is the first time in over 40 years of operation that the defendant has been convicted of a breach. I noted earlier it is more than 25 years since the company was incorporated. 27 The bundle of documents that were tendered on behalf of the defendant made reference to machinery now available on the market performing a similar task. It was pointed out that in relation to that machinery much of it now, by other means of operation, allows both hands to be free. A point is made that the modifications made to the firewood re-splitter owned and operated by the defendant requires hands on use - that is said to be a safety feature. 28 As I have already indicated, there were examples of previous Occupational Health & Safety policies, updated and improved policies and numerous examples of the minutes of staff meetings dealing with Occupational Health & Safety, all demonstrating the activities in this area of the defendant. I have also made reference to a large number of documents dealing with the community involvement of the defendant and a wide variety of organisations providing letters of appreciation, sometimes testimonials drawing attention to the general good citizenship of the defendant. 29 Against that background, and that evidence, I first come to consider the objective seriousness of the offence. This is a somewhat surprising case. The evidence supports a finding that the defendant has over a lengthy period of time applied its mind to issues of Occupational Health & Safety and the safety of its work force. This piece of machinery, sitting in a field, seems to have fallen through a crack in the system that I am sure nobody realised was present. It may be because of the seasonal nature of its use, perhaps its location and perhaps its simplicity of operation that closer attention was not paid to the risk which ultimately lead to the injury suffered by Mr Matthew Beard. It had, as the defendant points out, been reviewed by a number of people, experts in the field. Nobody had drawn attention to the fact that there was a gap through which an employee or another person employed at the site could put their hands and come in contact with rollers in circumstances where industry knows well the dangers of operating machinery by having hands in close proximity to nip points. 30 The degree of foreseeability has occupied some attention during this case. For the Prosecutor it is submitted that the risk was clearly foreseeable. Reference to Standards and Codes of Practice made it clear that nip points were to be guarded. Here the difficulty really appears to be that for some reason - which on the evidence I am not able to establish precisely - this particular risk was not appreciated. The obligation, however, is to ensure the safety of employees, whether they be persons employed by others who are working at the site or persons employed directly. It is frankly difficult to see why this was not discovered as a potential risk with the simple step of guarding the opening being the remedy. Nevertheless, there is some force in the submission made on behalf of the defendant that while it was foreseeable, this might be a case where the degree of foreseeability might not be assessed as being so clearly obvious that it would be grossly negligent not to take some step to address the risk. 31 I accept the defendant's acknowledgment that nevertheless there was a degree of foreseeability which of course needs to be considered in assessing the seriousness of this offence. There was also some little debate about a victim's impact statement signed by Mr Matthew Beard. Ultimately I don't think there is anything greatly controversial in this. The injuries were well known to the defendant. I have seen photos of the injuries shortly after the accident; also through the victim impact statement I have an appreciation of the fears that Mr Beard held during his convalescence and his concern about being able to resume fully his sporting activities. I think those are fears and concerns which one would expect would follow from an accident of this nature. 32 The Victim's Impact Statement serves the useful purpose of establishing the consequences of the crime on the victim. It may be used as evidence of the harm caused. As I say, I don't think it represents a controversial issue in this case having heard all of the evidence and having an appreciation of the parties knowledge of the injury received by Mr Beard. I should, at this point, express to Mr Beard on behalf of the Court its sorrow at the suffering he endured as a result of this incident. It is, and it was not really contested or suggested otherwise, that this was a serious workplace accident. 33 I next consider the issue of deterrence. It is accepted and there is no submission to the contrary that general deterrence must play a role in the setting of the penalty in these proceedings. This case perhaps is an example to industry that even where you have well developed systems - as I believe this defendant had - there is a need to be ever diligent and to look at the sometimes most simple machine with a critical eye to ensure that it does not pose a risk to those who may be employed upon its use. In relation to specific deterrence, it has in my view a role to play, although something of a reduced role in this case. The defendant continues to employ 20 to 25 people in this industry. It is acknowledged to be a dangerous industry but this defendant also has a very good safety record, has had in the past significant safety systems in place, and, has continued to develop those systems generally and specifically to address the risk that was demonstrated by the occurrence of this accident. 34 Looking to subjective factors, having dealt with the objective seriousness of the offence, I find, having considered the time that the matter has been before the Court and the circumstances in which it was before the Court, a plea of guilt being entered that is properly to be considered and treated as an early plea of guilty. In this case it is appropriate that a discount of 25 percent on that basis should be allowed. 35 In relation to other matters, the Prosecutor has set out with frankness a wide variety of subjective considerations which fall in favor of the defendant. Here there is a good industrial history. There are no prior convictions in what is regarded as a dangerous industry in a business that has operated for over 40 years and over 25 years as an incorporated entity. There is an abundance of evidence as to its good industrial citizenship and its community participation. Its remorse and contrition are clearly established on the evidence. That is shown, amongst other things, by the rehabilitation programme that the defendant became involved in with the injured employee. There is the admitted co-operation with the WorkCover Authority. There are extensive new systems of safe working rules, use of consultants in that task: that had also occurred previously. The steps taken since this accident to address the particular detriment to safety demonstrated by this incident all speak well of the defendant's approach to safety. I will therefore, on these additional matters, allow a further discount of 10 percent, giving a total discount of 35 percent. I am asked by counsel for the defendant to bear in mind that this is a small community business and a family business. I have no submissions or evidence as to its financial position and no point is made about its financial position. ORDERS 36 In light of those considerations, I make the following orders: (1) The defendant is found guilty of the offence under s 8 (1) of the Occupational Health & Safety Act 2000 to which it pleaded guilty in Matter No. 6022 of 2003. (2) The defendant is fined the sum of $84,500 with moiety to the prosecutor. (3) The defendant is to pay the costs of the prosecutor in a sum as agreed or in the absence of agreement as determined by the Court at a later time. 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.