Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector James v Kimberly-Clark Australia Pty Ltd [2004] NSWIRComm 142 PROSECUTOR Inspector Wayne James PARTIES : DEFENDANT Kimberly-Clark Australia Pty Ltd FILE NUMBER: 5972 and 5973 of 2003 CORAM: Marks J CATCHWORDS : Occupational health and safety prosecutions - failure to ensure health, safety and welfare of an employee and a non-employee at work - plea of guilty - prior convictions for breaches of OH&S legislation - victim impact statements tendered - foreseeable risk of injury - serious offence - general and specific deterrance considered - subjective matters, including contrition and workplace improvements, taken into account - discount applied - principle of totality applied - defendant to pay costs. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Shops and Industries Act 1962 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 CASES CITED : Inspector Glass v Foamex Polystyrene Pty Ltd (2004) NSWIRComm100 HEARING DATES: 05/22/2004 DATE OF JUDGMENT: 06/08/2004 PROSECUTOR Mr D O'Neil of counsel Solicitor: Ms L Barnes WorkCover Authority LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson SC with Mr Wilson of counsel Solicitor: Mr J Noakes Deacons JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Tuesday 8 June 2004 Matter No IRC 5972 and 5973 of 2003 INSPECTOR WAYNE JAMES v KIMBERLY - CLARK AUSTRALIA PTY LTD Prosecution under s.8(1) and s.8(2) of the Occupational Health and Safety Act 2000 JUDGMENT NSWIRComm 142 1 By order the prosecutor, Inspector Wayne James of the Workcover Authority of New South Wales, has brought two charges against the defendant, Kimberley-Clark Australia Pty Ltd, alleging breaches of s 8 of the Occupational Health and Safety Act 2000. The charges were amended and the defendant has pleaded guilty to the amended charges. 2 The charge in matter 5972 of 2003 is in the following terms: Kimberly-Clark Australia Pty Ltd [ACN NO: 000 032 333] which was a company duly incorporated with its registered office at Level 4, Kimberly-Clark House, 52 Alfred Street, Milsons Point, in the State of New South Wales, being an employer, on 22 October 2001, at 7 Williamson Road, Ingleburn in the said State DID FAIL to ensure the health, safety and welfare at work of employees of the Defendant, including Mark Steven Thompson , contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars or the charge are: (b) The Defendant, at all material times, operated a diaper reclaim system designed to recycle reject product for reuse in production of diapers at its premises at 7 Williamson Road, Ingleburn in the State of New South Wales ("the premises"). (c) The Defendant, at all material times, employed a number of reclaim production operators and other personnel, including Mark Steven Thompson ("Thompson"), to work at the premises. (d) The Defendant, at all material times, owned and operated plant, namely a scrap baling machine, model HBM3030-35C-II-1463 ("the baling machine") at the premises. (e) The Defendant failed to ensure the health, safety and welfare at work of employees of the Defendant, including Thompson, by: 1) failing to provide and maintain plant that was safe and without risks to health, in that: - i. it failed to install a guard or cage around the baling machine door; ii. it failed to install controls on the baling machine which would identify to the operator of the baling machine whether or not the baling machine door was fully and securely closed or locked. 2) (deleted) 3) failing to provide and maintain systems of work that were safe and without risk to health in that: - i. it failed to ensure that the operator of the baling machine was not exposed to the risk of being struck by the baling machine door whilst the machine was in use. 4) failing to provide such information, instruction, training and supervision in relation to the safe operation of the baling machine as may be necessary to ensure the health, safety and welfare of its employees, including Thompson. (f) On the date of the accident, being 22 October 2001, Mark Steven Thompson was fatally injured after being struck by the baling machine. 3 The charge in matter number 5973 was to similar effect other than that the particulars referred to the presence at the premises on the same day of Michael Carl-Hans Page who was a non-employee of the defendant and alleged that the defendant failed to ensure that people other than the employees of the defendant, including Mr Page, were not exposed to risk to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work. The manner in which the defendant was alleged to have so failed was in essence the same as provided for in paragraph (e) of the charge in matter number 5972. 4 An agreed statement of facts was tendered into evidence which was in the following terms: 1. At all material times, the Prosecutor was an Inspector duly appointed and empowered by Section 106(1)(c) of the Occupational Health and Safety Act 2000 to institute proceedings in the within matter. 2. At all material times, the Defendant, Kimberley-Clark Australia Pty Ltd [ACN 000 032 333] (" the Defendant ") was duly incorporated with its registered office situated at Level 4, Kimberley-Clark House, 52 Alfred Street, Milsons Point, in the State of New South Wales. 3. At all material times the Defendant was the owner and occupier of, and was responsible for, the operation and management of premises located at 7 Williamson Road, Ingleburn, in the State of New South Wales (" the premises "). 4. At all material times the Defendant operated a diaper reclaim system designed to recycle reject product for reuse in production of diapers at the premises or disposal of such product. 5. At all material times the Defendant employed a number of reclaim production operators and other personnel including Mark Steven Thompson (" Mr Thompson ") to work at the premises. 6. At all material times the Defendant owned and operated plant, namely a scrap baling machine, model HBM3030-35C-II-1463 (" the baling machine ") at the premises. The baling machine was supplied to the Defendant by Hydra-Pac Pty Limited on or about 21 July 1997. 7. Mr Thompson was employed by the Defendant from 9 February 1994 up until 22 October 2001 (" the accident date "). 8. As part of his duties, Mr Thompson was required to operate the baling machine. 9. On the accident date, Mr Thompson was assisted in operating the baling machine by Michael Karl-Hans Page (" Mr Page "). Mr Page was an employee of John Young Recruitment Employment Agency and had been working at the Defendant's premises for a few months. Mr Page operated the baling machine for the first time on the accident date. He received onsite training in the operation of the baling machine from Mr Thompson. At the time of the accident, Mr Page was on his afternoon break while Mr Thompson continued to operate the baling machine alone. 10. The Defendant used the baling machine as part of its diaper reclaim system. The purpose of the baling machine was to compact material from rejected diapers into bales for disposal. 11. Prior to the accident, the manner in which the baling machine functioned and the Defendant's operating procedure for the baling machine when it is in automatic mode was as follows: (a) The operator would switch the baling machine to automatic mode and the baling machine would automatically produce a compacted bale. (b) Once a bale had been produced, the baling machine would sound an alarm. (c) The operator would then turn the alarm off at the control panel. (d) The operator would then strap the bale manually. (e) The operator would then turn the door switch on the control panel to "OPEN". (f) After a few seconds the door locking mechanism to open and the door would become free. The baling machine would push the bale out the door onto the gravity roller conveyor in front of the door. (g) The operator would then manually pull or push the bale the rest of the way along the gravity roller conveyor. (h) The operator would then manually close the door of the baling machine. (i) The operator would then select the door switch on the control panel to "CLOSE". (j) The operator would then press down the "REVERSE" button on the control panel for a couple of seconds. (k) The baling machine would then automatically start to produce another bale. 12. On 23 October 2001 Inspector James inspected the baling machine and an employee of the defendant demonstrated the operation of the plastic baler machine and the baling machine involved in the incident. Also, a number of scenario tests were carried out. As a result of the scenario tests the following was revealed: (i) There was no identification to the control panel that showed that the door and the door clamp were securely closed or locked. (ii) The baling machine was able to operate in automatic mode with the door clamped in the partially open position. (iii) As the material is baled during the automatic process it is compacted by a platen or ram. (iv) The platen or ram compacted the material by forcing it towards the front of the baler machine. (v) As the platen or ram, operating through hydraulic pressure, compacted the material it generated pressure up to 3,000 pounds per square inch. (vi) During one test, when the door was in the half latched position and as baled material was forced up against the door by the platen, the door flung open with some considerable force. (vii) On another test the door was fully shut, the switch was accidentally bumped from "door closed" to "door open" and then from manual to automatic. The ram pushed forward against the door and, due to the pressure up against the door and the latch being only half closed, the bale door flung open again with some considerable force. (viii) On both occasions the door flung in the direction of the three bollards striking one of them with some force. 13. On 22 October 2001, at the time of the accident, Mr Page was on his afternoon break whilst Mr Thompson continued to operate the baling machine alone. 14. On his return from break, Mr Page found the baling machine unattended with the alarm sounding. He switched off the alarm and noted that there was no bale in the baling machine. Mr Page switched the start button on at the control panel and went to look for Thompson who was not present. 15. At about that time, Cheryl Baldo (" Ms Baldo "), an employee of the Defendant, working as a Receptionist received a telephone call from extension 275 within the Defendant's premises. 275 is the extension number of the telephone located in the area of the diaper reclaim system. The person stated to Ms Baldo the following: "Cheryl, get an ambulance to Reclaim now" . Ms Baldo recognised the voice as belonging to Mr Thompson. 16. Shortly afterwards, Mr Page found Mr Thompson in the Reclaim area. Mr Page thought Mr Thompson looked sick and noted he was holding his stomach. Mr Thompson did not respond to questioning from Mr Page, nor from the employees of the Defendant who attended Mr Thompson to provide first aid. 17. Janet Petterson ("Ms Petterson"), an employee of the Defendant, employed as the Occupational Health Nurse was one of the first employees to attend on Mr Thompson. Ms Petterson noted that he appeared to be a blue/grey colour and was staring distantly. She said to him: "What happened?" Mr Thompson replied: "Hit by a door". 18. Mr Thompson lapsed in and out of consciousness and was taken by ambulance to hospital, however, he later died of his injuries. The Forensic Medicine Final Report of the Coroner dated 12 December 2001 found that the cause of death was chest and abdominal injuries. The Coroner found that the door on the machine being operated by Mr Thompson could have caused the injuries to the front of his body and the pattern of the band of injury across the front of the body was suggestive of an impact by a broad and roughly flat object, such as a door. The Coroner found that the injury on the left hand side of the back could have been caused by a secondary impact with (being thrown backwards onto) one of the bollards sited near the door. 19. Subsequent to the accident, the Defendant undertook a hazard identification and risk assessment for the baling machine. 20. Subsequent to that risk assessment, the Defendant instituted the following changes to guard the baling machine in the following manner: (a) The baling machine was fitted with a ram on the door to initiate door opening and closing. It has a clear lexan cover over the ram. (b) The baling machine door had a safety circuit switch affixed to determine whether the door was in the fully closed position and a switch to prevent the ram opening the door past the door's fully open position. (c) On the door clamp of the baling machine, a switch was affixed to determine whether the clamp was in the fully closed position and another switch to determine whether the clamp was in the fully open position, was attached. (d) A cage was installed around the baling machine door with a dual interlocked gate. The cage covered an area over the conveyor to such a length that the bale produced by the machine would clear the machine after being expelled, with the exit area being protected by a light curtain. (e) The initial part of the conveyor was changed to a driven type of conveyor with sensors to identify that the bale was present, which would then shut down the light curtain. Another sensor was attached at the end of the conveyor to determine the bale was present which would then reactivate the light curtain. (f) A small control panel for the operator was fitted adjacent to the cage door. A key switch was placed on the main control panel to control the use of the manual mode. 21. Attached hereto as Attachment "A" are 43 numbered photographs. Photographs 1 through to 14 depict the machine as at 23 October 2001, the day after the accident. Photographs 15 through to 25 depict the machine as at 25 October 2001. Photographs 26 through to 32 depict the machine as at 29 October 2001. Photographs 33 through to 43 depict the machine after improvements were made as at 11 December 2001. 22. Inspector James conducted factual inspections on 23 October 2001, 25 October 2001, 11 December 2001 and 18 December 2001. Those factual inspections are attached hereto as Attachment "B". 23. Mr Thompson received training in August 1997 by way of general overview training of the machines in the reclaim area which included the baling machine. Mr Thompson received training on the operation of the PCO plastic baler - which is almost identical to the baling machine in question - on 16 June 1994.23. Inspector James conducted factual inspections on 23 October 2001, 25 October 2001, 11 December 2001 and 18 December 2001. Those factual inspections are attached hereto as Attachment "B". 24. On the day of the accident Mr Thompson was not under the direct supervision of anyone in relation to his use of the baling machine. 25. Mr Page was trained in the use of the baling machine on the day of the accident by Mr Thompson. Mr Thompson showed Mr Page the operation of the baling machine on a number of occasions and then Mr Page operated the machine twice under Mr Thompson's supervision. There was no documentation of this training in relation to Mr Page. 5 In addition, photographs and inspection reports taken on behalf of the prosecutor were tendered as was a list of nine prior convictions of the defendant for breaches of the Shops and Industries Act 1962 and the Occupational Health and Safety Act 1983. 6 The prosecutor also tendered two victim impact statements made under the Crimes (Sentencing Procedure) Act 1999 by Rosalina Thompson, the widow of the late Mark Steven Thompson, and Tracey Grieco, the late Mr Thompson's sister. 7 The legislative framework against which victim impact statements are made and received by a court and the use to which they are to be made by a court in the context of the sentencing process have been fully explained by Boland J in this court in Inspector Glass v Foamex Polystyrene Pty Ltd (2004) NSWIRComm100. I acknowledge the devastating impact that the late Mr Thompson's death has had on his family. The statements vividly illustrate the extent of the human cost of all fatalities which occur in the workplace and provide one example of the potential impact that all workplace injuries create, which extends beyond the workplace, whether fatal or not. Consistent with authority, however, I will not take into account the impact of Mr Thompson's death on his family in assessing penalty. 8 For the defendant, there was tendered into evidence an affidavit of Eric Ross Hearne who was the Mill Manager employed by the defendant at the Ingleburn Mill where the accident occurred. This affidavit covered a variety of topics including a description of the defendant's activities, especially in New South Wales; the acquisition of the scrap bailer machine which was the machine involved in the fatal accident; the training that the deceased Mr Thompson underwent; the induction process undergone by Mr Page; and the extensive investigations undertaken by the defendant after the accident. In addition, the affidavit traversed the detailed modifications taken by the defendant to remove any safety problems associated with this machine and the extensive changes made to its occupational health and safety policies consequent upon the accident. Mr Hearne was cross-examined on parts of his affidavit. Finally, an affidavit was tendered on behalf of the defendant of Wayne Robert Jones, the Managing Director of Kimberly-Clark Australia Pty Ltd, which, inter alia, expressed the sincere regret of the company for the loss of Mr Thompson's life and an affirmation of the commitment of the company to the elimination of occupational injuries and illnesses. 9 It is first necessary to determine the objective seriousness of the offence. The evidence reveals that there were a number of deficiencies which were easily capable of identification and which have been able to be remedied as demonstrated by the modifications made by the defendant to the machine since the accident. Furthermore, it appears that concern had been expressed by persons involved in the operation of the machine, although those fears had seemingly not been communicated to senior management. I agree with the assessment of the prosecutor that there was a risk of serious injury which was readily foreseeable and that there were means reasonably available to the defendant to avoid that risk. Indeed, the defendant in its submissions candidly accepted that situation and, to its credit, did not attempt to minimise its culpability. Overall, the breach should be assessed on an objective basis as a serious one. 10 In fixing an appropriate penalty it is necessary to take into account the need for general and specific deterrence. While the need for general deterrence remains, in the case of this defendant I am satisfied that there has been a minimisation because of the nature and extent of the manner in which the defendant has reacted to the accident and the circumstances of the accident. 11 There are a number of subjective matters which the court is entitled to take into account in fixing penalty. The defendant co-operated fully with the Workcover Authority in connection with its investigations, has expressed its contrition as to what has occurred and, on the evidence, there has been a tangible manifestation of that contrition including assistance rendered to the deceased's family and counselling extended to its workforce generally. Furthermore, as the prosecutor conceded, the defendant has demonstrably improved workplace safety both specifically in connection with this machine and generally. 12 The defendant has prior convictions, to which I have already made reference. These result in the maximum penalty being $825,000. There is a prior conviction on 7 May 2003 with respect to an incident which occurred on 6 April 2001 in which the defendant was fined $19,500. Other than this fine the defendant's convictions occurred between 1973 and 1998 with the highest individual penalty being $2,000. My general impression, which was not opposed by the prosecutor, is that whilst the defendant has had a number of prior convictions they are spread over a large period of time and are not unexceptional given the extent of the defendant's activities in New South Wales and the number of person employed by it. Accordingly, I do not propose to take into account the defendant's prior convictions other than by reason of the increase in maximum penalty to $825,000, as an automatic result of those convictions. 13 Finally, as conceded by the prosecutor, the defendant pleaded guilty at the earliest opportunity, namely shortly after agreement had been reached with respect to the amended charges. It is therefore entitled to a discount of 25% with respect to any penalty imposed. I intend discounting the penalty by a further 10% with respect to the other mitigating factors to which I have referred. 14 Having regard to all of the matters to which I have referred I am of the opinion that an appropriate penalty is $320,000 to which the 35% discount should be applied, leaving a net penalty of $208,000. 15 The parties agree that the principle of totality should apply to both charges because in reality they arose out of the one incident, and I agree that this is the appropriate course to follow. Accordingly, I would propose that one half of the penalty be applied to each of the matters. Whilst there was no debate before me as to the relevant proportion, and whilst arguably matter number 5972 involved a fatality, nevertheless there are suggestions that the amount of attention given to the induction of Mr Page, whose safety is the subject of matter number 5973, was less than satisfactory. It is for these reasons that I have determined that the penalty should be imposed in these proportions. 16 The prosecutor sought an order for costs and a moiety which orders were not opposed. 17 ORDERS I make the following orders: 1. The defendant is found guilty and convicted of each of the charges. 2. In each matter the defendant is fined the sum of $104,000 with a moiety to the Workcover Authority of New South Wales. 3. The defendant is to pay the costs of the prosecutor in each matter to be fixed by the court in default of agreement. 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.