Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Przibilla v Hindmarsh & Roddy Engineering Pty Limited [2004] NSWIRComm 383 PROSECUTOR Inspector Craig Przibilla PARTIES : DEFENDANT Hindmarsh & Roddy Engineering Pty Limited FILE NUMBER: IRC 1953 of 2004 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 - Guilty plea - Manufacturing industry - Employee suffered severe injuries when his leg became pinned under a traverser - Capacity to pay fine - Foreseeability - Offence proven - Penalty imposed. LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 2000 Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29 CASES CITED : WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 HEARING DATES: 11/25/2004 DATE OF JUDGMENT: 12/10/2004 PROSECUTOR Mr A Britt of counsel Solicitor: Ms A Hecimovic Dibbs Barker Gosling LEGAL REPRESENTATIVES: DEFENDANT Mr J J Fernon (SC) Solicitor: Ms C Mullins Truman Hoyle Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Friday 10 December 2004 Matter No IRC 1953 of 2004 INSPECTOR CRAIG PRZIBILLA v HINDMARSH & RODDY PTY LIMITED Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 383 1 Hindmarsh & Roddy Engineering Pty Limited, the defendant in these proceedings, is a relatively small family business in steel fabrication, engineering and maintenance services and labour hire located at Tumut in the State. The defendant employed Mitchell Anthony Hulm as a casual tradesman's assistant, Francis Clarke Roddy (a director of the defendant) as a tradesman and Timothy James Smith as a casual tradesman. 2 The defendant entered into an agreement with Hyne & Son Pty Limited to undertake hob and rail relocation work at Hyne's Tumbarumba Mill, 3975 Jingellic Road, Tumbarumba, New South Wales. On 27 July 2002, Mr Hulm was working squatting down, with his welding helmet down, welding cleats to fix rails into position. He had his left leg up on a concrete platform and his right leg down in a recess or bay where a machine, known as a Traverser, ran between the drying kilns and the cooling shed on railway tracks. 3 As Mr Hulm was welding, he was struck by the Traverser laden with timber and his right leg became pinned and trapped by it. Mr Hulm was cut free from the Traverser using oxy-acetylene cutting equipment. He was flown by helicopter to Canberra Hospital for treatment. Mr Hulm sustained injuries to his right knee and multiple fractures to his right leg. Flesh and muscle was torn from above and below his knee. Donor skin was taken from Mr Hulm's left thigh for grafts. 4 The defendant was prosecuted by Inspector Craig Przibilla of the WorkCover Authority of New South Wales for breach of s 8(1) of the Occupational Health and Safety Act 2000. Section 8(1) provides: (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 5 In the application for order it was alleged that the defendant failed to: Ensure the health, safety and welfare at work of all of its employees, in particular Mr Mitchell Anthony Hulm ("Mr Hulm"), contrary to section 8(1) of the Occupational Health and Safety Act 2000. 6 The particulars of the charge were that on 27 July 2002 the defendant failed to: (a) To ensure that systems of works for the relocation and realignment of hobs and rails near an operating Traverser, were safe and without risks to health; (b) To provide supervision necessary to ensure the health and safety of its employees at work when relocating and realigning hobs and rails near an operating Traverser. 7 The defendant pleaded guilty to the charge. In the sentencing hearing an agreed statement of facts was tendered into evidence together with colour photographs of the site where the incident occurred and of aspects of the incident. A certificate of prior convictions indicated that the defendant had no prior convictions under the Act or its predecessor. 8 For the defendant, an affidavit of Francis Clarke Roddy was read. As I noted earlier, Mr Roddy was a director of the defendant. He established the defendant in 1990 with his brother, Garth, and Gary Hindmarsh. 9 The evidence was that the Traverser measured approximately 3.1 metres in length x 7 metres wide x 2.8 metres high. It was located in a bay that measured approximately 60 metres in length x 7 metres wide and 450 millimetres below the platform heights of both the Cooling Shed and the kilns. The Traverser ran forward and aft upon the rail track within the Traverser Bay. Mounted on the Traverser, on fixed rail tracks was an electric powered trolley. The trolley was used to transport timber (ready for heat treatment) from the In-feed Hobs to the kilns. Following heat treatment in the kilns, the timber was transported by trolley, to the Cooling Shed for post heat treatment. 10 On the day of the incident the Traverser was laden with timber and the Traverser operator could not see what was in front of the Traverser as it travelled forward. Prior to the accident date, the Traverser did not have any warning beepers or flashing lights fitted to or functioning on it. However, the Traverser did have a housing mechanism for such devices fixed in the centre and above the operating platform of the Traverser. 11 As to the incident itself it was agreed as follows: 41 On the accident date, Mr Hulm was working at the end of the Cooling Shed, within the Kiln Area and near to the Traverser Bay. Mr Hulm was squatting down, with his welding helmet down, welding cleats to fix rails into position. 42 The Defendant now understands that Mr Harry Tuominen (" Mr Tuominen ") Kiln Attendant was operating the Traverser from the primary operator's controls. Mr Douglas Ian Peel (" Mr Peel ") Forklift Operator, was standing on the Traverser platform, a few feet from Mr Tuominen. The Traverser was travelling forward in a westerly direction, laden with timber that was being transported from the Cooling Shed to one of the kilns for heat treatment. 43 With the Traverser laden with the timber Mr Tuominen could not see what was in front of the Traverser as it travelled forward. The Defendant was unaware that the operator's vision was impaired. 44 As Mr Hulm was welding, he was struck by the Traverser and his right leg became pinned and trapped by it. Upon hearing Mr Hulm's screams, Mr Tuominen released the Traverser's travel lever and hit the emergency stop button. 45 The Defendant understands that Mr Hulm was cut free from the Traverser using oxy-acetylene cutting equipment. Mr Hulm was transported by road ambulance to a nearby playing field and thereafter transported by helicopter to Canberra Hospital for treatment. 12 In relation to the system of work, the agreed facts were as follows: 28 Prior to 25 July 2002 Mr Roddy met with Mr Benjamin Don Hobson …Dry Operations Manager, Hyne, to view the work and discuss the scope of the work. The work was to continue with the work already undertaken by Skilled Engineering for 3 to 4 days to relocate hobs and rails in the Cooling Shed so as to line up with railway tracks in the kilns. 29 Mr Hulm underwent Hyne's general site induction at the site on or about 15 June 2002. 30 At all material times Mr. Hulm did not undergo Hyne's specific Kiln Area induction. 31 On the commencement date, Mr Roddy verbally instructed Mr Hulm as to the work that he was to undertake at the site. Throughout that day, Mr Roddy supervised and provided on-the-job training to Mr Hulm as he undertook the work. 32 On the accident date, Mr Smith and Mr Hulm were undertaking the work at the site however Mr Smith did not supervise Mr Hulm, nor was he directed to do so by the Defendant or Mr Roddy. 33 At all material times, Mr Hulm did not receive any instruction, information, training or supervision from the Defendant, Mr Roddy or Hyne in relation to working near to the Traverser while it was operating except that Mr Roddy advised employees to take care and be careful. 13 In relation to supervision at the site, the agreed facts were that: 34 The work commenced at the site on or about 25 July 2002 (" commencement date "). Mr Hulm reported for work at the site on the commencement date. Mr Smith reported for work at the site on 27 July 2002. 35 Mr Roddy, on behalf of the Defendant, agreed orally to perform the work (" the Agreement "). 36 The Agreement was not reduced to writing. The Agreement did not include: (a) a discussion on how to safely perform the work; any risk assessment; or (b) a Safe Work Method Statement. 37 On or about 1 September 2001, Mr Roddy had undergone a general site induction at the site and signed and dated a three page certificate titled "Structural Softwood Division - Induction Certificate" (" Certificate "). The Certificate stated that the induction was " current for 12 months ". Amongst other things, the Certificate authorised Mr Roddy as follows: " Site Isolation (no work to be carried out unless relevant area/plant is effectively isolated ". On or about 25 July 2002, Mr Roddy again underwent a general site induction at the site. 38 At all material times, full and normal kiln production and operations continued including the operation of the Traverser and its trolley. 39 Mr Roddy knew that the traverser presented a potential risk to Mr Hulm when it was moving packs of timber. Mr Roddy did not isolate the traverser. 40 The Defendant did not erect, nor did the Defendant attempt to erect a barrier or fence whilst Mr Hulm undertook the work. 14 It was agreed that since the accident, the defendant has jointly prepared, with Hyne, a Safe Work Method Statement to identify hazards and assess risks associated with hob and rail relocation work and kiln area operations. 15 Since sustaining his injuries on 27 July 2002, Mr Hulm has: (a) Undergone multiple surgical procedures; (b) Received ongoing physiotherapy treatment; and (c) Attended various specialist appointments. On 7 July 2003, Mr Hulm returned to work on a part time basis one day a week for four hours each day and then later, four days a week for six hours each day. Since 4 May 2004 Mr Hulm has not returned to work. Consideration 16 Mr A Britt of counsel for the prosecutor submitted the offence was a serious one that called for the imposition of a substantial penalty within the range of penalties available up to a maximum of $550,000. He submitted the risk of injury from an employee being struck by the Traverser was both obvious and foreseeable. When there is a risk to safety that was both reasonably foreseeable and obvious this adds to the overall seriousness of the offence (see WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 452; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267). In this respect Mr Britt submitted: (a) Mr Hulm was a relatively young employee with little experience with the Defendant at the time of the incident. Employers of young persons must be vigilant especially in relation to their young workers especially where a workplace is dangerous and inherently unsafe (see WorkCover (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 452 and WorkCover (Inspector Guillarte) v Trustees of De La Salle Brothers [2004] NSWIRComm 49 at paragraphs 21 and 25). (b) Mr Hulm was working in close proximity to the Traverser. (c) Mr Hulm did not receive any instruction, information, training or supervision from the Defendant, Mr Roddy or Hyne in relation to working near to the Traverser whilst it was operating except that Mr Roddy advised him to take care and be careful. (d) The Traverser did not have any warning beepers or flashing lights fitted. (e) Mr Hulm did not undergo specific Kiln Area induction. (f) The Defendant through Mr Roddy was aware that the Traverser was operating whilst Hulm was working in the area and this presented a potential risk to Hulm. (g) Mr Roddy did not isolate the Traverser. (h) On the day of the accident the Mr Hulm was not supervised. (i) The Defendant did not erect, nor did the Defendant attempt to erect a barrier or fence whilst its employees, and in particular, Mr Hulm undertook the work. (j) This resulted in the obvious and foreseeable risk of an employee being struck by the Traverser when the Traverser was in motion. (k) The failure to have any system of work to notify an employee of when the Traverser was in operation and to provide any supervision to an employee resulted in an obvious and foreseeable risk of an employee being struck by the Traverser when working in close proximity to the Traverser once the Traverser was engaged. 17 There cannot be any doubt about the proposition that the defendant's failures gave rise to a risk to safety on 27 July 2002 that was both obvious and foreseeable. Even if it were accepted, which I do not, there was no need for Mr Hulm to place any part of his body in the Traverser Bay, he was working so close to the edge of the Bay in performing the work of relocating the rails and welding them into position that he was at obvious risk of being struck as the Traverser passed his position. That in performing the work of welding the rails in position Mr Hulm might stand in the Traverser Bay and expose himself to risk was patently foreseeable. That the wearing of a welding helmet might impair Mr Hulm's vision in relation to the approach of the Traverser and increase the risk was also foreseeable. 18 There were very simple and straightforward measures available to avoid the risk in this case. As the prosecutor submitted: … [I]t was open to the Defendant at any time prior to the offence to do all or any of the following: i) erect a barrier or fence to prevent employees from being struck by the Traverser; and ii) ensure employees were not working in close proximity to the Traverser when the Traverser was in operation. 19 I have taken into account in assessing the objective seriousness of the offence that Mr Hulm did receive a general site induction, which addressed matters of safety. I have also taken into account that Mr Hulm was warned to be careful of the Traverser. Mr Hulm was also not without experience, having worked for the defendant for some 15 months, and was a competent worker. 20 It may have been inadvertence that caused Mr Hulm to be forgetful of the possibility that whilst he was engaged in welding the rails the Traverser might begin operation or it might have been that he believed the Traverser operator would be able to see him. But whatever the explanation for Mr Hulm placing himself in a position where he might be struck by the Traverser, there was a responsibility on the defendant to ensure that Mr Hulm was not placed at risk of injury regardless of any carelessness or inadvertence on the part of the employee. In putting arrangements into place to protect workers from injury an employer is required to take into consideration human frailties and guard against them. The arrangements this defendant had in place to meet its responsibilities under s 8(1) of the Act were completely inadequate. It meant that a young man was exposed to an unsafe system of work and left working alone without any supervision in circumstances where he was performing work in close proximity to where a machine might travel that could cause serious injury or even death. This represents a serious offence. 21 The prosecutor submitted that there was a need to include an element in any penalty for general deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29. The nature of the work undertaken by the defendant is typical of small engineering shops in rural and urban areas and such work is very often undertaken away from the employer's usual workplace. Extra care is required in the circumstances of an unfamiliar environment and the employer has to approach its responsibilities regarding occupational health and safety as though the workplace was its own. It is appropriate that I include an element in the penalty for general deterrence. 22 As to specific deterrence, the prosecutor relies on the fact that the defendant is continuing in the engineering business. I am satisfied, however, that in 14 years of operation, but for this offence the defendant has a good record. The defendant has shown contrition and has taken steps to avoid a re-occurrence of the offence. I consider the defendant now understands the importance to be attached to occupational health and safety and that its propensity to re-offend is low. Accordingly, the penalty will not contain a significant element for specific deterrence. 23 There are a number of subjective factors to be taken into account and whilst these are important they are secondary considerations to the objective seriousness of the offence. First, the plea of guilty, which the prosecutor accepted was an early plea. Secondly, the defendant has no prior convictions in a period of operation of some 12 years up to the time of the offence. Thirdly, the defendant cooperated with the WorkCover Authority in its investigation of the incident. Fourthly, the defendant is a good corporate citizen and this is evidenced by the support it provides for its local community. Fifthly, the defendant has demonstrated contrition and remorse by the assistance it sought to provide to Mr Hulm following the accident on 27 July 2002. The nature and extent of assistance provided by an employer to a worker and his family following an injury or fatality at work is, in my opinion, an important factor amongst the various subjective factors to be taken into account. 24 Sixthly, Mr J Fernon of senior counsel for the defendant submitted that pursuant to s 6 of the Fines Act 1996, I should take into account the defendant's capacity to pay any fine that the Court might impose. In this respect, exhibited to Mr Roddy's affidavit were tax returns and financial statements relating to the years 2002, 2003 and 2004 for the unit trust that operates the business of the defendant. The defendant is a reasonably small business without substantial net assets and earns only a modest annual income. The burden of any fine will fall on a small number of persons. Accordingly, I have taken this into account in fixing on the amount of penalty. 25 I have decided that an appropriate fine in this case is $170,000. This amount is to be discounted by 25 percent for the utilitarian value of the early guilty plea. The penalty is to be discounted by a further 10 per cent for the other subjective factors I have referred to. That leaves a fine of $110,500. Orders 26 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $110,500 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs. 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