Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales v Asplundh Tree Expert (Australia) Pty Ltd [2003] NSWIRComm 379 PARTIES : WorkCover Authority of New South Wales (Inspector Henry) Asplundh Tree Expert (Australia) Pty Ltd FILE NUMBER: IRC 3412 of 2003 CORAM: Curtis AJ LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 11/03/2003 EXTEMPORE JUDGMENT DATE : 11/03/2003 Prosecutor: Mr G Phillips Solicitors: Carroll and O'Dea LEGAL REPRESENTATIVES: Defendant: Ms A F Backman of counsel Solicitors: Baker and McKenzie JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Curtis AJ 3 November 2003 Matter No IRC3412 of 2003 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PAUL HENRY) v ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LIMITED (ACN 055140424) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003]NSWIRComm 379 1 The defendant Asplundh Tree Expert (Australia) Pty Ltd (Asplundh) pleads guilty to a charge that it contravened s15(1) of the Occupational Health and Safety Act 1983 on 28 June 2001 in that being an employer at Austral in the state of New South Wales it failed to ensure the health, safety and welfare at work of all its employees, and in particular Mr Richard Austin, in that it failed to ensure that the plant being used by Mr Austin, namely a stump grinder, was safe and without risks to health, because it did not possess a dead man's handle, and further that it failed to provide adequate information, instructions, training and supervision to Mr Austin in the use of the machine and failed to provide and maintain a safe system of work for the grinding of stumps. 2 On 28 June 2001 Mr Richard Austin was instructed by his foreman to operate the stump grinder on a property at Austral. 3 Mr Austin had completed ninety-five percent of the grinding of the stump when Mr Jones, under whose direction he was working, noticed the grinding wheel was starting to eat into a mowing strip which divided the property from council property. Mr Austin withdrew the stump grinder from the stump and, without stopping the engine which drove the cutting head, tilted the machine backwards so it may rest upon a metal bar attached to the back of the machine. The stump grinder continued at full throttle with the cutting head elevated and exposed. 4 After Mr Austin walked in front of the machine to take a closer look, either the stump grinder moved or Mr Austin inadvertently moved against the cutting head in consequence of which he suffered massive soft tissue injuries to his left leg, including the severing of his femoral artery. 5 The accident had several causes, one of which was the inattention of Mr Austin, and another a unique feature of the stump grinding machine. 6 The stump grinder was manufactured to the specification of Kennards Hire Pty Ltd following the general plan of a similar machine produced in America. It consisted of a rotary steel cutting head on a short jib which was driven by a petrol motor. The machine when not in use rested upon the two wheels, which bore its weight, and the cutting head in front of those wheels, the centre of gravity being towards the cutting head. In consequence, it would not normally, reasonably or foreseeably, be left unattended with the motor running because the cutting head would rotate upon the ground. 7 Some time after 1990 when the machines first came into use, clients of Kennards experienced several engine failures. It was found that the oil sump drained when the machine was tilted back beyond a certain distance in order to elevate the cutting head to cut high stumps. To solve this problem Kennards modified the machines by fixing a horizontal metal bar at the rear of the machine to prevent elevation beyond that angle at which the sump would drain. 8 This angle was also coincidentally beyond that at which the centre of gravity passed from the cutting head to the rear of the machine. The machine in consequence could be rested on the limiting bar at its rear with the cutting head elevated some distance above the ground. 9 In normal circumstances the guard over the uppermost 200 degrees of the cutting head of the machine was adequate. It was the affixing of the limiting bar at the rear of the machine which created an unusual danger. 10 Mr Neville Pritchard, a manager employed by Asplundh, when he instructed Mr Austin in the use of the stump grinder some months before the accident, did not foresee the circumstances in which the latent design defect would cause the danger to Mr Austin. 11 Relevantly though, Mr Jones, the foreman of Mr Austin, was present throughout the use of the stump grinder on the day in question. It was Mr Jones who noticed that the grinding wheel was starting to eat into the mowing strip. He was present when Mr Austin withdrew the stump grinder and rested it on the rear bar with the cutting head exposed and the engine on full throttle. While the persons concerned with the design of the machine may not have foreseen that this was a possibility, before Mr Austin suffered his injury it must have been blindingly obvious to Mr Jones, the man in charge of the work, that there was a terrible danger then present. 12 The defendant failed to provide and maintain a safe system of work. The system of work adopted by Mr Austin in the presence of, and under instruction from, Mr Jones was patently unsafe. The defendant failed to properly instruct Mr Austin in the use of the stump grinder. A sufficient instruction in the present case would have been that Mr Jones say to Mr Austin after he rested the machine on the bar "hit the kill switch" or words to that effect. Because of these failings in simply responding to obvious peril, the gravity of the offence in the present case sounds heavily in the assessment of penalty. The injuries to Mr Austin were quite terrible and it was fortunate that he did not die. The dangers were obvious and the means of obviation were simple and without cost. Specific Deterrence 13 It has been put that the issue of specific deterrence ought not enter into the exercise of my discretion because the defendant no longer carries out stump grinding and contracts this work out. In these circumstances it is said there is little utility in penalising the defendant because the risk of re-offending is now non-existent. I do not accept that submission. It is in the nature of the defendant's business that its work is inherently dangerous. Not only stump grinders but chainsaws and wood chippers are used. 14 Notwithstanding the fact that the defendant devised and instituted and maintained extensive safety procedures, it is necessary that a culture of safety be further injected in the enterprise so that foremen do not stand idly by in the face of obvious dangers. I believe there is need for specific deterrence. Subjective Factors 15 Subjective factors in this particular case have a powerful voice. The defendant was established in Australia in 1992. At the time of the accident it employed 250 persons and currently employs 165. Its work I accept is inherently dangerous and it has no prior convictions. The defendant maintains a carefully documented approach to safety which includes the publication of handbooks, training procedures, auditing procedures, safety meetings and incident investigation. 16 That the defendant had in place extensive safety training in all aspects of its employees' positions is evidenced by the fact that Mr Austin had obtained thirty-five separate certificates and had been trained extensively on the hazards that he may come across in his work. So powerful do I believe the document to be that I include the recitation of his training courses as schedule one to this judgment. 17 The courses included courses in the operation of wood chippers and chainsaws and there is in evidence a document confirming the fact that Mr Austin was tested upon his knowledge of the dangers of chainsaws. There is also evidence that, before his injury, he was instructed by Mr Pritchard upon the safe use of a stump grinder. There is little more the defendant could have done other than ensuring that Mr Jones, the foreman in charge of the activity, had himself been properly trained in reaction to obvious dangers. 18 Conclusion 19 The gravity of the offence, and the need for general and specific deterrence, taking into account the subjective factors, places these offences in the order of one-fifth of a most extreme case. 20 An appropriate penalty before discount is $100,000. I discount that by twenty-five percent because of the plea of guilty, and the defendant is convicted and fined $75,000 with a moiety to WorkCover. 21 I order the defendant pay the prosecutor's costs agreed in the sum of $7,000. 22 Ms Backman for Asplundh, accepting my invitation, asks for further reasons as to the influence of subjective factors upon this sentencing process. I should make it plain that it is in the light of the factors subjective to the defendant that I view this offence in the order of one-fifth of a most extreme case. Without that evidence and viewed objectively, given the gravity and obvious nature of the danger, the simplicity of its obviation and the terrible injuries suffered by Mr Austin, my assessment would be very much higher. SCHEDULE ONE Level of Training/Achievement Date Training Provider / Institution National Horticulture Competency Standards: Apply Chemicals Certificates not dated Australian National Training Authority Fell Trees Operate chainsaws Statement of Attainment in Tree Care October 1994 Northern Sydney TAFE Electricity Safety Training 1 September 1995 Prospect Electricity Technical Training re Electricity (Workers Safety) Regulation 22 July 1996 Integral Energy Certificate of Crane and Plant Electrical Safety 24 July 1996 Integral Energy Certificate in Works Management (Maintenance and Construction) 30 September 1996 Arbortrim Training and Consultancy Wood-Chipper operation course 30 September 1996 Arbortrim Worksite Traffic Management 30 September 1996 Arbortrim Safe Chainsaw Operation 3 October 1996 Arbortrim Electrical Safety Rules Refresher Course 16 May 1997 Integral Energy Electrical Safety Refresher Rules 2 July 1997 Integral Energy Crane and Plant Electrical Safety Refresher Training 10 August 1997 Integral Energy Electrical Technical Training 19 August 1997 Integral Energy Electricity Transmission and Distribution Training 7 August 1998 Integral Energy Chipper Safety Training (Quiz) 11 January 1999 Asplundh Contract Tree Trimmer Certification 17 March 1999 Integral Energy Crane and Plant Electricity Safety 6 August 1999 Electricity Association of New South Wales Electricity Training 20 August 1999 Integral Energy Vegetation Management 22 March 2000 North Power Electricity Training 11 August 2000 Integral Energy 1E Electrical Safety Guidelines 10 October 2000 Integral Energy Asplundh Foreman's Manual Quiz 2000 Asplundh 2001 OHS Induction for Construction Work 30 March 2001 WorkCover NSW Crane and Plant Electrical Safety Certification valid until 11.8.01 NSW Electricity Commission Electrical Theory 2001 TAFE Statutory Requirements 2001 TAFE Power Systems – Operation 2001 TAFE Safe Working Procedures-1 2001 TAFE Close Approach Vegetation Management Safe Work Procedures using insulated tools Certification valid until February 02 Australian National Training Authority Worksite Traffic Control Certification valid until 9.12.02 RTA Electrical Theory 2002 TAFE Crane and Plant Refresher Electrical Safety 2002 TAFE Power Systems 2002 TAFE Safe Working Procedures 2002 TAFE CPR Workplace Assessment 2002 TAFE 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.