Industrial Court of New South Wales CITATION: Inspector Dave Chamings v Shiu Narayan and Mahabir Holdings Pty Ltd [2007] NSWIRComm 106 PROSECUTOR: Inspector Dave Chamings PARTIES: DEFENDANTS: Shiu Narayan and Mahabir Holdings Pty Ltd FILE NUMBER(S): IRC 2504 and 2505 of 2006 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - s 26(1) - company and director each plead guilty to breach of Act - use of wood splitting machine - machine unguarded - lack of interlocking safety devices - absence of supervision - foreseeable risk of arm and hand injury - employee injured while distracted - wrist amputation - serious breach established - gap in safety system demonstrated - general and specific deterrence - subjective factors considered - financial position of business not clearly established - discount for early pleas and other subjective factors - penalties imposed CASES CITED: Inspector Mansell v Eleven Lighting Pty Limited [2002] NSWIRComm 339 McColl v John Watson Building Services Pty Limited and Dowdon Contracting Pty Limited [2004] NSWIRComm 353 HEARING DATES: 07/05/07 EXTEMPORE JUDGMENT DATE: 7 May 2007 PROSECUTOR: Ms P McDonald of counsel SOLICITORS: DLA Phillips Fox LEGAL REPRESENTATIVES: DEFENDANTS: Mr R Reitano of counsel SOLICITORS: Leigh Virtue & Associates JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 7 May 2007 Matter No IRC 2504 of 2006 INSPECTOR DAVE CHAMINGS v SHIU NARAYAN Prosecution under s 8(1) and by operation of s 26(1) of the Occupational Health and Safety Act 2000 Matter No IRC 2505 of 2006 INSPECTOR DAVE CHAMINGS v MAHABIR HOLDINGS PTY LTD. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 106 1 The Superaxe splitting machine is a piece of equipment that performs the fairly primitive task of log splitting. One such machine was owned by Mahabir Holdings Pty Limited, a company providing arborist services to, amongst others, the Rookwood Necropolis Cemetery. Mr Shiu Narayan was a director of Mahabir Holdings and since 1982 had operated and owned a small business known as General Forest Tree Surgeon. That business had employed a number of people and in June 2004 employed Mr Ashley Pettersen as a truck driver, and at least four or five other people, including four labourers. 2 On 21 June 2004 Mr Pettersen was seriously injured while operating the log splitting machine in the course of demonstrating its operation to three of the labourers. The injury resulted in Mr Pettersen's right wrist being partially severed. It was later amputated at hospital. 3 Following an investigation of the accident by the WorkCover Authority, the Authority commenced prosecution proceedings against Mahabir Holdings for an alleged breach of s 8(1) of the Occupational Health and Safety Act 2000 and against Mr Shiu Narayan for a breach of s 8(1) of the Act by operation of s 26. The amended particulars of both charges were identical and alleged as follows: 1. The company failed to ensure that plant, in particular the machine provided for use by the company's employees at work was safe and without risk to health in that the company failed to ensure that there were adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated. 2. The company failed to provide such supervision as may be necessary to ensure the employees' health and safety at work. 4 On the second occasion that the matter was before the Court, the defendants entered a plea of guilty, although there were some continuing disagreements about the scope and extent of the particulars. Those disagreements were resolved shortly before the hearing commenced on sentencing. This judgment indeed deals with the evidence and submissions on sentencing. 5 The evidence for the prosecutor consisted of a number of documents. Firstly, there was ultimately an Agreed Statement of Facts. That document in its amended form will appear as an annexure to this judgment. It is sufficient to say that on the day of this accident there were seven persons employed by the company. Mr Pettersen was employed as a truck driver. He was then 24 years of age. There were some labourers employed and Mr Narayan, and it was set out that Mr Pettersen had commenced employment with the company approximately three years prior to the date of the accident. Two of the labourers had been employed by the company for approximately three and four months prior to the accident, and another had been employed for approximately seven weeks prior to the accident. Mr Narayan was Mr Pettersen's supervisor on the day of the accident. 6 The incident appeared to have occurred when Mr Pettersen commenced to operate the machine for the purposes of demonstrating its operation to the relatively newly employed labourers. It is agreed that apparently during this task Mr Pettersen appeared to be distracted, and as he leant forward on the knee control of the machine, the blade stroked and came into contact with his right arm. He was taken to hospital and has not returned to work. Mr Pettersen apparently had been informed by his treating doctor that it would be at least one year before he would be fit to return to pre-injury duties. He had been offered employment by the company but had declined to take up that employment. The partially severed wrist was amputated at the hospital. 7 In relation to the machinery, it was agreed that apart from using hands to locate the block underneath the cutting blade of the machine, it was not necessary for the operator to use his or her hands to operate the machine during the cutting process. It was also agreed that there were no adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated. Australian Standard AS4024.1 recommended that where guarding was impracticable two handed control devices offered a means of protecting the hands of the machine operator. The Standard, at clause 9.3.3.2, recommended that dual activated devices of a two hand control shall be designed and arranged in such a way that the protective effect of the two handed control devices cannot be easily defeated, and the probability of accidental amputation is minimised in accordance with the risk assessment for the task. 8 It was common ground Mr Pettersen had been provided with training in the operation of the machine in about mid-March 2002. That training consisted of a demonstration of the operation of the machine and being provided with a copy of the operator's manual provided by the manufacturer of the machine. 9 Amongst other documents that were tendered in the prosecution case, was a factual inspection report, an extract from the ASIC company history, a prior conviction record (acknowledging that neither defendant had prior convictions), and a number of photographs of the log splitting machine at its site of operation. 10 A further document tendered was the operator's manual that was supplied with the machine. That manual, under the heading "Safety" in bold letters stated, "Be careful. Treat this machine with care. It can be dangerous". A number of the warnings underneath included this warning: Always keep your hands on top of the block, never on the block. Never allow yourself to be distracted from the operation of the machine. If distraction occurs, stop and deal with the distraction. Do not continue operating it. 11 A more recent operator's manual also was in evidence and appears to have been available during 2004 and after this accident. In that document under the heading "Operator Training", while again referring to keeping hands on the side and never on top, the manual contained this advice: While holding leg control sideways, push leg control forward to move axe down and split the block. It was submitted that this was an additional control that had been introduced after this incident, although there was another control that I will refer to briefly that appeared to be available in 1999. 12 There were also some manufacturer's brochures in evidence. The brochures contained this claim: Adjustable knee control gives easy, efficient, hands free operation. The brochures in which that claim is made carry photos of a person standing in front of the splitting arm, but with both hands on the timber block on either side of that block and certainly not on top of the block. 13 In November 1999 Work Safe Victoria issued an alert regarding crush injuries arising from the use of log splitting machines. That alert indicated that workers had received serious hand injuries while operating log splitters, and that they seemed to have occurred when operators were trying to free a log stuck on the blade of the machine. The machine had then been accidentally operated, crushing the worker's fingers between the log and the machine table. The alert stated that the manufacturer of the Superaxe, Whitlands Engineering, had developed a modification that included a double interaction to interlock the blade control, minimising the risk of unintended operation. 14 A letter to Mr Narayan of September 2004 from Advance Arbor Services indicated that Advance Arbor Services had purchased a Superaxe wood splitter from Whitlands Engineering in 1997, but at no time since purchasing that unit had that company received any communication from Whitlands regarding modifications or alterations being required for the unit. Extracts of the Australian Standard already referred to were in evidence. 15 The evidence for the defendant was given by way of affidavit of Mr Shiu Narayan. He deposed to being 52 years of age, having spent some time in New Zealand and being employed in the forest industry, travelling to Australia and marrying and raising a family of three, and becoming an Australian citizen in 1985. He stated that since 1982 he had continually operated his own small business known as General Forest Tree Surgeon, working in that business for more than 23 years, and employing a number of people up to the position where, on the date of his affidavit, just a few weeks ago, the company employed approximately eleven people. That number might go up, depending on the work being performed. 16 Mr Narayan spoke of having great pride in being able to employ staff and he considered that he had always treated his staff fairly and reasonably. He had completed a number of study and training courses and provided documents in support of that statement, and they included training in occupational health and safety. He had taken particular interest in all aspects of the tree cutting industry, and in particular, occupational health and safety in that industry. He had been a member of the Tree Contractors Association of Australia for fourteen years, and had been its President since 2002. That Association had over 130 members throughout Australia, and provided, amongst other things, training and education to its members, including occupational health and safety matters. He referred to being proud of being part of those activities of the Association. 17 In relation to the nature of the business, some background documents were supplied. There were a number of references and certificates of appreciation from various customers, but also there were a number of documents dealing with the company's system of occupational health and safety, one such document being the company's occupational health and safety policy, and rehabilitation policy. There was a preliminary hazard assessment check list used by the business at the time of providing quotations for a job, although that was not used in relation to this particular work. There was an on-site hazard assessment check list. That was not availed of at the time of this accident. There was a business occupational health and safety risk management procedure and that was operative at the date of the accident, and a copy of a risk assessment procedure. It was said in relation to that document, that it was not used in relation to the log splitter, because that document dealt with work off site, and the splitter was kept on site. 18 The company kept a record of training provided and completed by its employees. Mr Narayan spoke of the business having a continuing and thorough commitment to the ongoing training of staff, and he spoke about record keeping and ensuring training was kept up to date. There was an occupational health and safety committee and he was a member of that committee. 19 Mr Narayan spoke then about the financial performance of the business, saying it had been reasonably successful to varying degrees over the years, although in the recent past it had become increasingly difficult for the business to operate profitably. For the financial year ending 30 June 2006 the business made a before tax profit of only approximately $100 and in the previous financial year, the business had made a loss of approximately $6,800. He was hopeful the business would make a small profit in the current financial year, and said that he personally received income through the business, and for the financial year ending 30 June 2006 that was a gross sum of just over $8,000, which, after expenses, gave him a taxable income of $6,200, and an identical sum was paid to his wife. 20 Mr Narayan then described his involvement with the incident and how he allocated work in the morning and had not been present at the time of the incident, and if he had been on site, how he would have been the direct supervisor of Mr Pettersen. He spoke of being absolutely devastated that one of his employees had sustained a serious injury, and being extremely distressed at the occurrence of the incident. Following the accident he said he did everything he could to provide assistance to Mr Pettersen, including, in particular, offering him an opportunity of returning to employment with the business if he wished to do so, but that was not accepted by Mr Pettersen. He spoke of giving all the assistance that he could to both the police and the WorkCover Authority. 21 Immediately after the incident the company stopped using the wood splitting machine, removing its blade, and the machine has not been used since that time. It appears to be the subject, from other evidence, of a prohibition notice. Mr Narayan spoke of the machine as being a constant reminder to him of the requirement for continuing vigilance in workplace safety. He also convened a meeting of all the labouring staff to discuss how the incident occurred and how accidents like that could be prevented in the future. He reinforced the importance of carrying out the task that had been allocated, and doing all work in accordance with the training given and reinforced that each person had obligations in relation to health and safety. The staff were reminded that the truck driver was the supervisor for all chipping jobs and they should take their instructions from the supervisor at the site. 22 In the days and weeks after the incident, Mr Narayan provided an updated hazard assessment process which was used by the company and implemented the arrangements specifically for improving the information gathering processes required before the start of jobs. He conducted a review of the plant and equipment: some of that equipment was replaced because it was not appropriate; updated machinery was purchased;, and, he implemented a system whereby only trained and licensed operators were to use the cherry picker, noting that licensing was not required for work at least to 11 metres. 23 He had continued to attend trade shows in the industry, including interstate (in Victoria and Brisbane), and kept himself up to date with the available plant and equipment in the industry, and had looked for log splitters, but had not been able to find any log splitter that was guarded. The log splitter in use on the day, the Superaxe, remained available, but he had chosen not to use any log splitter. He expressed the opinion that he had done everything he could possibly do to ensure that an accident like the one involving Mr Pettersen never occurred again to any of his employees, and said he was committed to doing everything he could to ensure that employees of the business were always safe. 24 Mr Narayan spoke of, together with his family, being deeply and substantially affected by the accident, and sincerely regretting the accident, and he took it upon himself to do whatever he could to ensure that it did not occur again in the operation of his business. He had, in fact, given some consideration to whether he should continue in the business. He provided employment to a number of people, and that is a matter in which he took some pride. There were a number of documents annexed to that affidavit that supported those general statements and opinions proffered by Mr Narayan. That was the evidence before the Court. 25 It is common ground that in relation to these two matters, the maximum penalty is $550,000 for the company and a maximum fine of $55,000 is available in relation to the breach involving Mr Narayan as a director of the company. The first task in the sentencing process is to consider the objective seriousness of the offences. As has been indicated, the amended application for order focuses upon a failure to ensure that there were adequate interlocking measures and controls installed on the machine to ensure that it could not be inadvertently operated, and there was a failure to provide supervision necessary to ensure the employees' health and safety at work. 26 The machine performs a quite basic task. The machine is a quite basic piece of machinery. It is of some interest that the brochure available through the manufacturer, although speaking of its hands free operation, nevertheless has pictures of the operator while operating the machine with the knee, having hands on either side of the log as it is being split. It is said by the prosecutor that there was a clearly foreseeable risk of hand and arm injury. The defendant accepts that it is a dangerous piece of equipment. Its plea accepts that this worksite lacked an interlocking device such as a two hand control device, as referred to in the Australian Standard, and that there was a lack of supervision on the day. 27 There was some issue about whether remedial steps were easily or readily available. There is no doubt that supervision was available and it appears to be part of the usual safety system of the company. It is unclear to me on the evidence, as to the availability of the interlocking devices or the two handed device referred to in the Australian Standard. The Victorian Work Safe Authority's alert in 1999 spoke of the manufacturer developing a modification, including a double action to interlock the blade control, minimising the risk of unintended operation. This appears to be a reference to a system of operation where the lever is pushed by the knee, first sideways and then in so that there are two movements required. This enhancement of the equipment does not directly address the issue of securing the hands and arms from coming into contact with the machine. To that extent, there were remedial steps available, but I have doubt as to how immediately available those steps were, and I note from the evidence that although Work Safe Victoria in 1999 was speaking about the manufacturer's development of a modification, it appears that the manufacturer had not contacted all of the purchasers of this equipment to inform them of the availability of the modification. Considering all those matters, this is properly to be considered as a serious breach of the Act. 28 Then it is necessary to consider general and specific deterrence. The use of machinery which is unguarded is of importance to industry generally, and every prosecution serves as a continuing warning to industry to take whatever steps are available to guard machines. This piece of machinery is perhaps in something of a class of its own, but nevertheless there should be an element in the setting of a penalty for general deterrence. 29 In relation to specific deterrence, here the company and Mr Narayan, its director, have a long history of operating in an industry that has quite dangerous machinery as part of its every day equipment. The evidence discloses a review of that machinery, a putting aside of the log splitting machine since the accident, and an admission that there was a gap in the system, but evidence of a system of training. It seems to me in those circumstances specific deterrence has a reduced role to play, but nevertheless a role in the setting of an appropriate penalty. 30 In relation to subjective factors, I am able to accept, on the evidence, that there was an early plea in both these matters, and the defendants should each be entitled to a discount of 25 percent. They are both entitled to consideration for having a record without prior convictions, considering the length of their involvement in this industry, and the nature of the industry. The evidence demonstrates contrition, both by the entering of the early plea and by the expressions of concern for Mr Pettersen by the company and Mr Narayan: it is also demonstrated by the review of the systems and the changes in the system that were introduced following the accident. It is common ground that there was co-operation with the WorkCover investigation. It was accepted by the prosecutor that here the company and the personal defendant were intertwined in the sense that the company directors, Mr Narayan and his wife, were shareholders of the company, and this should be taken into consideration. 31 An issue did arise as to the operation of s 6 of the Fines Act 1999. Section 6 relevantly provides that: In the exercise by a court of a discretion to fix the amount of any fine, a court is required to consider: (a) matters such information regarding the means of the accused as is reasonably and practicably available to the Court for consideration ... In 2004 the Commission in Court Session, as it then was, in McColl v John Watson Building Services Pty Limited and Dowdon Contracting Pty Limited [2004] NSWIRComm 353 dealt with the application of s 6 of the Fines Act and adopted the principles earlier set out in Inspector Mansell v Eleven Lighting Pty Limited [2002] NSWIRComm 339 namely, that the Court was obliged to take into account the means of a defendant to pay any penalty, but that a defendant who wished to rely on the provisions of s 6 bore the onus for putting such evidence in support as was appropriate before the Court and bore the onus on the balance of probabilities to satisfy the Court as to the truth of that evidence and its relevance for the fixing of a penalty. 32 I accept what is said in McColl in that regard, and I have evidence from Mr Narayan about the two recent financial years of this company, and the small returns made. That material, however, does not tell me anything about the available resources of the company generally, the capacity to pay a fine, nor does it give any reason as to why there might have been a downturn in the business which employs eleven people, when both he and his wife appeared to make a very modest income. Ultimately, I am not assisted by that material in setting an appropriate penalty. Nevertheless, there are a number of subjective factors that are to be taken into account in setting a penalty in this matter. 33 Bearing all those matters in mind the Court makes the following orders: 1. In relation to matter No 2505 of 2006: (a) the defendant Mahabir Holdings Pty Limited is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 2505 of 2006; (b) the defendant is to pay a fine of $95,000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. 2. In relation to matter No 2504 of 2006: (a) the defendant Shiu Narayan, being a director of Mahabir Holdings Pty Limited is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 200 by operation of s 26 of the Act, as particularised in the Amended Application for Order in Matter No 2504 of 2006; (b) the defendant is to pay a fine of $8,500 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1 At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered under Section 106 of the Occupational Health and Safety Act 2000 (Act) to institute proceedings in these matters. 2 At all material times Mahabir Holdings Pty Limited (ACN 059 206 950 (Company ): 2.1 Was a duly incorporated company with its registered office located at 60 Gallipoli Street, Lidcombe in the State of New South Wales; 2.2 Was an employer in New South Wales as at 21 June 2004 (the day of the incident ); 2.3 Employed the injured person, Ashley Pettersen (injured worker) , then aged 30 years, as a truck driver: 2.4 Employed Mathew Wiley, Michael Palm, Andrew Pullen and Zachary Walker as labourers (work crew); 2.5 Had an undertaking at the premises to provide arborist services to the Rookwood Necropolis Cemetery (Cemetery) . 3 At the date of the incident, the Company was known by the name General Forest Tree Surgeon Pty Limited. 4 At all material times the work crew were performing work for the Company at the premises, a place of work of the Defendant. 5 At all material times, Shiu Narayan (Mr Narayan) was a director of the Company and a person concerned in the management of the Company. Background 6 The Company provides aborist and tree maintenance services with operations in Sydney at and at the time of the incident, the Cemetery. 7 The premises consisted of a fenced-in enclosure within the grounds of the Cemetery. 8 The premises consisted of the Company's operating base within the Cemetery and the Company stored and operated tree lopping and maintenance equipment within the premises, including the Superaxe Splitting Machine Model WS 400 Serial Number 201 PLE (machine). 9 The Company employed the work crew to carry out the Company's undertaking in providing arborial services at the premises and elsewhere. On the date of the incident, the work crew consisted of the following employees: 9.1 The injured worker, truck driver, then aged 24 years; 9.2 Michael Palm, junior labourer, then aged 17 years (Palm) ; 9.3 Zachary Walker, labourer, then aged 16 years (Walker ); 9.4 Andrew Pullen (Pullen) ; 9.5 Matthew Wiley, head stump grinder, then aged 20 years (Wiley) ; 9.6 Dip Narayan, also known and Charlie Narayan, labourer, then aged 44 years (Dip Narayan); and 9.7 Mr Narayan. 10 The injured worker commenced employment with the Company approximately 3 years prior to the date of the incident. 11 Palm and Walker had been employed by the Company for approximately 3 and 4 months prior to the date of the incident, respectively. 12 Pullen had been employed by the Company for approximately seven weeks prior to the incident. 13 Mr Narayan was the injured worker's supervisor on the date of the incident. Mr Narayan was not present at the premises at the time the incident occurred. Wiley did not have a supervisor on the date of the incident. Mr Narayan allocated Wiley the task of supervising Palm and Walker on the date of the incident. Incident 14 Prior to the work crew attending the premises the work crew's duties had been allocated by Mr Narayan at other premises of the Company, being 5 Skarratt Street, Silverwater, New South Wales. The injured worker had been instructed by Mr Narayan to load a work truck with mulch and deliver it to premises in Blacktown. Wiley had been instructed to operate the machine and provide a demonstration to Palmer, Walker and Pullen, being junior employees. Wiley was also instructed to supervise Palmer, Walker and Pullen until Mr Narayan arrived at the site later in the morning. Mr Narayan was the supervisor of the injured worker but was not present at the site at the time the work crew arrived and at the time the incident occurred. 15 The injured worker commenced to operate the machine after Wiley informed him that he was having difficulty starting the machine. The injured worker successfully started the machine and commenced to operate it to split logs of wood. The injured worker then proceeded to demonstrate to Walker, Pullen and Palmer how to cut logs using the machine. During the instruction, Wiley provided commentary to Walker, Pullen and Palmer, however Wiley then walked away from the demonstration to make a call to Mr Narayan. 16 The injured worker appeared to be distracted, and as he leant forward on the knee control of the machine the blade stroked and came in contact with his right arm, causing the injured worker's wrist to be partially severed. 17 The injured worker was taken to hospital and underwent surgery to amputate his right wrist. As at August 2004, the injured worker had not returned to work. The injured worker had been informed by his treating doctor that it would be at least one year before the injured worker would be fit to return to pre-injury duties. The Defendant offered employment to the injured worker, however, the injured worker elected not to take up that employment. Investigation 18 On 6 July 2004 Inspector Ian Davidson, accompanied by Inspector Barbara Longhorn, attended the premises and were met by Mr Narayan and Phillip Willcockson ( Willcockson ), an adviser to the Company from Employer's First. Mr Narayan and Willcockson conducted the Inspectors to the area of the premises where the incident occurred. 19 During the course of the inspection Inspector Ian Davidson made the following observations of the area of the premises where the incident occurred: 19.1 The site was a steel wire enclosure within Rookwood Cemetery off Necropolis Drive. Entrance to the enclosure was via two wire steel gates situated at the southern end of the enclosure. There was no sign displayed at the entrance to the enclosure. The enclosure was approximately 2000 square meters, dirt floor and no roof covering. 19.2 Within the enclosure were numerous mounds of wood mulch and sawn wooden logs. The machine was situated within the enclosure 18 metres north of the entrance gates. 19.3 The machine was a portable hydraulically operated cutting blade set up on a metal trailer. A petrol engine was fitted to the southern end of the machine with the words "14HP - Vanguard - 2YR" displayed. The engine was used to drive the hydraulics of the machine. The machine was not being operated at the time of the inspection. 19.4 The machine trailer was fitted with two 600mm diameter wheels with pneumatic tyres. There was 1300mm between the wheels. 19.5 On the northern end of the machine was a steel operating bench measuring 1500mm x 900mm, at a height of 800mm from the ground. 19.6 At approximately the centre of the steel bench was the hydraulically operated steel cutting blade. The blade was a solid steel "V" shaped block measuring 300mm long, 75mm wide at the top reducing over a depth of 170mm to the cutting edge of the blade. 19.7 A metal name plate was riveted to the front left hand side of the steel bench with the wording "WHITLANDS ENGINEERING. MODEL WS 400. Serial no 20PLE". 19.8 A yellow sign with the wording "SUPERAXE WOOD SPLITTER" in black lettering was also displayed on the front of the extreme left hand side of the steel operating bench. Similar signs were also displayed at the rear of the cutting blade and on a conveyor situated on the right hand side of the steel operating bench. 19.9 The conveyor was in a vertical position. Notices 20 On 6 July 2004, Inspector Ian Davidson issued the Company with Prohibition Notice No 7-59411, requiring the Company to: 20.1 Immediately cease operation of the machine; 20.2 Identify any hazards associated with the operation and use of the machine; and 20.3 Assess the risks arising from the hazards associated with the operation and use of the machine and eliminate the risks, or if not reasonably practicable to do so, control the risks. 21 On 6 July 2004, Inspector Ian Davidson issued the Company with Improvement Notice No 7-59427, requiring the Company to: 21.1 Identify any hazards associated with the operation and use of the machine; 21.2 Assess the risks arising from the hazards associated with the operation and use of the machine and eliminate the risks, or if not reasonably practicable to do so, control those risks. Guarding of the machine 22 The usual way of operating the machine required the operator to place a log on the steel operating table of the machine directly underneath the cutting blade and, once the engine of the machine was operating and the log in place, the operator of the machine places his/her leg in a u-shaped lever at the front of the operating table and by pushing his/her leg against that u-shaped lever the cutting blade of the machine would lower and by pulling his/her leg backwards the blade would rise. 23 The log could either be lifted directly onto the table of the machine or, if it was too heavy, it could be lifted using a log lifter attached to the trailer of the machine to raise it onto the table of the machine. 24 Apart from using hands to locate the log underneath the cutting blade of the machine, it was not necessary for the operator to use his/her hands to operate the machine during the cutting process. 25 Once the log was cut the operator would either re-position it for another cut and/or remove the cut portions from the table of the machine. 26 There was no adequate interlocking measures and/or controls installed on the machine to ensure that the machine could not be inadvertently operated. 27 Australian Standard AS 4024.1 Safe Guarding of Machinery Part 1 - General Principles at clause 9.3.3.1 (Standard ) recommends that 'where guarding is impracticable, two-handed control devices offer a means of protecting the hands of the machine operator'. 28 The Standard at clause 9.3.3.2 recommends that 'control actuating devices of a two hand control shall be designed and arranged in such a way that the protective effect of the two hand control device cannot be easily defeated and the probability of accidental actuation is minimised in accordance with the risk assessment for the particular task'. Information, instruction and training in relation to the safe use and operation of the machine 29 The injured person had been provided with training in the operation of the machine on or about 15 March 2002. 30 The training consisted of a demonstration of the operation of the machine and being provided with a copy of the operation manual provided by the manufacturer of the machine. 31 The injured person signed a document dated 15 March 2002 acknowledging that he had been provided with training in the safe operation of the machine. Following the incident 32 Following the incident the Company immediately ceased operating the machine and a meeting was conducted in relation to the incident. 33 As at 1 November 2004, the Company had not otherwise revised its systems of work or conducted a risk assessment in relation to the operation of the machine. On and after 21 June, 2004, the Company has not operated the machine. 34 Since 21 June 2004, the Company has instructed employees that they were not permitted to operate the machine. The company also continued to hold daily meetings. oo00oo 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.