Inspector Dugdale v Sara Lee Australia & NZ Pty Ltd [2009] NSWIRComm 133

Industrial Court of New South Wales

CITATION: Inspector Dugdale v Sara Lee Australia & NZ Pty Ltd [2009] NSWIRComm 133

Inspector Edward Dugdale (Prosecutor) PARTIES: Sara Lee Australia & NZ Pty Ltd (Defendant)

FILE NUMBER(S): IRC 1487 of 2008; IRC 1488 of 2008

CORAM: Boland J President

CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecutions under s 8(1) of Occupational Health and Safety Act 2000 - guilty plea - risk of injury to persons operating packaging machine - no sufficient system to identify risk - objective and subjective considerations - general and specific deterrence - remedial measures taken - conviction - discount for early plea - principle of totality - penalty imposed.

LEGISLATION CITED: Occupational Health and Safety Act 2000

CASES CITED: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 99 IR 29

HEARING DATES: 5 August 2009

DATE OF JUDGMENT: 12 August 2009

Mr I Taylor of counsel (Prosecutor) WorkCover Authority NSW LEGAL REPRESENTATIVES: Mr M L Shume of counsel (Defendant) Moray & Agnew

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BOLAND J, President

Wednesday 12 August 2009

Matter No IRC 1487 of 2008

INSPECTOR EDWARD DUGDALE v SARA LEE AUSTRALIA & NZ PTY LTD

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 1488 of 2008

INSPECTOR EDWARD DUGDALE v SARA LEE AUSTRALIA & NZ PTY LTD

Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT

[2009] NSWIRComm 133

1 This matter concerns two prosecutions by Inspector Edward Dugdale of the WorkCover Authority of New South Wales under s 8(1) of the Occupational Health and Safety Act 2000. It was alleged by the Inspector in Matter No IRC 1487 of 2008 that the defendant, Sara Lee Australia & NZ Pty Ltd, had failed to ensure the health, safety and welfare of an employee, Victoria Gay Egtberts, who was placed at risk of injury and was injured on 7 September 2006 by a packing machine's 'kicker arm' at the defendant's place of work at Lisarow in the State. Ms Egtberts suffered grazing to her head and a headache but required no ongoing medical attention. 2 Similarly, in Matter No IRC 1488 of 2008, it was alleged that the defendant failed to ensure the safety of another employee, Denise Ann Lowe, who was also placed at risk of injury and injured by the kicker arm on 17 October 2006. Ms Lowe sustained a fracture of her right cheek bone requiring surgery including insertion of metal plates, the reconstruction of her cheek bone and the retrieval and reconnection of her optic nerve. 3 The particulars of the charge in Matter No IRC 1487 of 2008 were that: 1. The defendant failed to ensure that plant, in particular the Fibre King Solari Packaging Machine, serial number 97-06-10 ("the packaging machine") provided for use by its employees at work was safe and without risks to health, and in particular failed to ensure that the kicker arm on the packaging machine could not activate when an employee was close enough to be struck by it. 2. The defendant failed to ensure the provision and maintenance of a safe system of work that ensured an employee would not approach the vicinity of the packaging machine's kicker arm to clear a jam until the stored energy (air pressure) in the kicker arm was released. 3. The defendant failed to have proper systems in place to identify, assess and control risks to health and safety of employees, in particular by failing to conduct any adequate risk assessment in respect of the packaging machine to identify potential risks. 4. As a result of the said failures, Victoria Gay Egtberts was placed at risk of injury and was injured whilst employed at the site. 4 The particulars of the charge in Matter No IRC 1488 of 2008 were that: 1. The defendant failed to ensure that plant, in particular the Fibre King Solari Packaging Machine, serial number 97-06-10 ("the packaging machine") provided for use by its employees at work was safe and without risks to health, and in particular failed to ensure that the kicker arm on the packaging machine could not activate when an employee was close enough to be struck by it. 2. The defendant failed to ensure the provision and maintenance of a safe system of work that ensured an employee would not approach the vicinity of the packaging machine's kicker arm to clear a jam until the stored energy (air pressure) in the kicker arm was released. 3. The defendant failed to have proper systems in place to: a. Identify, assess and control risks to health and safety of employees, in particular by failing to conduct any adequate risk assessment in respect of the packaging machine to identify potential risks; and b. Take adequate remedial action after the previous incident on 7 September 2006 and ensuring there was no subsequent risk to health and safety of employees. 4. As a result of the said failures, Denise Ann Lowe was placed at risk of injury and was injured whilst employed at the site. 5 The defendant pleaded guilty to both charges. Evidence