Inspector Wong v CJ & A Woods Pty Ltd [2010] NSWIRComm 118

Industrial Court of New South Wales

CITATION: Inspector Wong v CJ & A Woods Pty Ltd [2010] NSWIRComm 118

PARTIES: Inspector Paul Daryl Wong (Prosecutor) CJ & A Woods Pty Ltd (Defendant)

FILE NUMBER(S): IRC 761 of 2009

CORAM: Haylen J

CATCHWORDS: Occupational Health and Safety Act 2000 - s (8) - guilty plea entered - sawmilling business using conveyors to remove sawdust - employees clearing blockage of conveyor work close to another operating conveyor - parts of conveyor unguarded - employee's lower leg caught in unguarded conveyor - foot amputated in accident - serious breach found - general and specific deterrence - early plea - numerous subjective factors - fine imposed.

LEGISLATION CITED: Occupational Health and Safety Act 2000

HEARING DATES: 17 August 2010

DATE OF JUDGMENT: 24 August 2010

Mr R Reitano of counsel - Prosecutor WorkCover Authority LEGAL REPRESENTATIVES:

Mr M Shume of counsel - Defendant Timber Trade Industrial Association

JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J Tuesday 24 August 2010

Matter No IRC 761 of 2009

INSPECTOR PAUL DARYL WONG v CJ & A WOODS PTY LTD

PROSECUTION UNDER s 8(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 2000

JUDGMENT

[2010] NSWIRComm 118

1 The defendant, CJ & A Woods Pty Ltd ("Woods"), has pleaded guilty to a breach of s 8(1) of the Occupational Health and Safety Act 2000. The prosecution arose from a workplace accident that occurred at the company's sawmill located at Nambucca Heads. On 20 September 2007 one the of company's employees, Mr Dion Phelps, was in the course of clearing a blocked sawdust conveyor when his right foot became caught in an adjoining elevator conveyor. The adjoining conveyor was in operation at a distance of little more than one metre from the sawdust conveyor upon which Mr Phelps was working. In the accident Mr Phelps' lower right leg below the calf was amputated and he remained absent from work for a period of nearly 12 months. In August 2008 he returned to restricted duties. 2 The charge against the company alleged a failure to ensure the health, safety and welfare at work of all the company's employees and in particular Mr Dion Jason Phelps, Mr Gregory Lamberth and Mr Robert Phillips contrary to the provisions of s 8(1) of the Act. The particulars of the charge were as follows: (a) the risk was the risk to the defendant's employees of being injured by coming into contact with unguarded nip points on sawdust conveyors whilst the conveyors were moving or coming into contact with unguarded saw blades; (b) the defendant failed to adequately guard plant, in particular: i. the sawdust conveyor line for the Canadian Saw; ii. the sawdust conveyor line for the M A Twin Edger Blade Saw; and iii. two elevator sawdust conveyors. so as to ensure that the nip points on these conveyors along the top of each of them and around the drive pint chain and electrical motors of each of them did not expose employees to the risk; (c) the defendant failed to prevent employees attending to clearing blockages of sawdust conveyors in the pit area whilst unguarded conveyors and unguarded sawdust conveyor motors were in operation nearby; (d) the defendant failed to provide safe access and egress to the Canadian saw operator workstation because access to the Canadian Bench Saw could be gained by stepping over a section of the longer conveyor for the Canadian Bench Saw which was not guarded; (e) the defendant failed to ensure saw blades were safety stored and/or secured and not placed leaning against a timber post near the electrical control cabinet at the premises where they could come into contact with employees; (f) the defendant failed to undertake a risk assessment in respect of employees working in the vicinity of unguarded sawdust conveyors to identify the hazards associated with this activity and the means by which the risk could be eliminated. As a result of the defendant's failures employees and in particular, Dion Jason Phelps, Gregory Lamberth and Robert Phillips were placed at risk of injury. 3 At the sentence hearing, the prosecutor tendered a bundle of documents comprising the following: (a) an Agreed Statement of Facts (that statement appears as an annexure to this judgment); (b) a collection of 50 photographs taken by Inspector Wong in September and October 2007 depicting the sawmill and identifying the machinery where Mr Phelps was found, together with photographs of the unguarded drive chain for the sawdust conveyor; (c) a further bundle of photographs; (d) an unscaled plan of the hardwood sawmill depicting the location of sawdust conveyors and work benches and marked to indicate where Mr Phelps was working when he was injured; (e) a factual inspection report prepared by Inspector Wong; (f) a risk management survey in relation to the hardwood sawmill conducted by the Safety Officer of the Timber Trade Industrial Association in early October 2007 recommending numerous changes to the work system, including a number of recommendations concerning the guarding or more effective guarding of various pieces of equipment; (g) a letter from the company dated December 2007 directed to Inspector Wong indicating the many alterations and safety improvements made to the hardwood sawmill since the accident; (h) the July 1997 Code of Practice of the Sawmilling Industry with particular reference to the guarding of machinery, including the following general direction: All sawmilling machinery should be designed or guarded to prevent the risk of injury by contact or entanglement with moving parts or being struck by projectiles being ejected from the machinery.