Industrial Court of New South Wales CITATION: Inspector Mark Barber v Allan Murphy and Another [2010] NSWIRComm 83 Inspector Mark Barber (Prosecutor) PARTIES: Allan Murphy (First defendant) Young Roller Flour Mill Co Ltd [ACN 000 001 963] (Second defendant) FILE NUMBER(S): 499 of 2009; 500 of 2009 CORAM: Backman J CATCHWORDS: Occupational health and safety - Occupational Health and Safety Act 2000 - pleas of guilty by corporate defendant and director - accident involving inadequately guarded machine in which a senior employee suffered significant injuries to his right arm - failure of senior employee to follow corporate defendant's procedures for isolating power supply to the machine before removing guard - whether risk to safety reasonably foreseeable - systems in place prior to offence - other objective factors considered and taken into account - subjective factors considered and taken into account - penalties - orders LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 CASES CITED: Inspector Craig Hall v Lloyd A Cooper Pty Ltd [2009] NSWIRComm 142 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 HEARING DATES: 10 November 2009 DATE OF JUDGMENT: 30 June 2010 Mr P Ginters (Prosecutor) WorkCover Authority of New South Wales (Ms F Miller) LEGAL REPRESENTATIVES: Mr R Crow (Defendants) Workplace Law (Ms A Koelmeyer) JUDGMENT: - 12 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Wednesday, 30 June 2010 No IRC 499 of 2009 Inspector Mark Barber v Allan Murphy Prosecution pursuant to section 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 No IRC 500 of 2009 Inspector Mark Barber v Young Roller Flour Mill Co Ltd [ACN 000 001 963] Prosecution pursuant to section 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT OF THE COURT [2010] NSWIRComm 83 1 Young Roller Flour Mill Co Ltd (YRFM) pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 (2000 Act). At the time of the offence, it conducted a flour milling business in Lovell Street, Young. Its business was the milling of grain for stock feed. 2 Allan Murphy (the first defendant) pleaded guilty to an offence under s 8(1) and s 26(1) of the 2000 Act. Mr Murphy, at the time of the offence, was the managing director of YRFM and remained so until 9 October 2009. 3 The charges against the defendants are based on the same facts. The allegation contained in both charges against YRFM was that it failed to ensure the health, safety and welfare at work of all its employees, in particular, Bradley Wayne Horwood. Each charge contains two identical particulars of the offence alleged against YRFM. These are expressed as follows: a) the defendant failed to ensure that the moving parts of plant known as a Satake Roller Mill ("the plant") used by its employees at work at the premises were adequately guarded or had other appropriate controls in place so as to prevent contact by employees with moving parts of the plant. b) the defendant failed to ensure there was a system of work in place at the premises for the isolation of power and maintenance of the plant that was safe and without risks to health. 4 Mr Horwood at the time of the offence was YRFM's head miller, or production manager. He commenced employment with YRFM from May to June 1998 as a casual. Thereafter, he had four separate periods of employment with YRFM progressing through the ranks to the position of production manager. In the years 2001 to 2004, Mr Horwood completed a TAFE traineeship sponsored by his employer and obtained Certificates II and III in Food Processing (Flour Milling). In 2005, he completed a TAFE course in dust explosion awareness. He also attended and completed a number of training sessions provided by YRFM during the periods of his employment. 5 Mr Horwood's duties as production manager included taking care of orders, organising shift rotations and undertaking small maintenance jobs on machinery at the mill. He was responsible for the day-to-day running of the mill and the packing area. 6 The Satake Roller Mill (the roller mill) was located in an area of the mill known as the "mill floor". Its primary function was to grind cereal product. It contained two separate and independent pairs of grinding rolls placed back-to-back in a common frame, called the first break and the second break. Above each pair of grinding rolls was a pair of feed rolls. Grain was cracked by passing it between the grind rolls which rotated at different speeds. Occasionally, the gap between the grind rolls required adjustment. The usual method for accomplishing this was the use of a handwheel fixed to the mill cabinet. The range of adjustment permitted by the handwheel was limited by dead stop screws inside the roller mill. The dead stop screws (dead stops) prevented the rolls from touching each other. From time-to-time, through roll wear, the dead stops needed adjustment to permit a greater range of adjustment by the handwheel. The dead stops were located in a part of the roller mill which housed the differential drive. This part of the roller mill was enclosed by a flat steel panel or guard. On the day of the offence, the guard was secured by eight Phillips head screws. To the side of the guard was a blue sign depicting a picture of two gears with a mesh cover. On it appeared the words: Stop machine before removing guard. 7 At 6.00am on 19 April 2007 (the day of the offence), Mr Horwood commenced work. Mr Jeremy Murphy (Mr Murphy's son) was also at work and was assisting Mr Horwood. According to Mr Horwood, he discovered soon after his arrival at work, that the machines would not start because of an electrical problem. He said everything was shut down and they waited for the electricians "to fix the problem". Once the electricians had fixed the problem Mr J Murphy started up the roller mill and production began. 8 According to Mr J Murphy (whose recollection of these events was quite different from Mr Horwood's recollection) the dead stops on the second break of the roller mill required adjustment. Mr Horwood, he said, suspended the roller mill while Mr J Murphy went to the basement and isolated the roller mill's drive motor. Mr Horwood then removed the metal guarding on both sides of the second break and adjusted the dead stops. After that, the guard was refitted, the motor started, and milling operations commenced. 9 About three hours later, Mr Horwood noticed that the grind on the second break roll was still experiencing problems. By this stage, Mr J Murphy had left the premises for a medical appointment and Mr Horwood was working alone. Mr Horwood inspected the second break and attempted an adjustment with the handwheel, however, it did not appear to be working. He then removed what he called "the side cover" (ie, the guard around the differential drive assembly of the second break). At that time, the roller mill was not stopped or isolated from its power supply. According to Mr Horwood, he removed the guard by hand by "pull(ing) it off, all the screws on it were loose". Mr Horwood said that he did not use any tools to remove the guard because, "the guard has like a hand hole thing in it, so no tools were used". Again, Mr J Murphy gave a somewhat different account. He said it would have been necessary to use a Phillips screwdriver to undo the screws securing the guard because Mr Horwood had earlier that morning used a Phillips head screwdriver to refit the screws to secure the guard. 10 Whichever version is correct, the agreed facts were that Mr Horwood attempted to move (with his left hand) the handwheel while the roller mill was still operating and the guard had been removed. Mr Horwood described what happened next in an interview with WorkCover. According to him, when he, went to move around the side of the roll my hand slipped off the roll, hit one of the cogs and then got crushed between two gears and ... jammed between, near a bracket at the back. 11 Mr Horwood's right arm became wedged in the roller mill, trapped in the differential drive assembly between the larger cog and the idler arm. The roller mill at that time was still operating. Mr Horwood was able to stop the machine by activating the red emergency stop button on the roller mill cabinet. Mr Horwood's arm was freed some 20 to 30 minutes later by co-workers who came to his assistance. He sustained serious crush injuries to his right forearm which included a compound radius and ulna fracture, radial artery injury, ulnar artery injury, ruptured flexor tendons and a thumb fracture. 12 YRFM, at the time of the offence, had in place a procedure for making adjustments to the roller mill's internal mechanisms. That procedure, simply put, was to stop the machine and isolate the mill drive motor from electrical power. This procedure had in fact been followed by Mr Horwood earlier that morning. 13 The evidence tendered during the proceedings revealed a number of procedures and measures which were to be followed by workers at the mill with regard to work performed inside the roller mill. These were, in summary: (i) the Satake Technical Manual contained an instruction: When carrying out overhaul, setup, inspection and maintenance work, always put the drive motors out of action by completely isolating all phases; (ii) the blue warning sign affixed to the differential drive guard which read: Stop the machine before removing guards; (iii) other signs affixed to the roller mill which cautioned, "Danger Moving Machinery", and, "Danger Keep Hands Clear"; (iv) an old YRFM Safety Manual for Employees which provided that "Safety Devices and Guards shall not be removed or made inoperative on plant and equipment in normal operation. No plant [or] equipment to be operated with safety guards missing". 14 Gregory David Kingston, employed by the corporate defendant at the time of the offence as a maintenance person, deposed in an affidavit that he had never seen Mr Horwood working on a machine with the guards off and while the machine was still operating. He had seen Mr Horwood working on machines on several occasions at the mill. Mr J Murphy recalled, in an affidavit, Mr Horwood's predecessor, Mr Brad Pettit, telling him to always ensure that the roller mill was turned off at the machine and at the switchboard before commencing any work on the machine. According to his affidavit, when he and Mr Horwood adjusted dead stops in a milling machine they always shut down the machine beforehand. They had performed this task together on at least five occasions before the accident. Mr J Murphy said he had only seen Mr Horwood working on a machine after it had been shut down. 15 These matters indicate that YRFM had a system in place prior to the offence which was intended to ensure the safety of workers including those workers undergoing adjustments to the internal mechanisms of the roller mill. The system, moreover, appeared to be scrupulously followed by Mr Horwood, except for the last occasion as a result of which he sustained very serious injuries. 16 The gravamen of the offences in my view was a failure to ensure that the machine was guarded more effectively. The necessity to remove the eight Phillips head screws in order to remove the guard ensured against inadvertent removal, but the fact remained, as the defendants themselves identified in submissions, that the means of, or the opportunity for, removal was available to anyone. 17 As for Mr Horwood, his actions at the time of the accident were out of character. As a senior employee with experience in making adjustments to the roller mill, his conduct in performing the operation without first isolating the machine could not have been reasonably anticipated by the defendants. Mr Horwood moreover, by his conduct in not following the corporate defendant's safety procedures (of which he was undoubtedly aware), placed himself in a situation of danger without apparent regard to his own personal safety. These matters operate to reduce the objective seriousness of the offences: see Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145; Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 at [15]. 18 The existence of the guard, secured by the eight Phillips head screws, and the corporate defendant's procedures which were intended to be utilised for the safety or workers when adjusting the internal mechanisms of the machine, together constitute, in my view, otherwise largely effective measures by YRFM to ensure the safety of its workforce. These are factors which also reduce the objective seriousness of the offences. 19 The removal of the guard by Mr Horwood which was not accompanied by the isolation of the machine's internal drive mechanisms gave rise to an obvious and serious risk to his safety. It is my view, however, that the risk to his safety falls to be assessed at a low level of reasonable foreseeability for the following reasons: (i) Mr Horwood was a senior and experienced employee who had performed minor maintenance work on the internal mechanism of the roller mill without incident on a number of previous occasions, notably on the morning prior to the accident; (ii) the defendant had in place a procedure for the maintenance work which necessitated removal of the guard and isolation of the power supply to the roller mill. On all previous occasions, Mr Horwood had followed this procedure; (iii) although the guard was capable of removal (and therefore inadequate for its purposes) it was nevertheless secured in place by eight Phillips head screws which could only be removed by a Phillips head screwdriver. The conflict in the evidence between Mr J Murphy's version of events and Mr Horwood's version as to whether the guard was properly refitted with the use of the Phillips head screwdriver on the morning of the accident must be resolved in favour of Mr J Murphy, whose evidence on the issue, outlined in his affidavit, was unchallenged; (iv) the defendant's procedure was well documented and appeared to be well known by its employees, notably Mr Kingston, Mr J Murphy and Mr Horwood; (v) the inadequately secured guard provided Mr Horwood and other employees with the opportunity to gain access to the internal moving parts of the machine. 20 The consequences of the defendant's breach of the Act, primarily the failure to ensure the roller mill was adequately guarded, carried with it a risk of significant injury. Mr Horwood suffered serious injuries to his right forearm and thumb as a consequence of removing the guard and placing his arm in the vicinity of moving parts of the machine. 21 The risk to his safety could have been eliminated, or at least substantially lessened, by the implementation of simple, obvious and relatively inexpensive steps. One such step taken by the defendant after the accident was the installation of a plate overlapping the guard fitted to the end of the differential drive which was secured by a padlock. Now, only maintenance personnel have access to the key to the padlock. 22 General deterrence remains a relevant consideration with regard to offences involving inadequately guarded machinery: see my observations in Inspector Craig Hall v Lloyd A Cooper Pty Ltd [2009] NSWIRComm 142 at [15] and [16] which I adopt in these sentencing reasons. 23 According to the affidavit of Allan Murphy, YRFM sold the mill and other assets on 9 October 2009. YRFM according to Mr Murphy is no longer involved in any business. Mr Murphy says he has no plans to work again. On the state of this evidence, the Court does not consider that the application of specific deterrence is called for. 24 The corporate defendant has no prior convictions. The maximum penalty it faces is therefore $550,000. The absence of prior convictions also entitles the corporate defendant to leniency normally extended to an offender not adversely recorded. 25 The first defendant has prior convictions and accordingly faces a maximum penalty of $82,500, or imprisonment of two years, or both. The prosecutor has not asked the Court to consider the appropriateness or otherwise of a term of imprisonment. I therefore decline to give it consideration. 26 Both defendants also entered pleas of guilty at the first reasonable opportunity. I propose to award a discount of 25 per cent of the penalties to be imposed for the utilitarian benefit derived from the pleas of guilty. 27 As a separate consideration, each defendant is also entitled to leniency in recognition of the remorse shown by the pleas of guilty. 28 The defendants also undertook extensive remedial action after the offence, which has been set out in some detail in the first defendant's affidavit. For convenience, the measures taken by the defendants which were directed to ensuring the safety of YRFM's workforce are reproduced below from the first defendant's affidavit: (i) an investigation was conducted into the accident and an Incident Report was completed; (ii) after the incident, one of the maintenance employees, Greg Kingston made modifications to the Satake Roller Mill to ensure that the guarding could not be easily removed. The Phillips head screws were removed and replaced with cleats inside the guard that hold the guard to the machine. An additional security plate was welded to the front of the guard. A hole was drilled through the guard and the metal plate and a bolt inserted to protrude to the outside of the guard. A nut was then fastened to the protruding bolt and tightened with a spanner. A hole was drilled through the protruding bolt and a padlock locked through that hole. The padlock can only be opened by one of three keys, two held by maintenance personnel and one by the miller. The new procedure requires a maintenance employee to be present whenever the guards are to be removed to ensure that the power to the milling machine is turned off at both the motor under the mill and at the switchboard; (iii) in or about late 2007, on behalf of the mill, the first defendant engaged the services of Bryan Fuller of Mutual Resource Management to develop an OH&S management system. Mr Fuller is an occupational health and safety consultant; (iv) with Mr Fuller's assistance during 2007 and 2008 Nick Hall developed a new Safety Manual and an OHS System. The manual is in two parts, the first being the manual itself and the second part containing all the safe work method statements and safe operating procedures for the plant, equipment and work procedures in the mill; (v) Mr Fuller and Mr Hall also developed a comprehensive training program. 29 The first defendant also rendered assistance to Mr Horwood. He cut short an overseas trip and visited Mr Horwood in hospital. He made arrangements to ensure Mr Horwood was comfortable and that Mr Horwood's wife had accommodation near the hospital. Assistance was also provided to Mr Horwood when he returned to work. 30 The defendants also co-operated with the WorkCover Authority. WorkCover Inspectors visited the mill at the first defendant's invitation on several occasions after the accident. Progress reports were sent to WorkCover which addressed improvements earlier suggested by the Inspectors. 31 The defendants also demonstrated contrition as reflected in the first defendant's efforts to provide assistance to Mr Horwood and by the impressive and extensive safety procedures put in place by YRFM following the accident. 32 These subjective factors will be taken into account in the defendants' favour in mitigation of the penalties to be imposed. Penalty 33 In determining penalties, the Court has taken into account the relevant objective factors, subjective factors, maximum penalties, and the absence of prior convictions in the case of YRFM, by reference to the Crimes (Sentencing Procedure) Act 1999, in particular, s 21A and s 22. The prosecutor in submissions contended that the offences fall within the mid to high range of seriousness. The defendants contended that the offences fell within the low to mid range of seriousness. The gravamen of the offences as earlier observed was the failure to adequately guard the moving parts of the roller mill. The machine was guarded to the extent that the guard was secured by eight Phillips head screws. YRFM had in place an otherwise effective and well-known procedure for isolating the power supply to the roller mill before removal of the guard which exposed the internal parts of the machine. In my view, these matters compel the conclusion that the appropriate range for the offences is low to mid range. Orders 34 In IRC 499 of 2009, the Court makes the following orders: 1. The defendant, Allan Murphy, is convicted of the offence and fined $6,500 with a moiety to the prosecutor. 2. The defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement, as assessed. 35 In IRC 500 of 2009, the Court makes the following orders: 1. The defendant, Young Roller Flour Mill Co Ltd, is convicted of the offence and fined $50,000 with a moiety to the prosecutor. 2. The defendant is to pay the reasonable costs of the prosecutor as agreed or in the absence of agreement, as assessed. ___________________ 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.