Industrial Court of New South Wales CITATION: Inspector Schultz v Hoffman's Kundabung Sawmilling Pty Ltd [2006] NSWIRComm 277 Appellant Inspector Arthur Schultz PARTIES: Respondent Hoffman's Kundabung Sawmilling Pty Ltd (ACN 082 792 103) FILE NUMBER(S): IRC 4424 of 2005 CORAM: Wright J President; Staff J; Backman J CATCHWORDS: Appeal - Occupational Health and Safety Act 2000 - s 197A Industrial Relations Act 1996 - Appeal against decision by magistrate to acquit - Leave to appeal granted - Error in failing to give reasons for finding that no causal nexus between failure to ensure safety of workers at a sawmill and resultant risk - Errors in approach by reason of focus on irrelevant evidence - Error in finding that the experience and expertise of two workers alone was an adequate safe system of work - Error in failing to properly consider the absence of safety training and supervision as causally connected to the risk to safety - Held offence proven - Defences under s 28 of the 2000 Act - Defences not made out - Defendant found guilty of offence - Appeal upheld - Orders made. Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 1985 (Vic) Occupational Health and Safety Act 2000 Chugg v Pacific Dunlop Limited (1988) VR 411 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 Inspector Downie v Menzies Property Services (2004) 136 IR 449 CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Shannon v Comalco Aluminium Limited (1986) 19 IR 358 WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis & Anor (2003) 124 IR 447 WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2002) 124 IR 59 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 HEARING DATES: 15/03/2006 DATE OF JUDGMENT: 08/31/2006 Appellant: Mr R Reitano of counsel Solicitors: Crown Solicitors Office LEGAL REPRESENTATIVES: Respondent: Mr J Van Aalst of counsel Solicitors: Priest McCarron Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President STAFF J BACKMAN J Thursday 31 August 2006 Matter No IRC 4424 of 2005 INSPECTOR SCHULTZ v HOFFMAN'S KUNDABUNG SAWMILLING PTY LTD Application by WorkCover Authority of New South Wales for leave to appeal and appeal from a decision of Acting Industrial Magistrate Miller given on 3 August 2005 in Matter No 20288857/03/2 JUDGMENT OF THE COURT [2006] NSWIRComm 277 1 This is an application pursuant to s 197A of the Industrial Relations Act 1996 ("the IR Act") by the WorkCover Authority of New South Wales ("the appellant") for leave to appeal and, subject to leave being granted, to appeal against the decision of Acting Industrial Magistrate Miller of 3 August 2005 where his Honour acquitted Hoffman's Kundabung Sawmilling Pty Limited ("the respondent") of an offence pursuant to s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). 2 The charge arose out of an incident on 13 January 2003 in which Mr Green, a sawyer employed at the respondent's sawmill in Kundabung, was seriously injured when a large part of a flitch (a slab of timber from a tree trunk) he was cutting on the respondent's main bench saw was ejected by the saw blade and hit him in the chest. 3 The particulars of the charge were that the respondent failed to: (a) ensure that any plant or substance provided for use by the employees at work was safe and without risk to health with reference to the hooded guard and riving knife on the main bench saw; (b) ensure that systems of work and the working environment of employees were safe and without risk to health with reference to the operation of the hooded guard and riving knife of the main bench saw; (c) provide such information, instruction training and supervision as may be necessary to ensure the employees' health and safety at work regarding the operation of the main bench saw in the adjustment of the hood guard and riving knife. The decision at first instance 4 His Honour found, on the day of the accident, Fred Chapman was operating the Canadian saw, and Kevin Green was the sawyer on the main bench saw. Mr Green was assisted by Stephen Stubbs, benchman and tailor outer. Peter Hughes was the friction driver. 5 Mr Chapman's primary task was to cut or break logs into flitches of an appropriate size so that they would go through the bench saw according to the size of the saw blade being used. The flitches were then transferred to the bench saw and cut to the sizes of the order being filled. On the bench saw were safety devices such as the riving knife to keep the cut pieces of timber apart so they did not pinch against the saw, and a hooded guard to prevent access to the exposed part of the top blade. 6 His Honour further found at 2 - 3: On the day of the accident, Mr Green took the first cut off the flitch and then took a further 100mm cut off the flitch because of the limb on it. He worked to the right hand side of the flitch because of the limb. He stood to the side of the flitch and moved it with his left arm and as he did this he nodded to the friction driver to reverse the rollers. As the flitch was returning to Mr Green, the 100mm wide piece rolled slightly towards the saw. The limb part of the piece was higher than the saw. It caught the back of the saw and the blade drove the 100mm piece straight back into Mr Green. 7 His Honour held at 3: In regard to particular (a) above, I am not satisfied to the criminal standard that this particular is made out by the prosecutor. Although the bench bed was described as worn and was replaced after the accident, there was no evidence to suggest that its state contributed to the incident. Equally, there was no evidence to show that there was a defect in the proper operation of the riving knife or for that the matter the hooded guard. 8 His Honour continued at 3 - 4: In regard to particular (b) above, the primary cause of the incident was the size of the flitch in question and the latent flaw within the flitch to be safely put through this bench saw. This particular flitch when sitting on the main bench saw was well above the riving knife so the hooded guard did not come down to sit level with the top of the riving knife. This did not allow the flitch to be put safely through the saw utilising the specific purpose of the riving knife to keep the cut sections apart. It is clear on the evidence that the defendant had in place a system whereby two very experienced workers Mr Chapman and Mr Green were expected to assess the suitability of the flitch to be cut on their bench saw. This assessment included the determination of the appropriate size of the flitch and an inspection of the flitch to ensure that there were no obvious defects. Both Mr Chapman and Mr Green had approximately 30 years experience in the saw milling industry. It is an industry where there is no formal instruction or training provided with both men gaining their experience and expertise from their work. The evidence established that an experienced sawyer would detect an obvious flaw in a flitch and take appropriate steps. It is evident that Mr Green examined both ends of the flitch and did not detect the hidden flaw. The system required both Mr Chapman and Mr Green to make the call whether the particular flitch was suitable for the saw in question [...] in my view of the evidence a primary cause of the accident was the hidden flaw within the flitch [...] An essential part of the sawyer's duties is to look at the flitch and assess the right way to cut it as a safety measure. Part of the safety issue would be to take into account how high the flitch would be sitting on the bench. Mr Green relied on Mr Chapman not to send a flitch down that was too big, to be an appropriate size so it could safely be cut through the saw at the right height with the hood and top of the riving knife in position. 9 At 5 - 6, his Honour held: The system of work in effect required two experienced sawyers to assess the appropriate size of flitches for cutting on the bench saw. The management of the defendant company did not have the experience necessary to determine such a matter, and accordingly employed two experienced sawyers to perform this task. In such circumstances, I have difficulty in being satisfied that the prosecutor has made out particular "b" to the required standard, particularly in view of reference to the operation of the hooded guard and riving knife on the main bench saw. In regard to particular "c" I am not satisfied that the prosecutor has established any failure on the part of the defendant to provide such information, training and supervision as may be necessary to ensure the employees' health and safety at work regarding the operation of the main bench saw and the adjustment of the hood guard and riving knife had a casual connection with the detriment to Mr Green. Although there was some conflict in the evidence of the witnesses as to who the supervisor was in charge; some of the witnesses believing Mr Chapman having overall command whilst the directory stated both Mr Chapman and Mr Green were in control and supervised their areas. However, it is evident that both men were responsible for their appropriate areas and also responsible for ensuring the appropriate sizes and suitability of the flitches going onto the bench saw. I also note that although the men appeared to have signed a document stating that they had read the Code of Practice and clearly had not, this also in my view has no causal connection with the incident before the Court. In all the circumstances I am not satisfied that the prosecutor has established the charge as particularised to the required criminal standard that is beyond reasonable doubt. Leave to appeal 10 The grounds of appeal are that his Honour erred: (a) in his approach to s 8(1) of the Act in that he failed to have regard to the absolute nature of the obligation imposed on the respondent; (b) in his approach to the particulars of the charge in that he had regard to the particular circumstances of the incident or injury rather than the detriment to health and safety occasioned by the respondent's conduct; (c) in that he treated the particulars of the charge as elements of the offence and failed to read them in a common sense way; (d) in finding that the system of work was safe, or that training, instruction, supervision and information did not need to be provided to employees to ensure their safety because the workers performing the work were experienced; (e) in finding that the cause of the incident was due to a hidden flaw in the flitch. Appellant's submissions on leave to appeal 11 The appellant submits that the errors of his Honour are of sufficient gravity to warrant leave to appeal being granted. In the appellant's submission, it has been the case in appeals brought under s 197A of the IR Act, that demonstration of error has been a sufficient foundation for a grant of leave to appeal: WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2002) 124 IR 59 at 66. Respondent's submissions on leave to appeal 12 The respondent does no more than contend that leave to appeal should not be granted as the appellant has failed to demonstrate that the appeal is of sufficient import to meet the public interest test pursuant to s 188(2) of the IR Act. Appellant's submissions 13 The focus of the appellant's submissions is that his Honour erred in finding that none of the particulars of the charge was made out to the "requisite standard". It is submitted that his Honour erred in determining the charge according to the reasons for which the flitch split rather than according to the risk to safety posed by the defects in the plant, the system of work and the instructions given to the employees. 14 The appellant notes that Mr Green in evidence identified the fact that "the normal position of the hood guard would be down, down to the reever (sic) knife on the back … (so as) to stop anything from kicking back". Mr Green also said that if the hood guard had been in the correct position the flitch could not have kicked back onto himself. 15 The appellant further notes that in cross examination, Mr Green confirmed that it was necessary to take into account how high the flitch was sitting on the bench in relation to the position of the hood and that the top of the knife was the position where the hood should come down for safety reasons and anything above that was exposing the sawyer to potential danger. When Mr Green placed the flitch on the bench he knew that the height of the flitch was well above the height of the knife and that the hood could not come down if this flitch was to be put through the saw and provide him with the safety mechanism. Mr Green also knew that the hood was not going to operate to provide him with the safety margin that he ought to have. Furthermore, Mr Hughes gave evidence that the hood guard was not properly secured. However, during cross-examination, Mr Hughes stated that the hood functioned properly. 16 The appellant submits that his Honour erred in focussing on the cause of the incident rather than the fact that Mr Green was exposed to a detriment to his safety. 17 According to the appellant, the particular in question concentrated upon the lack of safety arising from the use of the plant (the saw) because of failings in the hooded guard and riving knife which were intended to operate as safety mechanisms. Consequently, the first particular was directed to not whether the hooded guard and riving knife were defective in themselves or in their operation, but whether on the day of the accident, they were not given an opportunity to operate properly and protect the worker in the manner in which they were intended. While the respondent relied upon the evidence of Mr Green in many other respects, it was Mr Green himself, having regard to his experience and expertise, who gave evidence in cross examination that the saw was not safe when he operated it. 18 Moreover, it is submitted that his Honour failed to give any consideration to the purpose and proper operation of the riving knife which was to prevent the flitch contacting the rear of the saw blade and driving back which was exactly what occurred. 19 Finally, in respect of the first particular, the appellant submits that the question for the Magistrate was not whether there was a causal nexus between the accident or incident on the day it occurred, but rather, whether the defendant's failings in the manner particularised gave rise to a detriment to health and safety. It was the Magistrate's failure to even consider this issue that led him into error. 20 In relation to the second particular which focussed attention upon the system of work and the working environment, his Honour found that "the primary cause of the incident" was the size of the flitch in question and the latent flaw within the flitch which precluded it being safely put through the bench saw 21 The appellant submits that his Honour's findings in respect of particular "b" acknowledge that the system in place effectively bypassed the proper operation of the hooded guard and riving knife on the main bench saw. Despite this, the Magistrate came to the conclusion that he was unable to find this particular made out. In the appellant's opinion, his Honour's focus upon the hidden flaw within the flitch and its excessive size failed completely to acknowledge that the system of work that the respondent had in place with reference to the operation of the hooded guard and riving knife on the main bench saw was able to be circumvented by a flitch that was too big and contained a latent defect – that is, there was no safe system of work that ensured that the purpose for which the hooded guard and the riving knife operated was one that secured safety. The appellant contends that when considered with particular (c), the respondent's failings were not only obvious, but overwhelmingly so. 22 In relation to particular (c), his Honour found that the failure to train, instruct, supervise and provide information regarding the operation and adjustment of the hood guard and the riving knife were not causally connected to the incident involving Mr Green. 23 The appellant submits that the inadequacy of the training received by Mr Green is evident from his actions on the day of the accident – the fact that he was willing to, as it were, "take the risk" speaks volumes for the adequacy of his training. Similarly his actions demonstrate a failing in respect of the information provided to him and the instruction given to him. Mr Green was a competent and diligent employee. It is not possible to infer that he simply disregarded the dangers created when he implemented an approach to the work he was doing that was unsafe and endangered his health and safety – the rational conclusion from the evidence was that Mr Green did not fully envisage the risks created by reason of a failure to adequately train him in the safe operation of the main bench saw in the adjustment of the hood guard and riving knife. Similarly, whoever was the supervisor on the day in question (and there was a controversy on the evidence), its demonstrated defect was evident from the fact that Mr Green was able to approach the work in the way he did. 24 In the appellant's submission, where a worker is required to autonomously adopt alternative work procedures in response to changing circumstances and those alterations present risks to the worker or to others, the training and information provided to him/her should be formalised and documented with a view to ensuring comprehensive coverage of all facets of the work and a full appreciation of the risks to the employee concerned. The absence of training and information of that kind jeopardises, or puts at risk, safety. 25 Finally, the appellant argues that the errors evident in his Honour's approach arise mainly because he erroneously focused on the cause of the incident or accident or the actual injuries suffered by Mr Green: see Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 452. The approach taken by the Magistrate failed to concentrate upon the essential elements of the offence and the absolute nature of the obligation created by section 8(1) of the Act. The Magistrate's focus upon these aspects of the matter caused him to erroneously and wrongly look to the cause of the accident (the latent defect in the flitch) rather than the detriment to safety. For an analogous situation of error: see WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council. Respondent's submissions 26 The respondent states that the issue before his Honour was whether the hood and riving knife (being the plant expressly identified in the first particular) were, at the relevant time, safe and without risk "when properly used". 27 The respondent submitted that the evidence of Mr Green was that there was nothing wrong with the saw or bench or the hood and the riving knife operated correctly to the extent that by putting through the flitch which was too large for the hood and riving knife, the plant was not being properly used. 28 The respondent submits that in the light of the foregoing evidence, and for the purpose of determining whether or not s 8(1)(b) of the Act had been contravened, causation was an issue to be taken into account. 29 Further, the onus to the criminal standard was on the appellant to prove that the hood and riving knife (the plant) were not safe and without risk to the health of Mr Green "when properly used" and it was therefore incumbent upon the appellant to prove that the injury sustained by Mr Green was caused by the plant being unsafe even when properly used. 30 The respondent submits that particular (b) was circumscribed by the operation of the hooded guard and riving knife on the main bench saw, and it in effect pleaded or summarised the duty on the respondent created by s 8(1)(c) of the Act in relation to that plant. Further, the particulars of the offence which the respondent had to meet were that the system of work with reference to the "operation of the hooded guard and riving knife on the main bench saw" was not safe and was a risk to health. 31 The respondent contends that there was no error of law committed by his Honour, and that it was open to his Honour to make a determination on all of the evidence before him as to what comprised the system of work at the time of the incident having regard to the particular of the offence alleged. 32 It is also submitted that although the appellant is critical of his Honour's findings of fact concerning the size and type of flitch which injured Mr Green, those submissions do not demonstrate that his Honour, when finding that there was no or insufficient evidence to establish a breach of the duty imposed by s 8(1)(c), acted on a wrong principle of law, or that he allowed any extraneous or irrelevant material to affect his decision. 33 The respondent contends that the appellant misconceives the finding of his Honour as to what comprised the "system of work" for the purposes of considering whether there was a breach of the duty imposed by s 8(1)(c). 34 The respondent contends that: (a) it was open to his Honour to find that the system of work, with reference to the operation of the hooded guard and the riving knife on the main bench saw, included regular discussions between Messrs Green and Chapman, and required two experienced sawyers to perform the task of assessing the appropriate sizes of flitches to be put through the saw safely; (b) his Honour's reasoning involved an exercise of discretion thereby attracting the relevant principles for appeals from discretionary decisions; (c) the findings as to the system of work do not involve any error of reasoning. 35 The respondent concludes by submitting that, contrary to the appellant's submission, his Honour did not find that training did not need to be provided to employees to ensure their safety because the employees were experienced. What his Honour found (at 5 of his judgment) was that he was not satisfied that the appellant had proved any failure by the respondent to provide information, instruction, training and supervision "as may be necessary to ensure the health and safety of the employees regarding the operation of the main bench saw and the adjustment of the hood guard and riving knife and a causal connection with the detriment to Mr Green". Leave to appeal 36 The present appeal is brought pursuant to s 197A of the IR Act. The section is in the following terms: 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. (4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made. (5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 or 197. (10) In this section, occupational health and safety legislation means: (a) the Occupational Health and Safety Act 1983 and the regulations made under that Act, and (b) the Occupational Health and Safety Act 2000 and the regulations made under that Act, and (c) the Coal Mines Regulation Act 1982 and the regulations made under that Act, and (d) the Coal Mine Health and Safety Act 2002 and the regulations made under that Act, and (e) the associated occupational health and safety legislation, within the meaning of the Occupational Health and Safety Act 2000. (11) This section does not apply to a decision made before the commencement of this section. 37 As the Court held in Inspector Downie v Menzies Property Services (2004) 136 IR 449 at [16] - [17]: [16] The principles applicable to the granting of leave to appeal were established in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382, and have formed the cornerstone of decisions relating to the granting of leave to appeal ever since. See, for example, Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 at 164; Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 at 139; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121; Mitchforce v Starkey (2002) 117 IR 122 at 132; Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 at 139; King v State Bank of New South Wales (2002) 126 IR 407 at [52] - [55]. [17] It is well settled that leave will not lightly or automatically be granted, and that the following considerations are relevant to whether leave should be granted: is the matter of sufficient importance that it is in the public interest that leave to appeal be granted?; is the case on appeal substantially different to that at first instance?; does the appeal raise important issues of law or principle, or have wider implications for the jurisprudence of the Commission?; are there substantial issues as to the proper administration of justice? 38 The appellant seeks to rely on the decision in WorkCover v Blacktown City Council where it was held that in an appeal pursuant to s 197A of the IR Act, leave to appeal was required. Although Blacktown City Council involved an erroneous application of the defence available under s 53(a) of the Occupational Health and Safety Act 1983, an issue which does not arise in the present application, the majority of the Court held at [66]: [T]he nature of an appeal under s 197A of the Industrial Relations Act , being an appeal from an acquittal to a charge brought under the Occupational Health and Safety Act , amply demonstrates why a public interest test is appropriate when considering whether leave to appeal should be granted in such cases pursuant to s 188 of the Industrial Relations Act . 39 As to the nature of an appeal pursuant to 197A, the decision in WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Limited (No 2) (2001) 110 IR 447 is apposite. At [14], the Court held: The nature of the appeal created by s 197A was considered also in [ WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81] where the majority concluded (105 IR at p 93 in par [20]) "that an appeal brought under s 197A is an appeal stricto sensu on both fact and law and not by way of a hearing de novo "; Kavanagh J, although in the minority, agreed (105 IR at p 102 in par [60]). In the result, the proper approach on appeal here is to determine whether her Worship fell into appellable error. In other words, the task requires review of her Worship's reasoning in light of the facts as agreed or as found to establish whether the decision that the prosecutor had failed to establish beyond reasonable doubt that the respondent had failed to ensure the health, safety and welfare at work of Mr Jones in operating the circular saw revealed any error by her Worship requiring appellate intervention: see also C I & D Manufacturing (60 IR at pp 153-155). Consideration 40 Leave to appeal is never lightly or automatically to be given. The statutory public interest test must be satisfied: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. This requires particular consideration in cases of appeal against acquittal, where undoubted questions of double-jeopardy arise: WorkCover Authority of New South Wales (Inspector Dowling) v Bournelis & Anor (2003) 124 IR 447 at 451 - 452. 41 We are satisfied that the appeal raises questions concerning the operation of s 8(1) of the Act and that the decision at first instance discloses errors of law which are sufficient to justify appellate intervention. 42 The appellant's case at first instance did not depend on the defect in the flitch, the existence of which did not become apparent until after the accident. Rather, the appellant alleged that the risk to safety arose when the hood was positioned above the top of the riving knife and the saw-blade. As the facts had disclosed, the hood was so positioned because of the size of the flitch. This in turn exposed the sawyer, Mr Green, to the risk that the flitch could be ejected ("kick back") and strike him. Particular (a) 43 In relation to the first particular it is difficult to discern what facts the Magistrate took into account in deciding that the particular had not been made out by the prosecutor beyond reasonable doubt. His Honour refers to the bench-bed (described as worn) as not contributing to "the incident". His Honour also observed that there was no evidence to suggest that there was a defect in the proper operation of the riving knife and the hood. His Honour then briefly described the purpose of the hood (to prevent small pieces of saw-dust and wood flying backwards towards the sawyer) and, its correct adjustment (to cover the whole of the protruding saw blade and the riving knife). His Honour then said that the evidence did not enable him to conclude that "the position of the hood ... had a causal nexus to the detriment to Mr Green". 44 A reading of the transcript of the decision reveals that the finding appears to have been made without the benefit of any reasons. The state of the saw bench and whether the safety devices were in some way defective were not relevant considerations to the assessment of guilt. His Honour did observe that the evidence suggested that the "guard" (i.e. the hood) was adjusted high enough to allow the flitch to pass below it. 45 This adjustment of the hood was what gave rise to the risk to Mr Green's safety. The position of the hood, which was adjusted by Mr Green in order to accommodate the oversized flitch, exposed him to the risk that the flitch could kick back and strike him. Had the hood been properly adjusted to fit over the saw blade and the riving knife the flitch could not have contacted the rear of the saw blade and been driven back, which according to the prosecutor is exactly what occurred. The existence of this risk to Mr Green's safety is apparent from the cross-examination of Mr Green as to the circumstances on the day of the alleged offence. The transcript of the proceedings at first instance records the following exchange: Q: Was it obvious to you when you saw this particular flitch, and by this particular flitch I mean the one that's caused you an injury, that when you saw it immediately it was obvious to you firstly, its height when sitting on the main bench was such that the height of it was well above the height of the knife? A: Yes, you can see that here on this cutter. Q: And that the hood could not come down if this flitch was to be put through the saw to provide you with the safety mechanism which it otherwise would provide? A: That's true. Q: You knew that, and yet you put it through? A: Because - what I put it through -- Q: That's the case, isn't it? A: Yes. Q: You knew it was too high? A: Yes, and I still put it through. Q: That's correct isn't it? A: Yes, yes. Q: In other circumstances is it the case that you would have turned around to Mr Chapman if he was up there and would have used your sign language, possibly other language, to tell him "What are you sending me this for"? A: Yes. Q: Why did you put it through? A: When I looked at it I assessed both ends of it and it was sound, and I thought if I took the side, the 100 mil flitch off the side -- Q: Which side? A: Off to the right-hand side of it. Q: To your right? A: Yes, and then I would bring it back, tip it down, and then trim the limb, and then go to the other section of it. Q: You were aware to undertake this process you were exposing yourself to risk? A: Well at the time it was the safest - I thought what I did was the safest way to put the log through. Q: Well it obviously wasn't the safest way to put it through? A: That's in hindsight now, I can see that. Q: But at the time you knew that the hood was not going to operate to provide you with the safety margin that you ought to have had? A: Mm. Q: Is that meant to be yes? A: Yes. Q: You knew it was well above the top of the knife? A: Yes. Q: You must have known that you were exposing yourself to a risk of injury? A: That's why I stepped to one side. Q: Exactly. A: To try and eliminate any danger. Q: Well, you stepped to one side because in your mind as this process was being undertaken there was a possibility that you might be standing in the line of the log if it was to be flung back towards you? A: Yes. 46 In our opinion, the failure of the Magistrate to consider whether the respondent's failure to ensure that the bench saw was safe, by reason of the position of the hood and the exposure of the riving knife and the blade saw, led his Honour into error. 47 The respondent described the issue confronting the Magistrate in relation to particular (a) as requiring a determination that it contravened s 8(1)(b) of the Act, that is whether the hood and riving knife were, at the time of the alleged offence safe "when properly used". 48 As we understand the respondent's contentions on the issue they are that the "plant", comprised of the hood and the riving knife, operated correctly on the day of the alleged offence but the act of sending through the oversized flitch meant that the plant was "not properly used". According to the respondent the onus was on the appellant at first instance to prove beyond reasonable doubt that the plant was safe etc "when properly used", and, that it was "incumbent upon the appellant to prove beyond reasonable doubt that the injury sustained by Mr Green was caused by the plant being unsafe even when properly used". In oral submissions the respondent contended that particular (a) contained in the charge was a "summary" of s 8(1)(b) of the Act. No authorities were relied upon by the respondent in support of these contentions. 49 The appellant has contested that construction of particular (a). Certainly it does not appear to us that the case at first instance was approached on that basis by either the appellant or by the Magistrate. Section 8(1)(b) provides: Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: . . . (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, 50 The words "when properly used" in the context of offences under s 10(2) and s 11(1)(a) of the Act and their predecessor provisions under the Occupational Health and Safety Act 1983 have been considered in a number of cases. 51 In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the Full Bench of the Court considered a predecessor provision to s 11(1)(a) of the Act, namely s 18(2)(a) of the 1983 Act. Section 18(2)(a), in the form which applied at the date of the offence, relevantly provided: (2) A person who manufactures or supplies any plant for use at work or any substance for use at work shall: (a) ensure that the plant or substance is safe and without risks to health when properly used; 52 The majority of the Full Bench made the following observations in relation to the words "when properly used": [43] As to the qualification in s 18(2)(a) arising from the phrase "when properly used", we conclude that the qualification is intended to limit liability of a supplier where the plant which is supplied is safe (in the sense that the safety is ensured) but such plant becomes unsafe because of misuse (for example, the wilful misuse of a machine by removal of a guard). It was plainly not the intention of the legislature to allow, by the use of that phrase, a limitation in the obligations arising under the subsection where the defendant had, for example, provided an instruction manual or advice on how to use the plant supplied or had provided training for employees in the proper use of the plant at work where the plant was unsafe. If this were the case, it would be open to manufacture and supply plant for use at work that was not safe and posed risks to health. A supplier could simply argue on a prosecution under s 18(2)(a) that, notwithstanding the plant supplied was inherently unsafe, an instruction manual was issued on how to properly use the plant and, consequently, no liability arose. In reaching this conclusion we have accepted the appellant's submission that the duty that arises under s 18(2)(a) cannot be intended to have been circumscribed in the way contended for by the respondent and accepted by his Honour at first instance. 53 By contrast particular (a) is not framed in the same terms as s8(1)(b). It does not contain the qualification, "when properly used". Nor in our view is the qualification imported by implication into particular (a) because of the words appearing in the particular, "... provided for use". 54 In any event there is clear authority that the introductory words of s 8(1) establish the employer's obligation and impose a duty in absolute terms. Paragraphs (a) to (e) merely provide examples of particularisation of that absolute duty: see Shannon v Comalco Aluminium Limited (1986) 19 IR 358 at 359 (which dealt with s 15 of the 1983 Act, the predecessor section to s 8(1)). Chugg v Pacific Dunlop Limited (1988) VR 411 dealt with s 21 of the Occupational Health and Safety Act 1985 (Vic) (repealed on 1 July 2005). Section 21 broadly followed the format of ss 15(1) and (2) of the 1983 Act. Fullager J in commenting on the interrelationship between s 21(1) and s21(2) said (at 414): ... there can be no relevant contravention of, or failure to comply with s 21(2) of the Act because that subsection creates no obligation at all which is independent of s 21(1). Subs (2) merely tells us some of the things that constitute a contravention, not of itself, but of subs (1). 55 The evidence in relation to particular (a) revealed a failure by the respondent to ensure that the bench saw was safe to use. This failure resulted in a risk to Mr Green's safety by reason of a combination of factors which were the adjustment of the hood, the exposure of the protruding saw blade and riving knife and the attempt to process an oversized flitch through the main bench saw. Particular (b) 56 The Magistrate commenced his consideration of Particular (b) with the comment that, "the primary cause of the incident was the size of the flitch in question and the latent flaw within the flitch to be safely put through this bench saw". His Honour then referred to the evidence of the respondent's system. This system, according to his Honour, consisted of "two very experienced workers" (Mr Chapman and Mr Green) with thirty years experience in the industry, who were expected to assess the suitability of the flitch to be cut by the bench saw. His Honour observed that the saw milling industry in which Mr Green and Mr Chapman were engaged, was an industry where there is no formal instruction or training provided and where both men "gained their experience and expertise from their work". According to the Magistrate the evidence revealed that an experienced sawyer would detect an obvious flaw in a flitch and take appropriate steps. On this occasion however, neither Mr Green nor Mr Chapman detected the flaw. Mr Green, immediately prior to the incident, had assessed the flitch and trimmed some 100 millimetres from its right side. Mr Green's evidence, according to the Magistrate, was that having taken those precautionary measures the flitch could be safely cut. His Honour also found in relation to the assessment of the size of a flitch that the management of the respondent company, "...did not have the experience necessary to determine such a matter and accordingly employed two experienced sawyers to perform the task". 57 In our opinion his Honour's approach to Particular (b) reveals two errors. First, his Honour's focus on the latent defect in the flitch, which he emphasised as a "primary cause of the incident", is misconceived. The defect was not relevant to any issue to be decided in the appellant's case at first instance. It was not relied upon as part of the preliminary facts adduced into evidence to prove the requisite causal nexus between the failures as particularised and the risk to safety. As we have earlier observed, the risk arose in circumstances where an oversized flitch was sent through the bench saw and the hood was adjusted to a height to accommodate the size of the flitch. These actions exposed the bench saw's cutting edge and the riving knife, and, in turn exposed Mr Green to the risk that the flitch might "kick back" onto the saw blade and strike him. The system in place on the day of the alleged offence was clearly not safe. It allowed two workers to engage in a series of unsafe work related activities, first by making the decision to put the oversized flitch through the bench saw and secondly by adjusting the hood to an unsafe height which exposed both the riving knife and the edge of the saw blade. 58 Secondly, his Honour found that the system relied solely on the experience and expertise of the two workers. The evidence in this regard was that neither worker had during their thirty years of experience in the saw milling industry any formalised training or instruction. Apparently formalised training does not exist in the industry. The respondent management, his Honour found, did not have the experience necessary to assess the appropriate size of a flitch for cutting on the bench saw. Management therefore left such matters solely to the discretion of the workers. The evidence is unclear as to the level and depth of any informal "on the job" training the workers may have received while employed in the industry. A lengthy period of service, however, in a particular industry does not, without more, support an inference that the workers received adequate training, instruction and information which would have enabled them to approach their work safely. Equally, a lengthy period of service could result in the adoption and entrenchment over time of unsafe work practices. 59 A similar issue was examined by the Full Bench in Cullen v State Rail Authority (NSW) (1989) 31 IR 207. The facts before the Full Bench were that a maintenance crew consisting of five men was carrying out the work of lopping and trimming trees which were growing in the vicinity of high voltage electric transmission wires. The system of work involved regular inspections of the particular task to be performed and reports by a patrolman which would recommend among other things whether the particular task required a "power-out", that is, the de-energising of power lines in order for the branches etc to be safely removed. Mr Harvey, the senior linesman in charge on the day of the offence, was considered by the respondent to be capable, diligent and experienced in linesman's and tree-cutting work. The recognised procedure for the task of cutting back tree branches located near power lines was that if the linesman in charge considered the task dangerous he could defer the task until a power-out was obtained. Members of the gang were also regularly told to, "be careful", while carrying out the work and there was on-the-job supervision. Mr Harvey was electrocuted when the branch he was sawing came into contact with power lines. 60 The majority found that the system in place at the time of the offence was unsafe (at 219): In our view, where this system fails to satisfy the stringent provisions of s.15 is that it basically leaves to the discretion of the linesman in charge the decision whether a tree-branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the dangers inherent in lopping trees growing in close proximity to high-voltage power lines but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, of whether a branch can be cut with safety. 61 Similarly, the system revealed in the evidence in the present proceedings at first instance was that all decisions regarding the procedures for operating the bench saw were left to the discretion of the workers. In addition, as well as having sole responsibility for making those decisions, in the absence of any input from management, it would appear that the decisions were made without the benefit of any training, instruction or information that could have facilitated safe decision-making in the context of undertaking what were potentially hazardous tasks. 62 None of these matters formed part of his Honour's consideration of Particular (b). His Honour appears to have been attracted to the proposition that an experienced employee is capable of unilaterally making decisions which will ensure his or her own safety and the safety of others. This has never been acknowledged as the correct approach in this jurisdiction to occupational health and safety matters: see WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2003) 123 IR 121 at [41]-[43]. 63 The respondent's failure to ensure that the system for cutting flitches on the main bench saw was safe, exposed Mr Green to a risk of injury. The risks to safety consequent upon a failure to properly guard, for example, sawmilling machinery, were well documented in the Code of Practice for the sawmilling industry. The respondent was aware of this booklet and provided copies to Mr Green and Mr Chapman sometime prior to the offence, although, as the evidence suggested, no steps were taken to ensure that both workers read the contents. The risks set out in the Code of Practice in relation to guarding include the risk of contact or entanglement with moving parts, or being struck by projectiles ejected from the machinery. Particular (c) 64 His Honour's reasons and findings in relation to Particular (c) were brief, no doubt because of the considerable overlap with Particular (b). His Honour referred to "some conflict" in the evidence concerning supervision and then stated that it was evident that both Mr Green and Mr Chapman were "responsible for their appropriate areas", and, "responsible for ensuring the appropriate sizes and suitability of the flitches going into the bench saw". Finally his Honour mentioned that the Code of Practice which, according to the evidence, both men had signed, acknowledging that they had read it, (although clearly they had not), was not causally connected to the incident. 65 In relation to this Particular the appellant's case at first instance was that the respondent had failed to ensure safety by failing to provide necessary training, instruction, information and supervision with regard to two matters, namely, the operation of the bench saw and the adjustment of the hood and riving knife. 66 Mr Green's evidence in the proceedings at first instance concerning his operation of the bench saw at the time of the accident, has already been set out in this judgment. The effect of that evidence was that Mr Green knew that he had adjusted the hood to a height above the riving knife and the protruding edge of the bench saw, and that this adjustment would not provide him with a safety margin if something went wrong during the process of putting through the oversized flitch. Mr Green attempted to compensate for the danger, he said, by stepping to one side so that he would not be standing directly in the line of the flitch if it "flung back". Later in evidence Mr Green conceded that he made an error of judgment. 67 This evidence in our opinion is suggestive of a need for training and instruction, or further training and instruction, as well as supervision. A fortiori when other evidence given during the proceedings disclosed that Mr Green and Mr Chapman, although employed in the saw milling industry for thirty years had never received any formalised training or instruction. The extent, if any, of on-the-job training they may have received in relation to the safe operation of the bench saw and its component parts including the two safety devices, was not explored on the evidence. 68 To briefly revisit the evidence given in relation to the issue of training at the saw mill, a director of the respondent, Lawrence James Hoffman, gave the following evidence at first instance: Q: Was there any documented manual with respect to that hood? A: No. Q: What training was given to those employees during their time at that particular plant? A: Well we didn't give training to those people because they had that many years at doing it. There was really nothing I could show them or I don't think anyone else either. Q: How did you know they had that many years of doing that? A: By talking to Kevin and Fred and the boys that did it. Q: So they just told you this? A: They told me they'd been at other mills and I knew Kevin had been, because the people we bought it off, Kevin worked there before, a few years before that. Q: Did you know if the others had? A: Steven had not but Fred had, yes. Q: What about Mr Hughes? A: I don't think he had before. Q: So there was no instructional training that was given to them within your company or that particular mill? A: No. 69 The evidence in relation to supervision was either that Mr Chapman had overall supervising duties, or both Mr Green and Mr Chapman were in control and supervised their areas. On either version neither Mr Green nor Mr Chapman themselves received any supervision. In our opinion, considering their actions on the day of the offence and the complete absence in the evidence of any training dealing with measures for the safe operation of the bench saw, adequate supervision was essential. In Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at paragraph [61] the Full Bench made the following comments on the importance of training in relation to a worker who was in control of a work site: It is not necessary to speculate as to the type of training which would have been necessary to ensure that the worksite was safe: see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 451 and WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257. However, it is relevant to observe that Mr Ingram was left in sole control of the worksite and Mr Genner regarded him as the supervisor of the site. Where a worker is left in control of a worksite and necessarily given authority to alter work arrangements should circumstances require, it is less likely that informal, "on-the-job" training will, in itself, be sufficient. Whilst the lack of documented procedures will not always indicate a deficiency in the training provided by an employer it may, in some cases, constitute an indication the training was less comprehensive or systematic than was required. Where a worker may be required to autonomously adopt alternative work procedures in response to changing circumstances and those alterations may present serious risks to that worker or others, it would be prudent, at the very least, to ensure that "on-the-job" training was formalised and documented with a view to ensuring a comprehensive coverage of all facets of the work and full appreciation of any safety risks by the employee concerned. 70 It is apparent to us that Mr Green on the day of the offence had adopted an alternative work procedure which was unsafe. These actions reinforce the importance of training on an ongoing and consistent basis perhaps incorporating some formalised procedures along the lines proposed in Genner Constructions. 71 In relation to the absence of any safety training, we have already found that a lengthy period of service in a particular industry without more does not logically permit a conclusion that training, instruction, information or supervision regarding the safe use of the bench saw is unnecessary, or is otherwise adequate to obviate any risks to the safety of workers. The actions of Mr Green and the unfortunate consequences of those actions on the day of the offence illustrate the necessity for such measures. Insofar as his Honour failed to properly consider these critical matters, his Honour fell into error. 72 We would add for completeness that we do not consider that the evidence could sustain a finding that Mr Green's actions on the day of the offence reveal an inadvertent or reckless failure to observe safety training or instruction or information provided "on-the-job". Apart from the absence of any evidence as to the existence of any such "on-the-job" training etc it appeared to be common ground that Mr Green was a very experienced and competent worker which suggests that Mr Green would not simply disregard any risks to safety of which he was made aware. Mr Green's actions on the day of the offence however support the rational conclusion that he was not fully cognisant of the risks which arose by reason of the adjustment of the hood and the processing of the oversized flitch through the main bench saw. This conclusion only reinforces the necessity in the circumstances for adequate safety training, instruction, information and supervision. Defences under s 28 73 We find that Particulars (a), (b) and (c) are made out by the appellant beyond reasonable doubt and that the respondent is guilty of an offence under s 8 (1) of the Act as charged. In view of this finding it becomes necessary to decide the question of the s 28 defences. No submissions were made to us that the matter should be remitted to the learned Magistrate to decide the question. We have decided the appropriate course is for us to decide for ourselves the question of the defences based on the evidence below. 74 Section 28 provides: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 75 We consider in relation to s 28(a) that it was reasonably practicable for the respondent in all the circumstances to ensure the safety of the workers. The respondent was certainly aware of the risks arising from an inappropriately guarded hood for example, on the main bench saw, which were set out in the Code of Practice. As we have found the respondent left all decisions regarding safety to the discretion of the workers in circumstances where the workers, although they worked in the sawmilling industry for many years, had had no training or instruction, nor been provided with any information concerning matters of safety. Nor were Mr Green and Mr Chapman supervised at any time during the period of the offence. 76 Mr Green's actions in attempting to put the oversized flitch through the main bench saw was indicative of the necessity for training and supervision. A simple method of avoiding the risk would have been to ensure, through some informal or formalised procedure, that the flitch was trimmed to a smaller size so that the hood could be properly adjusted to cover the whole of the saw blade including above the bench saw and the riving knife. The respondent has therefore failed to make out a defence to the requisite civil standard under s 28 (a) of the Act. 77 For the same reasons we find that the respondent has not made out a defence under s 28 (b). The defence contains two parts. In relation to the first part there was nothing to suggest in the evidence that the respondent did not have the means to prescribe safe working procedures in relation to the operation of the main bench saw. The respondent was for example in possession of the Code of Practice but took no steps to ensure that the workers read and understood the contents. The second part of s 28 (b) requires the respondent to prove the commission of the offence was due to causes against the happening of which it was impracticable to make provision. Again there is no suggestion on the evidence that it was "impracticable" for the respondent to prescribe procedures that would ensure the safe operation of the main bench saw. The risks to safety were obvious but in any event the respondent was on notice of the risks which were set out in the Code of Practice as were the relatively simple steps available to obviate those risks. Orders 78 The Court makes the following orders: 1. leave to appeal is granted; 2. the appeal is upheld; 3. the decision and orders of Acting Industrial Magistrate Miller in Matter Number 20288857/03/2 are set aside; 4. Hoffman's Kundabung Sawmilling Pty Ltd is found guilty of the offence under s 8 (1) of the Occupational Health and Safety Act 2000 as charged. 79 A date is to be fixed for hearing as to sentence and costs. The matter will be listed before the Full Bench, or a member thereof, for directions on Friday 15 September 2006 for this purpose. ______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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