Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Nguyen v Finray Pty Ltd [2011] NSWIRComm 170 Hearing dates: 31 August, 1, 6 September, 19 October & 22 November 2011 Decision date: 16 December 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) The defendant, Finray Pty Ltd, is found guilty of the offence with which it is charged and convicted accordingly. 2) A monetary penalty of $225,000 is imposed with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. Catchwords: OCCUPATIONAL HEALTH & SAFETY - breach of s 8(1) of the Occupational Health and Safety Act 2000 - not guilty plea - subsequent ex parte proceedings - long standing and fundamental defect in equipment - objective seriousness - serious breach - general and specific deterrence - orders made Legislation Cited: Legal Profession Act 2004 Occupational Health and Safety Act 2000 - s 8(1) Category: Principal judgment Parties: Inspector Duy Nguyen of WorkCover Authority of New South Wales (Prosecutor) Finray Pty Ltd (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Legal Group, WorkCover Authority of New South Wales File Number(s): IRC 745 of 2010 EX Parte Judgment 1The defendant, Finray Pty Ltd, is charged by the prosecutor, Inspector Duy Nguyen of the WorkCover Authority of New South Wales, with a breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). When proceedings commenced, the defendant was initially represented by counsel and a solicitor. A formal plea of not guilty was entered and thereafter the proceedings were conducted on the basis that they would be defended. Subsequently, the defendant's solicitor and counsel ceased to represent the defendant and thereafter the defendant has not participated in the proceedings in any way. The prosecutor has determined in the circumstances to proceed ex parte and the hearing of these proceedings has been conducted accordingly. 2The charge brought against the defendant is that being an employer, on 5 August 2008, at 1034 Seery Road, Rappville in the State of New South Wales ("the Site") [the defendant] failed to ensure, by its acts or omissions as particularised below, the health safety and welfare at work of all its employees, and in particular Francis Raymond Morton, contrary to section 8(1) of [the Act]. 3The particulars of the charge as contained in the application for order are as follows: The particulars of the risk are: (a) The risk to persons of being struck or crushed by an articulated loader, and in particular a Ford Loader Model No. HZ4 11V "A-66" fitted with a log lifting attachment (the Loader), while performing duties operating the Loader or performing tasks in conjunction with the investigation, repair or maintenance of the Loader, while engaged in the task of lifting and loading of logs at a log storage dump at the Site. The particulars of the acts or omissions in failing to eliminate the risk are that: (b) The defendant failed to ensure that plant, in particular the Loader, provided for use by its employees at work was safe and without risks to health when properly used, in that it failed to undertake measures as follows: i. ensure that the parking/emergency brake of the Loader was serviced, repaired and in good working order to ensure that the Loader could be securely parked whilst the operator performed tasks in conjunction with the investigation, repair or maintenance of the Loader; ii. ensure that the loader was maintained in safe operating condition; iii. ensure that ignition system was able to be key started and that damage to the electrical wiring of the ignition system was repaired and in working order; iv. ensure that the hydraulic rams for the front boom and forks of the lifting attachment were serviced, repaired and in good working order; (c) The defendant failed to provide adequate information, instruction and training to its employees and in particular Francis Morton on the safe system of work in relation to operating the Loader or performing tasks in conjunction with the investigation, repair or maintenance of the Loader at the Site, in that it failed to undertake measures as follows: i. ensure that Francis Morton had been undertaken formal training and assessment of his ability to competently and safely undertake the tasks of: (1) maintain equipment on site-basic; (2) conduct loader (wheeled or tracked) forestry operations; (3) conduct excavator (with grabs) operations; (4) shift forestry logs using truck; (5) maintain equipment-advanced; in accordance with the Forest Harvesting Competency Standards ii. ensure that Francis Morton, had been provided with instruction and training as to how to safely park the Loader in order to perform tasks in conjunction with the investigation, repair or maintenance of the Loader at the Site, and in particular information relating to: a. ensuring the Loader was positioned on a level surface with the log lifting attachment flat on the ground; b. that the Loader should not be parked with its rear wheels up on a slope whilst undertaking maintenance tasks on the Loader; c. that in the absence of an operable parking/emergency brake that chocks or other devices were placed in front of and behind the tyres of the Loader to ensure the Loader could not roll forwards/backwards; d. that the operator should not place himself between the wheels of the Loader and the load guard of the log lifting attachment while the engine was running and the Loader left in neutral; iii ensure that Francis Morton had been provided with instruction and training to undertake a visual inspection of the Loader prior to operation and to report any missing components or repair or maintenance issues relating to the Loader. (d) The defendant failed to ensure adequate supervision of employees working at the site, in particular, Francis Morton while he was undertaken log loading duties at the Site, in that it failed to undertake measures as follows: i. ensure that Francis Morton was provided with direct supervision in respect to the use of the Loader until he had demonstrated he was able to competently and safely operate the Loader and perform tasks in conjunction with the investigation, repair or maintenance of the Loader at the Site; ii. ensure that Francis Morton was supervised to ensure that he undertook a visual inspection of the Loader prior to operation and to report any missing components or repair or maintenance issues relating to the Loader. As a result of the defendant's failures, Francis Morton was placed at risk of injury. As a result of the defendant's failures, Francis Morton was fatally injured. The injury suffered by Francis Morton was a manifestation of the risk and resulted from the defendant's failures as particularised above. 4The prosecutor led no evidence with respect to paragraph (b)iii above and did not rely on that particular for the purpose of these proceedings. The evidence 5The proceedings were conducted ex parte. The prosecutor called a number of witnesses to give evidence and tendered documentation. 6The incident that was at the heart of these proceedings occurred on 5 August 2008 at a remote country location in Rappville, in New South Wales. Documentary evidence tendered in the proceedings, supported by oral testimony, established, to the requisite standard, that the property where the incident occurred was owned by a Mr Capello. Mr Capello had a commercial agreement with Hurford Forests Pty Ltd to harvest timber on the property for processing in its sawmill. That company engaged Finray Pty Ltd, the defendant, to extract and haul logs which had been felled to a sawmill for processing. Hurford Forests Pty Ltd had also engaged Gallard Logging Contractors Pty Ltd to fell timber on the property and to snig it to designated dump areas where the defendant's personnel would load the timber onto a truck. These logging operations had been conducted at the site between October 2007 and mid February 2008. Further logging commenced in mid June 2008. 7The defendant used a Ford loader to pick up logs and to load them onto a semitrailer for carriage to the sawmill. The Ford loader was about 30 years old. It was modified for the purpose of allowing it to pick up logs and deposit them onto the semitrailer. For this purpose, the conventional bucket which is found on front end loaders was replaced by a mechanism that consisted of two 1300mm pallet forks and a hydraulically operated logging beak. The logging beak clamped the logs onto the mechanism. Two vertical hydraulic rams were fixed to the lifting mechanism to enable it to be elevated. There was a further hydraulically operated ram that moved the logging beak. During the first period when the logging operation was carried out the work of felling the trees was undertaken personally by Ralph Gallard, a director of Gallard Logging Contractors Pty Ltd. He was assisted by Mr Michael John Bowker, an employee. Both Mr Gallard and Mr Bowker gave evidence in the proceedings. 8The transport work undertaken by the defendant was, on the evidence of Messrs Gallard and Bowker, performed initially by Mr Philip Convery, who, on the evidence, was an employee and involved in the management of the defendant. Mr Convery operated the loader and drove the semitrailer. This was especially so during the first period of logging. During the second period, Mr Convery was assisted initially by Mr Francis Raymond Morton, who, on the evidence, was an employee of the defendant. He drove the semitrailer and Mr Convery operated the loader, to the observations of both Messrs Gallard and Bowker. Mr Gallard had known Mr Morton for 25-30 years as a truck driver. He had also seen him using a small forklift. 9Documents produced by the defendant to the prosecutor during the course of the prosecutor's investigations indicated that Mr Morton was an employee of the defendant and that between 18 June 2008 and 6 July 2008 he worked approximately 10 days. This included work at the site where the incident occurred and also on another site where, according to information given to the prosecutor by Mr Convery, Mr Morton had not been required to load logs but only to drive a truck. That documentation demonstrates that, of the work performed between 18 June 2008 and 6 July 2008, Mr Morton had predominantly been involved in delivery work and that he had only been involved in loading operations using the loader for a few days before the incident. 10Messrs Gallard and Bowker initially observed Mr Morton performing work at the property a short time before the incident occurred. After a while, and within a few days before the incident, they noticed that Mr Convery was no longer personally involved in the operation. Mr Morton took over both the loading operation and the driving of the semitrailer. Neither of them thought that Mr Morton was particularly competent as a loader operator. He was slow and drove the loader with the load of logs at a high level, which seemed to them to create an unstable situation. 11Messrs Gallard and Bowker also noted that the loader did not appear to have a park brake. If they wanted to move the loader out of the way, for the purpose of carrying out their logging operations, they simply nudged it with one of their vehicles and it moved easily. They also noted that the loader seemed to be in a poor condition, and I shall refer to this later in these reasons for judgment. 12On the day of the incident, namely 5 August 2008, Messrs Gallard and Bowker were working about 250 metres away from an area where Mr Morton had parked the semitrailer and from where he was attempting to load logs onto it. They had seen him carrying out some of this work from a distance. They thought that he would join them for a morning tea break. When he did not do so, Mr Bowker agreed to go to the area where Mr Morton was working. He discovered Mr Morton lying face up on the ground on the off side of the loader between the front tyre and the lifting mechanism. One of his legs was trapped underneath the metal forks and the other one was pushed up against his body. The engine on the loader was running and Mr Bowker unsuccessfully attempted to turn it off using the ignition key. When he was unable to do so, he disabled the engine by removing some wires and fuses in the engine compartment. He then notified Mr Gallard who came down to assist. They thought that Mr Morton was dead and left the scene so that they might contact emergency services. Because of the remote location, their mobile phone did not operate at the incident site. 13Some time later, the New South Wales police and ambulance arrived at the scene. Photographs were taken by the attending police officers. 14On the basis of evidence given by Messrs Gallard and Bowker and a police officer, together with the photographic evidence, I am able to describe the scene at the incident site as it was at the time that Mr Morton's body was discovered. 1) Mr Morton was lying on his back with his hip raised on the right side. A baseball cap lay alongside his right lower leg. 2) His right leg was bent at the knee with the right lower leg lying on the ground, outside the frame of the lifting mechanism. His left foot was trapped beneath the lower horizontal frame of the lifting mechanism. His left leg was raised, bent at the knee and held in position against his thigh. 3) His left arm was bent at the elbow and was lying on the ground. His hand was upturned with thumb and fingers folded into the palm. His left hand was heavily stained black with what appeared to be oil and grease. 4) His right arm was bent at the elbow with his forearm and hand positioned towards his right shoulder. His hand was turned inward with thumb and fingers folded into the palm and his right hand was also heavily stained black with what appeared to be a compound of oil and grease. 5) There was an appearance of fresh bruising and marks on his skin on his upper left chest and left shoulder and two small parallel abrasions to the left side of his chest. The appearance of the bruising and marking was of having been made by a tyre. 6) There was a damaged mobile telephone in his left front shirt pocket. 7) A screwdriver was found on the ground underneath where he was lying. 8) There were a number of minor hydraulic fluid oil leaks on the underside of the loader. Staining could be seen to some of the components and on the ground directly below the loader. 9) The driver's seat frame and mounting plate from the cabin of the loader had been removed from their original position and were lashed to the steering wheel by the seatbelt. Four bolts that apparently held the seat mounting plate in position were on the dashboard compartment along with a pair of pliers and a red handled screwdriver. 10) The semitrailer was parked nearby. A cover from the off side of the semitrailer that provided access to a tool storage area had been removed and was on the ground next to a black plastic tub that contained a number of spanners. A length of steel wire, a length of blue coloured hose and a number of spanners were also on the ground nearby. The loader was resting on an area of earth covered with bark. It was on a slope that appears from the photographs to be of a gradual incline to the rear of the loader. There were some indentations in the ground. 11) There appeared to be a mark directly in front of the loader of about 4 metres in length, lined up with the beak in the centre of the loader. In all probability this mark was made by the beak itself as the loader moved along the ground. 15Expert evidence was given in the proceedings by Mr Hugh Frazer, a mechanical engineer provided through UNSW Global Pty Ltd for the prosecutor, Senior Constable Gary Raymond Kennedy, an expert and experienced forensic investigator with the New South Wales Police Force and Senior Constable Paul Little of the New South Wales Police Force, who has qualifications and expertise in the mechanical, hydraulic and other operational aspects of motor vehicles generally, including a vehicle of which the loader was representative. The evidence which was given by these experts, in its totality, was to the following effect: 1) It is uncontroversial that at the time that the incident occurred, the loader was not being driven by Mr Morton. This was because the seat had been removed and was strapped to the steering wheel. The only reason why the seat could have been removed was to gain access to the transmission and other items which were situated underneath the seat. 2) Two days after the incident, an attempt was made to activate the park brake on the loader. It could not be operated. This was because, on the evidence, the cable attached to the foot pedal, which was the means of activating the park brake, had been severed. The foot pedal appeared old and its physical appearance suggested that it had not been used for a long time. Furthermore, a park brake which had apparently been affixed to the gearbox had, on the evidence, been removed some considerable time before the incident. There was, therefore, no park brake. 3) If a park brake had been affixed to the vehicle and was operational, the drum mechanism would have clamped around the transmission and locked it into place. This would have prevented the transmission moving, even if the loader was idling on a gentle slope, or, indeed, a more severe slope. 4) The loader, without being fixed in place by a park brake, could easily be moved if the vehicle was idling and in neutral. This was so whether or not the tines of the lifting mechanism and the beak of that mechanism were on the ground. Upon movement, no resistance would be offered. In these circumstances, the only mechanism which would have precluded the vehicle moving would have been an effective park brake, or chocking the wheels by using a log or other device. 5) The presence of oil and grease on Mr Morton's hands and the presence of the tools and other implements nearby are all strongly suggestive of the conclusion that, at the time of the incident, Mr Morton was endeavouring to effect some repairs or carry out some form of work on the loader. Prior to the incident, Mr Gallard had observed that there was a hydraulic leak around the main ram for the lift arms used in lifting logs off the ground. The presence of oil both on the loader itself and on the ground beneath it is indicative of a need for Mr Morton to have attended in some way to the loader. This is corroborated by evidence that after the incident it was necessary to top up the hydraulic fluid in the loader, which was essential for the operation of all of the hydraulic lifting mechanism and for the operation of the brake pedal. (There was some conflict between the evidence given by Mr Frazer and Senior Constable Kennedy as to precisely how the incident could have occurred. This was because Mr Frazer was concerned to ensure that any explanation would be consistent with tyre marks over the left side of Mr Morton's body. Senior Constable Kennedy thought that the fact that there were tyre marks on the left side of the body was irrelevant because Mr Morton may have been standing in a particular position when struck by the loader and his body turned around as a result of the impact. It is not necessary that I resolve this matter for the purpose of these proceedings.) 6) A post mortem examination, the results of which were obtained by Senior Constable Kennedy, indicated that the immediate cause of death was a set of chest injuries consistent with crush trauma. This comprised right-sided fractured ribs, displacement and puncture of a lung, a rupture of the diaphragm, protrusion of the bowel and other associated injuries. This is consistent with Mr Morton having been crushed to death in the incident. 16Having regard to the totality of the evidence, I am satisfied to the requisite standard that Mr Morton died when he was struck by the front off side tyre of the loader as it was moving whilst he was in the vicinity of the loader and attempting to carry out some function associated with its operation. Furthermore, I am able to conclude that if a park brake had been installed in the loader and had been activated, the loader would not have moved at the time that it did and Mr Morton would not have been killed in the manner which occurred. 17In reaching the conclusion that I have, I am conscious that, on the evidence given in the proceedings, there was available to Mr Morton another mechanism for securing the loader in place at the time of the incident. This involved using chocks. On the evidence, there were no chocks available to him, but, of course, he could have sought to use logs or other means. There is simply no evidence about why Mr Morton failed to use chocks. Given his long experience as a truck driver, it might be assumed that he would have known about such a mechanism for securing the vehicle. 18Despite the unexplained failure of Mr Morton to use some chocking mechanism, the fact remains that the loader vehicle suffered from a severe and fundamental defect consisting of the lack of a park brake or any braking mechanism. This defect was, on the evidence, of long standing. It is this fundamental defect that, in my opinion, renders the defendant in these proceedings culpable. As is plain, if a braking mechanism had been available and had been activated, this tragic incident would not have occurred. The fact that Mr Morton may have been inattentive or careless in failing to use some alternative mechanism does not excuse the defendant as his employer from culpability for a breach of s 8 of the Act. 19I am not satisfied, on the evidence, that it is safe to convict the defendant with respect to particular (b)(iv). The fact that the hydraulic rams were defective did not directly lead to the creation of the risk. Rather, this defect was the factor that caused Mr Morton to embark upon a process which ultimately led to his death. 20With respect to particular (c), which is based on an alleged failure to provide adequate instruction and training of Mr Morton, there is evidence that he did receive some training and that he was provided with some instruction. The extent of the training and the instruction is not sufficiently known to enable me to conclude that it was deficient in the manner alleged in the application for order. Any inference that is adverse to the interests of the defendant must be established beyond a reasonable doubt. In all the circumstances this inference has not been so established. I would adopt the same approach with respect to particular (d), which concerns an alleged lack of adequate supervision of Mr Morton. Whilst there can be no doubt that, on the evidence, he was not totally competent to operate the loader, there is no evidence about his competency or otherwise to undertake the tasks that he was performing at the time the incident occurred. There is no evidence that he was required to be supervised in carrying out these tasks. Indeed, no amount of supervision would have remedied the lack of a park brake although, arguably, it might have reinforced the need to chock the vehicle. Based on the evidence, I am unable to draw any inference adverse to the interests of the defendant in this regard. 21I am satisfied, for the reasons previously given, that it is safe and appropriate to convict the defendant. The prosecutor has established a breach of particulars (b)(i) and (ii). I am satisfied on the evidence that by reason of these matters the defendant breached its duty under s 8(1)(b) of the Act and is guilty of that breach. Penalty 22The prosecutor submitted that the breach by the defendant was serious in all the circumstances and should be assessed objectively. I agree. The equipment on which Mr Morton was working was, on the evidence, inherently unsafe because of its size and the lack of a park brake. This created a risk of severe injury and, as occurred in the circumstances of these proceedings, death. It is a most serious matter to require an employee to use equipment that is inherently and fundamentally unsafe in the manner as occurred in these proceedings. 23In assessing penalty, I shall also have regard to the necessity to provide both a general deterrence and specific deterrence in the case of this defendant. 24There are subjective matters available to a defendant that are to be taken into account when assessing penalty. The prosecutor asserted that there was no evidence available of any contrition or remorse or co-operation with the prosecutor. Furthermore, there was no plea of guilty entered at any stage. Accordingly, I can see no basis for applying any subjective matters in assessing the appropriate penalty. 25The prosecutor sought orders for the payment of costs and a moiety and I see no reason why the Court should not accede to these applications. 26The maximum penalty is the sum of $550,000. In all the circumstances an appropriate penalty is $225,000. Orders 27I make the following orders: 1) The defendant, Finray Pty Ltd, is found guilty of the offence with which it is charged and convicted accordingly. 2) I impose a monetary penalty of $225,000 with a moiety to the prosecutor. 3) The defendant is to pay the costs of the prosecutor in an amount assessed under the Legal Profession Act in default of agreement. ********** 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. Decision last updated: 16 December 2011