WorkCover Authority of NSW (Inspector Batty) v National Poly Industries Pty Ltd [2014] NSWDC 178

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW (Inspector Batty) v National Poly Industries Pty Ltd [2014] NSWDC 178 Hearing dates: 29/07/2014 Decision date: 29 July 2014 Before: Curtis J Decision: The defendant is convicted and fined $75,000 Order a moiety be paid to the Prosecutor Category: Sentence Parties: WorkCover Authority of NSW (Inspector Batty) (Prosecutor National Poly Indistries Pty Ltd (Defendant) Representation: S Walsh appeared for the Prosecutor B Cross appeared for the Defendant WorkCover Legal Group (Prosecutor) Kennedys Law (Defendant) File Number(s): 2013/192137

Judgment 1The defendant pleads guilty to a charge that on 30 November 2011 at Rutherford it failed to ensure, so far as was reasonably practicable, the safety and welfare at work of its employee Mr Darren Wyville. 2The defendant manufactures plastic water tanks on a rotational moulding machine. The machine consists of a large circular mould some three or four metres in diameter affixed to a circular rail slightly larger than the diameter of the mould. . This apparatus is positioned some 10 to 15° off the vertical, and supported by various cam wheels and guides bearing upon the rail. Gravity brings the rail into contact with one electrically driven cam wheel which causes the mould to rotate as plastic is sprayed onto its interior surface. 3Before the injury to Mr Wyville workers operating the machine noticed groaning sounds apparently caused by friction between the rail and the guide wheels and cams. To reduce these noises, and reduce wear, oil was poured upon the rail. Unfortunately if too much oil was placed upon the rail it fell upon the driving cam reducing the friction necessary for driving the rotational movement. 4The employees adopted a practice of removing excess oil from the rotational ring with a rag while the machine was in operation with the ring turning on the cams. On the day in question as Mr Wyville wiped the ring, the rag caught in the nip point between the ring and the driving cam. The rag then dragged his left arm into the nip point, causing serious injuries. These injuries required that the arm be amputated above the elbow. 5The significant difference between the position of the prosecutor and that of the defendant in relation to penalty is the extent to which this injury was foreseeable. 6The defendant submits that while the risk was not unforeseeable it was not clearly foreseeable. 7The prosecution says that any reasonable person observing not just the nip point, but the system of work in which a rag was used upon the machine close to that nip point, rendered the risk highly foreseeable and that circumstance should be reflected in sentence. 8I have formed the view that the particular risk was not clearly foreseeable rather than being quite obvious. 9The machine was purchased in New Zealand by the defendant company. Before its purchase Mr McFarlane, a director of the company, and another director inspected the machine at the manufacturer's premises. They there conducted a risk assessment, and failed to identify the risk which came home. After the machine was installed a further risk assessment was conducted upon the machine in situ. 10A WorkCover inspector had on at least one occasion attended upon the site and observed the machine in operation. Had that inspector detected the risk there is no doubt that the inspector would have acquainted the company with his perceptions. 11The year before the incident the company engaged the Australian Safety Training Alliance to provide safety audits across the company's sites. That company did not identify the risk associated with either the nip point or the work practice. 12This is not a case in which the defendant company failed to turn its mind to actively seeking out and detecting risks posed by its operations. It had in place a workplace health and safety policy pursuant to which risks were identified and addressed. Paragraph 8 of that policy provided it was the responsibility of all personnel who identify a hazard to correct the hazard or provide a temporary safeguard. 13Upon employment each new employee was inducted actively by demonstration of machines and trained in their individual responsibility to identify hazards. The company formed a workplace health and safety committee which met regularly. It conducted toolbox talks at the premises. 14Minutes of 22 September 2011 directed attention to procedures relating to a cam roller at the top of the machine in question. The minutes did not identify the problem and the risk associated with the lower driving cam, but the record does demonstrate that the company was aware of the need to monitor the risks posed by the particular machine. 15That the company identified a problem with the top arm but not the bottom indicates to me that while generally foreseeable it was not so foreseeable as to constitute a very obvious risk. 16The company published forms of "Hazard Reports" for completion by workers who identified hazards, and "Incident Reports." to be completed in relation to either injuries or near misses.