District Court New South Wales Medium Neutral Citation: Workcover v Max Tse [2014] NSWDC 229 Hearing dates: 26 March 2014 Decision date: 26 March 2014 Before: Judge MJ Finnane QC Decision: See paragraph [10] Catchwords: CRIMINAL - workplace prosecution - duty of person engaged in business to ensure safety of workers in their employment - health and safety - risk - avoidance of risk of injury - serious injury TRIAL - plea of not guilty - proven offence SENTENCE - appropriate discount - mitigating circumstances - factors - financial circumstances of defendant - fine - capacity to pay - background of defendant OTHER - employed worker - conduct of worker - stump grinder - heavy machinery Legislation Cited: Work Health and Safety Act 2011 Fines Act 1996 Category: Principal judgment Parties: Workcover Authority (Prosecutor) Max Tse (Defendant) Representation: Mr M Scott (Prosecutor) Workcover Authority (Prosecutor) In person (Defendant) File Number(s): 2013/243854 Judgment 1The defendant is charged with an offence under s 19 of the Work Health and Safety Act. Under the Act a person conducting a business or undertaking must ensure so far as reasonably practical the health and safety of workers engaged by the person and workers in his activities in carrying out work are influenced and or directed by the person while the workers are at work in the business of undertaking. 2On 29 February 2012 the defendant, Mr Tse, was carrying out work at private premises at Magnolia Avenue, Epping. By origin he comes from China and he advertised on the web seeking Chinese workers. The workers he was seeking seemed to be students. The injured man was a student at Macquarie University. He is a Chinese national who has returned to China. At the time he was studying to become an interpreter and translator, I would assume from Chinese into English. He appears to have graduated in his course and returned to China. 3Part of the work Mr Tse was carrying out was general cleaning up of a garden area. Part of the work involved cutting out the stumps of trees. He hired from a hiring company a machine known as an SG350 stump grinder. I have seen photographs and diagrams of this machine. It is operated with a petrol driven motor and has a large blade which cuts out stumps. It looks not unlike a motor lawn mower although somewhat larger and obviously much different sort of blade. The blade itself extends in front of the machine and it obviously is a very dangerous object when the machine is operating. Common sense alone would suggest that no person should go anywhere near the front of the machine when that blade is operating because of the obvious danger of the engine. This man had not done the work with this stump grinder before this day. 4The defendant has given evidence. I largely accept everything he says in evidence. He himself did the stump grinding. He did not ask the injured man to grind the stump. He required him to assist in pushing the grinder across the terrain and indeed needed assistance from another two men initially to get this grinder up some stairs and into this backyard area. The grinder itself is obviously quite heavy. He himself, that is the defendant, is quite a small slightly built man. He said that the injured man was even smaller. At the time the injury occurred the defendant was attempting to cut a stump which was close to a concrete wall. It was on a slope. The operating instructions for the machine which the defendant says he had downloaded onto his own computer make it plain this machine should be used only on level ground not on slopes. The reason is obvious - because it could run away. 5 It would be very hard to control a heavy machine like this when the front of it was facing down some sort of slope. 6His way of dealing with this difficulty, which he knew about, which made this machine not really a suitable machine in the circumstances was to get the injured man, well before he was injured, to put bricks under the wheels. There is a dispute as to what the man was doing at the time he was injured. The injured man claims he was moving in front of the machine to put bricks under the wheels and that is when his trouser leg got caught in the machine and he became injured. The defendant has given evidence that in fact when the machine was not operating at all he had asked the injured man, Mr Luan, again before this injury occurred, to put bricks under the wheels and all that required Mr Yuan to do was to move to his right, put a brick under one wheel and then put a brick under the other wheel just stretching in front of him. At no point would he have been in front of the blade when he did that. There is a dispute between the two of them. Mr Yuan's evidence is by way of statement as he now lives in China. The defendant has given evidence before me today. It is important to resolve the dispute. 7I cannot be satisfied beyond a reasonable doubt that Mr Yuan is more correct than the defendant, so I will give the defendant the benefit of the doubt and accept that at a time before the machine was actually operating, he asked Mr Yuan to put bricks under the wheels and he had done that. He then started to operate the machine. He said Mr Yuan at this point was not helping him. He was the one operating the machine. He was aware of how to start it and to stop it. There was a handle on the top of it close to what can be called the frame of the machine. To stop the engine moving the handle is dropped and then the machine is switched off to turn the petrol motor off. Evidence satisfies me as well as the defendant's evidence that if both those steps are taken the blade will rotate for a period that has been estimated by an inspector who checked it in the presence of the hiring company the motor would rotate for some 15 to 16 seconds. So even if the machine is turned off instantly that blade is still moving around and could cut someone. That is the nature of this type of rotary engine, it just happens that way. 8He was aware of the steps that could be taken to turn the engine off. He did not specifically warn Mr Yuan not to walk in front of him. He did not warn him that he should not be wearing loose clothing. Indeed he had supplied him out of the goodness of his heart I take it with some wet weather gear that included some loose plastic style trousers that covered his ordinary clothes. The defendant said that what happened was without warning and to his surprise Mr Yuan went out into the front of the machine, walking quite close to it and got caught by the machine with the sad result that his leg was dragged into the machine and despite him turning off the machine obviously it was mangled. His leg was badly damaged and that required hospitalisation. Section 32 of the Work Health and Safety Act says a person who commits a category 2 offence he has a health and safety duty and he fails to comply with that duty and the failure exposes an individual to a risk of death or serious injury or illness. Clearly enough this man was exposed to such a risk, it materialised and he suffered serious injury. I accept that the defendant did not foresee this. I am not using the test that would be applied in a court of law if someone were suing, but as a matter of the way he looked at things, he did not think, did not foresee that Mr Yuan would walk around in front of him into the path of the blades. He himself was the only person operating the machine. Mr Yuan did assist him to push it, he did assist him in certain other ways of using the machine but they are not material to the way in which he was injured. Mr Yuan was not working the machine at the time he was injured and on the evidence of the defendant he was not doing anything at his request at the time he was injured rather without warning he walked out in front of the machine and then into the path of the blade. I am prepared to accept the evidence of the defendant in this instance in preference to that of Mr Yuan because there is a conflict between them and I think, having seen him give evidence, that his evidence seems to be believable and I accept it. 9However the fact that he did not believe anybody would be so silly as to walk out in front of a moving machine and into the path of a blade does not absolve him from liability under this Act. His duty was to ensure this man was not put at risk while this work was being carried out. What that meant him doing in real terms was very simple. He had a duty to explain to him the dangers of the machine even if they appeared to be perfectly obvious to him what they were. He then had a duty to tell him that when he the defendant was operating the machine Mr Yuan should not walk forward of him at all. He should stay no further than directly beside his side, he should not walk forward while that machine was operating. It might seem like giving advice to a child saying something that is so obvious. Nevertheless, it should have been done. Not every person engaging in practical work thinks in a practical manner and he was in charge of this job and had a duty to make sure this worker was told about the dangers of the machine even if he thought it was obvious that they were and he had a duty to tell the worker by way of simple instructions that he must not walk forward of him. Had he done that, had he taken those simple steps, explaining the dangers of the machine and told him not to walk forward then this accident could not have happened. Whilst I can understand how he is very puzzled by the actions of the worker and thinks that he acted in a rather silly fashion that was his duty and he did not carry it out therefore I find the offence proved. HIS HONOUR: Now is there anything known of the-- SCOTT: Nothing known. HIS HONOUR: All right now what I have done is I have found that this offence has been proved. You can now speak to me about what penalty you say should or should not be imposed. The maximum penalty, because you are an individual, I think is 150,000. SCOTT: No it is 300 he was engaged in a business activity. HIS HONOUR: I see, you are quite right. The maximum penalty is $300,000. That does not mean I would impose a penalty of $300,000. It would be the most extreme case that would cause me to impose a penalty of $300,000. I need to know something about you. HIS HONOUR: How old are you? DEFENDANT: Forty three. HIS HONOUR: Are you still conducting this business? DEFENDANT: Yes. HIS HONOUR: Have you any other source of income? (No verbal reply) HIS HONOUR: Have you anyone who is dependant on you, a wife, children or anybody else, parents, grandparents, aunts, uncles, anyone? DEFENDANT: My two sons. HIS HONOUR: Two sons and how old are they? DEFENDANT: Seven years old and five. HIS HONOUR: Have you a wife or not? DEFENDANT: Divorced. HIS HONOUR: What sort of income do you have? DEFENDANT: I just come back for work, I got an injury 25 December, Christmas day. My right hand is punctured by a sting ray and then stay at a hospital until January and then I just come back for work. HIS HONOUR: So you were injured while you were swimming somewhere? DEFENDANT: Yeah. HIS HONOUR: Terrible injury. I know a man got killed a few years ago by a sting ray. So you were off work for sometime because of that injury? DEFENDANT: Yes. HIS HONOUR: Do you own a house? DEFENDANT: No. HIS HONOUR: Pay rent? DEFENDANT: At the moment my friend tell me doesn't need to pay rent. HIS HONOUR: Pardon? DEFENDANT: I have a friend to help me doesn't need to pay the rent at the moment. HIS HONOUR: Is there anything else you want to put to me about the size of any penalty? (No verbal reply) HIS HONOUR: Just sit down for a minute. Mr Prosecutor what do you want to say? Is there anything you want to put forward, any material, other cases or anything else? SCOTT: The fact is that section 6 of the Fines Act would apply with the circumstances of the defendant. The fine must obviously meet the circumstances of the defendant. We wouldn't press for anything that would be onerous in that regard. HIS HONOUR: Now Mr Tse there is an act called the Fines Act and what it says is that no gaol sentence should be imposed because all I can do is impose a fine. There are no gaol sentences, there are no other sentences. Although 300,000 is the maximum figure as I said that would only be applied in very unusual circumstances for a very serious offender. Section 6 of the Fines Act says that I have to have regard to the means of the accused. So I have to have regard to whatever I have which show your capacity to pay a fine. So I cannot just go and give you a huge fine because I feel like it, I have to have regard to whether you can pay a fine. You have not been working for some months now I take it. DEFENDANT: Yes. HIS HONOUR: You are dependant on a friend for helping you out. DEFENDANT: Yes. HIS HONOUR: You have got two sons to support. DEFENDANT: Yes. HIS HONOUR: In the circumstances in my opinion this calls for a conviction and a fine of $500 and that is what I impose. SCOTT: We would ask for costs. HIS HONOUR: Do you know what they are likely to be? SCOTT: Sorry. HIS HONOUR: Have you any idea what they are likely to be? SCOTT: A couple of thousand dollars I'm instructed with time to pay. We haven't got a precise figure. HIS HONOUR: Now do you understand I have also been asked to make an order that you pay the prosecution's costs. You are entitled to ask for time to pay, you do not have to pay all this today or tomorrow. The costs should be as agreed or assessed. If you cannot pay the $500 fine you can ask the Registrar of the Criminal Registry of the District Court for time to pay. You have got to understand if you are running a business and you are using dangerous equipment the law imposes duties upon you even though you think any sensible person would not commit an injury to himself you cannot assume people are sensible. Some people are plain stupid. I am not criticising the man who was injured, I am not saying he is plain stupid but some people are and you still have a duty towards them. 10HIS HONOUR: The order of the court is that the defendant be convicted and is to pay a fine of $500 plus the costs of the prosecution. Those costs to be 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. Decision last updated: 11 December 2014