WorkCover Authority of NSW v Bakers Maison Australia Pty Ltd [2014] NSWDC 281

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Bakers Maison Australia Pty Ltd [2014] NSWDC 281 Hearing dates: 25 September 2014 Decision date: 25 September 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The defendant is convicted and fined $80,000 Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Bakers Maison Australia Pty Ltd (Defendant) Representation: Counsel: M P Chaill appeared for the Prosecutor R Moore appeared for the Defendant Solicitors: WorkCover Authority of New South Wales Legal Services McCabe Terrill Lawyers File Number(s): 2012/191758

remarks on sentence 1. The defendant pleads guilty to the charge that contrary to the provisions of s 8(1) of the Occupational Health and Safety Act 2000, on 25 June 2010 at its manufacturing premises at Revesby it failed to protect the health, safety and welfare of its employee, Mr Harsitkumar Knitbhai Patel. 2. Mr Patel was, at the time of his injury, operating a commercial pastry mixer. This consisted of a large mixing bowl that revolved in an anticlockwise direction. Protruding into the bowl was a mixing fork which also rotated. 3. Mr Patel had been instructed to test the pastry while it was being mixed. He was told to do this by placing his hand in the dough and removing some of the pastry. He was also told to stand in a position 180 degrees opposed to the mixing fork. The bowl was only partially protected by a guard, which permitted sufficient space for Mr Patel to insert his hand 4. On the occasion of his injury Mr Patel did not stand in the place where he had been instructed to, but closer to the mixing fork. His hand was in consequence drawn into the fork, causing severe injuries. 5. The injuries constituted fractures of the midshaft radius and ulna of the left forearm; fractures to the shoulder and a full thickness laceration to the ear; a 4 centimetres deep laceration to the left upper arm; and a 10 centimetres superficial laceration towards the distal end of the left arm. 6. The failures of the defendant particularised in the charge were essentially, firsts, that it did not provide the mixer with an adequate guard and, secondly, that it did not adequately train its employees in the operation of the mixer. 7. The defendant's business was established by Mr Stephan Motte, who sold the business to present shareholders. When the business was sold Mr Motte worked on for a time and continued to operate the Occupational Health and Safety regime that he had devised. 8. 8 Mr Pascal Chaneliere is the managing director of the defendant. He said that when the business was purchased and he became a director, he was aware that the training to operate the mixing machine consisted of on‑the‑job training and saw no basis to assess any risk associated with the operation of the mixing machine. 9. Mr Motte has said in an affidavit tendered by the defendant that it was his belief and practice that the best way to train staff was to show them what to do as opposed to simply reading a document. Mr Motte said that he believed that the task performed by Mr Patel was straightforward, and that close supervision was not required. He said, "The process is one of self‑supervision". 10. This is inconsistent with the statement by Mr Chaneliere, in his affidavit, that "Supervision appeared to be maintained at levels commensurate for known competencies of the workers". In fact there was no supervision. 11. The danger, the risk which came home, was obviously a risk recognised by Mr Motte and it should have been recognised by Mr Chaneliere. Mr Motte said in his affidavit that, "The only task upon which care and attention needs to be exercised, in terms of safety apart from any manual handling of the bowl to the mixer, is in the periodic sampling of the dough mixture throughout the mixing process". 12. The only safeguard against the materialisation of that risk was the instruction given to the workers that they should stand opposite the mixing fork when sampling. There was no supervision of the manner in which the men did that, and no evidence that Mr Patel was told the reason why he should so stand. 13. Mr Motte knew that the guard did not prevent accidents such as occurred, that is why the workers were told to stand remotely from the forks. 14. It is put by Mr Moore for the defendant that the defendant was conscious of its work health and safety responsibilities, and this is evidenced by the fact that a work method had been devised and instituted by Mr Motte and continued by Mr Chaneliere. 15. I believe that the inadequate training given to Mr Patel, and the failure to prepare a written work statement, were failures which significantly contributed to this injury. 16. It is beyond question that adversion to risk required by the preparation of a written work method statement is a primary safeguard against misplaced confidence in ad hoc measures. 17. It is true that the guard was a guard provided by the manufacturer of the machine, but it is also apparent that Mr Motte and Mr Chaneliere did not turn their minds adequately to the inadequacies of that guard. 18. The defendant is in perhaps a difficult position. It is appropriate that in imposing an adequate penalty that I identify the objective seriousness of the offence. In seeking to diminish the objective seriousness of the offence by pleading that the defendant acted reasonably, the defendant is in danger of demonstrating that it has no entitlement to the mitigating factor associated with remorse in s 21A(3)(i). That provision requires the offender acknowledge responsibility and acknowledge that the loss was caused by their negligence. 19. This defendant has not adequately recognised the gravity of the risk caused by its failure to formally address matters of work health and safety. It has not recognised that its training of Mr Patel was entirely inadequate to prevent or even diminish the risk of injury. 20. It may be accepted that the defendant, since the injury, has cooperated with WorkCover, prepared written assessments of risk and installed an appropriate guard so that such an injury will not occur on this defendant's premises in the future. 21. Nevertheless, it seems to me that specific deterrence is required in relation to the general operation of the defendant's manufacturing processes. The risk that came home here may be only one of many risks which should have been the subject of detailed work method statements. This company should have commissioned a formal review of its occupational health and safety procedures. If it has not done so then it needs to do so. 22. There is a need for general deterrence because experience demonstrates repeatedly the need for any employer to protect its employees by conscious adversion. Preparation of work method statements leads to a reduction of hazard. This hazard was not perceived because there was no formal process directed to its identification. 23. I accept that this company is a medium sized enterprise, employing some 72 people, and is a business which has operated continually since 2005 with no prior convictions. During that time, before this event, four mixing machines had operated four times each day for a period of about ten years. The defendant is entitled to a discount upon the basis that it pleaded guilty at the first available opportunity. 24. I am not satisfied that the defendant is entitled to a discount on account of the expression of remorse. Mr Chaneliere says that he visited Mr Patel once in hospital. Thereafter he appears to have made no enquiry of Mr Patel's welfare, nor expressed to him any sentiment of regret or remorse. This circumstance coupled with the failure of the defendant in submissions and evidence before me to recognise the want of proper occupation health and safety systems before this event, precludes any further mitigation. 25. The maximum penalty is $550,000. The defendant is entitled to a discount for an early plea which I fix at 20%. The defendant is convicted and fined $80,000. I order that WorkCover receive a moiety of the fine. I order the defendant to pay the prosecution costs as agreed in the sum of $14,000. 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: 20 February 2015