District Court New South Wales Medium Neutral Citation: WorkCover Authority of NSW v Baiada Poultry Pty Ltd [2015] NSWDC 86 Hearing dates: 30 April 2015 Decision date: 30 April 2015 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined Catchwords: OCCUPATIONAL HEALTH AND SAFETY – contract worker's arm caught machinery – failure to ensure health and safety of workers – obvious risks – failures of imagination at a junior level to ensure safety Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Baiada Poultry Pty Ltd (Defendant) Representation: Counsel: M P Cahill appeared for the Prosecutor C Magee appeared for the Defendant Solicitors: DLA Piper (Prosecutor) Hicksons Lawyers (Defendant) 2013/89949 File Number(s): 2013/89949 Publication restriction: None Ruling Introduction 1. On 25 March 2011 Mr Sean Sheridan, a cleaner in the service of Ecowize Specialist Hygiene Services Pty Limited, suffered serious injuries when his right arm was caught in the rotating paddle blade of a spin chiller in the defendant's chicken processing plant at Tamworth. 2. The chiller consisted of a large semi-circular trough several metres long through which slaughtered chickens were passed by rotating paddles in order to cool them for hygienic reasons. At the end of the trough the last paddle lifted the chickens from the trough and placed them on a conveyer line. 3. After production had finished for the day Mr Sheridan hosed the internal components of the machine with the paddles activated and rotating. For some reason that he cannot explain his right arm, hand or clothing became entangled in one of the rotating paddles and he was drawn into the machine suffering a dislocation of his right shoulder and a fracture of his right humerus, lacerations and nerve damage to his right upper arm. He has substantially recovered. 4. The defendant pleads guilty to the charge that contrary to s 8(2) of the Occupational Health and Safety Act 2000 it failed to ensure that Mr Sheridan was not exposed to the risk to his health and safety arising from the conduct of the defendant's undertaking at the defendant's place of work. The Failures 1. The prosecutor asserts that there were three reasonably practicable measures necessary to protect Mr Sheridan which the defendant failed to adopt. 2. The first and most obvious was the provision of an emergency stop lanyard that could be reached from all parts of the machine. 3. The second was the provision of safety locks on the electrical controls of the machine to prevent Mr Sheridan from activating the machine other than in a safety mode in which the paddles were restricted in speed and movement. 4. The third was placing a sign on the control panel to warn Mr Sheridan that the electrical power to the continuous cycle should be isolated during the cleaning process and to reinforce the instructions given to him by his employer. The System of Work 1. Before the accident the provision of electricity to the spin chiller was controlled by switches on a control panel located within a stainless steel cabinet fitted with a lockable stainless steel front door. These switches permitted the machine to be operated continuously in production mode, to be turned off entirely, or to be operated in a cleaning mode. 2. When in the cleaning mode the electrical activation of the paddles in the spin chiller could only be achieved by depressing and holding down what was called a jog button. This button caused the paddles to rotate at a reduced speed through one quarter rotation. 3. After the jog button was released the jog function could not be re-engaged for 30 seconds. An audible alarm sounded when paddles rotated in the safe cleaning mode. 4. When the cleaning mode switch was activated within the cabinet the cabinet could be locked and the jog function operated by buttons outside the cabinet. 5. This control system was implemented by the defendant after an earlier accident on 19 September 2003 at premises of Baiada at Pendle Hill in Sydney when Mr Sayed Zaidi, an employee of Ecowize suffered an injury in circumstances similar to Mr Sheridan when he was cleaning a spin chiller while the paddles rotated. 6. In response to this accident Baiada devised the system fitted at Tamworth. 7. It also installed a lanyard that ran across the length of the spin chiller thought to be accessible to a person in the position of Mr Sheridan. Before the accident senior management of Baiada were unaware of the inadequacy of that lanyard. 8. Mr Thompson, the supervisor of Ecowize, was solely responsible for supervising the cleaning of the spin chillers. Baiada did not participate in or supervise any of these activities, although it performed regular spot checks to ensure that Ecowize was complying with its safe working procedures. 9. Unfortunately for Mr Sheridan, Mr Thompson did not adhere to the safe methods mandated by the site safety plan and jog safety analysis. He considered it more efficient to clean the spin chillers while the machines were energised and the paddles rotating continuously, and condoned the employees of Ecowize using this method. 10. The prosecution relies upon a report called a Safety Management System Contractors Assessment prepared by Ms Sarah Moore, a manager employed by Baiada, on 30 April 2010. Ms Moore reported: "Isolations on equipment not being performed, spin chiller running however not being cleaned by staff at the time of inspection." 1. It was suggested by Mr Cahill for the prosecution that this report put Baiada on notice of Mr Thompson's transgressions, and that there was a failure to follow up this report. I do not agree. The report said that the chiller was not being cleaned at the time. Mr Onley, the Occupational Health and Safety Manager of Baiada said, that after Ms Moore's report there would have been a follow up by a meeting between herself and the supervisors of Ecowize drawing this lapse to their attention. 2. It was also suggested by Mr Cahill that because the cleaners of Ecowize did not need the machine to be in its continuous mode, the switch to that mode should have been locked and beyond the control of Ecowize employees. 3. Mr Onley responded to that suggestion by pointing out that it was necessary that the cleaning staff have the ability to place the machine in a continuous mode in order to remove any residual chickens that were still left in the machine before it was placed in cleaning mode. 4. I am satisfied that Baiada had devised and implemented a comprehensive risk management plan for the Tamworth site that, from an organisational point of view, was entirely adequate. 5. I am also satisfied that Baiada reasonably sought to discharge in part its duty to Mr Sheridan by binding Ecowize to a contract that pursuant to which: Ecowize agreed that Baiada may rely on the specialised skills and knowledge of Ecowize and its employees for the work Ecowize performs under the agreement. Ecowize was to be responsible for and comply with any and all obligations placed on it by law relating to the occupational health and safety and workers compensation for the work of Ecowize and its employees under the agreement. Ecowize was solely responsible to instruct all of its workers in the premises in relation to the safe use and operation of the open plant cleaning system. Ecowize was responsible for the management and control of matters that affected or may affect the health and safety of its employees and other non-employees in relation to the work its employees performed under the agreement. Ecowize would ensure that its employees are aware of and would comply with Baiada's site procedures and requirements applicable to the work. 1. Pursuant to these arrangements Baiada did not participate or supervise any of Mr Sheridan's activities in cleaning the spin chillers. It responsibly performed regular spot checks to ensure that Ecowize was complying with the safe working procedure. 2. The system devised by Ecowize in its Site Safety Plan and Job Safety Analysis for cleaning the spin chillers required that: (a) The control cabinet be locked after the cleaning mode was activated, (b) The jog function be used when cleaning the paddles, (c) After cleaning the lock was to be removed and (d) The employees were to be trained in these methods. 1. This Site Safety Plan and the Job Safety Analysis were provided by Ecowize for approval by Baiada. It could not be said that Baiada failed to adequately stipulate the procedures that should have been adopted by employees of Ecowize. 2. Following the incident with Mr Zaidi, Baiada did identify the dangers faced by Mr Sheridan in the cleaning process, and did take action to obviate those dangers. It directed, Ecowize a responsible subcontractor, in the methods that should be adopted. 3. The failure to ensure that the adequate systems were followed were entirely the responsibility of Mr Thompson, the supervisor of Mr Sheridan. 4. The prosecutor submits that Baiada should have directed Ecowize to amend its Job Safety Analysis so that it directly identified Baiada as the party responsible for locking the cabinet restricting Ecowize employees to use of the jog switch only. If Mr Sheridan was given access only to the jog button the accident would not have happened. 5. As Mr Onley pointed out this was impractical. The system required that employees of Ecowize have access to the cabinet switch to put the machine in continuous mode in order to perform their duties. 6. Baiada concedes that pursuant to the system it had devised the production staff of Baiada were to place the machine in the cleaning mode and lock the door at the end of production and this they failed to do. Had they done this Mr Sheridan would probably have used the jog switch rather than going to the trouble of asking Mr Thomson for his copy of the key to open the cabinet. 7. Baiada also concedes that it failed to ensure that the lanyard was sufficiently long. It also concedes that the accident may have been prevented if the directions to Mr Sheridan had been reinforced by appropriate signs on the door. These failings were not systemic other than the reinforcement sign, which I think is of limited utility. The failure to ensure that the lanyard was sufficiently long to reach the position in which Mr Sheridan found himself was not a failure of version but a failure of imagination. The failure by the person in charge of the production staff to lock the door at the end of production was a casual failure of the character that may occur in any system that relies upon human frailty. Subjective Factors 1. Baiada is a huge enterprise that has traded since 1943. It directly employs 3,744 persons across its operations in Australia. It also engages a further 1,489 labour hire staff and 1,307 independent contractors. 2. In order to discharge its responsibilities in relation to occupational health and safety Baiada employs a National Work Health and Safety Manager leading a team of 19 dedicated Work Health and Safety professionals. 3. In the financial years between 2011 and 2014 Baiada spent an average of over $126 million each year upon Work Health and Safety including the cost of maintaining and replacing existing machinery. Between December 2011 and December 2014 the lost time injury frequency at Baiada was substantially below the average in the Farming and Production and the Meat Manufacturing Industries. 4. Baiada has four prior convictions for breaches of the New South Wales Occupational Health and Safety Act. Given the size of the undertaking, the hazardous nature of slaughtering, the number of employees and contractors at risk and the inevitability of human oversight this is a commendable record. 5. The failures for which Baiada is responsible are not organisational failures but failures of imagination at a relatively junior level. Such failures are inevitable in any organisation reliant upon human frailty. In that circumstance I regard the responsibility for the failure falling in the least criminal end of the spectrum. That is at a level which is barely consistent with guilt. Individual Deterrence 1. Mr Onley says that the defendant has incurred costs of $175,000 in seeking legal advice in relation to this matter. While Mr Cahill says that that fact cannot in any circumstance be relevant he provides me with no authority to that effect. I accept that potential liability for a large amount of costs does create an incentive to avoid reoffending, and in this respect constitutes subjective deterrence. 2. Given the systems set in place by the defendant before this event, and further actions, unnecessary to here relate, after the event, I do not believe there is any need for the penalty to reflect subjective deterrence. General Deterrence 1. There is a tension between appropriate recognition of the efforts of responsible safety conscious enterprises that have expended considerable resources on achieving safety, and the necessity to impose some penalty on those enterprises because of their vicarious liability for the actions of junior staff. 2. It is probably the case that if junior staff are cognisant of management being penalised for their individual failures, a subjective sense of responsibility will motivate them to behave better. It is for this reason that I think that a penalty of some measure should be imposed. Parity 1. On 9 September 2014 Ecowize pleaded guilty before me to charges arising out of this accident. I recognised in my reasons for penalty that Mr Thompson and to a lesser extent his co-manager, Mr Clark, acted in blatant disregard of the instructions that they were given by Ecowize. 2. I have already averted to Mr Thompson's practices. Mr Clark of Ecowize was informed of these unsafe practices at Tamworth but did not take adequate measures to prevent re-occurrence. 3. There is no evidence that Mr Thompson's practices came to the notice of Baiada. No Baiada personnel were present during the operations of the cleaners. 4. In any event I determined that the appropriate penalty in relation to Ecowize was $150,000. The responsibility of Baiada for Mr Sheridan's injury is a fraction of that of Ecowize. I believe that one-third would be appropriate. Conclusion 1. In recognition of the subjective factors, the good character of Baiada and its remorse an appropriate penalty is $50,000. The plea of guilty entitles Baiada to a reduction of 25% in that sum. 2. Baiada is convicted and fined $37,500. I note that Baiada has agreed to pay the defendant's costs in the sum of $40,000 and this itself acts as a deterrent and a penalty upon the defendant. 3. I order that WorkCover have a moiety of the fine and order that Baiada pay the prosecution costs. ********** Amendments 18 June 2015 - Paragraph 3 - punctuation correction Paragraph 13 - Correction of the spelling of the name of the injured person Paragraph 15 - deletion of erroneous words Paragraph 17 - punctuation correction and correction of spelling of Ecowize Paragraph 18 - Correction of year of a report Paragraph 20 - correcting switcher to switch Paragraph 23 - correction of the spelling of Ecowize Paragraph 29 - correction of the spelling of Ecowize Paragraph 31 - deletion of an erroneous word Paragraph 32 - deletion of an erroneous word Paragraph 35 - correction of a year (2001 was transcribed, it should be 2011) Paragraph 42 - deletion of an erroneous word Paragraph 43 - deletion of an erroneous word 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: 18 June 2015