Fremantle Steam Laundry Pty Ltd v Shepherd

[2000] WASCA 17

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   FREMANTLE STEAM LAUNDRY PTY LTD -v- SHEPHERD [2000] WASCA 17

CORAM:   HEENAN J

HEARD:   14 JANUARY 2000

DELIVERED          :   11 FEBRUARY 2000

FILE NO/S:   SJA 1172 of 1999

BETWEEN:   FREMANTLE STEAM LAUNDRY PTY LTD

Appellant

AND

TANYA GAI SHEPHERD
Respondent

Catchwords:

Criminal law - Occupational safety and health - Failure to provide safe system of work - Experienced employee attempting to remove article jamming conveyor belt - Belt suddenly moving and catching hand - Challenge to findings of fact by Magistrate - Dismissal of appeal against conviction - Penalty not excessive

Legislation:

Occupational Safety and Health Act 1984 s 19

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr M H Zilko

Respondent:     Mr D J Matthews

Solicitors:

Appellant:     Lawton Gillon

Respondent:     State Crown Solicitor

Case(s) referred to in judgment(s):

R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167

Australian Char Pty Ltd (1995) 79 A Crim R 427

Bowen v Sheetmetal & Mechanical Services (WA) Pty Ltd, unreported; SCt of WA (Scott J); Library No 930279; 20 May 1993

Bunnings Forest Products Pty Ltd v Shepherd, unreported FCt SCt of WA (Anderson J); Library No 980235; 5 May 1998

Collins v State Rail Authority of NSW (1986) 5 NSWLR 209

Cullen v State Rail Authority (NSW) (1989) 31 IR 207

Devries v Australian National Railways Commission (1993) 177 CLR 472

Graham v Dalkeith/Nedlands Bowling Club Inc, unreported; SCt of WA (Walsh J); Library No 8630; 5 December 1990

Green v Mabey, unreported; SCt of WA (Parker J); Library No 940711; 7 December 1994

Haysdale Nominees Pty Ltd v Shepherd, unreported; SCt of WA (Owen J); Library No 980177, 9 April 1998

House v The King (1936) 55 CLR 499

Industrial Galvanisers Corporation Pty Ltd v Shepherd [1999] WASCA 282

Jones v Hyde (1989) 63 ALJR 349

McLaughlin v Daily Telegraph Newspaper Co Ltd [No 2] (1904) 1 CLR 243

Morrison v Amalgamated Food and Poultry Pty Ltd, unreported; SCt of WA (Rowland J); Library No 930252; 10 May 1993

Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA (Commr Ng) Library No 930457; 6 August 1993

Morrison v Winton and Atlas Group Pty Ltd, unreported; SCt of WA (Scott J); Library No 960698; 12 December 1996

Murphy v Morrison, unreported; SCt of WA (Parker J); Library No 960089; 15 February 1996

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306

Troon Holdings Pty Ltd v MacCarron, unreported; SCt of WA (Wheeler J); Library No 980572; 5 October 1998

1. HEENAN J: On 10 September 1999 in the Court of Petty Sessions at Fremantle Mr I G Brown SM convicted the appellant company on a charge under s 19(1)(a) and s 19(6) of the Occupational Safety and Health Act 1984 and imposed a fine of $10,000.  The appellant challenges the conviction on the ground that there is no evidence to prove the charge beyond reasonable doubt and the penalty on the ground that it is manifestly excessive.

2. The relevant provisions of the Act read as follows:

   "19.Duties of employers

   (1)An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall –

   (a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;

   …

   (6)An employer who contravenes subsection (1) commits an offence and is liable to a fine of $100 000."

3. The charge arose out of an accident which happened on 2 December 1997 in the appellant's industrial laundry at Hamilton Hill.  Mr Donato Camporeale had been employed there for 21 years.  In August 1997 a large tumble drier and a conveyor machine for loading items into the drier had been installed in the laundry.  Mr Camporeale operated them from that time onwards.  On the day of the accident he had been using the machines to clean rubber mats of various sizes.  Shortly before the accident a load of mats had been placed on the conveyor belt and all except one of them had passed from the belt into the drier.  The remaining mat had wrapped itself around one of the rollers which carried the belt and had jammed it.  The roller was about head high.  In order to get at it Mr Camporeale and a fellow employee pushed the conveyor machine away from the drier.  Then he stood on a milk crate and tried to pull the mat free.  After two or three minutes of unsuccessful effort he paused.  He stepped down from the crate and activated the tumble drier so as to dry the mats which had been loaded into it.  Then he returned to the conveyor in order to "have another go" at pulling out the mat.

4. Having stood on the milk crate again Mr Camporeale reached upwards.  He was attempting to pull the mat free when the conveyor suddenly resumed operating, dragging his left hand between the roller and the belt.  His fellow employee stopped the machine by pressing the emergency button, but by then his hand had been injured.  It seems that Mr Camporeale had put the main switch of the conveyor on "automatic" rather than "off" or "manual" – so that the machine had "kicked in" after two minutes, the period normally required to place a fresh load of items on the belt.

5. After his hand was released Mr Camporeale was taken to Fremantle Hospital, where an operation was performed on his ring finger.  He was discharged two days later.  As a result of the injury he was off work for 10 weeks.  Although he has made a good recovery, his finger has limited movement and he suffers from the onset of what he believes is arthritis in his hand.

Appeal against conviction

1. It was the prosecution case that the appellant had failed to provide and maintain a system of work which would have required Mr Camporeale to

   (a)isolate, tag and lockout the conveyor machine before attempting to remove any article which had become entangled in it and

   (b)retain the key to the lock used to lockout the conveyor while attempting to remove any such article.

   On behalf of the appellant it is said that the evidence before the learned Magistrate established that the system of work in place at the time of the accident met those requirements and, indeed, went even further.  In the grounds of appeal it is asserted that the system was as follows:

   "a.whenever an article became entangled in the conveyor the employee operating the conveyor was required to call the (appellant's) maintenance engineer to remove the article;

   b.the maintenance engineer would lockout the conveyor and then remove the entangled article;

   c.the employee himself was not permitted to remove entangled articles."

2. As it happened, the evidence of Mr J A MacPherson, the appellant's operations manager, did not support that assertion.  In his written reasons the learned Magistrate conveniently summarised Mr MacPherson's evidence as to this aspect of the matter in the following way:

   "… in December 1997 the conveyor belt was becoming jammed between 3 – 5 times a week.  He said that there were two procedures to be followed.  Firstly, if the conveyor belt was jammed, the operator was to turn off the main switch and call the engineer  …  who would attend and carry out work to free the items after isolating the machine by switching it off at the isolation switch  …  and using a padlock and tag to ensure the machine could not be engaged by anyone while necessary works were undertaken.

   The second situation was that when items were 'caught' rather than 'jammed' in the conveyor belt.  He said items caught were usually towels or shirts caught on bolts at the side of the belt and that rubber mats, being less flexible and thicker, were items likely to cause jamming.  With items caught, the operator could pull the items free without stopping the machine at all and, according to him, it was not necessary to call the engineer and use the isolation switch in such cases."

   Under cross-examination, however, Mr MacPherson agreed that he, the maintenance engineer and Mr Camporeale had developed a procedure to follow when an article jammed the conveyor.  He agreed also that, in accordance with that procedure, Mr Camporeale was to turn the conveyor to "manual" and to see if he could pull out the article with his hands before calling on the engineer to do the "mechanical work" involved in unbolting the rollers and extracting the jammed article.  That version had been foreshadowed when, in cross-examining Mr Camporeale as to the system of work which applied prior to his accident, counsel for the appellant put to him that "mechanical work" was to be done by the engineer and not by him.

3. In the grounds of appeal it is asserted that Mr Camporeale admitted in cross-examination, in effect, that whenever an article became entangled in the conveyor he was not permitted to remove the article but was required to call the engineer to do so.  However, my reading of the transcript does not reveal any such admission.  It is true that under cross-examination Mr Camporeale admitted that the accident occurred because he "had a shot at" pulling the mat free instead of calling the engineer to do it and because he thought he had turned the conveyor to "manual" when he had not done so.  But, although they are admissions as to the cause of the accident, they are not admissions that the system of work which applied at the relevant time required him to call the engineer whenever an article became entangled rather than to attempt its removal himself.  In the course of his reasons the learned Magistrate accurately and fairly summarised the evidence of Mr Camporeale in this way:

   "Mr Camporeale said that by December 1997, they were still having problems due to garments being caught in the conveyor belt.  This occurred only 1 or 2 times each week and the problem was always at the top roller.  He described this as 'snagging' and said he would put the main switch on 'manual' and unbolt the frame supporting the conveyor belt, so the whole conveyor belt could be pushed away from the drying machine.  It usually required two men to push it 1 metre away.  He would then step on a milk crate, reach up to the top roller with his hands and try to pull the garment free.  In cases where he could not free the item, he would put a 'maintenance' sign up and call (the engineer) to assist."

   Appreciating that Mr MacPherson was not directly involved in the daily operation of the machinery his Worship preferred the evidence of Mr Camporeale as to the procedure which was actually followed.  Thus he found that whenever an item was jammed or snagged by a roller Mr Camporeale would attempt to remove it with his hands and that he would contact the engineer only if he was unable to free the item in that way.  It was only when the engineer attended that the machine was stopped and locked off.

4. In the grounds of appeal it was asserted also that the cause of the accident was disobedience on the part of Mr Camporeale rather than failure by the appellant to provide and maintain a safe system of work.  In my opinion the evidence shows that assertion to be unfounded.  In attempting to pull out the mat Mr Camporeale was following the procedure which, as his Worship found, he had followed on an average of two or three times per week.  His actions were those of a conscientious, and not a disobedient, employee.  His error in putting the switch of the conveyor on "automatic" rather than "off" or "manual" resulted from a lapse of concentration of the type to which we are all subject.  It was not a stupid or reckless act.

5. Although signs posted to the machinery said, "Danger, keep hands clear of moving machinery", the evidence does not suggest that the machinery was moving when Mr Camporeale set about either of his attempts to remove the mat.  Nevertheless, what he did was hazardous and it should have been prevented.  As the learned Magistrate found, it was reasonably practicable for the appellant to provide and maintain a system of work which ensured the calling in of the engineer and the isolation of the machine before any attempt was made to remove an article entangled in the conveyor.

6. In my opinion, the learned Magistrate was entitled to find beyond reasonable doubt that the appellant had failed to provide a safe system of work.

Penalty

1. On behalf of the appellant it is said that in arriving at the penalty the learned Magistrate gave no or no sufficient weight to the antecedents of the appellant, the circumstances of the accident and Mr Camporeale's part in it nor to the modest nature of his injuries.

2. In R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249 at 253 the English Court of Appeal, Criminal Division per Scott Baker J observed that failure to fulfil the general duties under legislation such as this are particularly serious as those duties are the foundations for protecting health and safety. His Honour went on to say that the circumstances of individual cases will vary almost infinitely and it is difficult for Judges and Magistrates, who deal only rarely with these cases, to have an instinctive feel for the appropriate level of penalty. He emphasised that each case must be dealt with according to its own particular circumstances and that it is impossible to lay down any tariff or to say that the fine should bear any specific relationship to the turnover or net profit of the offender. However, any fine should reflect not only the gravity of the offence but also the means of the offender. At 255 of the report his Honour concluded his general remarks by saying,

   "The objective of prosecutions for health and safety offences in the workplace is to achieve a safe environment for those who work there and for other members of the public who may be affected.  A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders."

   As is the case with the English legislation, the penalties under the Act have increased steadily over the last 15 years or thereabouts.  The maximum fine for the offence in question has progressively increased from $25,000 to $50,000 and now to $100,000.

3. The appellant is a private company with, I have been told, 50 or 60 employees.  Although the laundry has been in operation for approximately 100 years, it seems that those responsible for its operation have no prior convictions for an offence of this nature.  There was nothing deliberate or flagrant about its breach of the Act and there was no evidence of a failure on its part to heed warnings.  Following the accident it arranged for the undertaking of a safety and health management assessment of its operation, and the assessment was favourable.

4. The transcript shows that his Worship gave careful consideration to all of those factors.  In the circumstances, I am far from convinced that the fine which he imposed was excessive.  Indeed, in my view, it was entirely appropriate.

5. The appeal, therefore, will be dismissed.