(Re Jun Yong Lee) WorkCover Authority of NSW (Inspector Pile) v Fletcher International Exports

[2014] NSWDC 179

District Court

New South Wales

Case Title:	(Re Jun Yong Lee) WorkCover Authority of NSW (Inspector Pile) v Fletcher International Exports
Medium Neutral Citation:	[2014] NSWDC 179
Hearing Date(s):	21/08/2014, 26/08/2014
Decision Date:	26 August 2014
Before:	Curtis J
Decision:	I find the defendant guilty as charged The defendant is fined $75,000 with a moiety to the WorkCover Authority of New South Wales
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - crush injury - abbitoir worker
Legislation Cited:	Occupational Health and Safety Act 2000
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (Inspector Pile) Prosecutor Fletcher International Exports (Defendant)
Representation
- Counsel:	R Reitano (Prosecutor) B Neild (Defendant)
- Solicitors:	WorkCover Legal Group (Prosecutor) Leigh Virtue & Associates (Defendant)
File Number(s):	2012/118935

JUDGMENT

1. On 30 June 2011 Mr Jun Young Lee, an employee of the defendant Fletcher International Exports Pty Ltd, (Fletcher) suffered serious crush injuries to his right hand and arm when the limb became trapped in the nip point between the belt and roller of a conveyor at the defendant's abattoir at Dubbo.

2. The injuries occurred because the nip point was unguarded, and also because the conveyor did not have an emergency stop switch within reach of Mr Lee.

3. Fletcher has pleaded guilty to the charge that its failures to guard the nip point and provide an emergency stop switch were breaches of the duty imposed by section 8(1) of the Occupational Health and Safety Act 2000 to ensure so far as practicable the health safety and welfare at work of Mr Lee.

4. The accident occurred when Mr Lee was engaged in cleaning the floor of an accumulation of salt. He did this by shovelling the salt from the floor onto the moving conveyor by which it was carried to a bucket placed under the tail end. Mr Lee attempted to remove a build up of salt at that place by brushing the conveyor belt with his right hand. As he did this his right hand or glove was caught in the nip point, drawing his whole his arm into the roller.

5. Mr Lee suffered crush/avulsion injuries to the whole of his arm involving multiple joints and tissues, and deep lacerations to his right thumb and hand with a median nerve damage. He was hospitalised for almost 6 weeks and still experiences pain and discomfort and loss of some sensation in his right arm. He has significant scarring on his right arm, and on his thigh, where a skin graft was taken.

Submissions by the Prosecutor

Objective Seriousness

1. The risk was not remote, but plainly foreseeable. Australian Standard AS1755-2000 ("Conveyors Safety Requirements")-provides at 3.3.1(a) that:

   All shear and nip point shall be guarded....

   The standard also provides at 2.7.7(b) that, for conveyors greater than 2.5 m in length:

   Emergency Stop Controls ...shall be provided to stop the conveyor or conveyor system in an emergency ... at the head, tail, drive and at intervals not exceeding 30 m along the length of the conveyor.

   This particular conveyor was approximately 9 m in length, and required an emergency stop control at its tail.

2. The serious nature of the injuries suffered by Mr Lee illustrate the gravity of the risk against which the defendant failed to guard.

3. The risk was easily avoidable by the very simple measures, subsequently adopted by the defendant, of installing an appropriate guard and emergency stop switch.

Deterrence

1. The defendant has four prior convictions for breaches of the Occupational Health and Safety Act. One in 1993, two in 2002 (apparently arising out of the same incident), and one in 2004. I accept that the conviction in 1993 is too remote to be relevant, but the other convictions militate towards a conclusion that specific deterrence is required in this case.

2. The industry in which the defendant operates is one that poses unique dangers, and general deterrence is also relevant to penalty.

Submissions by the Defendant

Character

1. Fletcher International Exports Pty Ltd is the biggest private family owned employer in the Dubbo region, and currently employs about 850 workers processing up to 8500 sheep each day. The production system presents unique Occupational Health and Safety challenges because of the speed of mechanised processes, and the use of knives and pneumatically operated cutters and saws.

2. Mr Reitano submits that in light of this exposure to risk the criminal record, while not perfect, is commendable.

3. Fletcher is a licensed self insurer for workers compensation, in consequence of which is audited for safety matters by WorkCover every three years. It is a registered training organisation.

4. The company is active in its attempts to comply with its obligations and to secure the safety of its employees.

5. All new employees are inducted onto the site and provided with an induction booklet. Mr Lee was provided with a booklet in the Korean language. New employees are subjected to close supervision even after training, to ensure they understand how to do their job safely.

6. The company employed a Work Health and Safety officer and established a Work Health and Safety committee. This committee meets regularly, and members of the committee conduct a formal workplace inspection each month.

7. Fletcher is actively engaged in contributing to the greater Dubbo community. It is a past winner of the Outstanding Corporate Citizen Award for support of indigenous employment. Roger Fletcher, one of its two directors, is a winner of the Neville Bonner award for commitment to indigenous employment.

Remorse

1. Mr Roger Fletcher has expressed personal regret for the injury to Mr Lee, and has required of the company that it take whatever steps are necessary to ensure that similar incidents do not happen again in the future.

Deterrence

1. Specific deterrence need not play a large part in the sentencing process. The offence does not demonstrate a systematic or wanton disregard for the provisions of the Act. The evidence demonstrates that the defendant has a well grounded commitment to work health and safety.

Conclusion

1. This is not a case in which the defendant was indifferent to the safety of its workers. Nor is it a case involving numerous independent failures to ensure safety, such as may be the case where no risk assessment was carried out at all, or where the dangers revealed by such a risk assessment were ignored.

2. The failures resulted not from a want of care, but from the want of sufficient imagination on the part of the employer to recognise the risk. I think it relevant to note that the risk was not recognised by the WorkCover inspectors, who conducted safety triennial audits of the defendant's operations.

3. While the gravity of the offence is reflected in the extent of Mr Lee's injuries, it may be distinguished from those offences in which the defendant's failure resulted in maiming, continuing disability, or the amputation of a limb. The consequences of the defendant's failures did not include the possibility of death.

4. I do not believe that any purpose would be achieved by imposing a greater punishment upon this defendant to ensure that it devoted time and resources to the obviation of risks in the workplace. It already had a system in place to detect and avoid risk.

5. A severe penalty may lead others to disregard the cost of occupational health and safety upon the basis that, should an accident occur, there would be no recognition of that cost or trouble in any event.

6. The maximum penalty is $825,000. An appropriate penalty is $100,000. The defendant is entitled to a reduction of 25%, because of its early guilty plea, and its co-operation with the prosecution.

Orders

1. I find the defendant guilty as charged.

   The defendant is fined $75,000 with a moiety to WorkCover authority of New South Wales.

2. The defendant is to pay the costs of the prosecutor as agreed or assessed.