SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman

[2018] NSWDC 6

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman [2018] NSWDC 6
Hearing dates:	8 November 2017
Date of orders:	02 February 2018
Decision date:	02 February 2018
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	Each defendant is convicted. H&F is fined $160,000. Max Hoffman is fined $32,000. Laurence Hoffman is fined $32,000. In each case, there is to be a moiety to the prosecutor under s 122 of the Fines Act 1996. Each defendant is to pay an agreed sum of $10,000 towards the prosecution costs.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety SENTENCE – objective seriousness – wood processing plant modified thereby removing safety feature – plant operated in that mode for over three months – exposure to risk of serious injury – worker not provided with operator’s manual – deterrence – plea of guilty – co-operation with regulator – Fines Act s6 – Crimes (Sentencing Procedure) Act ss 10, 10A
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996
Category:	Sentence
Parties:	SafeWork NSW (prosecutor); H&F Mechanical Pty Ltd, Laurence Hoffman, Max Hoffman (defendants)
Representation:	Counsel: Mr D Nagle appeared for the prosecutor; Mr I Latham, appeared for the defendants   Solicitors: SafeWork NSW Legal Services (prosecutor); Priest Legal (defendants)
File Number(s):	2016/119785, 2016/119714, 2016/119807

Judgment

Background

1. Over a period from 1 February 2014 to 16 May 2014, Mr John Coster was exposed to risk of serious injury in his operation of a wood splitting machine (the Rex) at Oxley Highway, Huntingdon.

2. Mr Coster was employed by H&F Mechanical Pty Ltd (H&F).

3. Laurence Hoffman was a director of H&F. Laurence Hoffman was in partnership with his son, Max Hoffman. The partnership operated as L J and M A Hoffman.

4. H&F contracted the services of Mr Coster to the partnership.

5. Mr Coster was operating the Rex at the premises of the partnership over the period 1 February 2014 to 16 May 2014.

The charges and pleas

6. There are three charges, one each against H&F, Mr Laurence Hoffman and Mr Max Hoffman.

7. The charge against each defendant is that it or he was under a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (the Act) and that contrary to s 32, it or he breached that duty.

8. The maximum penalty available in the case of H&F is $1,500,000. In the other cases, it is $300,000.

The legislation

9. Section 32 of the Act relevantly provides:

A person commits a category 2 offence if:

(a)   The person has a health and safety duty;

(b)   The person fails to comply with that duty;

(c)   The failure exposes an individual to a risk of death or serious injury or illness.

10. Section 19(1) of the Act relevantly provides:

(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

11. Section 6 of the Fines Act 1996 relevantly provides:

1. In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:

1. such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

2. such other matters as, in the opinion of the court, are relevant to the fixing of that amount.

12. Section 10 of the Crimes (Sentencing Procedure) Act 1999 relevantly provides:

1. Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

1.  an order directing that the relevant charge be dismissed,

2.   an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

3. an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

2. An order referred to in subsection (1) (b) may be made if the court is satisfied:

1. that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

2. that it is expedient to release the person on a good behaviour bond.

3. An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

4. Subsection (1) (c) is subject to Part 8C.

5. In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

1. the person’s character, antecedents, age, health and mental condition,

2. the trivial nature of the offence,

3. the extenuating circumstances in which the offence was committed,

4. any other matter that the court thinks proper to consider.

6. An order under this section has the same effect as a conviction:

1. for the purposes of any law with respect to the revesting or restoring of stolen property, and

2. for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

3. for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

7. A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

13. Section 10A of the Crimes (Sentencing Procedure) Act 1999 relevantly provides:

1. A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

2. Any such action is taken, for the purposes of the Crimes (Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

The facts

14. The parties have provided a Statement of Agreed Facts in each case. I use that to record the following facts.

15. H&F provided mechanical services and labour contracting to local industry.

16. Mr Coster began employment in February 2014 as a labourer with H&F. He was contracted by H&F to the partnership. Mr Coster was performing work at the premises of the partnership at 2952 Oxley Highway Huntingdon when he was exposed to risk of serious injury.

17. The Rex was a self-contained wood-processing unit designed to be towed onto site for the sawing and splitting of timber for the purpose of supply as firewood.

18. The Rex was designed to first saw through the trunk of trees then pass 300mm long slices down rollers to the splitting area. At the splitting area a hydraulic ram would force a splitting blade down thereby splitting the timber. The blade would take approximately 6 seconds to fall and another 6 seconds to rise once the handles were pulled up. The hydraulic ram was capable of exerting 26 tonnes of force when deployed.

19. The blade and hydraulic ram were operated by a person pushing down on two separate handles, a system commonly referred to as “hold-to-run”. At the time of the manufacture of the Rex, the operator would need two hands to push the handles down and pull them back up. This system eliminated the possibility of the operator placing limbs under the splitting blade whilst in operation. That was the vice the system eliminated.

20. The Rex was owned by the partnership.

21. Mr Coster usually worked with Ken Ross, who also inducted Mr Coster in February 2014. Both were employed by H&F. Mr Coster predominantly worked with the Rex, using it most days.

22. In approximately November 2012, Whitlands Engineering, the manufacturer of the Rex, supplied the Rex to the partnership. At the time of the supply, Laurence and Max Hoffman and Ken Ross were inducted by Mr David Burder, (the director of Whitlands Engineering) in relation to the safe use and operation of the Rex. The Rex was also accompanied by an operator’s manual (“Operators Manual” [1] ) which stated:

Do not tamper with or modify any parts of the machine. If this machine has been found to be tampered with or modified stop using it and have the machined rendered unusable by the authorised person…. until the necessary repairs are carried out.

1. Prosecutor’s tender bundle, Tab 9

23. At the time of Mr Coster’s induction and training he was not supplied with nor given access to the Operating Manual for the Rex. There was a compartment on the Rex for the purpose of storing the Operating Manual, however at all material times the Operating Manual was not stored with the Rex.

24. Prior to the commencement of Mr Coster’s employment the double handed control system was modified by:

1. Mr Ross around May 2013, instructed a mechanic to remove the left hand handle and re-weld it around 105 mm from the right handle. This alteration was known to Max Hoffman. Prior to that, the handles were about 380 mm apart and required two hands to operate;

2. a rope was tied between the handles, allowing for the two handed system to be operated with just one hand. This rope was doubled over several times which allowed for a rope handle to be created. This modification was in place when H&F supplied Mr Coster to the partnership to perform the task of splitting wood using the Rex. This modification was also known to Max Hoffman.

25. Once Mr Coster began working for H&F, he further modified the Rex by installing a stick between the two handles and securing the stick with clamps. The stick was performing the same function that the rope had previously, however the stick was considered more secure and easier to control. H&F was aware of this modification. When the double handed system had been modified to permit an operator to use the handles with one hand instead of two, a risk to the operator arose. Now there was the potential for a worker to come into contact with the splitting blade whilst operating the machine with one hand only as the other hand was now free.

26. As the main operator of the Rex on most days, Mr Coster was therefore put at a constant risk as a result of the modifications made to the Rex

27. Australian Standard AS 4204.2601-2008, “Safety of machinery, Part 2601: Design of controls, interlocks and guarding–two hand control devices–Functional aspects and design principles” applies to all two hand control devices and specifies the safety requirements of a two hand control device. It stated that “a two-hand control device is a safety device (safety component). It provides a measure of protection for the operator against reaching danger zone during hazardous situations by locating the control actuating devices in a specific position”.

28. Clause 6 of the Standard provided:

“6.2 Use of both hands (simultaneous actuation)

The operator must use both hands during the same time period, one hand on each control-actuating device, to operate the two-hand control device.”

29. The modifications to the Rex did not comply with Clause 6.2 from 1 February to 16 May 2014. As a result of this failure, Mr Coster was put at risk every time he used the Rex while at work.

30. After 16 May 2014, the Rex was remodified to eliminate the possibility of the splitting blade coming into contact with the operator. This included the re-welding of the left hand push handle to its original position, reinstituting the 380mm gap and the two handed system.

31. The remodification was to ensure the machine was operated as per design, manufacture and supply, including a copy of the Operating Manual being stored with the machine to ensure workers could have immediate access to the manual at all times.

32. The system of training workers for the use and operation of the Rex was also modified to include a requirement that workers must read the Operating Manual in relation to the Rex ‘from cover to cover’.

The sentencing process

33. I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.

34. I start my analysis with a consideration of the gravity of the offence. This may be determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk of coming home and the measures available to avoid the risk.

35. Foreseeability of injury in this case is clear.

36. Mr Latham, who appeared for the defendants, submitted that I needed to bear in mind, in particular, two matters. The first was the distance of reach from the operator to the blade of the Rex. That was about 70mm. It was accordingly a reasonable stretch by an operator to place his hand or any part of his body in the vicinity of the blade. The second thing was the six second period it took for the blade to descend. That is a relatively slow process. Both these matters were said to bear on that. They do not, however, overcome the fact that nevertheless risk existed and it was foreseeable there could be serious injury if the risk did come home. Further, the submission overlooks the possibility that six seconds is not required for a worker to be injured. A worker could inadvertently place his hand under the blade when it was near the completion of its fall cycle.

37. There were measures readily available to eliminate the risk. The obvious one was to reinstate the left hand handle as per the original design.

38. There are matters going to the objective seriousness of the offence.

39. First is that the offence was committed over a period of time – from 1 February 2014 to 16 May 2014.

40. Secondly, this was not a case of lack of attention to an unseen problem. This was a case of a manufacturer’s built-in safety device being removed and replaced with a system with a built-in risk. Further, this change was made contrary to the manufacturer’s specific instructions and contrary to the direction in the circumstances to “stop using it and have the machine rendered unusable … until the necessary repairs are carried out”. This point has greater significance in the proceedings against H&F and Max Hoffman who were aware of at least some of the alterations made to the Rex.

41. Thirdly, the “Operators Manual” also contained important and clear information about instruction and training:

It is your duty as a Rex 600X-LS owner to give suitable instruction to any new operator of your machine, teaching them safe and proper operating procedures. Also be sure new operators are given the opportunity to study this manual before using the machine. [2]

This was not done.

2. Prosecutor’s tender bundle, Tab 9, third page

42. Fourthly, the “Operators Manual” also states that the hand lever operation should be checked daily. Either it was not or it was and the problem was ignored.

43. Fifthly, the modification to the Rex meant that it failed to comply with the Standard referred to.

44. Sixthly, as the modification to create the built-in risk was easily done so too cold it have been easily reversed to make the Rex safe. This is demonstrated also by the fact that it was done some time after 16 May 2014.

45. Seventhly, the timber industry and wood cutting industry are notoriously dangerous.

46. These factors and the matters mentioned by Mr Latham lead me to the view that this case falls in the mid-range of objective seriousness.

47. I turn to other matters.

48. General deterrence remains a factor. People operating in the timber industry must be aware and made aware of the need for safety. They must know that there can be harsh penalties applied for their lack of awareness and lack of attention to safety.

49. In each case, there is a need to allow for specific deterrence. It is less so in the case of H&F as it has ceased trading. There is no evidence as to future plans for H&F and it could re-emerge as an operator.

50. None of the defendants has any prior conviction.

51. All three defendants are citizens of good standing in the community and provide community support in a number of ways.

52. The defendants have pleaded guilty and are entitled to consideration for that. The plea was not an immediate one. It was on the fifth occasion the matter was listed and a few days before the matter was due to be heard. There is nevertheless a utilitarian value in the plea, but not to the full extent had it been made earlier. I consider 20% is appropriate.

53. The defendants have co-operated in the course of investigation of the incident.

54. In all the circumstances, I consider the appropriate fines to be $200,000 in the case of H&F and $40,000 in the cases of Laurence Hoffman and Max Hoffman, less 20% in each case for the plea of guilty.

55. The defendants made submissions calling in aid s 6 of the Fines Act. The evidence is insufficient for that.

56. In the case of Max Hoffman, he sets out some material at [15] of his affidavit. His and his wife’s incomes are set out and so is the amount of a mortgage. There is nothing about the nature (other than the family home) and value of any assets, any liabilities (other than the mortgage) or any expenses. He runs a family business. There is nothing about its assets, liabilities, income or outgoings.

57. Much the same comment may be made in relation to Laurence Hoffman.

58. In the case of H&F, all that is said is that “Our business underwent a restructure in 2015” and is no longer trading and that if it is fined, it will fall to Laurence Hoffman and his wife to pay the fine. There is no evidence as to the nature of the restructure or what, if any, funds came to H&F as a result of the restructure and what, if anything, happened to those funds.

59. The defendants also made submissions seeking to call in evidence s 10 of the Crimes (Sentencing Procedure) Act 1999. I was referred to a number of authorities. There is no need to analyse any of them. I see this case as clearly inappropriate for the application of s 10. For reasons set out earlier, there is nothing trivial about the nature of this offence. The only thing that can be said about it is that there is no evidence of the manifestation of any risk. The offence is not the manifestation of the risk. It was the exposure of Mr Coster to the risk of serious injury. He was exposed every time he used the Rex and that was on most days over the period 1 February 2014 to 16 May 2014. Further, this was exposure as a result of the Rex being remodelled so that a built-in safety device was taken away and a built-in risk was installed. There was no satisfactory training or induction of Mr Coster. Likewise, there are no extenuating circumstances in which this offence was committed.

60. For the same reasons, I do not think that s 10A can be cited in aid of the defendants.

Order

61. Each defendant is convicted.

62. H&F is fined $160,000.

63. Max Hoffman is fined $32,000.

64. Laurence Hoffman is fined $32,000.

65. In each case, there is to be a moiety to the prosecutor under s 122 of the Fines Act 1996.

66. Each defendant is to pay an agreed sum of $10,000 towards the prosecution costs.

**********

Endnotes

Decision last updated: 02 February 2018