SafeWork NSW v Pegela Rural Enterprises Pty Ltd

[2016] NSWDC 142

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Pegela Rural Enterprises Pty Ltd [2016] NSWDC 142
Hearing dates:	4 July 2016
Date of orders:	07 July 2016
Decision date:	07 July 2016
Jurisdiction:	Criminal
Before:	KEARNS DCJ
Decision:	The defendant is convicted and fined the sum of $90,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs in the sum of $29,700.
Catchwords:	Work Health and Safety Act 2011 ss 19(1), 32 – criminal law – work health and safety – duty of person conducting a business or undertaking – duty of employers – death of employee – worker crushed between earthmoving machinery – hoe incorrectly attached to skid steer – experienced worker – gravity of the offence – foreseeability – measures available to minimise risk – defendant’s culpability relatively low – general deterrence – specific deterrence – good corporate standing of defendant – plea of guilty – remorse – victim impact statement – no prior convictions – discount for early guilty plea
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	SafeWork NSW (prosecutor) Pegela Rural Enterprises Pty Ltd (defendant)
Representation:	Counsel: Ms A Mitchelmore, instructed by SafeWork NSW, appeared for the prosecutor Mr B Hodgkinson SC with Mr B Fogarty, instructed by Gilbert & Tobin, appeared for the defendant
File Number(s):	2015/162064

Judgment

The charge and plea

1. Pegela Rural Enterprises Pty Ltd (Pegela) is charged that on 4 June 2013 contrary to s 32 of the Work Health and Safety Act 2011 it breached a duty imposed on it under s 19(1). Pegela has pleaded guilty to the charge.

The legislation

2. 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:

1. workers engaged, or caused to be engaged by the person, and

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

3. Section 32 relevantly provides:

A person commits a Category 2 offence if:

1. the person has a health and safety duty, and

2. the person fails to comply with that duty, and

3. the failure exposes an individual to a risk of death or serious injury or illness.

4. The section then sets out penalties.

The facts

5. Mr Suey was an operator of earthmoving machinery. He operated as Black Duck Trading. In December 2012, Mr Suey was engaged by a partnership which included the defendant. He worked at different sites of the partnership.

6. On 4 June 2013, Mr Suey was fatally injured when he was crushed between a Mustang skid steer and a Hughes equipment hoe. This equipment was earthmoving equipment and was owned by the partnership. The hoe was attached to the skid steer. Mr Suey was crushed between the gears and metal bars of the hoe and the protective cage of the skid steer. There was nothing wrong with the machinery.

7. The skid steer featured an adapter plate onto which a hoe and other attachments could be mounted. There are three interfacing parts, being upper, middle and lower mounting points.

8. I pick up the description now from the statement of facts, exhibit PX2:

“21 The upper mounting points on the Hoe consist of a pair of spear and clevis assemblies, with one pair located on each side of the Hoe. The two spears fit into sockets on the Skid Steer, and the clevises are then lowered over the sockets with screws tightened to hold them in place.

22 The middle mounting point consists of a piece of channel section (or flange), on each of the Hoe and Skid Steer, which meet when the Hoe is mounted.

23 The lower mounting points consist of contact between the lower edge of the Skid Steer adapter plate and the bottom of the Hoe, from which protrudes a “tongue” pierced by a hole.

24 A retaining pin on the Skid Steer’s adapter plate is lowered through the hole in the “tongue” of the Hoe, using a handle which is locked when moved from left to right. With the pin lowered, the lower edges of the Skid Steer’s adapter plate and the Hoe are kept in contact, restricting the Hoe’s vertical movement.

25 Once the Hoe is attached to the Skid Steer, it can be operated from a seat which forms part of the Hoe. The Skid Steer operator’s seat is located within a protective cage, behind the Hoe operator’s seat.”

9. After the incident inspection revealed that the screws at the upper mounting point were not tightened. It also revealed the handle used to lock the retaining pin in place at the lower mounting point was not in its locking position to the right.

10. The skid steer and hoe were well maintained and both in good order and condition. The hoe had not been correctly fitted to the skid steer.

11. On 12 June 2013 Mr Kent, SafeWork NSW Engineer, observed:

(a) the Hoe was partially detached from the Skid Steer and had rotated about its upper mounting points so that its chassis was tilted back towards the Skid Steer’s cabin;

(b) the lower mounting point was not connected because the retaining pin had not been lowered into the tongue protruding from the Hoe;

(c) the handle used to operate the pin was in the disengaged position; and

(d) the hand screws for the upper mounting point were not tightened.

[Statement of Facts - Exhibit PX2, para 54]

12. In a report – exhibit PX1, tab 2, pages 9 and 10 - Mr Kent explained the mechanism of the lower mounting point. To engage the retaining pin a handle had to be moved from left to right. Moving it from left, the pin’s disengaged position, to the vertical, resulted in the pin then becoming engaged. Moving the handle then from the vertical to the right, engaged a spring-loaded safety function that prevented the handle from moving if an upwards force was applied to the pin.

13. It is not in doubt that, at the time of the incident, the hoe was not properly secured at either the upper or lower mounting points.

14. Dr White, forensic engineer, was of the view that:

“…the incident was caused by the retaining pin at the lower mounting point not being engaged, which allowed the bottom edge of the adaptor plate on the Skid Steer to separate from the bottom part of the Hoe and enabled the middle mounting point of the Hoe to lift off the top of the adapter plate.”

[Statement of Facts - Exhibit PX2, para 58]

15. On 4 June 2013 at about 6.30am Mr Suey had commenced to operate the skid steer and hoe. He was to clear built-up soil from the external walls of a grain shed on a property known as “Brudle Park” located about 35km north-west of Moree.

16. Prior to 4 June 2013, the partnership had an employee document for its properties, “Brudle Park” being one of several. In Mr Suey’s case, the document describes the location as Gunyerwarildi property though, from its context, it applies to all of the partnership properties. The document was marked by, or in respect of Mr Suey, by asterisks placed beside the following items: “Operation Mustang Bobcat”; “Operation of Ramps for Bobcat”; and “Operation of Bobcat Attachments.” It is a 13 page document otherwise unmarked or even dated or signed (Exhibit PX1, tab 4).

17. Mr Dwyer, a general manager of the partnership, inducted Mr Suey at Gunyerwarildi. The induction included a general induction in relation to the skid steer. It did not include an induction in relation to the hoe. The partnership did not have any system in place with respect to the hitching of the hoe or other attachments to the skid steer.

18. In March or April 2013, Mr Morelli, general manager, had described to Mr Suey the method of hitching the hoe to the skid steer. This was oral only. It did not include reference to the operations manuals or where they could be found.

19. The manuals for the skid steer and hoe were located in an office at Gunyerwarildi, about 80km from the site of the work being done.

20. The manual for the skid steer provided information in relation to connecting attachments. Significantly, it included:

●   “Move the hitch latch levers until fully engaged. The pin(s) must extend through the hole in the bucket or attachment.

WARNING: Latch pins must extend fully through the hole in the attachment. Lever(s) must be fully down and locked. Failure to secure pin(s) can allow attachment to come off which could cause injury or death.”

(Statement of Facts - Exhibit PX2, para 70)

21. It also included the following information:

“Operators must read instructions before operating this machine. Untrained operators may cause injury or death”.

(Statement of Facts - Exhibit PX2, para 71)

22. The manual for the hoe included the following information:

“…this implement is a heavy piece of equipment capable of inflicting a serious or even fatal injury if taken for granted or misused.

DO Make sure your hoe attachment is securely mounted and the mounting brackets are in good condition.

DO Everytime you use your machine, make sure the attachments are securely mounted and the mounting brackets are in good condition. Remember nothing is forever.”

[Statement of Facts - Exhibit PX2, para 72]

23. At the time of the incident, Pegela did not have in place a system of work with respect to the attachment of implements to the skid steer. Since the incident, it has developed and implemented Standard Operating Procedures for this task. This is comprehensive – Exhibit PX1, tabs 7 and 8.

24. On 30 May 2013, Mr Churchland, farmhand level 5, provided Mr Suey with a refresher on the skid steer and hoe. He explained the hitching process. Again, this was oral only.

25. On 3 June 2013 Mr Suey asked Mr Gobbert if he knew how to attach the hoe to the skid steer. Mr Gobbert explained the process. Again, this was oral. At the time, they were adjacent to the skid steer and hoe. The explanation was given in relatively rough and ready terms, but in terms that were basically accurate and understood by Mr Suey.

26. On 4 June 2013, sometime after he had commenced to operate the skid steer, Mr Suey was observed on the equipment having suffered his fatal injuries.

27. Mr Suey was highly experienced and skilled in earthmoving operations. In a victim impact statement, his son described him as having “the reputation among colleagues as the last real dirt dragon”. He was an experienced operator of the skid steer. He had operated it many times before the incident. He had operated it with different implements, though not the hoe, attached to it. He had attached and detached these implements. He had done so shortly before the incident. In many respects, the attachment process was the same in each case. Relevantly, it was the same in that at the lower mounting point the retaining pin was engaged by moving the handle in an arc from left to right. This was not a difficult physical task.

The sentencing process

28. I bear in mind the purposes of sentencing as enumerated in s3A of the Crimes (Sentencing Procedure) Act. 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 relevant 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.

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

30. The risk alleged in this case was risk of Mr Suey being struck or crushed due to the hoe being incorrectly attached and becoming detached while in operation. That risk was foreseeable. So much is evident from the content of the operation manuals of the skid steer and of the hoe.

31. Foreseeability of the particular chain of events that brings about an incident is not required, but it may have a relevance. The relevance lies in the defendant’s culpability. In this instance, critical to the risk and the resultant incident, was the failure to attach the hoe correctly to the skid steer. The attachment was done by Mr Suey. That occurred in this case on a background of Mr Suey being an experienced earthmoving operator. He was experienced in the operation of the skid steer. He was experienced in attaching and detaching implements, but not the hoe, to the skid steer. He had done so shortly before attaching the hoe on this occasion. Every attachment and detachment required the operation of a handle to secure and release a retaining pin. That task was physically a simple one. That task was not done on this occasion. The reason for that is unknown. This was the critical failure that caused the incident. The attachment process was undertaken by Mr Suey shortly after the process of attachment was explained to him and he expressed his understanding of it. The risk was foreseeable but, in the circumstances described, the manner of the occurrence of the incident lies very low on a scale of foreseeability.

32. In the event of the risk coming home, the foreseeability of consequences including fatal injury is established and that foreseeability was patent.

33. Measures were available to address the risk. I accept Pegela’s submission that they would not have eliminated the risk. That could be done only by a supervisor inspecting Mr Suey undertaking the attachment process, a step not called for or suggested.

34. The measures suggested in this case would have minimised the risk. The measures were:

• training, including physical demonstration;

• provision of safe operating procedures; and

• having the operation manuals for the skid steer and the hoe readily available.

All these matters have since been attended to.

35. I hesitate to place an offence involving risk of and fact of fatality at a low level in terms of a defendant’s culpability, but I think the circumstances I have described in the case, particularly as to the immediate cause of the incident, warrant my finding the defendant’s culpability to be at a relatively low level.

36. There are other matters that need to be considered. I bear in mind a need for general deterrence. I accept Pegela’s submission that this is not a case of faulty machinery, poor maintenance or inadequate supervision. That does diminish Pegela’s culpability, but I do not consider it diminishes the weight that ought to be given to general deterrence. The use of machinery of this nature is widespread. Operators must be aware of their obligations in respect of the use of such machinery. Risks associated with the use of such machinery can arise as much from a lack of proper and comprehensive training as from other causes. This is a case where the failure lies in the training.

37. I do not consider specific deterrence as a factor in this case. This is because of the extensive and immediate steps Pegela undertook following the incident to ensure safety. I do not propose to detail all this. It is fully set out in the tender bundle – Exhibit PX1, especially tabs 7 and 8 - and the affidavit of Mr Mason, especially paragraphs 13 and 14, and its exhibits (Exhibit DX1, tabs 4, 6, 7 and 10). It is sufficient to note that comprehensive steps have been taken to ensure this type of incident does not happen again, and have also been taken over all manner of activities in the farming industry that involve safety issues. These measures have involved not only the adoption of safety processes, but also their ongoing review and auditing, and recurrent and frequent training of employees.

38. Pegela has fully cooperated with SafeWork in its investigations and this has involved considerable time.

39. Pegela has been an active participant in the community and has supported charities and educational institutions. Details are more fully set out in Mr Mason’s affidavit (Exhibit DX1, para 15). It has been a corporate citizen of good standing.

40. Pegela has pleaded guilty. That also is evidence of remorse. There was an expression of remorse by Mr Mason in giving evidence on the sentence hearing. This was criticised as being late and simply in response to the fact that it had been commented on in the prosecutor’s written submissions. It was late, and it did come in response to those submissions. More telling, however, is what the defendant did. Its plea of guilty and its most extensive overhaul of its safety systems with ongoing review are telling pieces of evidence supporting remorse.

41. I have been provided with a victim impact statement from Mr Suey’s son, James Boss. The hurt and loss to Mr Boss are plain and acknowledged by the Court. The Court’s task, however, is not to put a price on Mr Suey’s life, and no fine I impose could possibly do that.

42. Pegela has no prior convictions.

43. The maximum penalty applicable in this case is $1.5 million. That can be applied only in the most extreme kind of case. It is an indication, however, of the seriousness with which Parliament views these matters.

44. In all the circumstances, without discount for the plea of guilty, I consider the appropriate penalty to be $120,000. The plea of guilty in this case, in my view, warrants a discount on penalty to the extent of 25%.

Orders

45. The defendant is convicted and fined the sum of $90,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs in the sum of $29,700.

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Decision last updated: 19 July 2016