SafeWork NSW v Thermal Electric Elements Pty Ltd

[2017] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Thermal Electric Elements Pty Ltd [2017] NSWDC 62
Hearing dates:	7 March 2017
Decision date:	24 March 2017
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	The defendant is convicted and fined the sum of $250,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	WORK HEALTH AND SAFTY – CRIME – work experience placement – CNC brake press – crush zone – hand caught in crush zone – amputation – general lack of information, induction, training and supervision – incorrect safety setting on machinery – foreseeability of risk – measures readily available to eliminate the risk – general deterrence – specific deterrence – no prior conviction – plea of guilty - discount
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bulga Underground Operations v Nash [2016] NSWCCA 37; Attorney General of NSW v Tho Services Limited (In Liquidation) [2016] NSWCCA 221
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor); Thermal Electric Elements Pty Ltd (Defendant)
Representation:	Counsel: Mr C Magee appeared for the prosecutor; Ms W Thompson appeared for the defendant.     Solicitors: SafeWork NSW Legal Services (Prosecutor); Lander & Rogers Lawyers (Defendant)
File Number(s):	2016/174544

Judgment

The charge and the plea

1. Thermal Electric Elements Pty Ltd (defendant) is charged with a breach of s 32 of the Work Health and Safety Act 2011 (the Act) in that on 6 August 2014 at 7 Buckman Close, Toormina (the premises), it failed to comply with a duty under s 19(1). The defendant has pleaded guilty.

The evidence

2. The prosecutor tendered an agreed bundle of documents (Exhibit PX 1). The defendant relied on an undated affidavit of Darren John Taylor which, I was informed, was affirmed on 2 March 2017. I was also provided with a victim impact statement which was marked 1 for identification. I was also informed that Ms June Jardine, director of the defendant, and Mr Taylor, operating manager, were present in Court.

The facts

3. The defendant conducted a business or undertaking involving or including the design and manufacture of electric heating elements and systems. On the occasion in question, work was being conducted at the premises, relevantly the task of folding strips of sheet metal using a CNC brake press.

4. In August 2014, the defendant employed approximately 33 people. On or about 28 July 2014, it had entered into a work placement agreement with NSW Department of Education and Communities (Work Placement) for the placement of a student from TAFE NSW.

5. Charlee Patston was a 17 year old student in year 11 at Toormina High School. He was undertaking his Higher School Certificate. As part of those studies, he was enrolled in Certificate II in Construction at North Coast Institute of TAFE. On 4 August 2014, Charlee Patston was placed with the defendant for one week’s mandatory work experience. Pursuant to the Work Placement agreement the defendant acted as host employer.

6. Kevin Coleborn was employed by the defendant as its production manager from January 2013. He was a trade-qualified toolmaker.

7. Upon commencement of the Work Placement on 4 August 2014, Mr Coleborn gave Charlee Patston a general workplace induction before handing over to another employee to complete. The induction was conducted over 20 to 30 minutes and covered general administration and human resource topics, emergency procedures and factory layout. Charlee Patston was not instructed on machinery operation during the induction.

8. Also on 4 August 2014, Mr Coleborn conducted initial training of Charlee Patston on the operation of the defendant’s CNC brake press. The training consisted of an initial demonstration by Mr Coleborn on the use of the machine. Charlee Patston then operated the machine for approximately 5 to 10 minutes under Mr Coleborn’s observation. Then Mr Coleborn introduced Charlee Patston to Simon Collins and directed Mr Collins to provide Charlee Patston with training on the operation of the CNC brake press. This introduction to basic operations took approximately 10 minutes. Mr Collins then assisted Charlee Patston with its operation for about 30 minutes. Mr Collins was employed by the defendant as a sheet metal fabricator and welder.

9. The CNC brake press was used in manufacturing activities at the site. It is an electronic powered item of plant used to bend or fold thin gauge metal sheets/strips or job pieces. The structural components include two vertical uprights known as C frames and an upper beam on which a standard knife was fixed spanning the horizontal distance between the C frames. Below the upper beam was a workbench which also spanned the horizontal distance between the C frames. A standard die was fixed to the workbench. The vertical movement of the upper beam was powered by a pair of hydraulic rams with a combined nominal force of 1250KN. At the point at which the standard knife met and closed into the bottom die, the job piece was folded or bent to a pre-programmed angle.

10. The operation of the CNC brake press when folding metal strips created a crush zone between the descending upper beam holding the knife and the die. The standard knife was lowered by pressing the right (down) foot pedal on a separate pedestal. The left (up) foot pedal caused the standard knife to rise. The folded metal strips would be removed by the operator by hand.

11. The pedestal containing the down and up pedals was not bolted or otherwise secured to the floor. It was attached to a lead and was mobile.

12. The CNC brake press was fitted with an EasyGuard light curtain. In brief, in certain circumstances, a series of light beams would be created and act as a sensing device.

13. A point known as the “mute point” is a point during the descent of the standard knife at which the EasyGuard is disabled. It permits access to the brake press beyond the light curtain. It is required to be set at a position above the job piece where the danger of a person inserting his fingers between the job piece and the standard knife has passed. The gap should be too small to allow fingers to be inserted. The operation manual provides that it should be set at 6mm. The mute point on this machine was manually set by the defendant at 15mm. At 6mm, it would not have been possible for Charlee Patston to insert his fingers into the crush zone. At 15mm, it was possible.

14. The EasyGuard controller had a number of controls. One was key operated and it was for “OBSTRUCTED MODE”. There were three positions for that mode:

“PULSE”;

“OFF”; and

‘SLOW”.

The machine was set to the “SLOW” mode. This allowed the machine to continue its operation even if the light curtain was obstructed. The operation manual for the machine provided that the default setting for the machine was “OFF”. This setting would have stopped the downward movement of the standard knife when Charlee Patston’s hand was in the vicinity of the crush zone.

15. On 4 August 2014, Charlee Patston operated the CNC brake press to manufacture hundreds of sheet metal items. The next day, he operated it to manufacture sheet metal items for part of the day.

16. On 6 August 2014, Charlee Patston commenced work at 7.00am. He operated the CNC brake press and other machinery within the period 9.00am until he stopped for lunch at about 1.00pm. After lunch, he resumed operation of the CNC brake press.

17. While operating the CNC brake press, Charlee Patston was standing approximately 300mm to 350mm in front of it. He had positioned the control pedestal to his right so that he could easily reach the die area of the CNC brake press with his hands while operating the controls on the pedestal with his right foot.

18. At approximately, 2.00pm Charlee Patston was nearing completion of folding the metal strips to be completed by him that day. He was removing from the die one of several metal strips he had just folded. He was leaning forward to remove the folded pieces and his foot inadvertently depressed the down pedal. This caused the CNC brake press to commence a cycle with the standard knife lowering onto the die area. At that point, Charlee Patston’s left hand was located in the crush zone between the standard knife and the die on which the metal strips were placed. His left hand was caught in the crush zone.

19. As a result, he suffered serious injuries to his left hand including the crushing and amputation of the tips of his left index and middle fingers. The index finger was amputated to the bottom of the nail bed. The middle finger was amputated to the level of distal interphalangeal joint.

20. There were three significant contributing factors to the incident.

1. First, the EasyGuard Press Brake Controller had three settings – “OFF”, “PULSE” and “SLOW”. In the ‘OFF’ position, the machine would not operate when the light curtain was obstructed. In the other modes, it would operate. The defendant had the setting set to “SLOW” and, accordingly, that allowed the machine to operate.

2. Secondly, in 2013, the “mute point” on the EasyGuard system was manually set at 15mm. The standard setting is 6mm. At 6mm, it would not have been possible for Charlee Patston to insert his fingers into the crush zone. At 15mm, that was possible.

3. Thirdly, the operator’s pedestal for the brake press was not fixed to the floor. It was portable. The incident was caused because Charlee Patston’s foot had contact with the pedal at the same time that his hand was within the crush zone over the work bench.

21. In addition to those matters, there was a general lack of induction, training and supervision of Charlee Patston in respect of the work he was required to do and I now turn to that. Some of it has been touched on earlier. Much is contained in the statement of agreed facts (Exhibit PX 1, tab 1).

22. I summarise the material in the statement of agreed facts.

23. The defendant had an instruction document in relation to the machine (tab 7). It contained minimal information in relation to the safe operation of the press, especially as to the Obstructed Mode, Mute Point and Control Pedestal. The defendant did not undertake regular risk assessments, especially in relation to the press. This was contrary to the operation manual and the work placement agreement. The defendant did not provide instruction, information or training to, or supervision of Charlee Patston, by appropriate personnel. Mr Collins did not even know how the Obstructed Mode was set when Charlee Patston was using the machine. Charlee Patston was not provided with information, instruction or training as to the step-by-step procedure for the safe operation and use of the machine, or as to the appropriate settings, or as to the positioning of the pedestal. Charlee Patston had no systematic assessment or testing of his competency before being allowed to operate the machine. Neither Mr Coleborn nor Mr Collins provided any effective supervision of Charlee Patston.

24. The Work Placement agreement required the defendant to ensure the health and safety of students placed with it.

25. In preparation for Charlee Patston’s Work Placement, Mr Coleborn had signed a declaration in the Student Placement Record (Exhibit PX 1, tab 5, p3) that the work experience activities were suitable for Charlee Patston and that appropriate information, instruction, training and supervision would be provided throughout the placement. Mr Coleborn had also stated in the declaration that work health and safety risks had been assessed and managed in accordance with the Act. The defendant had recorded in the Student Placement Record that there was a risk from the use of machinery in the workplace. Specifically, it stated “Slips, trips, falls, cuts, burns, manual handling of materials and use of machinery and tools” (Exhibit PX 1, tab 5, p3). The defendant stated that the risk would be eliminated or controlled by instruction on the use of equipment and supervision of Charlee Patston whilst he was in the workplace.

26. The Student Placement Record states:

Dear Host Employer:

…

Please note: there are a number of hazardous activities which are prohibited for students undertaking placements. These are listed at:

Prohibited activities and activities that need special consideration:

Or see website …

It also requests the host employer to note “Any activities or tasks the student is not to undertake e.g. no-go areas, machinery or equipment that is too dangerous for new or young workers to operate.”

The defendant did not heed these notices.

27. On 4 August 2016, the induction was recorded on a tick-a-box template entitled “Toormina WHS Induction Form” (Exhibit PX 1, tab 6). On page 3 of the form, section 11 covered the “SHEET METAL AREA”, the area in which Charlee Patston was working on 6 August 2014. All nine induction items were ticked. The induction items are in brief point form. They do not detail what information was provided nor whether Charlee Patston understood the information provided to him.

28. The Work Placement agreement also warned the host employer of prohibited activities that “need special consideration” and referred the host employer to a PDF document titled “Secondary Education – Senior Pathways – Prohibited activities that need special consideration”. The “prohibited activities” document stated that students could not undertake work involving the use of machinery or equipment which may be dangerous for new or young workers to operate unless a series of steps had been taken including that the activity was first risk-assessed by the host employer as suitable and safe for student operation along with the following:

• the student is given appropriate information, instruction and training and a checklist for the safe operation and handling of the equipment;

• the equipment is in safe working order, complete with required safety devices or guards;

• a suitably qualified or experienced person in the workplace who has good communication skills and the ability to give clear instructions provides on-going close supervision.

29. Mr Coleborn had not referred to the “prohibited activities” document prior to Charlee Patston commencing the work placement or being directed to perform work on the CNC brake press. Further, the steps suggested in it were not followed.

30. Mr Collins was employed by the defendant as a sheet metal fabricator and welder. As at 6 August 2014, Mr Collins had been with the defendant for a period of 7 ½ weeks. He held a Certificate III in Engineering – Fabrication Trade (Light Fabrication) Sheet Metal. Prior to 4 August, Mr Collins had not undertaken systematic, structured training on the operation of the CNC brake press and the EasyGuard system nor undergone a structured assessment of his competency in operating such plant.

31. After the incident, the defendant administered First Aid. Mr Taylor kept in touch with Charlee Patston’s mother. Counselling was offered, but not taken up as other arrangements were to be put in place if required.

32. Charlee Patston was taken by ambulance to hospital. He underwent surgery involving terminalisation of his left index and middle fingers. Following the incident, Charlee Patston undertook rehabilitation prior to returning to his TAFE studies and part time work at McDonald’s.

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 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.

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 coming home and the measures available to avoid the risk.

35. Foreseeability in this case was plain and needs no explanation. Indeed, the risk was foreseen. This is evident from the defendant’s own document, Exhibit PX 1, tab 7, p2, item 6 and page 4, item 6. This refers to keeping hands and fingers clear. The foreseeability is heightened in this case by the operation manual with the various warnings contained in it – tab 8. It is also heightened by the fact that Charlee Patston was a young 17 year old, year 11 student, on work experience with no prior relevant work experience. It is also heightened by the fact that machinery of this kind is notorious for injuries resulting from workers inserting parts of their bodies into danger zones when the machines are operating and are not properly guarded. The risk of injury and the risk of type of injury suffered by Charlee Patston rank extremely highly on any scale of foreseeability.

36. Measures were readily available to eliminate the risk in this case. The failures in training, information and instruction and supervision all referred to earlier ([23] to [29]) were matters that could have been undertaken by the defendant without any difficulty. The three matters I have referred to as significant contributing factors in the occurrence of this incident are all matters that with the most cursory attention and simple process could have been attended to. If these matters had been attended to, this incident would not have occurred.

37. General deterrence needs to be considered and allowed for in the penalty. The Court of Criminal Appeal has spoken of the importance of this in Bulga Underground Operations v Nash [2016] NSWCCA 37. It is particularly significant in this case as the type of injury suffered here is all too common. The use of brake presses all too readily results in injury to hands as a consequence of hands intruding into danger zones and being caught in crush zones or pinch points if the machinery is not properly guarded. This risk is heightened if the operator is not properly informed, trained and supervised. The necessity for proper information, training and supervision is heightened and is critical in the case of a vulnerable, young, novice worker. The need for incorporating general deterrence in the sentence has been emphasised recently by the Court of Criminal Appeal in Attorney General of NSW v Tho Services Limited (in liquidation) [2016] NSWCCA 221.

38. Specific deterrence must also be factored-in in this case. This must be so where foreseeability was disclosed in the defendant’s own documents and where it put in place settings on the CNC brake press (the “OBSTRUCTED” mode and the mute point) that were contrary to the specifications in the operations manual. The evidence did not disclose it, but I was informed that the defendant no longer takes on work experience students. To some extent, that lessens the impact of specific deterrence, though that situation can readily change.

39. It was not in dispute that the injuries to 17 year old Charlee Patston were substantial and that is an aggravating factor – Crimes (Sentencing Procedure) Act, s 21A(2)(g).

40. There is a number of factors to be taken into account on behalf of the defendant. The defendant has no prior conviction and has been operating in the industry since 1972. A history of over forty years operating in the industry without conviction is a commendable record.

41. The defendant had safety systems in place before the incident. They are set out at [32] to [35] of the affidavit of Mr Taylor. This is of some value to the defendant on this plea. The value, however, is limited by the fact that the systems in place did not extend to the CNC brake press. The system in place allowed the use of the pedestal when an operator’s hands were in the crush zone, had the machine set in two ways that were unsafe and contrary to the operations manual, had a system of training and supervision that was manifestly inadequate and was undertaken by persons themselves not fully familiar with the settings and processes of the press.

33. Following the incident, the defendant made changes to its systems. Prior to the incident it had in place an instruction document (Exhibit PX 1, tab 7). It was deficient in many ways. It was reviewed and updated on 14 August 2014 (Exhibit PX 1, tab 9). In brief, that revision did the following:

1. it directed that “OFF” should be the default setting of the “OBSTRUCTED” mode and gave instructions on when the “SLOW” and “PULSE” modes could be used;

2. it provided that the mute point should be set at 6mm.

43. On 19 August 2014, the document was further reviewed and updated (Exhibit PX 1, tab 10). It provided an instruction in relation to the foot pedestal that contained the control pedals.

44. Also after the incident, Mr Collins was trained as to the set up and operation of the CNC brake press. Further, the defendant has revised and updated its safety systems generally.

45. From 1993, the defendant has provided places for work experience students. This may be seen as a community service undertaken by the defendant. It has provided, on average, three to four places per year. It would seem that no longer continues.

46. Mr Taylor has expressed the defendant’s regret for the injury to Charlee Patston. That expression of regret is supported by the defendant’s plea of guilty.

47. The summons was returnable on 25 July 2016. The plea of guilty was entered on the fourth occasion the matter was listed before the Court, but at the first available opportunity after an amended summons had been filed in November 2016. The prosecutor acknowledges the defendant is entitled to a discount in respect of the plea. I consider the appropriate discount to be 25%.

48. The defendant has co-operated with SafeWork in investigations and in the prosecution.

49. The maximum penalty in this case is $1,500,000.

50. I think the appropriate penalty in this case incorporating the discount for the early plea is $250,000.

ORDERS

51. The defendant is convicted and fined the sum of $250,000 with a moiety to the prosecutor.

52. The defendant is to pay the prosecutor’s costs as agreed or assessed.

Victim Impact Statement

53. I turn to the victim impact statement that was provided by Charlee Patston. Whilst it was handed up and marked for identification during the hearing, it was not read by me until after I had formulated my reasons and it plays no part in the formulation of my reasons or the sentence imposed.

54. There are couple of things that may be said about the victim impact statement. The first is that Charlee Patston suffered an injury in the workplace that he should not have. What can be said about that has I think substantially been said in the reasons I have just expressed. It was most remiss of the defendant to have in effect put Charlee Patston in charge of a piece of machinery in respect of which he was given next to no information, training or supervision. A driving teacher would not leave a person with that sort of knowledge, training and supervision in charge of and operating a motor vehicle on his own. Admittedly, the consequences may be greater in the case of a motor vehicle, but the obvious foreseeability of accident with injury is just as high. The next thing to be said about it has probably already been said and maybe flows from what I have just said and that is that this incident simply should not have happened. It is all the worse because it has happened to a person in his youth. One expects students on work experience to be looked after. The next thing that may be said about it is that this Court has no difficulty accepting Mr Patston’s observation that this is the worst pain that he has every experienced and has no difficulty accepting his ongoing complaints and difficulties particularly with fine motor skills, such as carrying out his hobby of being a DJ at functions, or handling coins, and no doubt other things he would do in daily life such as doing and undoing buttons. He was looking forward to a career in the electrical field. He is concerned that that might be lost to him. Time will tell in that regard. He will obviously not have a full recovery as he has had some amputation. It is to be hoped, however, that he will obtain the fullest recovery possible. In this regard it is noted that he is to have some further surgery yet in that regard.

**********

Decision last updated: 24 March 2017