WorkCover Authority of NSW (Inspector Batty) v National Poly Industries Pty Ltd
[2014] NSWDC 178
•29 July 2014
District Court
New South Wales
Medium Neutral Citation: WorkCover Authority of NSW (Inspector Batty) v National Poly Industries Pty Ltd [2014] NSWDC 178 Hearing dates: 29/07/2014 Decision date: 29 July 2014 Before: Curtis J Decision: The defendant is convicted and fined $75,000
Order a moiety be paid to the Prosecutor
Category: Sentence Parties: WorkCover Authority of NSW (Inspector Batty) (Prosecutor
National Poly Indistries Pty Ltd (Defendant)Representation: S Walsh appeared for the Prosecutor
B Cross appeared for the Defendant
WorkCover Legal Group (Prosecutor)
Kennedys Law (Defendant)
File Number(s): 2013/192137
Judgment
The defendant pleads guilty to a charge that on 30 November 2011 at Rutherford it failed to ensure, so far as was reasonably practicable, the safety and welfare at work of its employee Mr Darren Wyville.
The defendant manufactures plastic water tanks on a rotational moulding machine. The machine consists of a large circular mould some three or four metres in diameter affixed to a circular rail slightly larger than the diameter of the mould. . This apparatus is positioned some 10 to 15° off the vertical, and supported by various cam wheels and guides bearing upon the rail. Gravity brings the rail into contact with one electrically driven cam wheel which causes the mould to rotate as plastic is sprayed onto its interior surface.
Before the injury to Mr Wyville workers operating the machine noticed groaning sounds apparently caused by friction between the rail and the guide wheels and cams. To reduce these noises, and reduce wear, oil was poured upon the rail. Unfortunately if too much oil was placed upon the rail it fell upon the driving cam reducing the friction necessary for driving the rotational movement.
The employees adopted a practice of removing excess oil from the rotational ring with a rag while the machine was in operation with the ring turning on the cams. On the day in question as Mr Wyville wiped the ring, the rag caught in the nip point between the ring and the driving cam. The rag then dragged his left arm into the nip point, causing serious injuries. These injuries required that the arm be amputated above the elbow.
The significant difference between the position of the prosecutor and that of the defendant in relation to penalty is the extent to which this injury was foreseeable.
The defendant submits that while the risk was not unforeseeable it was not clearly foreseeable.
The prosecution says that any reasonable person observing not just the nip point, but the system of work in which a rag was used upon the machine close to that nip point, rendered the risk highly foreseeable and that circumstance should be reflected in sentence.
I have formed the view that the particular risk was not clearly foreseeable rather than being quite obvious.
The machine was purchased in New Zealand by the defendant company. Before its purchase Mr McFarlane, a director of the company, and another director inspected the machine at the manufacturer's premises. They there conducted a risk assessment, and failed to identify the risk which came home. After the machine was installed a further risk assessment was conducted upon the machine in situ.
A WorkCover inspector had on at least one occasion attended upon the site and observed the machine in operation. Had that inspector detected the risk there is no doubt that the inspector would have acquainted the company with his perceptions.
The year before the incident the company engaged the Australian Safety Training Alliance to provide safety audits across the company's sites. That company did not identify the risk associated with either the nip point or the work practice.
This is not a case in which the defendant company failed to turn its mind to actively seeking out and detecting risks posed by its operations. It had in place a workplace health and safety policy pursuant to which risks were identified and addressed. Paragraph 8 of that policy provided it was the responsibility of all personnel who identify a hazard to correct the hazard or provide a temporary safeguard.
Upon employment each new employee was inducted actively by demonstration of machines and trained in their individual responsibility to identify hazards. The company formed a workplace health and safety committee which met regularly. It conducted toolbox talks at the premises.
Minutes of 22 September 2011 directed attention to procedures relating to a cam roller at the top of the machine in question. The minutes did not identify the problem and the risk associated with the lower driving cam, but the record does demonstrate that the company was aware of the need to monitor the risks posed by the particular machine.
That the company identified a problem with the top arm but not the bottom indicates to me that while generally foreseeable it was not so foreseeable as to constitute a very obvious risk.
The company published forms of "Hazard Reports" for completion by workers who identified hazards, and "Incident Reports." to be completed in relation to either injuries or near misses.
OBJECTIVE MATTERS
An aggravating factor is the circumstance that the injury caused great damage both physical and emotional to Mr Wyville.. His quality of life has been destroyed not only because of the loss of his arm but because of the psychological ramifications. It is appropriate that the harm be reflected in the penalty imposed.
As against that I accept the submission that the particular injury was not so clearly foreseeable as to indicate a high degree of culpability.
Although it is necessary that the penalty operate to prevent offences by deterring other persons from similarly failing in their duty, the need for that deterrence is in some sense mitigated by the need for the court to recognise the extent to which this defendant provided a continuous focus on safety before the event.
If that effort is not recognised it may well be that potential offenders come to believe that it is no use trying.
It is however necessary to denounce the conduct, and to recognise the harm caused, not only to the victim but to the community, by preventable industrial injuries.
SUBJECTIVE FACTORS
The offender has no previous record and is a company of good character. The nature of that good character is spelt out by the clearly documented focus on safety with which the offender had carried on its operations.
The defendant took immediate steps following the injury to protect workers both at that plant at Rutherford and other plants. The manager Mr McFarlane emailed the other plants information concerning the injury and asked them to review the factories to ensure that all pinch points on machines were adequately guarded.
I accept that, in the person of Mr McFarlane who was responsible for the purchase of the machine and initial risk assessment, that the company is deeply remorseful and recognises the harm done to Mr Wyville.
I do not believe any specific deterrent is required in light of the good record of this company in actively addressing safety and the immediate steps it took to guard this particular machine.
The prosecutor relies upon the fact that only $10,000 was required to obviate the injury as an aggravating factor because of the ease with which it may have been obviated.
The submission in my view does not sufficiently recognise the human failure to foresee the circumstances in which the injury would come home.
The maximum penalty is $550,000. Taking everything into consideration I believe an appropriate penalty is $100,000. The defendant is entitled as a consequence of its early plea and cooperation with WorkCover to a 25% deduction.
The defendant is convicted and fined $75,000.
Order the defendant to pay to the prosecutor's costs.
The prosecutor is to have to have a moiety of the fine.
Decision last updated: 27 October 2014
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