WorkCover Authority of NSW (Inspector Glassington) v Graffica Pty Ltd

[2012] NSWDC 311

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

WorkCover Authority of NSW (Inspector Glassington) v Graffica Pty Ltd [2012] NSWDC 311

Hearing dates:

23/11/12, 29/11/12

Decision date:

29 November 2012

Before:

Curtis J

Decision:

I convict the company of the offence and impose a fine of $50,000

I make an order for a moiety to WorkCover of a fine of fifty per cent

I make an order for costs in favour of WorkCover in the sum of $22,000

Legislation Cited:

Occupational Health and Safety Act 2000

Category:

Sentence

Parties:

WorkCover Authority of New South Wales (Inspector Glassington) (Prosecutor)
Graffica Pty Ltd (Defendant)

Representation:

B G Docking appeared for the Prosecutor
J Rodney appeared for the Defendant
WorkCover Legal Group (Prosecutor)
Middletons (Defendant)

File Number(s):

2012/192288 2012/19234

JUDGMENT

1. HIS HONOUR: The defendant Graffica Pty Limited has entered a plea of guilty to a charge that contrary to s 11(1)(b) of the Occupation Health and Safety Act it failed to comply with its duty to provide or arrange adequate safety information about plant to persons to whom it supplied.
   
2. The defendant is a company, the sole shareholder of whom is Mr Southerington. It imports and provides machinery to the printing industry. It provided to a company known as Ultra Press, a machine described as a clamshell machine which creased and folded materials such as cardboard. The machine works by causing a moveable platen to rise from a horizontal position some seventy to ninety degrees and bear upon a vertical platen with the material to be creased or cut inserted between the two platens. The gap which was marked by the arc of the moveable platen from its horizontal position to its near vertical position was unguarded. On 22 October 2010 a Mr Khushalani was killed when he reached into the machine to make some adjustment and the moveable platen rose crushing him against the static platen.
   
3. Graffica supplied the machine to Ultra Press having purchased it from a manufacturer in China. It is accepted by the plea of guilty that when the machine was provided the defendant should have advised Ultra Press of the danger or the circumstance that that danger may have been obviated by a pressure mat, so that if Mr Khushalani had stood in his position of danger the machine would not have operated, or with some other comprehensive fixed guard.
   
4. Graffica Pty Limited, through its director and shareholder Mr Trevor Southerington, was not indifferent to the safety of the machines which it imported. Mr Southerington, prior to holding his present position, was a printer for many years and had operated such clamshell machines as this. Before the event, he had not himself identified the danger.
   
5. Prior to providing this machine to Ultra Press, Graffica had provided a similar machine to a corporation in Melbourne. The Melbourne client, shortly after installation, informed Mr Southerington that WorkSafe Victoria had checked the machine and was satisfied that it was safe to use. Before purchasing the machine for onsale to Graffica Mr Southerington had attended upon the factory where the machine was manufactured in China and made enquiries as to the safety features of the machine from the manufacturer's agent. He was informed that the machine was certified with European Union certification and that it conformed to ISO standards.
   
6. Although he was not aware of the particular danger which led to the death of Mr Kushalani, Mr Southerington was sufficiently concerned with the safe operation of the machine that he directed the manufacturer to install a red flashing warning light on the machine to warn the operators when the machine was in dwell mode and liable to operate without warning. He drafted and implemented a safety information instruction sheet which he provided to Ultra Press for the installation of the machine by his own electrical contractor, a Mr Tennant.
   
7. The electrical contractor usually retained by Graffica was instructed by Mr Southerington to conduct a checklist including attention to safety matters. Similarly Mr Allan, the engineer who was retained by Graffica to install the machine, was directed to give training in relation to safe operation of the machine. Unfortunately neither of those persons was aware of the particular danger.
   
8. The gravamen of the failure by Graffica Pty Limited is that it had not before installation of the machine retained risk assessment experts such as Mr Roberts who was later called, a former inspector of WorkCover. Had it done so, Graffica would have learned of the necessity of providing a pressure mat or light beam or other guarding, and having learned of that necessity, would have informed the client of the need for the additional guarding. This is recognised by Mr Southerington in his plea of guilty. That plea of guilty entitles the defendant to a relevant discount.
   
9. In assessing penalty the objective seriousness of the case is grave. A young man lost his life. The departure from the standard of a reasonable man which is a measure of culpability, is not great when I bear in mind that the particular danger had not been identified by Mr Southerington himself, nor apparently by the users of these machines throughout New South Wales.
   
10. The substance of the default was that a machine capable of applying great force should have been the subject of a report by an expert, if not a panel. This would not have added significantly to the costs, but would have protected the ultimate users of the machines.
    
11. The culpability is not great, but moderate.
    
12. I can see no need to engage the need for specific deterrent, Mr Southerington is now aware of this danger and aware of the need to conduct risk assessments on all machines which are imported by the company.
    
13. So far as the subjective matters are concerned, I weigh the recognition by the company of the need for improvements in its procedures.
    
14. So far as parity is concerned I accept that the culpability of Graffica Pty Limited is less than that of Ultra Press for the reason that Ultra Press had failed to maintain the machine in a safe condition, omitting a particular overhead guard, failed partially in its intended use, and Ultra Press had the advantage of seeing the circumstances in which the deceased was operating the machine and was in a position to take steps on the ground to guard him.
    
15. I reject the suggestion raised by Mr Rodney for the defendant that the failure to maintain a separate overhead guard materially contributed to the accident. I accept that there was some contribution, and that is to be taken in reduction of the culpability.
    
16. Significantly this is a small company and the financial records indicate that it has negligible assets and a limited earning capacity. I propose to impose a fine which I believe would be within the capacity of the company to bear, but which is less than that amount which would cause the immediate insolvency of the company and the reincorporation of Mr Southerington's business under another guise.
    
17. I note that it has been agreed that the defendant upon the plea of guilty will pay costs in the sum of $22,000. I convict the company of the offence. I impose a fine of $50,000. I make an order for costs in favour of WorkCover in the sum of $22,000.
    
18. I make an order for a moiety to WorkCover of a fine of fifty per cent.
    
19. In the matter of WorkCover Authority and Graffica Pty Limited 2012/19234, the company has pleaded guilty to the charge that in the same circumstances it supplied plant contrary to s 11(1)(a) of the Occupational Health and Safety Act, it supplied plant which was not safe for use and without risk to health.
    
20. It seems to me that those same failures, that is the failure to identify the risk and to provide safety mats or light beams to prevent the injury, are substantially the same failings which would have been identified by the appropriate risk assessment.
    
21. I propose to impose no further penalty. Is it necessary that I express that in terms of s 10 or is that sufficient?
    
22. DOCKING: I think it's sufficient your Honour.
    
23. HIS HONOUR: I impose no further penalty. I convict the defendant of that offence but impose no penalty.

Amendments

14 November 2014 - Renumbering

Amended paragraphs: 1-23

Decision last updated: 14 November 2014