1 At all material times the Prosecutor was an Inspector appointed under Division 1 of Part 5 and empowered under Section 106 of the Occupational Health and Safety Act 2000 (Act) to institute proceedings in these matters.
2 At all material times Mahabir Holdings Pty Limited (ACN 059 206 950 (Company ):
2.1 Was a duly incorporated company with its registered office located at 60 Gallipoli Street, Lidcombe in the State of New South Wales;
2.2 Was an employer in New South Wales as at 21 June 2004 (the day of the incident );
2.3 Employed the injured person, Ashley Pettersen (injured worker) , then aged 30 years, as a truck driver:
2.4 Employed Mathew Wiley, Michael Palm, Andrew Pullen and Zachary Walker as labourers (work crew);
2.5 Had an undertaking at the premises to provide arborist services to the Rookwood Necropolis Cemetery (Cemetery) .
3 At the date of the incident, the Company was known by the name General Forest Tree Surgeon Pty Limited.
4 At all material times the work crew were performing work for the Company at the premises, a place of work of the Defendant.
5 At all material times, Shiu Narayan (Mr Narayan) was a director of the Company and a person concerned in the management of the Company.
Background
6 The Company provides aborist and tree maintenance services with operations in Sydney at and at the time of the incident, the Cemetery.
7 The premises consisted of a fenced-in enclosure within the grounds of the Cemetery.
8 The premises consisted of the Company's operating base within the Cemetery and the Company stored and operated tree lopping and maintenance equipment within the premises, including the Superaxe Splitting Machine Model WS 400 Serial Number 201 PLE (machine).
9 The Company employed the work crew to carry out the Company's undertaking in providing arborial services at the premises and elsewhere. On the date of the incident, the work crew consisted of the following employees:
9.1 The injured worker, truck driver, then aged 24 years;
9.2 Michael Palm, junior labourer, then aged 17 years (Palm) ;
9.3 Zachary Walker, labourer, then aged 16 years (Walker );
9.4 Andrew Pullen (Pullen) ;
9.5 Matthew Wiley, head stump grinder, then aged 20 years (Wiley) ;
9.6 Dip Narayan, also known and Charlie Narayan, labourer, then aged 44 years (Dip Narayan); and
9.7 Mr Narayan.
10 The injured worker commenced employment with the Company approximately 3 years prior to the date of the incident.
11 Palm and Walker had been employed by the Company for approximately 3 and 4 months prior to the date of the incident, respectively.
12 Pullen had been employed by the Company for approximately seven weeks prior to the incident.
13 Mr Narayan was the injured worker's supervisor on the date of the incident. Mr Narayan was not present at the premises at the time the incident occurred. Wiley did not have a supervisor on the date of the incident. Mr Narayan allocated Wiley the task of supervising Palm and Walker on the date of the incident.
Incident
14 Prior to the work crew attending the premises the work crew's duties had been allocated by Mr Narayan at other premises of the Company, being 5 Skarratt Street, Silverwater, New South Wales. The injured worker had been instructed by Mr Narayan to load a work truck with mulch and deliver it to premises in Blacktown. Wiley had been instructed to operate the machine and provide a demonstration to Palmer, Walker and Pullen, being junior employees. Wiley was also instructed to supervise Palmer, Walker and Pullen until Mr Narayan arrived at the site later in the morning. Mr Narayan was the supervisor of the injured worker but was not present at the site at the time the work crew arrived and at the time the incident occurred.
15 The injured worker commenced to operate the machine after Wiley informed him that he was having difficulty starting the machine. The injured worker successfully started the machine and commenced to operate it to split logs of wood. The injured worker then proceeded to demonstrate to Walker, Pullen and Palmer how to cut logs using the machine. During the instruction, Wiley provided commentary to Walker, Pullen and Palmer, however Wiley then walked away from the demonstration to make a call to Mr Narayan.
16 The injured worker appeared to be distracted, and as he leant forward on the knee control of the machine the blade stroked and came in contact with his right arm, causing the injured worker's wrist to be partially severed.
17 The injured worker was taken to hospital and underwent surgery to amputate his right wrist. As at August 2004, the injured worker had not returned to work. The injured worker had been informed by his treating doctor that it would be at least one year before the injured worker would be fit to return to pre-injury duties. The Defendant offered employment to the injured worker, however, the injured worker elected not to take up that employment.
Investigation
18 On 6 July 2004 Inspector Ian Davidson, accompanied by Inspector Barbara Longhorn, attended the premises and were met by Mr Narayan and Phillip Willcockson ( Willcockson ), an adviser to the Company from Employer's First. Mr Narayan and Willcockson conducted the Inspectors to the area of the premises where the incident occurred.
19 During the course of the inspection Inspector Ian Davidson made the following observations of the area of the premises where the incident occurred:
19.1 The site was a steel wire enclosure within Rookwood Cemetery off Necropolis Drive. Entrance to the enclosure was via two wire steel gates situated at the southern end of the enclosure. There was no sign displayed at the entrance to the enclosure. The enclosure was approximately 2000 square meters, dirt floor and no roof covering.
19.2 Within the enclosure were numerous mounds of wood mulch and sawn wooden logs. The machine was situated within the enclosure 18 metres north of the entrance gates.
19.3 The machine was a portable hydraulically operated cutting blade set up on a metal trailer. A petrol engine was fitted to the southern end of the machine with the words "14HP - Vanguard - 2YR" displayed. The engine was used to drive the hydraulics of the machine. The machine was not being operated at the time of the inspection.
19.4 The machine trailer was fitted with two 600mm diameter wheels with pneumatic tyres. There was 1300mm between the wheels.
19.5 On the northern end of the machine was a steel operating bench measuring 1500mm x 900mm, at a height of 800mm from the ground.
19.6 At approximately the centre of the steel bench was the hydraulically operated steel cutting blade. The blade was a solid steel "V" shaped block measuring 300mm long, 75mm wide at the top reducing over a depth of 170mm to the cutting edge of the blade.
19.7 A metal name plate was riveted to the front left hand side of the steel bench with the wording "WHITLANDS ENGINEERING. MODEL WS 400. Serial no 20PLE".
19.8 A yellow sign with the wording "SUPERAXE WOOD SPLITTER" in black lettering was also displayed on the front of the extreme left hand side of the steel operating bench. Similar signs were also displayed at the rear of the cutting blade and on a conveyor situated on the right hand side of the steel operating bench.
19.9 The conveyor was in a vertical position.