Inspector Farmer v OneSteel Wire Pty Ltd

Judgment 1This prosecution is brought by Inspector David Farmer of the WorkCover Authority of New South Wales ("the prosecutor") against OneSteel Wire Pty Limited ("the defendant" or "OneSteel") under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an amended Application for Order. 2It is alleged the defendant, being an employer on 29 October 2008 at Newcastle Wire Mill located at Ingall Street, Mayfield in the State of New South Wales ("the premises"), contravened s 8(1) of the Act in that it failed to: b y its acts or omissions as particularised below, ensure the health, safety and welfare at work of all its employees and in particular, Raymond Edward Cook, contrary to section 8(1) of the Occupational Health and Safety Act 2000. In particular: A. The defendant was an employer. B. The defendant employed Raymond Edward Cook. Particulars of Risk: C. Employees of the defendant were exposed to the following risk to their health and safety: (a) There was a risk that body parts, including the hands, of the defendant's employees and in particular, Raymond Edward Cook, who operated wire drawing machines, including the wire drawing machine known as "WW2" at the premises ( the plant ), would come into contact with and become entangled in the rotating payoff wheel resulting in injuries, including crush or amputation injuries. Particulars of the defendant's failings in relation to plant: D. The defendant failed to ensure that the plant used by the employees, namely the wire drawing machine known as "WW2" was safe and without risks to health in that the defendant failed to guard the north western side of WW2 in the vicinity of the payoff wheel by fencing (whether or not including an interlock gate) in circumstances where employees of the defendant could access the rotating payoff wheel, from the north western side. Measures the defendant should have taken but failed to take: E. The defendant should have ensured that WW2 was adequately guarded on its north western side to prevent access to the plant's rotating payoff wheel (and guide rollers) from that side: (a) by means of fixed guard fencing; and/or (b) by means of otherwise fixed guard fencing with an interlock gate which would cut power to the machine when opened. As a result of the defendant's failures and omissions employees, and in particular, Raymond Edward Cook were placed at risk of injury and the said Raymond Edward Cook in fact suffered injury. 3The defendant pleads guilty to the charge. 4Mr T Howard of counsel appeared for the prosecution and Ms P E McDonald SC appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts with the following annexures: OneSteel drawing No.33089 of proposed storage areas drawn by "JJO" dated 18 may 2001; 32 colour photographs taken by Inspector David Farmer on 29 October 2008 and 31 October 2008 and one colour photograph taken by Inspector Graeme Aldred on 30 January 2009. A Prior Convictions Certificate was also tendered. 5The defendant relied upon an affidavit of Anthony James Duggan and an affidavit of Craig Rodney Ahrens (as amended) each sworn 23 August 2011. 6The Agreed Statement of Facts relevantly reads: Background 3. At all material times, the defendant was engaged in the undertaking of processing steel and manufacturing of wire. As part of that undertaking, the defendant manufactured wire from steel rod at an industrial facility known as the Newcastle Wire Mill, located at Ingall Street, Mayfield in the State of New South Wales ("the premises "). The premises are referred to from time to time, and variously, as the 'Mayfield Wire Mill' and the 'Newcastle Wire Mill'. The department or specific premises in which the incident occurred is referred to from time to time and variously as the "SRPC Department", the "SRPC Plant" and the "SRPC Mill" (the "SRPC Plant"). 4. At all material times, the defendant employed workers at the premises. As at 29 October 2008, the defendant employed about 406 workers at the premises. 5. In 1994, Raymond Edward Cook (DOB 1.10.1973) ("Mr Cook") commenced employment with the defendant, firstly working at the defendant's wire rope works at Mayfield and then later, at the premises. The defendant has been Mr Cook's employer continuously throughout the subsequent period, including as at 28 and 29 October 2008 and as at today, Mr Cook has not returned to his pre-injury duties but has been redeployed by the defendant. 6. As at 28 and 29 October 2008, Mr Cook was working for the defendant as a level 4 Wire Worker at the premises. His duties involved operating heavy wire drawing machines in that part of the premises known as the SRPC Plant. There were three heavy wire drawing machines situated in the SRPC Plant on the premises, known, respectively, as "WWI", "WW2" and "WW3". 7. The layout of the SRPC Plant as at 18 May 2001, including the three heavy wire drawing machines in plan form is depicted in a Onesteel drawing No. 33089 dated 18 May 2001 of proposed storage areas (drawn by "JJO") a copy of which is annexed as Annexure A to this Statement of Facts. As at 29 October 2008, and currently, the heavy wire drawing machines remain in the location depicted in the annexed drawing of 18 May 2001. 8. At the relevant times and now, the heavy wire drawing machines were parallel, orientated lengthwise in a north/south direction with the steel coils loaded from the 'C' hook onto the payoff bed at the northern end of the floor of the SRPC Plant. The coils were pulled in a southerly direction through the machine in the manner described in paragraph 10, which follows. 9. There were floor areas between the heavy wire drawing machines (i.e. a floor area between WW1 and WW2 and a floor area between WW2 and WW3). The floor area between WW1 and WW2 is shown in photo No 4 taken on 29 October 2008 by Inspector Farmer. The floor areas were not designated restricted areas as such, however, only those persons inducted into the SRPC Plant were permitted to use the walkways, unaccompanied, between the heavy wire drawing machines including the floor area between the eastern side of WW1 and the western side of WW2 as shown in the abovementioned Photo No 4. 10. A heavy wire drawing machine processes steel rod, thinning the steel rod into steel wire of a pre-determined thickness. Coils of steel rod are pulled through the machine by a motor which causes the rod to pass from the payoff bed through the guide rollers on the rotating payoff wheel and into a series of blocks which thin the steel to the required thickness. The rotating payoff wheel is not driven by a motor or otherwise rather, it rotates as a function of the rod being pulled through the machine. 11. The coils of steel rod are held together by approximately 3 or 4 tie wires. Examples of tie wires are shown in Photo No. 37 taken on 29 October 2008 by Inspector Farmer. The coils are moved from a holding area via an overhead crane and are placed on the 'C' hook and the operator uses bolt cutters to remove the tie wires. The end of the previously loaded coil of rod is welded to the starting end of the newly loaded coil and the process of loading coils continues in that way and, for that reason, is referred to as 'continuous payoffs'. The coils loaded from the 'C' hook hang in a coiled form on a long stationary rack called the 'payoff bed'. The coil is then pulled through the machine as described in paragraph 10, above. 12. The tie wires, when cut by the operator, usually come away from the coil and are discarded into a scrap metal bin. It is possible for the tie wires to become caught in the coil if the tied coil is not placed correctly on the 'C' hook or for the tie wire to become caught on the 'C' hook itself. Witness accounts vary as to how often the tie wires became caught. Mr Raymond Edward Cook when interviewed said that tie wires became caught 'approximately once per week'. Mr Paul Alexander Mulligan when interviewed said it occurred: 'probably once a day, just occasionally' and Mr Roderick John Shipley said: 'I don't believe it is a daily occurrence.' It is also possible for the cut tie wire to become caught depending on how the coil has been strapped up. This occasionally happened. 13. Each coil of steel rod loaded on to the heavy wire drawing machines is identified by a number affixed to an identification tag, sometimes referred to as a 'tag'. The identification tag is attached to one of the tie wires on each steel coil. The tags are either metal or plastic. The number on the identification tag enables the particular rod coil to be identified, including for the purposes of quality control. Part of an identification tag affixed to a steel coil is shown in Photo No. 37 taken on 29 October 2008 by Inspector Farmer, being the tag partly visible on the inside of the coil and attached to one of the tie wires. 14. At the relevant times and now, the heavy wire drawing machines were used to manufacture wire which is used for strand feed operation. However, from time to time they were also used to manufacture single strand rope wire. Once the rope wire has been processed through the heavy wire drawing machines, the rope wire is transported to the defendant's wire rope works at Mayfield where the rope wire is wound into intertwined strands of steel creating a structure resembling a traditional rope. 15. WW2 was the machine normally used to manufacture the single strand rope wire described in paragraph 12. 16. Each wire drawing machine has a 'working side', being the side designed for principle access by operators to the working parts of the machine when required. 17. As at 28 and 29 October 2008, the 'working side' of each of the heavy wire drawing machines adjacent to the operator's console was guarded (i.e. fenced off) with an interlock gate located at the northern end of the machine. If any of these interlock gates was opened, this would cause the subject machine to automatically stop. 18. The eastern side of WW2 was the 'working side' of that machine and was fenced off with an interlock gate. If the gate on the eastern side of WW2 was opened, the machine would automatically stop. The operator's control station for WW2 is shown in Photograph No 18 dated 29 October 2008 taken by Inspector David Farmer. 19. There was an operator's workstation adjacent to the interlock gate on the eastern side of WW2. Adjacent to that operator's workstation was where an isolation matrix for WW1, WW2 and WW3 was displayed, as shown in Photograph No 38 dated 29 October 2008 taken by Inspector Farmer. 20. As at 28 and 29 October 2008, access to the payoff bed and wheel from the north western side of WW2 was partially impeded by a blue steel panel measuring 1070 mm wide and 1820 mm high. This was erected on the western side of the payoff bed and wheel. An electrical control panel was attached to the outside of the blue steel panel. There was approximately 450 mm between the payoff bed and the blue steel panel. On the outside of the blue steel panel was a yellow waist height bollard. The distance between the yellow bollard and the blue steel panel was approximately 393mm. It was possible for an operator to access the rotating payoff wheel from the north western side while the machine was still in operation by intentionally moving between the yellow bollard and the blue steel panel and then between the blue steel panel and the payoff bed. The Incident 21. On 29 October 2008, at about 5:30am, an incident occurred when Mr Cook was operating WW2 ("the incident "). 22. Mr Cook commenced his shift at approximately 10:15pm on 28 October 2008. Mr Cook was operating WW2. Mr Cook was undertaking a strand job at the time of the incident. 23. Mr Cook was wearing long sleeved shirt and pants, hearing and eye protection, a hard hat and leather gloves. After completing a weld between the rod loaded on the 'C' hook and the rod on the payoff bed he was observed in the area between the payoff bed and the blue steel panel. Mr Cook's right glove and/or hand became entangled on the guide roller which is located on the rotating payoff wheel of WW2 and was severed. It was retrieved and later surgically re-attached. 24. Neither party has been able to establish the reason why Mr Cook accessed the area between the payoff bed and the blue steel panel on the north western side of WW2. The parties have assessed the most likely reasons for Mr Cook accessing the area between the payoff bed and the blue steel panel on the north western side of WW2 as: (a) to remove a tie which had been caught on the coil rod loaded onto the payoff bed; or (b) to retrieve a tag on the floor beneath the payoff bed and the payoff wheel. The said electrical control panel and the blue steel panel are depicted in Photograph Nos 27 and 28 taken by Inspector Farmer on 29 October 2008. 25. According to Mr Paul Alexander Mulligan (co-worker of Mr Cook) when interviewed, he said at the time of the incident, he was standing at WW1 and more specifically, five or six paces away to the left of grid reference A8 in Photo No. 23 taken by Inspector David Farmer on 29 October 2008. Whilst standing in this position, according to Mr Mulligan, he saw Mr Cook "being lifted to the top of the rod by the machine", then Mr Cook's "body shook" and then "his glove kept going around the machine and his body went down the side where he was lifted", which was to the north western side of WW2 in the vicinity of the payoff wheel. 26. Mr Jeffrey James Ganter was Mr Cook's supervisor on the shift of 28 to 29 October 2008. He and Mr Paul Alexander Mulligan, a co-worker of Mr Cook's who was also on shift at the time, rendered first aid and assistance to Mr Cook immediately following the incident. 27. Following the incident, WW2 was immediately stopped and isolated. A tie wire was seen tangled in the coils of the steel rod on the western side of the payoff wheel as shown in Photograph Nos 11, 12 and 13 taken by Inspector Farmer on 29 October 2008. There were also a number of identification tags on the floor on the north western side of the payoff wheel which are visible in Photograph No 31 taken by Inspector Farmer on 29 October 2008. Systems Prior to incident 28. The defendant had operating procedures in place for access to the heavy wire drawing machines, including an 'isolation matrix' which was displayed adjacent to the central operator's workstation between WW1 and WW2. The isolation matrix included instructions regarding the removal of entangled tie wire. Whilst the method and degree of isolation depended on whether the tangle was simple or complex, the isolation matrix required some form of isolation which would result in the stopping of the machine prior to it being accessed. The defendant has Standard Operating Procedures in place for the operation of the Heavy Wire Drawing machines which included a safe instruction for the loading of coils onto the 'C' hook and then from the 'C' hook to the payoff and for the removal of tie wires prior to the commencement of welding. The Safety Clearance for the operation of the Heavy Wire Drawing Machines included an isolation procedure for the removal of tangles of feed at the payoff. 29. Heavy wire drawing machine operators, including Mr Cook, had been trained in the above mentioned operating and isolation procedures. 30. Mr Cook was trained in the procedures for removing simple and complex tangles from the heavy wire drawing machines, including opening the interlock gate on the eastern side before accessing the machine. Mr Cook received refresher training in these isolation procedures in June 2007 and was assessed as competent. Mr Cook considered that a caught tie wire was a simple tangle. In accordance with the isolation procedure, Mr Cook was required to isolate WW2 prior to accessing the machine. 31. In order to remove a simple tangle at the payoff, such as a tangled tie wire, the operator was required to open the interlock gate on the north eastern side of the machine, which would automatically shut the machine down. If a tangle was complex, additional steps were required, including isolating the machine and affixing a personal padlock to secure the electricity supply switch in the off position. 32. The north western side of the WW2 machine had an unguarded gap of approximately 450mm between the payoff bed and the blue steel panel which formed the backing for an electrical control panel. There was no guarding, such as fixed barriers or fencing, an interlock gate or a light curtain on the north western side of the machine to physically prevent operators intentionally moving into this gap and coming into contact with the rotating payoff wheel. 33. It was possible to 'inch' the machine to attempt to reposition a tangled tie wire so that it was accessible from the eastern side of the WW2 where the interlock gate is. Neither party has been able to establish whether Mr Cook attempted to inch the machine. On the day of the incident, a tie wire was caught on the southern end of the western side of the payoff bed as is evident from Photograph Nos 31, 32 and 33. 34. As at 28 and 29 October 2008, when a heavy wire drawing machine (usually WW2) was used to manufacture rope wire, operators were instructed to record the identification number displayed on the identification tag of each steel coil loaded onto the machine, for quality control measures, so that the rod coils from which the wire rope product was drawn could be identified. There was no requirement for operators to record the identification number for strand feed operations. 35. At that time, in order to enable the identification number to be recorded, operators, after cutting the tie wire on a coil, would sit the identification tag on top of the coil on the payoff bed. In this way operators were able to record which coil was going into the machine. 36. It was possible for an identification tag which had been placed on the top of the coil on the payoff bed to fall onto the floor. According to Mr Cook when interviewed, if it fell on the western side of WW2, he would enter the area on the north western side of WW2 between the rotating payoff wheel and the blue steel panel which housed the electrical control panel to retrieve the tag, whilst the machine was running and without following the isolation procedures. He did this in order to record the number of the rod tags for rope jobs. According to Mr Cook when interviewed, his practice of doing this occurred at varying degrees of frequency sometimes between 2, 3 or 4 times a shift depending on whether the tag slipped around to the western side and during a rope job on WW2. 37. According to Mr Mulligan, when interviewed, operators would access the north western side of the payoff bed of WW2 'only very rarely' 'only to remove trapped tie wires on rare occasions' after the machine was isolated. In relation to operators accessing the WW2 machine whilst the machine was running and without following isolation procedures, according to (a) Mr Mulligan, when interviewed, he said he had not seen other operators accessing the restricted areas without following the appropriate safe work procedures; and (b) Mr Ganter, when interviewed, said he had not seen workers accessing areas without complying with the safety isolation procedures. According to Mr Shipley when interviewed, he said he had not seen anyone access the payoff bed and payoff wheel from the north western corner of WW2. 38. Detailed risk assessments were done in 2003 and 2007 on the machines and the accessing to the western side was not identified as a risk because it was understood that people did not access from that side and used the eastern side interlock guarding to access the machine. Systems Following 39. Following the incident, WorkCover issued the defendant with Improvement Notice 7169424 in relation to the installation of guarding on the western side of the heavy wire drawing machines. Improvement Notice 7-169435 was also issued to the defendant in relation to reviewing the safe operating procedures for the removal of blockages from the heavy wire drawing machines. All improvement notices issued were complied with by the defendant. 40. Immediately following the incident, the defendant stopped the heavy wire drawing machines for 3 days, a total of 9 shifts and conducted a risk assessment. Counselling was provided to all employees in the SRPC Department and counselling was offered to all wire employees. 41. Following the incident, the isolation matrix was slightly amended to remove any ambiguity regarding the procedure for removing simple or complex tangles and the isolation level required for them. Operators were retrained in relation to dealing with tangled tie wires and accessing the heavy wire drawing machines via the interlock gate on the eastern side of the machines. 42. Following the incident, wire mesh fencing was installed around the payoff bed and wheel at the north western corner of each of the three heavy wire drawing machines which was not the 'working side', including on WW 2. Yellow steel barriers were installed on the eastern side of the middle west side support stanchion of the payoff bed. This fencing physically prevents any operator from being able to access the rotating pay off wheel of WW2 from its north western side. Initially, immediately after the incident, temporary fencing was put in place around the payoff bed and wheel at the north western side of WW 2 as shown in Photograph No 39 taken on 31 October 2008 by Inspector Farmer. Subsequently, permanent fencing was installed as shown in Photograph No 1A taken by Inspector Graeme Aldred on 30 January 2009 (10.34 am). The defendant consulted its employees for comment on the modifications before they became permanent. 43. Following the incident, a hook was installed near the interlock gate on WW2 so that rod tags could be hung on the hook rather than placed on the top of the coil on the payoff bed. 44. The defendant cooperated, at all times, with WorkCover during the investigation. The defendant has and continues to provide support to Mr Cook and he remains gainfully employed by the defendant.