At all material times on and prior to 16 October 2002 augers such as the auger in use in this instance, had a tendency to over balance if moved with the boom raised and charged with grain.
25 Thus, although certain employees had received relevant training of a general nature there was no specific information, training or instruction given to them in relation to what was a potential dangerous piece of machinery in regular use at the site, namely the auger, despite the fact that "in the event of a jamming of the auger occurring it was the defendant's normal procedure to remove it from the storage facility" and that the auger had "a tendency to over balance if moved with the boom raised and charged with grain."
26 The defendant's failure to address in a specific way the safe operation of the auger was a significant oversight on its part in terms of providing and maintaining a safe system of work.
27 The risk of someone being struck by this particular auger was obvious. The tube or barrel of the auger was mounted on a wheeled A-frame with the electric motor mounted on the tube just behind where the A-frame joined the tube. When it was being used, the receiving end of the auger was inserted into a "pop hole" about 800 mm above ground level in the shed containing the grain. The discharge end of the 7.8 metre long tube was winched up by means of a luffing winch situated on the A-frame so that it was situated over the truck being loaded with the grain. The grain was transferred from the shed to the truck by means of a screw conveyor in the tube. When the screw conveyor stopped the tube was full of grain.
28 It was obvious, given the length of the tube from the point of where the A-frame was attached to the tube (what might be regarded as the fulcrum) to the discharge end, and the fact it was full of grain, that once the receiving end of the tube was removed from the pop hole the discharge end of the boom would rapidly tip towards the ground, creating a risk to the health and safety of any worker in the vicinity. The risk was easily avoidable: A risk assessment would have revealed the dangers of removing the auger from the pop hole whilst its length remained at an angle of about 45 degrees to ground level. Moreover, before removing the receiving end of the tube from the pop hole the whole length of the tube could have been lowered closer to ground level by means of the winch.
29 Further, as the prosecutor submitted:
[T]he defendant could have issued an instruction to its employees and to all visitors to its depots that directed both its employees and all visitors that both staff and visitors were not to handle any equipment and, in particular, equipment with which they were unfamiliar and in respect of which they had received no specific training or instruction from the defendant. Alternatively, the defendant could have instructed all visitors not to handle and/or operate any of the defendant's plant.
30 An indication of the seriousness of an offence may lie in whether there was a death or serious injury. The injuries sustained by Mr Stone confirm that the risk presented by the auger in this case was, indeed, a serious one and that will affect the Court's consideration of what is an appropriate penalty in relation to the charge under s 8(2). On the other hand, the injuries to the defendant's own employee, Mr Widdup, were not serious. However, the fact that Mr Widdup was not seriously injured was more a matter of good fortune than the fact that the risk was not serious. Notwithstanding the fact that Mr Widdup was not seriously injured, the risk presented by the collapsing auger must be regarded as serious.
31 Despite the failures by the defendant to ensure the safety of workers at the Boree Creek site and despite the seriousness of the risk, I am not of the view that the defendant is unconcerned with safety. Whether it has devoted sufficient resources to ensuring occupational health and safety across what is a large workforce, especially at harvest time, located in an exceptionally large number of scattered, and in many cases, remote sites is, in my opinion, problematic. But I agree with what Staff J said in Inspector Mason v Graincorp Operations Limited at [37]. This also is not a case where the defendant has no systems in place in relation to safety. The evidence indicates that the defendant does take occupational health and safety seriously and took steps to remedy the deficiencies in safety at its Boree Creek depot. These considerations must tend to mitigate the seriousness of the offence.
32 In this regard, I note that prior to the incident the defendant had identified the need to improve its site safety management practices with respect to visitors to its depots. The defendant was in the process of training its site managers that they were no longer to accept "volunteer labour" and that the defendant was also in the process of rolling out a new procedure requiring all visitors to its sites to sign a written acknowledgement that they had been site inducted, including the provision of a copy of the defendant's "Site Safety for Visitors" document. It was said by Mr McConaghy these changes were to be announced at a training session to have been held on 21 October 2002 at which Mr Allen was due to attend.
33 Following the incident, the defendant undertook a detailed, specific risk assessment with respect to the use and operation of mobile augers and then directed that they be removed from service until an engineering investigation into ways of controlling their instability had been undertaken. Further, the defendant introduced a detailed safe work method statement concerning the handling and operation of mobile augers, including a direction that the boom or flight arm was to be lowered prior to any attempt to move any auger. The defendant also reinforced its directions to its staff that visitors to its sites were not to handle or operate any of the defendant's equipment and the defendant rolled out its system requiring all site visitors to be provided with the "Site Safety for Visitors" pamphlet and to acknowledge in writing that they had been provided with a copy of that document.
34 General deterrence is an important consideration for the reasons expressed by Hungerford J in Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388:
The fundamental duty of the Court in this important area of public concern … [is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the work place.
35 Specific deterrence is also an important consideration in this case. That the defendant has a large workforce of permanent and seasonally casual workers; that its operations are scattered across a large number of sites which are in some cases located in remote areas of the State; that it operates potentially dangerous equipment and machinery; and, that its management of occupational health and safety is complicated by the fact, particularly at harvest time, that a large number of visitors attend its workplaces, increases the likelihood that the defendant will re-offend unless it is reminded, by way of an appropriate penalty, to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace.
36 As the prosecutor reminded me, in WorkCover Authority (Inspector Boyle) v Graincorp Operations Limited [2003] NSWIRComm 122, Staunton J observed:
52 What those prior convictions emphasise to me is the inherently dangerous nature of much of the defendant's workplace operations, particularly given the type of machinery, plant and equipment used and the nature of the work involved.