Inspector Ian Batty v Brian John Goldsmith. Prosecution under s 8(1) by... [2009] NSWIRComm 72 | Case summary

1 Goldsmiths Frames and Trusses Pty Ltd ("the company") was incorporated in July 1993 and commenced operations in September 1993 with eight employees. The company then had one customer but its business continued to grow and in September 2002 it relocated to a purpose-built factory at Tomago. The site was large and by 2004 the company had been successful to the extent of enjoying a turnover of just under $24m and by 2005 employing a maximum number of 120 persons. 2 On 10 July 2006, Brian John Goldsmith was the sole director of the company and was described as having a hands-on role in the operation of the business. In mid-June 2006, the company employed Wei Rui Jiang, then 19 years old, as a "Chipper Operator". Mr Jiang had no previous experience in the company's business or any similar work experience. Mr Jiang's duties included inspecting the area around the tail roller of a conveyer known as conveyor F. This conveyor was used to carry off-cut timber from within the factory building to a wood chipper located outside the factory building. 3 On 10 July 2006, Mr Jiang was carrying out these duties and had obtained access to the tail roller area around conveyor F, having passed through number of gates and had commenced to inspect the cleanliness of this area around the conveyor. This task required Mr Jiang to stand at the top of a low ceiling pit where the conveyor was located and then to look down an access ramp into the pit at the area around the tail roller. While performing this task Mr Jiang tripped, fell into the pit and lost consciousness. When he regained consciousness his right hand and arm were caught in the in-running nip point formed between the conveyor belt and the tail roller of the conveyer. When he had arrived at this area and when he fell into the pit the conveyor had been running. By the time he regained consciousness the conveyor had stopped and he was able to pull his hand out from the belt. Mr Jiang was taken to hospital where he spent approximately one week. He suffered severe crush injuries and nerve damage to his right hand, right arm and shoulder and his right arm is now permanently damaged. 4 Following an investigation of this accident by the WorkCover Authority, Inspector Batty commenced proceedings in this Court against Mr Goldsmith as the director of the company alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 by way of operation of s 26(1) of the Act. Those proceedings were commenced in mid-June 2008. On 1 April 2008 the Company was placed into administration and was subsequently liquidated on 13 May 2008. 5 The particulars of the charge are as follows: (a) at all material times the defendant was a director of the corporation; (b) at all material times the corporation and plant, being a conveyor known as conveyor F which was located at the premises and used to convey off-cut timber from within the factory building at the premises to a wood chipper located outside the factory building; (c) the corporation failed to adequately restrict access to plant, namely conveyor F so that employees were not able to access the moving parts of the conveyor; (d) the corporation failed to ensure the plant, namely conveyor F was adequately guarded; (e) the corporation failed to provide and maintain a safe system of work for the operation and/or cleaning and maintenance of conveyor F; (f) the corporation failed to provide adequate supervision to employees working with or in the vicinity of conveyors; (g) the corporation failed to provide adequate training and instruction to employees working with or within the vicinity of employees. As a result of the corporation's failures Wei Rui Jiang was placed at risk of injury. 6 When the matter was returned to the Court after the issuing of the order, arrangements were made for an adjournment because of the circumstances of the company and Mr Goldsmith and to allow him to consider the significant number of documents comprising the prosecutor's brief. On the second occasion the matter was in the list, an industry Association representative initially appeared to indicate that Mr Goldsmith was in the course of being made bankrupt and would henceforth represent himself. Mr Goldsmith then appeared for himself and entered a plea of guilty to the charge as particularised. The parties needed to discuss the content of an Agreed Statement of Facts and looked for a hearing in December 2008. Unfortunately, on that date the parties were unable to agree on quite a significant number of factual matters. The prosecutor believed that further discussion would resolve those issues but instead, some significant issues appeared to be in contest and further investigation was required. An adjournment was granted. After further consultations extending to the very morning of the hearing on the further listing of the matter the parties were able to put forward a substantially agreed Statement of Facts with only two issues of substance in dispute. The agreement of the parties resulted in no witnesses being required. The Agreed Statement of Facts appears as an annexure to this judgment. 7 The evidence for the prosecutor, anticipating that there may be a number of factual matters in contest, comprised of several statements from employees, including Mr Jiang and Mr Goldsmith and also from tradesmen having business with the company. There were reports and a factual inspection report including a number of photographs, copies of improvement notices and affidavit from Mr Jiang's as well as a Victim's Impact Statement completed by Mr Jiang. A prior convictions report indicated that Mr Goldsmith had no relevant prior convictions. A notice of bankruptcy tendered by the prosecutor stated that Mr Goldsmith had become a bankrupt on 1 December 2008. The notice also stated that there were reasonable prospects of a "small dividend" being paid from this estate and that the bankruptcy was for a period of three years commencing from the date the bankrupt filed a statement of affairs. It was common ground that as both Mr and Mrs Goldsmith were jointly guarantors of the company, they had both been made bankrupt. 8 Mr Goldsmith filed two affidavits. The first affidavit dealt with the history of the company and referred to a number of detailed annexures dealing with the systems of safety in operation at the time of Mr Jiang's accident. Mr Goldsmith said that, at the time of the accident in July 2006, he was the only director of the company and was a working director. He described it as a small family company employing at that time 80 workers. At the time of giving evidence he was 54 years old having worked in the timber industry since he was 17. He came from a logging background and his family had been in the timber industry for five generations. After 20 years of working in the industry, in 1993 he and his wife decided to go into business for themselves after being approached by a building company to start a frame and truss plant to supply frames and trusses for that company's Newcastle operations. Goldsmiths Frames and Trusses Pty Ltd was incorporated in July 1993 and commenced operations in September 1993 having one customer and eight employees. In September 2002 the company relocated to a purpose built factory at Tomago, a site covering 12 hectares with an office, workshop and amenities block. The ten employees of the company at that time had completed traineeships or degrees in a number of areas outlined by Mr Goldsmith. By 2004 the company had a turnover of just under $24m and had a maximum 120 employees in 2005. The company had a number of employees who lived in the Gloucester area and the company paid for a van to transport eight employees each day and contributed to their fuel expenses. The company had paid well above the award and had paid a production bonus. 9 Before the Tomago factory opened Mr Goldsmith had requested advice from a WorkCover officer as to the safety of the whole factory. It was suggested that the company put a gate across the bottom end of conveyor F. Sometime after the factory was opened, another WorkCover Inspector attended and suggested that the company fence off the whole conveyor F area and have locked gates and this was implemented. 10 Mr Goldsmith said that the company implemented and continued to monitor training programmes for its employees as well as complying with the Occupational Health and Safety Act. The company ha d a pro-active safety committee comprising of a minimum of two representatives from each department from within the company. The committee met regularly to discuss safety issues and was used as an unofficial forum to put forward ideas or concerns to management. The company introduced a comprehensive drug and alcohol policy in February 2005 at the suggestion of both staff and management. 11 At the time of the accident in July 2006, the company had no prior convictions or fines in respect of any workplace injury or accident and Mr Goldsmith spoke of being proud that the company ensured the safety of its workers, sub-contractors and those who visited the site. 12 Mr Jiang was employed in mid-May 2006 as a casual employee having completed Year 11. He was inducted and trained by Mr Joseph Wilkinson, the yard supervisor. Mr Jason Wilkinson had a statement of attainment for training small groups issued by the Timber Trade Industrial Association in May 2005. In July 2005, Mr Wilkinson himself was inducted in conveyor maintenance, the operation of the chipper and lockout and tagout procedures. Mr Wilkinson conducted the training and induction of Mr Jiang and completed a training checklist according to the company's training manual. 13 Towards the end of June 2006, the company arranged for Mr Jones, a service supervisor with Apex Fenner Conveyor Services, to conduct a training session for Mr Jiang, Mr Sam Wilkinson and Mr Joel Burgess. Mr Jones was a qualified Certificate 3 conveyor technician. Mr Jones had supplied a statement dated 14 July 2006 where he noted that, while discussing areas of the conveyor system that required extra attention Mr Jiang jumped in and tried to clean the area while the conveyor was running and Mr Jones had to pull him aside and tell him that the conveyor could not be cleared of obstructions while running. 14 The company had a safety systems management booklet incorporating Goldsmith's occupational health and safety policy and that document was before the Court. Mr Goldsmith spoke of the company as being pro-active in health and safety and several audits had been conducted. In particular, he referred to the safety audit and risk management survey conducted in May 2007 by the safety officer of the Timber Trades Industrial Association and copies of that audit and survey were also before the Court. The company had a safe operating procedure regarding conveyor maintenance and a copy of that procedure was before the Court. In dealing with conveyor maintenance that document, under the heading Pre-operational Safety Checks, required that employees were to ensure the conveyor was locked out or tagged out before performing any maintenance and they were not to attempt to service or maintain the conveyor while the conveyor was operational. Employees were to know the location and function of all stop/start controls. To isolate the conveyor when in the pit, the conveyor employees were to pull the emergency stop lanyard beside the conveyor and that operated as an additional precaution. Directions were given to keep clothing, fingers and other body parts away from the conveyor and transfer points. 15 Following the accident, WorkCover issued the company with improvement notices and they were complied with by the due date. Those notices required the company to provide and maintain a system of work for the interruption of the control circuit of the chipper conveyor when the perimeter gates were opened; to provide and maintain safe and unhindered access and egress to and from the workplace and in particular the concrete ramp leading to the conveyor tail roller; and to control the hazards associated with accessing the ramp to the conveyor tail roller through the hinged gate. 16 After the accident the company made a number of changes to the system of work at the factory: (a) an electronically interlocked system switch was fitted to the second hinged access gate. When the gate was open a tongue attached to the gate would disengage from the switch causing the conveyor and chipper to stop; (b) padlocks were fitted to the hinged perimeter gates and kept locked; (c) a permanent fixed guard was fitted to the sides of the conveyor denying access to all moving parts of the conveyer; (d) a slip resistant surface was added to the ramp of the pit. 17 Mr Goldsmith gave evidence of supplying leading project builders and delivering to a wide territory. In 2000 and 2005 the company had been named as a fast-growing company in the Hunter and in 2005 it had been a finalist in a small business awards contest and had received certificates. Mr Goldsmith explained how from 2005 the company's sales began to decline and in 2006 one customer owing the company $60,000 had been placed in liquidation. A number of similar difficulties continued with clients and in April 2008 an administrator was appointed and the company was liquidated on 13 May 2008. A number of the company's clients had also been liquidated. 18 Mr Goldsmith said the company was committed to its customers, employees and the community. It had given "generously" to the Westpac Helicopter Rescue Service, the Police Service, the SES/Rural Fire Brigade, Channel 10 Special Children's Christmas Party, a programme to provide breakfasts for school children and had also sponsored customer charity events such as golf days, race days and fun runs. The company had sponsored a number of rugby league sides as some of its employees played with those clubs. The company also took on workers from the football clubs who required employment and the company had received a number of plaques in appreciation of the support it provided. In April 2007, at no cost, the company had provided a truss roof and ancillaries for a family whose home at West Wallsend had suffered fire damage. The company was a member of the Timber Trade Industrial Association, the Master Builders Association and the Newcastle Business Chamber. 19 Due to personal guarantees incurred with the business, Mr Goldsmith and his wife had been declared bankrupt on 1 December 2008. As a result of the success of the business he and his wife had built up an investment portfolio of six properties. Three properties had been sold and the proceeds placed back into the business and in July 2008 two other properties had been released to the bank for sale. The family home would also now have to be sold to repay the debt to the bank. 20 Since the company was placed into liquidation Mr Goldsmith had only been able to obtain employment as a transport driver. He had suffered a workplace injury in August 2008 while employed by a haulage company and this was his first claim made in respect of workers compensation. There was some delay with the claim and he was three weeks without money. As a result of the injury Mr Goldsmith had an operation in September 2008 but recovered well. Also in October 2008 the company who employed him as a driver closed its business and accountants advised Mr Goldsmith that there was insufficient money to pay employment entitlements, including redundancies. Mr Goldsmith had since gained employment performing long distance driving and as a result, was absent a number of days at a time when performing this work. 21 Mr Goldsmith described how his own health and his family's health had suffered and both he and his wife were suffering from depression and had been prescribed medication. His eldest daughter had also suffered, requiring hospitalisation and Mr Goldsmith was now being treated for bowel cancer. 22 At the conclusion of his affidavit, Mr Goldsmith stated: I cannot express the distress that this dreadful accident has had on myself and my family. My wife and I have been in business for over 15 years and we have never had anything like this happen before. We promote safety as a part of our normal operations. We conduct regular toolbox talks and risk assessments. .... In the years that we have been in business we have always thought of ourselves as very safe operators who identify risks and problems and then set out to rectify them or change the way a task is performed before it is of any consequence. We are very proud of our record and then the accident to Jiang. I can assure the Commission that this accident has influenced every undertaking by this company and that it has significantly changed the way the company approached its work. 23 In his second affidavit, Mr Goldsmith addressed his financial position. He said previously he had an income of $110,000 per year from Goldsmiths together with a company vehicle and mobile telephone, at an hourly rate of over $55. As an employed driver he was now earning an hourly rate of $22 and annexed pay slips. He said he continually had to borrow money from family members as his expenses exceeded the income he was receiving. He set out a table of his income over 33 weeks showing an average weekly income of just under $790 after tax. After deducting itemised expenditure he was nearly $180 per week in excess of the money he earned. He said he had three dependents to support being his wife and two children aged 17 and 14. He again referred to the fact that he could only obtain employment as a truck driver and that he was constantly suffering pain from the injury he had received. Mr Goldsmith was not cross-examined in relation to these financial matters and counsel for the prosecutor readily accepted that the details provided appeared to accurately reflect Mr Goldsmith's financial situation. 24 Of the numerous annexures to Mr Goldsmith's main affidavit, there were copies of the induction record relating to Mr Jiang stating that he had been inducted in relation to the safe operating procedures for the chipper and the conveyor and that he had read and understood the safety operating procedure. There was a detailed record of induction relation to Mr Wilkinson and the licenses and tickets he held and a copy of the company's induction training checklist referrable to Mr Jiang. There were also copies of the toolbox talks as indicative of the safety system operated by the company as well as a risk assessment and the formal safety manuals referred to earlier. 25 At the conclusion of the evidence, the Court was satisfied that the guilty plea was properly entered and that a conviction should be recorded against Mr Goldsmith. Having advised the parties of that conclusion, the Court then received a Victim's Impact Statement made by Mr Jiang. Mr Jiang spoke of the circumstances of his accident with the result being that he had "absolutely no movement" in his right arm from his shoulder down to his fingertips. He described himself as having "gross impairment" of power and sensory perception in his right arm from his shoulder to his fingertips. He said he could not feel it if somebody was sawing his arm off. He had extensive nerve damage to his right arm and had undergone multiple medical procedures in an attempt to restore some movement and sensory perception in his arm but had all been unsuccessful. He said his arm had next to no muscle and was wasted. He needed assistance with dressing, undressing, showering, shaving, "everything", and only recently had he been able to return to driving. His right arm was useless and he could not feel it at all but he said he had pain going down from the right side of his neck on to the top of his shoulder through to his elbow and forearm to his hands and fingers. He could not extend his right elbow and he could not raise his right arm and shoulder. He had consistent pins and needles in his right arm and had permanently unsightly surgical scarring on not only his right arm but his chest and right leg. He said he was unable to go back to his pre-injury sports including soccer. Mr Jiang spoke of not being able to do anything with his right arm and that it basically hung limp by his side. He tried to hide his injury and disability by putting his right hand into his pocket by using his left hand. He was unable to do anything that required dexterity and he had difficulty preparing and eating meals, citing as an example his inability to cut a steak. He said he had lost his independence and he was vulnerable to further injury. He was nervous in crowds and said he could not defend himself if he had to. He had relied upon his mother to a great extent and to a lesser extent on his stepfather to help him do everything. He was embarrassed to look at his arm and became depressed at times knowing that, at the age of 22, he was left with this permanent disability. 26 Mr Jiang had been unable to return to any work since the date of the injury and he was extremely limited in getting back to work because of the inability to use his right arm. His doctors had told him that there was absolutely nothing they could do to improve his arm. The injury had impacted upon his whole life and would affect the rest of his life. He was reliant on workers compensation benefits meaning that financially he was still dependent upon his parents and he could not see that changing in the foreseeable future. When he migrated to Australia in 1997 he did not speak a word of English and he left school halfway through Year 10 in 2003 struggling with English and numeracy. He attended Newcastle TAFE in 2005 and in May 2006 obtained his first real paying job at Goldsmiths. He thoroughly enjoyed the work and liked working with his hands because he was good at it. He was now slowly learning to use a computer and while he had returned to driving, for which he was thankful, he would always have to live with a useless dominant right arm. He was concerned about his future and concerned about finding a job, keeping it and living independently. He was embarrassed about his injury around girls and he felt that he would not be able to get a girlfriend because of his deformity and that upset him. 27 A significant issue which was not subject to agreement was whether there was a lockout device installed at the tail roller end of conveyor F. Mr Goldsmith had originally indicated that there was such a cutout system but was later not totally sure about whether it was installed. His initial belief was that it was in place and operating at the time Mr Jiang was injured. Evidence from Inspector Ross, Mr Teague (an employee of J A Martin Electrical Pty Ltd who had performed electrical work for the company) and Mr Jones (an employee of Apex Fenner Conveyor Services who undertook conveyor inspections and maintenance for the company) was all to the effect that at the date of the injury to Mr Jiang there was no cut-out device at the entrance to the pit area at the tail roller end of the conveyor but that the device was installed shortly after the incident. Mr Goldsmith may well have been confused by the fact that at the other end of the conveyor a lockout device had been installed sometime prior to the accident but that device had no operational effect at the end of the conveyor where Mr Jiang was injured while conducting an inspection of the tail roller area. The Court accepts that the prosecutor has proved beyond reasonable doubt that the lockout device appearing in photographs in the evidence was installed at the tail roller end of conveyor F where Mr Jiang was injured after the accident occurred. 28 A further issue not dealt with in detail in the Agreed Statement of Facts was the extent of the training and supervision made available to Mr Jiang when he commenced his employment. It was agreed that, shortly after commencing employment with the company, Mr Jiang received such induction training from Mr Jason Wilkinson. The prosecutor submitted that ,at that time, Mr Wilkinson was the frame foreman but he was not the person within the company's structure who had responsibility for occupational health and safety induction training. Mr Asimus was the health and safety co-ordinator who had conducted inductions but he was not available on the day. While Mr Wilkinson had undertaken an industry association course in training small groups, in conducting this induction one deficiency was that Mr Wilkinson, during the course of inspecting the plant, did not highlight the dangerous parts of conveyor F. Mr Wilkinson did identify dangerous parts of other conveyors in the factory but Mr Jiang was not taken to conveyor F during that induction and training exercise. The previous chipper operator, Mr Burgess, had provided some on-the-job training to Mr Jiang relating to how he was to undertake his duties. Mr Jason Wilkinson as the frame foreman did not have responsibility for the supervision of employees required to perform the work of cleaning and maintaining the conveyors or the chipper. 29 While the induction of Mr Jiang did take approximately two hours followed by an inspection of the premises to identify plant and hazardous risks, the induction that Mr Wilkinson conducted did not adequately address the dangerous parts of conveyor F nor did it ensure that Mr Jiang was aware of the fact that the dangerous parts of the conveyor were easily accessible while the conveyor was under electrical power. The induction did not result in Mr Jiang being adequately instructed or trained in the tagout and lockout procedure associated with the conveyor. There was a failure to adequately deal with the isolation procedure for conveyor F although they were contained in detailed documents provided by the company. Mr Jiang was not adequately instructed in the procedure for entering the gates within the fence along the perimeter of the conveyor and there was a failure to adequately assess Mr Jiang's understanding of the documents presented to him during the induction and training. In addition, the evidence showed the occupational heath and safety co-ordinator, Mr Asimus, did not ensure that Mr Jason Wilkinson had the necessary skills and knowledge to undertake induction training. The prosecutor's submissions as to these matters is supported by the evidence and is accepted - all these matters are established beyond reasonable doubt. 30 The prosecutor also pointed to evidence that demonstrated that Mr Jiang was not properly instructed in the process of isolating the plant during cleaning and maintenance. Mr Jiang was required to attend a switchboard within the factory where on/off switches for the conveyors were located. He was required to push the off switch to ensure the conveyor was turned off when undertaking cleaning or maintenance work but the evidence showed that the on/off switches were not able to be effectively locked out and that other employees could subsequently restart the conveyor while Mr Jiang was performing cleaning and maintenance work. Again, this matter is established beyond reasonable doubt by the prosecutor. DELIBERATION 31 Having determined that the particulars of the breach had all been made out together with the additional matters that were not the subject of separate agreement and having determined that a conviction would be entered against Mr Goldsmith, it is then necessary to consider the appropriate penalty to be imposed. In this exercise the Court is firstly to address the objective seriousness of the breach. Counsel for the prosecutor addressed this issue in detailed written submissions and the thrust of those submissions is accepted by the Court. The prosecutor accepted that the gravamen of the offence was the failure to provide adequate guarding and the failure to provide an adequate system to prevent persons such as Mr Jiang from gaining access to parts of the plant while they were in operation. The detail of the particulars demonstrate a comprehensive failure of the otherwise detailed safety system operated by the company. Many of those particulars are interlinked and revolve around a very substantial piece of conveyor equipment being unguarded in circumstances where there was no effective system of restricting access to the conveyor. The necessity for proper guarding of plant is generally well known in industry but nevertheless the Court in exercising this aspect of its jurisdiction still sees numerous breaches of this quite fundamental safety principle. It may well have been that as the company quickly grew and became successful, Mr Goldsmith as sole director, became stretched in attempting to perform too may roles. In addressing the Court, Mr Goldsmith spoke of performing all tasks relating to the company including sales, maintenance work and driving trucks where necessary. 32 Although the breach is properly described as a serious breach, it cannot be found that Mr Goldsmith ignored safety in the operation of his plant and I accept his evidence that he was safety conscious and was concerned for the safety of his employees. He seems to have been influenced by his understanding of the operation of similar machinery in other timber works, including overseas operations but a careful examination of this conveyor should have exposed to him the inadequacies of the system of work as detailed and particularised in the charge. There may well have been employees taking action contrary to the system of safety laid down by the company, such as locking open the gates that were meant to restrict access to the tail roller end of the conveyor but it has long been held by the Court and its predecessors that employers are to be alert to the behaviour of their staff, including the possibility of human error, inadvertence, inattention, haste and foolish disregard of personal safety. 33 Restricting access to this part of the plant was simply achieved using a lockout device that had been used at the other end of the conveyor well before Mr Jiang's accident but for some reason it was not installed at the bottom end of the conveyor. The system of work itself was unsafe, requiring inspection for the purposes of ascertaining the need for cleaning to be conducted while the machine was operating in circumstances where the system required the conveyor to be turned off while cleaning was performed. The conveyor was not able to be effectively locked out and tagged while maintenance was undertaken. As already addressed in the finding of facts, there were serious inadequacies in the system of induction, training and supervision. Having regard to all these matters, this is a serious breach of the Act. It is clear from the nature of the machinery involved that very serious injury could be inflicted if a person became caught in the exposed nip points. The nature and extent of Mr Jiang's injuries establishes the severe nature of the risk and the extent of the threat to safety arising from the use of the conveyor in its unguarded state. 34 The Court is also entitled to take into account the effect of the breach on the victim and will adopt that course in this case. Mr Jiang was present with his parents during the sentencing hearing and understandably appeared to take an active interest in the matter. His affidavit and victim's impact statement allow the Court to obtain a greater understanding of the seriousness of the risk in the operation of conveyor F and how the breach impacted on his life. Those documents also provided Mr Jiang with the opportunity to have a public airing of his suffering, in the presence of the defendant, so that the result of this unfortunate workplace accident could be fully appreciated. It is to be hoped that Mr Jiang's injuries improve over time to allow him a greater level of participation in everyday life, clearly an outcome he dearly seeks. 35 In this case both general deterrence and specific deterrence have a role to play in the setting of an appropriate penalty. As earlier observed, the inadequate guarding of machinery, unfortunately, is still a frequent cause of workplace accidents. This case should serve as another reminder of how a simple oversight can expose employees to very serious risk and serious injury. The issue of specific deterrence is a little more complicated. Mr Goldsmith represented himself and, understandably, did not direct any submission to this issue. The evidence is that he is a bankrupt and there is no evidence to suggest that he is likely to be discharged from his bankruptcy inside the three years referred to in the Notice of Bankruptcy. He is no loner involved in this specialist part of the timber industry concerning the building and supplying of roof trusses nor is there any evidence about his future intention of returning to this industry. His affidavit evidence dealt with his family background and its connection with the timber industry and how he had struck out with his wife to establish their own business in the early nineties. To the extent that there is a possibility that he will return to this type of industry, specific deterrence will play a role, albeit a minor role, in setting the penalty. 36 In relation to subjective factors the prosecutor, correctly, conceded that an early plea had been entered although there was some difficulty with obtaining an Agreed Statement of Facts. Undoubtedly, that difficulty was the direct result of the fact that Mr Goldsmith was representing himself unaided by professional guidance. The prosecutor also conceded, and the Court agrees, that there was utilitarian value in the plea and if the matter had been contested it was likely to have occupied the Court and the parties for some considerable time in working through the detail of the operation, including the background factors relating to the skills and training of those who provided Mr Jiang' s induction. In respect of the early plea, a discount on the total penalty of 25 per cent shall be granted. 37 Mr Goldsmith was the sole director of the company and had overseen its growth from a modest enterprise to a significant undertaking involving a large plant and a considerable number of employees. The nature of that work had certain inherent risks to safety and it speaks well of his attention to safety that for nearly 15 years he had not been found guilty of any breach of occupational health and safety legislation although he had been the subject of improvement notices. As a first offender he is entitled to the leniency that usually attaches to that status. The fact that the company was able to operate for such a long period with a sizeable workforce without being found in breach of the Act does not appear to be a matter of accident having regard to the safety systems that were in existence and the role played by the Trade Association in advising the company about safety matters. Up until this accident the company had a good safety record. Following the accident the company promptly responded to improvement notices and took steps to address the risks to safety exposed by this accident in the operation of conveyor F. Independent bodies undertook audits and these matters go to the genuineness of Mr Goldsmith to promote and ensure safety at his factory. Although not specifically addressed by Mr Goldsmith, his evidence, in its totality, can be taken to express his remorse that this accident took place with serious ramifications for Mr Jiang's health. The evidence also shows that the company, through Mr Goldsmith, was a good corporate citizen, closely engaged with the surrounding community and supportive of that community in a variety of ways. Importantly, it was accepted by the prosecutor that Mr Goldsmith had co-operated with WorkCover in its investigation of Mr Jiang's accident. These matters shall all be taken into account in mitigating the penalty. 38 The most difficult issue in relation to the setting of an appropriate penalty arises from Mr Goldsmith's status as a bankrupt. The Court as presently constituted has given consideration to an impecunious defendant in Inspector Hopkins v Michael Wherrit t/as M J Wherrit Concrete Pumping Services [2002] NSWIRComm 16 where it was stated at [60] as follows: In WorkCover Authority of New South Wales (Inspector Dall) v R & D Enterprises (Newcastle) Pty Ltd [2001] NSWIRComm 329, Hungerford J spoke of the difficult task of determining an appropriate penalty in circumstances where the evidence disclosed that economic pressures on the defendant were heavy. His Honour stated: In R v Rushby (1977) 1 NSWLR 594 at 598, the balancing process involved in sentencing was dealt with by Street CJ by reference to what the Court of Appeal in New Zealand said in R v Radich [1954] NZLR 86 at 87 as follows: On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment. 39 In Hopkins v Wherritt passing reference was made to the majority judgment in Regina v Aref Rahme (1989) 43 A Crim R 81 at 86 et seq. It is of some assistance in the present matter to record the discussion conducted by Finlay J (with whom Studdert J concurred) regarding the proper approach to imposing a fine upon a person without means to meet that fine, commencing at page 86 and following: The imposition of a large fine does involve a number of considerations. It is trite to say that a court generally should not impose a fine which the offender does not have the means to pay, even though these days failure to pay a fine does not lead to imprisonment but to a civil execution for its non-payment. ... It is clear I think that what is required where the court is contemplating the imposition of a financial penalty is a decision of whether or not the appellant has the means. I note for example the case of Fox (1987) 9 Cr App R (S) 110 at 114: "But what should be the proper approach in the present case? It seems to us that before deciding whether to impose a financial penalty, the trial judge had to decide whether or not this appellant had the means. Scarman LJ in Jamieson (1975) 60 Cr App R(S) 318 after agreeing with the observation concerning the imposition of a fine of substance in the particular offence there under consideration, which was a prevalent offence, and making it plain that the courts do deal severely with such offences, observed: "But there are two other principles to be observed when imposing a sentence such as this. The first is that a sentence must always be linked with the particular circumstances of the offender as well as the particular circumstances of the offence. Indeed, a sentence derives its character of justice or injustice from a combination of those two sets of factors. That case is authority for the broad proposition that once a determination has been made that a fine should be imposed the correct procedure in assessing the appropriate amount of the fine is to determine it by reference to the gravity of the offence for which it is imposed. If the court is satisfied that the offender would be unable to pay the amount determined it may reduce it to take account of the offender's means and impecuniosity. ... The relevance of an offender's means to pay was considered by Davies, Kelly and Beaumont JJ in the Federal Court in Fraser (1985) 20 A Crim R 4. That court helpfully summarised a number of authorities on this issue in the following passage: "An early statement of the view that a fine should not be imposed without an investigation into the offender's means appears in statutory form in s5(1) of the Criminal Justice Administration Act 1914 (Imp) which required that a court of summary jurisdiction should, when fixing the amount of any fine to be imposed on an offender, take into consideration, amongst other things, the means of the offender so far as they appeared or were known to the court. The provision was effectively re-enacted in s31(1) of the Magistrates Courts Act 1952 (Imp). In DA Thomas, Principles of Sentencing: the Sentencing Policy of the Court of Appeal Criminal Division (2nd ed, 1979), 320 it is said that although the principle is not expressed in statute so far as the Crown court is concerned, a fine should not normally be imposed without an investigation of the offender's means. In support of that proposition reference is made to two unreported cases in one of which it was said that a financial penalty must be related to evidence of means and in the other, of the appellant, that he might consider himself lucky that the sentencer imposed a fine for a serious assault', but as no inquiry was made whatsoever about the appellant's means' the fine imposed was higher than was fair. In Kaye v Vagg (No 2) (1984) 11 A Crim R 127, Supreme Court, Tasmania, Cox J said at 129 that he had been referred to a number of cases which he noted. He went on: `They establish, as Cosgrove J says in Devlyn v Lowe, (unreported, Supreme Court, Tasmania, 23 May 1980), that "the imposition of a fine which is beyond the offender's reasonable capacity to pay never was just or rational ...

ANNEXURE AGREED STATEMENT OF FACTS

At all material times the prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in this matter.
At all material times Brian John Goldsmith of 46 Kilkenny Circuit, Astonfield, New South Wales ('Mr. Goldsmith') was a director of a corporation, Goldsmiths Frames And Trusses Pty Ltd (ACN 060 590 178) whose registered office was situated at Level 2, 77 Hunter Street, Newcastle, in the State of New South Wales (currently under external administration) ("the Corporation").
At all material times Mr Goldsmith was the sole director of the Corporation. He was appointed as a director on 21 June 1993. The Company
At all material times the Corporation was an employer.
At all material times the corporation conducted its business at a site located at 13 Old Punt Road, Tomago, New South Wales ("the Premises"). The Premises
At all material times the corporation manufactured pre-assembled wall frames and roof trusses from a large factory at the premises.
The premises included workshops and timber frame and timber truss cutting and assembly lines.
The premises also contained a series of electrically powered fixed belt conveyors which were used to transport off-cut timber produced from the manufacturing of frames and trusses. The conveyors conveyed the off-cut timber from within the factory building at the premises to an electrically powered rotary woodchipper located outside the main factory building. The woodchipper converted the off-cut timber to a saw-dust type material.
At all material times the corporation owned plant, being an electrically powered inclined flat belt conveyor, known as conveyor F ("the conveyor"). The conveyor was located outside the main factory building at the premises and conveyed the off-cut timber from the internal area of the factory to the woodchipper.
The conveyor had overall dimensions of approximately 30m long x 1m wide and was supported on 150mm x 70mm vertical galvanised steel channel structures. The conveyor assembly was fixed on the supporting structures at an incline of approximately 20° from horizontal. It commenced at the tail roller end in a pit approximately 2.5 m below ground level. It finished at the chipper inlet approximately 4 m above ground level.
The tail roller end of the conveyor and the pit were covered by a structure made out of a colour-bond metal skillion roof which was permanently fixed on one side to the concrete wall of the factory premises. The roof was supported on its other side by vertical colour-bond walls. These covered the section of the conveyor positioned below ground level. The structure had approximate overall dimensions of 9m x 5m wide x 900mm high.
At the open end of the structure, from which the conveyor extended there was one permanently fixed expanded mesh panel on the left-hand side (when viewed from the front) and a hinged timber framed expanded mesh gate on the right-hand side.
At the time of the incident the hinged gate had a shot bolt and padlock, which was designed to allow for the gate to be able to be locked. It was apparent that the shot bolt and padlock had been locked in the open position for sometime prior to the incident.
Access could be gained to the pit from the hinged gate. A steep concrete ramp went from the ground level at the opening of the structure to the tail roller at the bottom of the pit area. The concrete ramp was slippery, particularly when covered with sawdust and other residue.
The belt rollers and tail roller in the pit area were positioned approximately 240 mm above the level of the inclined concrete ramp and were unguarded on both sides.
Persons could access the nip points of the conveyor by walking down the access ramp to the rollers of the conveyor, which were not fully guarded on all sides.
A safety lanyard was fitted to each side of the conveyor and extended from within close proximity to the tail roller along the conveyor to a height of 2.7 m.
A 1.8m high cyclone wire fence was fitted along the length of the conveyor. Included in, and forming part of the fence were three sets of hinged gates, which had the ability to be locked by chains and padlocks.
The conveyor and will chipper stop/start controls were located remotely on an electrical switchboard within the factory premises. The Injured person
The corporation employed Wei Rui Jiang ("Jiang"), a 19-year-old Chipper Operator. Jiang commenced employment with the corporation on 15 May 2006. Jiang had no previous experience in the business of the corporation, or any related industry.
Jiang's duties included the Chipper operation and undertaking inspection and cleaning of the areas around the various conveyors within the factory and in particular the tail rollers of the conveyors.
Jiang was required to regularly inspect the conveyors to monitor their operation and to ascertain their cleanliness and of the areas surrounding them. Where he identified a build up of saw dust or off-cut timber, Jiang was required to clean the area around the conveyor. This was done to reduce damage to the conveyor from the build of material and to reduce the fire hazard from the friction of the machinery and the sawdust and off-cuts. The Incident
On 10 July 2006, at approximately 6.30am, as part of his duties, Jiang was required to visually inspect the area of the tail end roller of the conveyor which was located in the pit.
Prior to the incident, the conveyor was operating under electrical power. Part of the actual conveyor was located within a pit. The belt rollers of the conveyor were located along its length and extended into the pit. The tail roller was also positioned in the pit at the end of the conveyor.
Mr Jiang states that he gained access to the area immediately around the conveyor area by opening and walking through the unlocked hinged perimeter gates of the cyclone fencing.
He then looked into the pit area through the partially open and unlocked mesh gate at the structure covering the pit. (Jiang - Record of Interview 17/01/07 Q&A96-100, 245-247)
In order to perform the visual inspection of the tail end roller of the conveyor Jiang was required to stand at the top of a low-ceilinged pit where the conveyor was located. He then had to lean into the structure and look down along the access ramp into the pit at the area around the tail roller. (Jiang - Record of Interview 17/01/07 Q&A96-107) This was due to the limited height of the structure.
Prior to performing this inspection Jiang had not turned off or electrically isolated the conveyor. At the time of performing the inspection the conveyor belt was operating under electrical power.
Whilst performing this inspection Jiang tripped and fell into the pit and lost consciousness. (Jiang - Record of Interview 17/01/07 Q&A 110-120) He woke up with his right hand and arm caught in the in-running nip point formed between the conveyor belt and the tail roller of the conveyor. (Jiang - Record of Interview 17/01/07 Q&A 120-134)
When he fell, the conveyor belt had been moving. (Jiang - Record of Interview 17/01/07 Q&A 137) The belt was not moving when Jiang pulled his hand out of the belt. (Jiang - Record of Interview 17/01/07 Q&A 136)
As a result of the incident, Jiang suffered crush injuries and nerve damage to his right arm and shoulder when he became trapped in the in-running nip point formed between the belt and the unguarded tail roller of the conveyor.
Following the incident on 10 July 2006, Jiang went to his Supervisor Robert (Sam) Wilkinson ("Sam Wilkinson") to report the incident. (Jiang - Record of Interview 17/01/07 Q&A 158-159) Sam Wilkinson alerted his son Robert (Jason) Wilkinson ("Jason Wilkinson"), the first aid attendant, who undertook an initial assessment of his condition. Jason Wilkinson and a colleague, Adam Merchant took Jiang to Maitland Hospital.
As a result of the incident, Jiang was admitted to hospital for treatment where he remained for approximately one week. He has since undergone further operations and continues to receive treatment. He has no feeling in his right arm, which remains supported in a sling. He has not returned to work with his employer since the incident. Induction and Training
Shortly after Jiang commenced employment with the corporation, he received induction training from Jason Wilkinson (Robert 'Jason' Wilkinson - Record of Interview 6/03/07 Q&A104). At the time he performed the induction training Jason Wilkinson was the Frame Foreman (Robert 'Jason' Wilkinson - Record of Interview 6/03/07 Q&A29)..
Jason Wilkinson was not the person within the corporation's organisation generally responsible for induction, training or occupational health and safety. Jason Wilkinson performed the induction training due to the unavailability on the day of Mark Asimus, who performed the roles of Detailer and OHS coordinator. (Mark Asimus - Record of Interview 19/04/07 Q&A ; Robert 'Sam' Wilkinson - Record of Interview 8/03/07 Q&A 130-132). However Jason Wilkinson had successfully undertaken a course run by the timber Trade Industrial Association called "Train Small Groups'.
Jiang's induction training comprised of a classroom tutorial for approximately 2 hours. The induction training was delivered in accordance with five job specific documents which had been provided to Jason Wilkinson by Mark Asimus, the OH&S Manager. This was followed by an inspection of the premises in order to identify plant, associated hazards and safety features such as evacuation procedures. Jason Wilkinson identified a number of pinch points and trapping areas throughout the factory to Jiang (Robert 'Jason' Wilkinson - Record of Interview 6/03/07 Q&A138 -170).
Jason Wilkinson did not during that subsequent inspection highlight the dangerous parts of Conveyor F, but did identify dangerous parts of other conveyors in the factory. He did not take Jiang during the induction to Conveyor F at all (Robert 'Jason' Wilkinson - Record of Interview 6/03/07 Q&A 156 and 169).
Joel Burgess, the previous Chipper operator initially provided some on-the-job informal training to Jiang in his duties.
Sam Wilkinson, the Yard Foreman subsequently was responsible for supervising Jiang in the performance of his duties. Sam Wilkinson had no supervisory experience or training (Robert 'Sam' Wilkinson - Record of Interview 8/03/07 Q&A 63-69). Jason Wilkinson, the frame foreman, was also responsible for supervising Jiang whilst he performed his duties in the frame area of the factory. David Slade, the truss foreman, was also responsible for supervising Jiang when he performed his duties in the truss section of the factory.
Sam Wilkinson did not have an adequate knowledge of the Safe Operating Procedures for Conveyor Maintenance and Chipper operation (Robert 'Sam' Wilkinson - Record of Interview 8/03/07 Q&A 267-281, 134-145, 186-190), lockout and tag out documents (Robert 'Sam' Wilkinson - Record of Interview 8/03/07 Q&A 134-145) or the terminology that formed part of the procedure for the Chipper operator (Robert 'Sam' Wilkinson - Record of Interview 8/03/07 Q&A 97-115, 125).
On 22 June 2006, the company arranged for Ken Jones, Service Supervisor from Apex Fenner Conveyor Services to undertake a routine conveyor inspection which included Conveyor F. Whilst undertaking this Inspection he observed the tracking of the conveyors was off line. He then conducted a brief training session with Mr Jiang, Sam Wilkinson and Joel Burgess with respect to maintaining the tracking of the conveyor system.
Mr Goldsmith had a hands on role in the operation of the corporation's business and was in attendance at the premises most days. Steps taken subsequently to address the risk
Following the incident on 10 July 2006 Inspector Batty issued three improvement notices upon the corporation relating specifically to the conveyor. These notices were all complied with by the due date and required the corporation to: a. provide and maintain a system of work for the interruption of the control circuit of the chipper conveyor when the perimeter gates are opened; b. provide and maintain safe and unhindered access and egress to and from the workplace and in particular the concrete ramp leading to the conveyor tail roller; c. control the hazards associated with accessing the ramp to the conveyor tail roller through the hinged gate.
Following the incident on 10 July 2006 various changes were made to the systems of work at the premise by the corporation: a) an electrically interlocked safety switch was fitted to the second hinged access gate. When the gate was opened, a tongue attached to the gate would disengage from the switch causing the conveyor and chipper to stop; b) padlocks were fitted to the hinged perimeter gates and kept locked; c) a permanent fixed guard has been fitted to the sides of the conveyor that denies access to all moving parts of the conveyor. d) a slip resistant surface was added to the ramp of the pit.
The following supporting documentation is annexed:
Factual Inspection Report of Inspector Batty dated 11 January 2007
12 photographs taken by Inspector Batty on 8 January 2007
Improvement Notices No's. 7-122801, 7-122906, 7-122918
WorkCover Prior Conviction report.

Inspector Ian Batty v Brian John Goldsmith. Prosecution under s 8(1) by virtue of s 26(1) of the OHS Act 2000

At a glance

Court

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Before

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Judgment (13 paragraphs)

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Legislation Cited (1)

Cases Cited (14)

Cited By (6)