Inspector Ian Lancaster v Burnshaw Constructions Pty Limited [2001] NSWIRComm 306 | Case summary

1 A prosecution pursuant to s 15(1) of the Occupational Health and Safety Act 1983 has been brought by Inspector Ian Lancaster of the Workcover Authority of New South Wales (WorkCover/the prosecutor) against Burnshaw Constructions Pty Limited (the defendant). 2 Mr P M Skinner of counsel appeared on behalf of the prosecutor. Mr B Hodgkinson of senior counsel appeared on behalf of the defendant. 3 In the Amended Application for Summons Prosecution, the prosecutor alleges that the employer did fail to ensure the health, safety and welfare at work of its employees and in particular, Leon Ross Stegwell, contrary to section 15(1) of the Occupational Health & Safety Act 1983 in that: (a) It failed to provide and maintain a system of work for the cutting of timber using a Tate Radial Docking Saw as was safe and without risk to health. (b) It failed to provide such information, instruction and training in relation to the cutting of timber using a Tate Radial Docking Saw as may be necessary to ensure the health and safety at work of its employees. (c) It failed to provide and maintain plant being used for the cutting of timber, to wit a Tate Radial Docking Saw, in a condition that was safe and without risks to health, in that the said saw was not properly fenced in contravention of section 27(1) of the Factories, Shops and Industries Act 1962. 4 The detailed particulars of the charge, set out over four pages in thirty paragraphs, one of those paragraphs in itself being broken down into eleven sub-paragraphs, are set out below: 1. At all material times on and prior to 18 August 1998 the defendant carried on business as a construction company and as a joiner which joinery business was conducted under the registered trade name of Wadsworth Joinery from the defendant's factory premises at 227 Berkeley Road, Unanderra in the state of New South Wales ("the workplace") 2. At all material times Paul Ronald John Burns was a director of the defendant charged with managerial control and the day to day operation of the defendant's business activities, both on site and at the workplace. 3. At all material times on and prior to 18 August 1998 Brian John Burns was a director of the defendant and responsible for the overseeing of the overall activities of the business of the defendant on a day to day basis. 4. The defendant was at all material times an employer. 5. The defendant at all material times employed Leon Ross Stegwell ("the worker"). 6. At all material times the worker was employed as an assembler/cutter at the workplace having been in full-time employment there for about one and a half weeks, [having been casual for about 2 - 3 months]. 7. The worker's duties as an assembler/cutter involved him in work involving the use of a radial docking saw manufactured by Tate and stamped with the number 21870 ("the saw"). 8. The saw was powered by a 415 volt, 3 phase, 3.0HP squirrel cage motor which was mounted directly to the left of the saw blade and had a motor speed of 2,870 rpm. 9. The saw had the following features: (i) A 290 millimetre (approximately) diameter circular saw blade, partially housed by a top hood guard with a handle bolted to the front of the top hood guard. (ii) The saw blade was mounted in an assembly which was attached to the horizontal radial arm along which it could travel. The radial arm 1.7 metres in length and it had four holes in it to allow for adjustment of the travel of the saw. A nut and bolt could be moved from any one of the four holes to adjust the length of travel. (iii) The electric motor described in paragraph 5 [sic] above was mounted on the southern side of the saw blade assembly. (iv) A dust extraction system was connected at the back of the saw. (v) The saw was positioned above a bench which was approximately 445 millimetres wide. At all material times on 18 August 1998 the nut and bolt adjustment in the radial arm was positioned in the first of the four adjustment holes and in this position it allowed the saw blade to travel 140 millimetres past the outside edge of the benchtop. The bench was made of timber and was situated 1,010 millimetres above the floor level. (vi) Situated on the right-hand side of the saw blade was a Multinail Surestop device which enabled an operator of the saw to continuously cut timber to the same size without re-measuring. (vii) Also mounted on the right-hand side of the saw blade next to the Multinail Surestop was a pneumatically operated clamping device made of steel and painted green which could be adjusted as needed to secure timber being worked on the saw. (viii) To the left of the saw blade and to the right of the saw blade beyond the Multinail Surestop device were steel roller benches which were level with the height of the wooden bench below the saw. (ix) The saw was controlled by stop/start push button control switches mounted on a control box attached at the front of the motor described in paragraph 5 [sic] above. (x) At all material times between 8 August 1998 and 18 August 1998 the saw was not fitted with any retraction mechanism to return the blade to its resting position. (xi) At all material times on and prior to 18 August 1998 the saw was not fitted with a nose or self-adjusting guard to prevent contact with the front edge of the saw blade. 10. Prior to 1.20 pm on 18 August 1998 the worker had been instructed by Paul Burns to cut timber on the saw. 11. At about 1.20 pm the worker was using the saw to cut a piece of timber which was approximately 700 millimetres in length and in doing so was holding the timber on the left side of the saw blade and using his right hand on the handle to manoeuvre the saw blade forward over the timber when the saw grabbed the wood and pulled his left hand into the saw blade causing substantial amputation of the thumb, palm and three digits of his left hand ("the incident"). 12. As a result of the injuries sustained in the incident the worker was unable to resume his usual work for a period in excess of seven days. 13. On and prior to 18 August 1998 the usual operator of the saw was another employee, Graeme John Isedale ("Isedale"). 14. At all material times on 18 August 1998 Isedale had been instructed by Paul Burns to work in another section of the workplace on roof frames. 15. Isedale had experience with the saw over a period of twelve years prior to 18 August 1998 and had undergone on the job training on the saw during that period. 16. Isedale had been instructed by Paul Burns and Brian Burns to train and supervise the worker in the operation of the saw. 17. The defendant had no documented procedures or information with respect to the use and operation of the saw. 18. All procedures and information with respect to the operation and the use of the saw were passed by word of mouth only during the on the job training of the worker which took place in the week and a half period of his employment prior to 18 August 1998. 19. On and prior to 18 August 1998 Isedale instructed the worker in regard to the trimming of offcut pieces of timber and indicated to him to keep his hands and fingers away from the saw blade and to minimise the offcut timber and maximise the timber used. 20. At all material times on and prior to 18 August 1998 the training provided to the worker by Isedale did not incorporate any prohibition in relation to the holding of timber on the bench with one hand whilst it was being cut by the saw. 21. At all material times on and prior to 18 August 1998 the training provided to the worker by Isedale did not involve an instruction to always utilise the pneumatic clamping device to hold the timber in situ whilst the timber was being sawn with the saw. 22. At all material times on and prior to 18 August 1998 the worker was inexperienced in relation to the use and operation of the saw. 23. At the time of the incident the worker was not being supervised in relation to the use and operation of the saw. 24. At no time on or prior to 18 August 1998 had the defendant provided to the worker any documented information relating to the safe use or operation of the machine. 25. Prior to 4 November 1997 the Timber & Building Materials Association Training Pty Limited (TABMA) was commissioned to do an audit report for the defendant in relation to occupational health and safety aspects of the workplace. 26. TABMA provided a full hazard audit report dated 4 November 1997 to the defendant which highlighted areas where action was required in the interests of safety which included recommendations to: (i) adequately guard docking saws; (ii) comply with Australian Standard AS 1473-1991 to limit the travel of a radial arm docking saw … so that no part of the blade at its maximum forward position would be closer than 50 millimetres horizontally to the front of the saw bench. 27. The contents of the TABMA report were available to Paul Burns and Brian Burns between 4 November 1997 and 18 August 1998. 28. At all material times between 4 November 1997 and 18 August 1998 neither Paul Burns nor Brian Burns, both of whom were in a position to influence the conduct of the defendant by putting in place measures to comply with the recommendations contained in the TABMA report, took any appropriate action with respect to the saw. 29. At the time of the incident on 18 August 1998 the saw contravened the requirements of Australian Standard AS 1473-1991: Guarding and Safe Use of Woodworking Machinery. 30. The use of the saw by the defendant in its unguarded condition at all times on and prior to 18 August 1998 was in contravention of section 27(1) of the Factories, Shops and Industries Act, 1962. 5 Those particulars were duplicated in the Agreed Statement of Facts. One minor additional matter taken from that Agreed Statement is contained within the square brackets at par 6. 6 In relation to the Amended Application, the defendant confirmed its plea of guilty entered earlier. 7 In evidence before the Court were the following: 1. Agreed Statement of Facts; 2. Record of factual inspection by Inspector Ian Lancaster on 18 August 1998 of the factory at which the accident occurred; 3. Twenty two photographs (including one of the saw taken minutes after the accident); 4. TABMA Hazard Audit Report dated 4 November 1997 as to the site of Wadsworth Joinery Pty Ltd (the Burnshaw Constructions site). 5. Copy of Australian Standard AS 1473-1991: Guarding and Safe Use of Woodworking Machinery. The Standard was put forward by the prosecutor as an effectively documented expert opinion in the light of the comments by Marks J in WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2000] NSWIRComm 12 at [56]. 6. Single photograph showing Perspex guard; 7. Detailed Statement of Burnshaw Constructions updated to 15 October 2001 and signed by Brian Burns and Paul Burns; 8. Manual entitled "Safe Operation of Machinery" documenting in detail 30 items of machinery used by the defendant; 9. Photograph showing general layout of the factory. 8 Oral evidence was adduced from Inspector Lancaster in support of the prosecution. Inspector Lancaster described the operation of the saw and its context within the workshop, by particular reference to the photographs and to the record of his factual inspection as tendered in evidence. He said that the procedure was that the saw would be drawn back out from the wall towards the operator as he cut. The blade was there, rotating in a counter-clockwise direction. In the horizontal beam that comes across, there are holes in which a bolt can be placed which will restrict the distance that a radial arm saw can come out. In this particular case, when it was set up on a 90 degree cut, the blade would extend beyond the front edge of the bench. 9 A Detailed Statement in relation to Burnshaw Constructions and signed by Brian Burns and Paul Burns was tendered on behalf of the defendant without objection. Burnshaw Constructions commenced in 1948 and is a third generation family owned/operated building company employing 15 full time staff. It has conducted a joinery/wall frame and roof truss manufacturing business since 1980. There are two directors of the company, Brian Burns and his son Paul Burns. 10 Both Brian and Paul Burns were present in Court and oral evidence was given by Paul Burns. Submissions - Prosecutor 11 In the amended application the offence rests on the three groups of failure there particularised. They tend to overlap a bit but, essentially, it comes down to the machine was not guarded appropriately and the man was not trained in an appropriate manner to deal with it. As the machine was, it was more unsafe than it should have been. Training should have been more than just word of mouth without any documentation. 12 It is quite a powerful saw to be used in such a job. Any person operating a factory of this nature should be aware of the hazards of unguarded machines particularly for the way this injured worker was using it. This defendant had also been put on notice as it were by the TABMA hazard audit. 13 The docking saw there referred to is a different saw as Mr Burns explained in his evidence to Mr Hodgkinson, but in any event, there was one saw inadequately guarded and that should have alerted this defendant more urgently to the need for all saws to be guarded. 14 The evidence that it was not used that often for 90 degree cuts. It was used to trim offcuts. What the worker was doing was a standard job. The other man had trained him. He had done it before and, certainly, there is foresight that can be held to the defendant in relation to the accident that has occurred. 15 The prosecution does not cavil with the subjective matters that are put forward on behalf of this defendant and its directors that it is otherwise a good industrial citizen but the objective seriousness of the offence certainly is the starting point (see Capral Aluminium v WorkCover Authority of NSW (2000) 99 IR 29). 16 This matter comes before the Industrial Relations Commission. It has not been charged in the CIM's Court. The prosecution is happy to say that the Court could assess it at the lower end of the range in this regard, but the Court must look at matters of deterrence both general and particular. Capral looks at that as well and, really, in 1998 the hazards of unguarded bench saws should have been well and truly known to this defendant and generally to persons in the industry. 17 The failures in training should also be looked at in that light in that really it was a dangerous machine and to leave a man who has been there for a couple of months only as a casual, one and half weeks' time to be trained word of mouth by another operator is really this defendant failing in its responsibilities. 18 It delegated to another person the training that it really itself should have been sure took place properly and that was properly documented not only after the accident, but the process needs documentation to be shown to the injured worker as indeed supported by the way it is now done with Ex 8. 19 The prosecution does seek costs. Submissions - Defendant 20 Counsel for the defendant did not cavil with the principles to be applied as to sentencing as the prosecution had advanced them. He stressed that the prime function of the court is to seek the nature and quality of the offence and that involves the assessment of the culpability of the particular defendant in respect of the particular offence. 21 In this case this defendant falls at the lower end of culpability for a number of reasons. Firstly, it is clear that the machine was not without guard. Secondly, the evidence is clear that the guarding that was on the machine was provided by the manufacturer. That is not an answer to liability, but it is a matter that is to be weighed in balance in relation to culpability. Thirdly, no notice had been provided to the company that there might be either a need for a review or an inadequacy in the guarding and that is very important, particularly in light of one of the submissions made by the prosecutor as to the foreseeability issue. It is important in this case because there are a number of objective factors that the defendant can point to, which if this had really been foreseeable, in the sense of standing out or obvious, then it would have been brought to the attention of the company and it was not. 22 Those factors are, firstly, the provision of the guarding by the manufacturer and no notice by the manufacturer of the need to review or alter it. The second is that at the time the factory was opened eight years ago, it was inspected by the WorkCover Authority, who did draw attention to the things they thought were inadequate, but did not raise guarding as an issue. The third objective factor is that the defendant sought out a service provider to audit the processes and machines to ensure they are safe. That service provider looked at the very machine the subject of the incident. The auditor in 1997 looked at the question of guarding and did not raise any inadequacy in the guarding of this particular machine. This was only the year prior to the accident. 23 This goes to the question of liability, but it is a very significant factor going to the question of culpability. The company was taking not only an active role in terms of objective operational assessments, but a proactive role. They were seeking to avoid the very sort of circumstances that did arise, by seeking assistance from professionals. 24 Contrary to the prosecution's submissions, the foreseeability question was not as obvious as it might appear with the great benefit of hindsight. It was not as obvious even with respect to the WorkCover Authority. In terms of foreseeability, the auditors did not see the problem. The person who used the machine for twelve years did not perceive this problem. 25 The next area that the Court would look at in terms of this particular employer is what have they done since. Quite clearly they have taken a number of steps which are very expensive. The importance of expense is only to identify a commitment. 26 As a consequence of the Workers' Compensation premium system there has already been, as it were, a financial burden imposed on the company arising out of this incident. 27 When one looks at the steps taken by the defendant, it was submitted that any element of the penalty in relation to deterrence need only be a small element because the Court need only be satisfied so far as the company is concerned it has learned from this incident, taken that learning and advanced it into the new machine and new systems. 28 The Court will also look at the other relevant question, the entering of the plea of guilty and it was submitted that an appropriate discount will be towards the higher end of the scale, the scale being 10 to 25 percent discount. 29 The Court would also look with respect at the overall context in which this matter arises and again the prosecutor has indicated to the court that in its view the lower end of the scale would be appropriate. The defendant would respectfully join with them in that submission on this basis that there are no aggravating factors. There is no ignoring of responsibility. There is no factor that one might say well look it adds to the culpability of the particular defendant. On that basis, and on the basis of the type of industry that one sees this particular defendant exists in and operates in, and then having regard to their record, which up to this incident is without blemish, one would balance all of those factors and look at this particular incident in the context of the lower end of the penalty and, as the prosecution suggested, one could even say that this matter might in other circumstances have been appropriately dealt with within the penalty regime to which the Chief Industrial Magistrate's court is restricted. 30 The only other matter is that the Court is dealing with a small family company. 31 That is a factor overall. The size of the defendant, the general capacity as distinct from the overall capacity is something weighed in the balance by the Industrial Relations Commission and is something which ought properly be weighed in the balance. There are two directors, father and son. Both are present by way of signing the statement to the Court. Both of them attend at court today. It is clear that they take the matter seriously. It is clear that they are contrite on an individual basis and that that contrition ought be reflected on the company and therefore ought be a mitigating factor in terms of the penalty that otherwise ought to be imposed. 32 It is also clear on an individual basis they are very solid good citizens who participate in the community on a wider basis and deserve the benefit that all criminal courts provide in respect of general good character. 33 The prosecution conceded that the company is one of general good character in a corporate sense and that is supported by the participation of the directors in the community based programmes identified and, therefore, the Court can be comfortable it is an appropriate approach to take in determination of the penalty and is proper to be weighed as a mitigating factor in determination of the penalty the company ultimately will have imposed upon it. Consideration 34 In the light of all the matters I have set out in this judgment, I am satisfied that the plea of guilty was properly made. 35 There was no contest as to the defendant's approach to occupational health and safety before or after the accident. The details of that approach are set out in the following extract from the Detailed Statement by the Messrs Burns: Company's OH&S Policies prior to accident Induction at commencement of employment. Majority of staff have been with firm for periods in excess of 10 years, most being multi-skilled in the operation of all machinery. Actual documented work procedures were limited with all training being conducted directly by experienced operators until competency was proven. Safe methods of work and machine safety were continually monitored with directors constantly involved in assisting direct manufacturing processes. External safety audits conducted annually by Timber & Building Materials Association since 1997. External safety audit reports were used to identify areas to concentrate our efforts to improve workplace safety, ie, saw dust reduction; relocation of emergency stops on many machines; improved guarding on some machinery. Safety issue in regard to subject saw had been rectified prior to accident (ie, protection from head injury by fitting padding to end of radial arm). No prior Workcover convictions or fines in over 50 years trading. Company had been at present location for 8 years before accident. Workcover inspected entire workshop in 1990 when manufacturing commenced. (Same guarding was fitted to subject [saw] at time of accident since saw was purchased in 1980.) OH&S after accident All staff completed OH&S Induction Training course for Construction Work. Senior staff member completed 4 day OH&S "Workplace Committees" Training Course. Additional 2 staff members completed St. Johns First Aid Course. Introduced "Safe Operation of Machinery" manual covering all machinery in workplace; continually being upgraded (copy attached) [Exhibit 8 in these proceedings.]. Developed in conjunction with Workcover. Assessments of work practices. Documentation of material data sheets. Upgrading of machinery manufacturer's standard guarding in conjunction with Workcover. Approximately $120,000 spent throughout workshop since accident. Includes replacement saw and operating system, concreting of storage area to increase materials handling safety and reduce dust, upgrading of machinery guarding in conjunction with Workcover inspectors, construction of shade awnings, introduction of documented procedures and systems. Approximately $50,000 paid in increased Workers Compensation premiums. Company and Workcover investigation immediately after accident failed to determine exactly how accident actually occurred. Saw was out of service for approximately 2 weeks immediately after accident while an alternative guarding system was designed and installed (in conjunction with Workcover). The subject saw's manufacturer was contacted in regard to guarding on current saw of same model. We were advised that guarding on current saw of same model was the same as subject saw at time of accident. Final Workcover approved guarding continually impeded required angle cutting of saw, resulting in decision to replace subject saw with a new "state of the art" computer saw ($50,000 - Purchased 5/2000). 36 The actions set out there speak for themselves, but I do note some in particular. 37 The guarding on the saw was that supplied by the manufacturer when the saw was purchased by the defendant in 1980. No advice had ever been received from the manufacturer that the guarding should be modified. Such guarding is the same as on the current model of the saw. 38 WorkCover inspected the defendant's new workshop in 1990. Some matters were raised at that time for rectification, but none of those matters involved guarding. 39 In 1997, because it wanted to get an external opinion on its safety procedures and safety in the general workplace, the defendant approached TABMA to provide that service. A Report was provided on 4 November 1997. On its cover sheet was the following statement: On the date and time of inspection the following items listed within this report have been identified as a hazard or potential hazard and should be addressed. 40 That Report referred to Australian Standards AS1473-1991: PARAGRAPH - A1-5 SECTION E To limit the travel of any radial arm docking or trenching head on a radial arm, a device should be fitted to limit such travel so that when saw/trencher is at its maximum forward position that no part of the blade/trenching head will be closer than 50mm horizontally to the front of saw bench. 41 Mr Burns said that the saw involved in this accident did have a limitation device fitted to it in respect of the travelling arm. It was not until the accident occurred that the defendant was made aware that the saw had the capacity to travel along the radial arm to just above the bench. That was because the saw was very rarely used in a square cut. The majority of the time it was used in angle cutting, cuts in which the travel was limited by the bolt mechanism. That restriction was sufficient to comply with the Standard. 42 The evidence of Inspector Lancaster as elicited in cross-examination was that the saw pivoted so that it cut on angles, some of them quite fine - 6, 7 or 8 degrees. The bolt placed in the horizontal beam described earlier, would prevent the blade coming out past the bench when the saw was swung to cut on the angles. The capacity for the blade to go past or up to or just over the edge of the bench arose when the cut was at the 90 degree angle. No such problem arose when the saw was cutting on the other angles. 43 Mr Paul Burns deposed that only a very small percentage of the cuts made by this saw were square cuts. He said that in the process of cutting trusses probably only one or two per cent of the cuts are square cuts and the defendant has other saws that are dedicated to 90 degree cuts. 44 Mr Burns had spoken to Mr Isedale whose job it had been to use this saw over a period of twelve years, and Mr Isedale had been unaware that the arm did travel out to, or just past, the bench in the square cut position. 45 The TABMA Report also made a number of recommendations relating to machinery which were described as "High Priority" and "which should be considered for implementation immediately". One of the recommendations referred to the saw involved in the accident and it was that "two saws on external wall could be better marked on end to avoid head injuries, also put padding on end of runners". That recommendation was implemented immediately and the padding was still on at the time of the accident. 46 The audit did not raise any problem with the guarding on that saw. 47 As a consequence of having had some difficulties created by the mechanism on this saw, the defendant, had some time prior to the accident investigated a return mechanism for this particular saw. As to such a retraction device, the defendant had tried many different options over the period it had owned the saw but had not been able to come up with one that worked properly all the time. The defendant had had a system of restriction in place for a period before the accident, but it was found to constantly impede the operation of the saw and it was somewhat of a hindrance. The defendant had been storing materials to redesign the retention system at the time of the accident, but it was not actually fitted to the saw. The saw had therefore been operating in its pre-accident condition for about two years. 48 The Safe Operation of Machinery Manual, developed in accordance with WorkCover's requirements for documentation, covers the operation of every piece of equipment used in the factory and identifies what is necessary for the employee to operate each piece safely. Training is provided for each operator as to each machine used, and the operator is required to acknowledge in writing that he/she has been so trained. The training is then redone on a refresher basis each twelve months on the anniversary of their employment. 49 There is much recent jurisprudence on the principles of sentencing, but, in essence, that jurisprudence in large part expands upon what was said by Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: … While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. 50 The issue of deterrence was considered in Capral Aluminium [(2000) 99 IR 29 at 60-61] and set out below are some extracts from that judgment: We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Ltd accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, WorkCover Authority (NSW) (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. … On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence: see Ruby, Sentencing (5th ed), Butterworths, Toronto, 1999 at 10. The propensity to re-offend must be considered when determining the weight, in [sic] any, to be attached to specific deterrence. … In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. … However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority (NSW) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. 51 On the aspect of deterrence, I find that, in the light of the evidence set out herein, the factor of specific deterrence is one that needs to be given very little weight in the penalty to be imposed on this defendant. 52 As to general deterrence, I strongly commend the course adopted by WorkCover, through Inspector Lancaster, after this accident. 53 As a consequence of this accident, Inspector Lancaster thought it appropriate to investigate other truss-building factories, and, in doing so, found problems with saws. He said that it was not that the saws were not guarded, but that they could have been better guarded. A consultation process involving the manufacturer, the owner of the machine, the employer and WorkCover evolved. 54 The saws in other factories already had guards, as did that of the defendant, supplied initially by the manufacturers. New guards have been developed as a result of such discussions at some of those factories, those guards being specific to the saws involved. Those guards are now being monitored to ensure that they provide adequate protection, but do not, at the same time, provide another hazard. The protection, and hazard, can be different depending not only on the characteristics of the particular saw, but also on its location in the workshop and how its operator has to approach it. 55 That had been precisely the situation faced by the defendant after the accident - the guarding finally approved by WorkCover for the saw at the centre of this prosecution continually impeded its required angle cutting. The outcome was that the defendant in May 2000 replaced that saw with a new state of the art computer saw costing $50,000. 56 The replacement "state of the art" saw had a Perspex guard supplied by the manufacturer. The defendant felt that the saw was still not guarded well enough when it was pulled out in the cutting position because there was access to the blade at the rear. It extended the Perspex guard on the left hand side to try to prevent access to that part of the saw. That approach confirms my views as to the minimal need for specific deterrence as to this defendant. 57 The Court is obliged in considering penalty to take into account the means of the defendant as well as such other matters as are, in the opinion of the Court, relevant (Fines Act 1996, s 6). 58 The Court was advised that: Annual Turnover is approximately $2,000,000. 1999-2000 financial year proved to be an exceptional year due to the building boom caused by the onset of GST. All profits reinvested in company. Construction of current premises was spread over a period of 5 years due to low profit years/bad debts. Retained profits since 1971 - $465,000. 59 The defendant has no prior convictions under the Act or otherwise known to WorkCover. 60 It was agreed that the maximum penalty at the time of the accident was $550,000. 61 In considering what is the appropriate penalty I have taken into account the defendant's early plea of guilty, its actions to achieve safety both before and after the accident, its co-operation with WorkCover in the investigation of the accident, a co-operation that was a continuity of its pre-accident relationship with WorkCover, the contrition expressed by the defendant both in its actions towards the injured worker and his family and in the presence of its two directors in Court during the proceedings. 62 This was the first accident in the fifty years the defendant had operated as at the time of the accident. It is obvious from the evidence before the Court that that record was not the result of luck but had been achieved because of the strong emphasis the defendant placed on safety in the workplace. 63 The defendant is an active member of a number of industry and civic organisations and is an on-going supporter of educational, medical and charitable bodies. 64 Taking all those factors into account I discount the fine otherwise to be imposed by 25 per cent as to the plea of guilty and by 10 per cent as to the other factors. 65 I regard the breach of s 15(1) as to the saw in question not being properly fenced as being the most serious of the breaches accepted to have occurred, the other two being less serious in an equal degree. Although the defendant had identified problems with this particular saw, and put on hold its efforts to overcome them, it seems that those problems were seen as operational in nature, not ones going to safety. I take into account the situation was not one of no fencing, but one in which the fencing could have been better. 66 I accept the assessments of both the prosecutor and the defendant that the breaches fall within the lower range. 67 In all the circumstances of this case, the appropriate fine for the major breach is $10,000 and $5,000 for each of the other breaches. 68 I make the following orders: (1) The defendant is found guilty of the offence charged against it under s 15(1) of the Occupational Health and Safety Act 1983; (2) Taking into account the discount of 35%, the defendant is fined the sum of $13,000 with a moiety of that fine to the prosecutor. 69 The parties are to confer as to costs and if agreement cannot be reached, the Court is to be advised within fourteen days so that a time can be set for further short submissions. ______________________________

Inspector Ian Lancaster v Burnshaw Constructions Pty Limited

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Judgment (7 paragraphs)

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Cases Cited (5)