The Defendant, on the said date at the said site, contrary to section 8(1) of the Occupational Health & Safety Act 2000 (NSW), failed to ensure the health, safety and welfare at work of all the employees of the Defendant employer, and in particular, Anthony Desmond Butcher. The Defendant failed to provide and maintain a safe system of work for the cleaning of plant, being a "Grimme Windrower" harvester, in that a person could access moving parts of the plant while cleaning the rollers of the plant, thereby placing them at risk of injury. In particular, there was no adequate system of isolating the plant while the rollers were being cleaned. The Defendant failed to ensure that the rollers were adequately guarded.
Whether the defendants were employers
8 A group certificate in Mr Butcher's name for the financial year ending 30 June 2004 designates Tippett's Scrub Hill Pastoral Co as payer. The evidence discloses that the two corporate defendants jointly operate the business as a partnership. The prosecutor represented by Mr Skinner, of counsel, submitted that the group certificate and relevant ASIC extracts, as well as admissions contained in a record of interview of John Trevella Tippett, a director of the defendant, JT & LC Tippett Pty Ltd, are decisive of the issue. The ASIC extracts confirm that both defendants are corporations and that the registered proprietors of Tippett's Scrub Hill Pastoral Co as at 19 January 2004 were the two defendants. The defendants represented by Mr Bennett of counsel made no submissions in relation to this element of a charge under s 8(1) and the matter did not appear to be in issue between the parties.
9 Based on the foregoing considerations, I therefore find beyond reasonable doubt that the defendants were employers in relation to the charge alleged against them under s 8(1) of the Act.
Whether defendants' employees were at work
10 Equally, I find, based on the group certificate and the ASIC extracts referred to above, that Mr Butcher was employed as an employee jointly by the defendants in partnership, trading as Tippett's Scrub Hill Pastoral Co. Again, the matter was not in issue between the parties.
11 The prosecutor, in submissions, informed the Court that the charges apply only to Mr Butcher as an employee. They do not purport to extend to Mr Willie, for example, since according to the prosecutor, it is conceded that Mr Willie's own actions "... could well have prevented proof of causation of a risk specific to him, and/or a maintainable defence in that regard by each defendant".
12 The issue then becomes whether at the time of the alleged offence Mr Butcher was at work. The evidence concerning the events leading up to the accident have already been canvassed to some extent. That evidence reveals that on 19 January 2004, Mr Butcher, together with his fellow workers, Mr Willie and Mr Peterson, commenced the task of harvesting potatoes on the defendants' farm. Mr Butcher drove one of three tractors to which was attached a potato harvesting machine. As the potatoes were harvested and placed in a row by the Windrower, Mr Butcher's potato harvester deposited the potatoes into the chaser bin. This work commenced at about 7am and continued with some interruptions which occurred, according to Mr Butcher, when the windrower became jammed with potato heads and had to be unblocked. Mr Butcher said this event happened "a couple of times or a few times", that day. Mr Butcher was involved in the process of unblocking the rollers on the Windrower at the time of his accident. It may be readily concluded to the requisite standard from this evidence, that Mr Butcher was at work at the time of the alleged offences under s 8(1).
Whether the defendants failed to ensure Mr Butcher's safety: the risk to safety
13 The prosecutor's case against both defendants is that Mr Butcher was at risk of being injured because he could access moving parts of the Windrower while cleaning its rollers. Moreover, this risk to safety, the prosecutor asserts, is apparent from the evidence of the accident itself. In Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, Wright and Walton JJ observed (at 452) that the circumstances leading up to and including an accident in relation to a charge under the occupational health and safety legislation concerning an alleged failure to ensure worker safety, will provide relevant evidence of the existence of the risk to safety. This is not to say, as their Honours emphasised, that the accident itself constitutes the offence or is "an element of the offence", rather it is the alleged failure of an employer under s8(1), for example, to ensure the safety of employees that gives rise to the risk or risks: Drake Personnel at 449, 450.
14 The prosecutor relies on the circumstances of the accident as having evidentiary value in providing proof that there existed a relevant risk to safety. Many authorities in this jurisdiction have referred to the accident as a manifestation of the risk to safety thereby providing the necessary evidentiary connection. The facts here disclose that the Windrower contained a number of hazardous components, including the counter-rotating rollers, between which was the in-running nip point where Mr Butcher's foot was caught and pulled in. Workers had access to this nip point formed by the first web and the counter-rotating haulm roller when they climbed onto the body of the machine in order to clear any blockages in the nip point area as a result of dirt, debris and pieces of potato. According to the expert report of Mr Richard Sulman, tendered on behalf of the defendants, due to the low set position of the nip point in relation to the second web, feet are the most likely parts of the body exposed to this hazard.
15 The risk arose when access was gained to the nip point area, and the componentry was operating because the PTO was engaged. Even when the PTO was disengaged, Mr Sulman expressed the view in his report that due to the size and plurality of the components on the Windrower, significant momentum was nevertheless exhibited because of overrun. It follows therefore that the risk to safety was extant even when the PTO was disengaged, although the period during which this could occur was unspecified in the evidence. I asked Mr Sulman during his oral evidence, whether he could estimate how long it would take for the componentry in the Windrower to stop rotating once the PTO was disengaged. Mr Sulman's response is reproduced below: