The offending conduct
28 As it was explained earlier, at about 5.00 pm on 11 February 2003, Mr Tava was seen to be working at Number 2 press but not operating it. Mr Leaaetoa said Mr Tava was "fixing" the press. Most likely Mr Tava was engaged in the process of replacing a broken punch on the press. No one witnessed the incident, however it was agreed that what appeared to have happened was that Mr Tava had removed the four hold down bolts that were the bolts that held the bottom die hold-down plate in position. He had then levered the 74-kilogram plate up out of its position using a crow bar and had turned it physically on its edge. Number 2 press then cycled and the machine pressed down on the bottom plate. The plate was propelled out of the machine under the full load of the press and it hit Mr Tava, thereby causing his death.
29 The press had a number of controls. It could be operated in manual or automatic mode by using the manual/automatic switch on the controls. Automatic mode was used in normal production operations whereby the press completed a full, 12-second cycle of operation. To commence another cycle a button needed to be pressed. In manual mode, each time a button was pressed the press would inch up or down (according to which button was pressed). Manual mode was usually used in maintenance operations including for the purpose of changing tools.
30 There was a photoelectric cell on each side of the working area of the press. The cells were approximately 830 mm long and their lower ends were approximately 710 mm from the concrete floor. Once an operator interrupted the light beam by moving into the range of the cells, the press would automatically stop. In order to re-commence the operation of the press after the photoelectric cell had stopped it, a button needed to be pressed.
31 It is simply not known how the press came to be activated. It would appear that Mr Tava would have to have stepped out of the range of the light curtain created by the photoelectric cells and pressed the start button whilst the press was in automatic mode. It may have been the case that the press was in automatic mode when he was working on it and thinking it was in manual mode when he stepped back from the light curtain, Mr Tava may have pressed the start button. But this is mere speculation.
32 The failures by the defendant constituting the breach were: A failure to provide or maintain systems of work that were safe and without risks to health; a failure to provide adequate supervision of its employees; a failure to provide such information, instruction, training in the maintenance procedures for the plant; and, a failure to carry out an adequate risk assessment of the tool changing process.
33 A practice had developed on the afternoon shift wherein the machine operators would assist the afternoon tool setter, Mr Matekovic, to change the tooling on Number 2 press. The practice was that with the tool setter present, the machine operators would assist by undoing and removing the hold down bolts and the hold down plate. During the afternoon shift if the tool setter was working on another machine, the machine operator would commence by himself to remove the hold down bolts. The defendant was aware of this practice.
34 Mr Tava was competent to operate the press but was not trained and, therefore, not competent to change punches on the Number 2 press. Mr Tava was not being supervised at the time he was working on Number 2 press at about 5.00 pm on 11 February 2003. Further, it was an agreed fact that the defendant had not carried out a risk assessment on the tasks of tool changing, undoing the hold down bolts or removing the hold down plate on the press.
35 In circumstances where there had been no risk assessment, no training in relation to changing punches on the press, no supervision and no instruction or system of work that prevented a machine operator from going any further than undoing and removing the hold-down bolts on a 600 tonne press, no other conclusion is open other than there was a comprehensive failure on the part of the defendant to ensure the safety of Mr Tava, amounting to a serious offence under s 8(1) of the Act.