Inspector Lyons v Active Tree Services Contracting Pty Ltd

SOLICITORS Carroll & O'Dea SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr R Reitano of counsel

SOLICITORS Leigh Virtue & Associates SYDNEY.

JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

INSPECTOR DAVID LYONS v ACTIVE TREE SERVICES CONTRACTING PTY LIMITED

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT

1 The Prosecutor, an Inspector of the WorkCover Authority of New South Wales, commenced a prosecution under s15(1) of the Occupational Health and Safety Act 1983 ('the Act') against Active Tree Services Pty Limited.

2 The Inspector was intending to prosecute the employer of a worker, Tamati Reedy, who was injured in a workplace accident when engaged in the operation of a wood chipping machine at a roadside location in Dural. Information received by the Inspector at the time from a number of sources indicated that Mr Reedy was employed by that company. Subsequently it was drawn to the attention of the WorkCover Authority by those representing the defendant that the employer of Mr Reedy was an associated company named Active Tree Services Contracting Pty Limited.

3 On the matter coming on for hearing, in anticipation of a plea of not guilty, a motion by the Prosecutor for the amendment of the name of the defendant to Active Tree Services Contracting Pty Limited was consented to and granted for reasons which were then given extempore. Those reasons were as follows: In this matter Inspector David Lyons has commenced proceedings under s15(1) of the Occupational Health & Safety Act against Active Tree Services Pty Limited in circumstances which relate to an accident which occurred on 28 July 1999 at a particular address in Dural. The particulars of the charge include the proposition that the defendant was the employer of the employee concerned, Mr Tamati Reedy.

It is clear from the evidence now tendered in support of the motion that the inspector was seeking to pursue the employer and did pursue Active Tree Services Pty Limited in the circumstances where he understood that company was the employer of Mr Reedy. The evidentiary material annexed to Mr Phillips's affidavit lends ready support to the proposition that his understanding was then confirmed by resources.

Subsequently it has come to the attention of the Prosecutor that the employer was not Active Tree Services Pty Limited but Active Tree Services Contracting Pty Limited. In those circumstances the motion has been filed seeking to amend the identity of the defendant to the second of those companies. There is no opposition, indeed there is really consent from those representing the defendant and also the company Active Tree Services Contracting Pty Limited to the amendment. And I am satisfied that the court has power as covered by s170 of the Industrial Relations Act and s6(1) of the Supreme Court (Summary Jurisdiction) Act to make the amendment sought.

I also rely upon the decision of the Full Bench of the court in Manpac Industries v WorkCover Authority [2001] NSWIRComm 190 as allowing the effective order now sought. The facts in that case are not dissimilar to those which have occurred here and I am satisfied that here, as there, it would be appropriate for the court to make the order.

I therefore amend the name of the defendant in the proceedings from Active Tree Services Pty Limited to Active Tree Services Contracting Pty Limited with the ACN No. 060 633 132.

4 Upon those reasons being given the defendant, Active Tree Services Contracting Pty Limited, entered a plea of guilty to the charge. It had previously conveyed to the prosecutor, both orally and in writing, that were the Court prepared to accede to a motion seeking the amendment referred to above, such a plea would be entered. This was characterised by the defendant as being a plea of guilty entered at the earliest opportunity available to it. The prosecutor did not demur from that position and I accept it.

5 The circumstances of the accident were the subject of an agreed statement of facts from which I extract the following essential points. The Informant is and was at all material times an Inspector duly appointed and empowered by s.48 of the Occupational Health & Safety Act (NSW) 1983 to institute the within proceedings.

At all material times, the Defendant, Active Tree Services Contracting Pty Limited was a company duly incorporated with a registered office at Level 4, 100 Christie Street, St. Leonards in the State of New South Wales ("the Defendant").

At all material times, the Defendant operated a tree lopping business in the said State and did employ Mr Tamati Reedy and Mr Joseph Rona as woodchippers.

At all material times, the Defendant had a Mitsubishi truck registered number VIU 673. The truck had a driver's cabin and a semi enclosed driver's section. Fixed to the truck between the tray and the cabin was a Rivett Model 60 "Little Rippa Chippa" ("the machine"). In the course of its tree lopping activities, the Defendant would supply the truck, and the machine which was attached, to it employees such as Messrs Reedy and Rona for use at work. The truck would be driven to different locations where tree lopping and woodchipping activities would take place.

Prior to commencing work with the Defendant, employees such as Messrs Reedy and Rona were provided with an induction course specifically relating to the machine.

Mr Reedy commenced work with the Defendant in April 1999 and commenced work on the machine on or about 4 May, 1999.

On 28 July, 1999 Mr Reedy and Mr Rona were directed by a supervisor in the employ of the Defendant, a Mr Mitchell Howe, to attend upon the roadside outside of 465 Galston Road, Dural in the said State for the purposes of undertaking woodchipping activities at that place (hereinafter referred to as "the site"). Mr Reedy and Mr Rona drove the truck, including the attached machine to the site and commenced undertaking woodchipping activities on the said date. Whilst lifting a pile of branches towards the machine, Mr Reedy tripped on waste material which was on the ground in front of the machine. Mr Reedy extended his right hand/arm. Mr Reedy's right hand came into contact with the moving in-feed rollers on the machine. The in-feed rollers drew Mr Reedy's right hand and arm into the machine and further, drew his right hand into the cutting blades which were situated behind the in-feed roller. Mr Reedy attempted to activate the release bar beneath the chute with his left or free arm but was unable to work the release bar so as to free himself from the in-feed rollers. Mr Rona, who was working with Mr Reedy activated the release bar and freed Mr Reedy from the machine. At the time Mr Reedy was freed from the machine, both of his feet were off the ground as he had been drawn into the machine by the feed rollers up to his right shoulder.

An ambulance was called and Mr Reedy was transported to the Westmead Hospital for treatment. In the subject accident, Mr Reedy suffered the traumatic amputation of his index, middle and ring fingers and thumb on his right hand. Further, Mr Reedy received deep lacerations to his right arm, deep bruising to his right arm and hand as well as suffered a wrenching injury to his back and right shoulder blade.

Mr Reedy tripped on debris which was in front of the in-feed chute of the machine. At the time of his accident, the Defendant did not require workers such as Mr Reedy and Mr Rona to keep the ground area adjacent to or in front of the machine free of debris.

Subsequent to the accident, the Defendant increased the length of the in-feed tray on the machine from 830mm to 1400mm. The Defendant also relocated the reversing bar so that the bar would extend up both sides of the in-feed tray and across the top of the machine. The Defendant further modified the machine in order to stop the rollers from turning as soon as the feed tray had been lifted into a position for stowing.

It is alleged that the Defendant failed to provide and maintain a system of work that was safe and without risk to health in that the Defendant did not require its employees, namely Messrs Reedy and Rona, whilst working on the machine to keep the area in front of the in-feed chute clear of waste material debris. The waste material/debris on the ground presented a tripping hazard to the Defendant's employees.

The Defendant failed to provide or maintain plant that was safe and without risk to health in that the machine provided for use at work by Messrs Reedy and Rona was unsafe in that:-

(i) the in-feed tray or chute length was inadequate in that it enabled operators, such as Messrs Reedy and Rona to come into contact with the moving dangerous parts of the machine (namely the in-feed rollers) whilst the machine was in operation. After the accident to Reedy the Defendant extended the length of the in-feed tray or chute.

(ii) Further, the machine was unsafe in that the operator could not access a release or reversing bar having been caught in the in-feed rollers. Subsequent to the accident the release or reversing bar was extended so as to place it up both sides of the tray and across the top of the tray.

It is alleged that on 28 July, 1999 the Defendant, Active Tree Services Contracting Pty Limited being an employer at the said site contrary to s.15(1) of the Occupational Health & Safety Act 1983 (NSW) failed to ensure the health, safety and welfare at work of all of its employees and, in particular, Mr Tamati Reedy and Mr Joseph Rona, in that the Defendant failed to provide or maintain a system of work that was safe and without risk to health and further, that the Defendant failed to provide or maintain plant that was safe and without risk to health.

6 In addition I make the following findings of fact:

That Mr Reedy had been trained in the operation of the particular wood chipping machine.

That the accident to Mr Reedy occurred when he was not actually operating the machine.

That the injury to Mr Reedy occurred after he tripped upon the debris on the ground in the vicinity of the machine and, while falling backwards, extended his arm to save himself, thereby having his arm come into contact with the rotating in-feed rollers of the machine.

That the principal of the Active Tree Services Group and the sole shareholder in the defendant company, Mark Richard Willcocks, has had experience in the tree maintenance industry since 1974 and has been instrumental in organising tree contractors into an association known as the Tree Contractors Association, for reasons related fundamentally to issues of workplace safety.

The defendant employs 138 employees in New South Wales and other associated companies employ a further 27 employees in New South Wales and 47 in other states of Australia.

Mr Willcocks purchased his first wood chipping machine in 1979.

That the principal business of the defendant is in contracting to the Electricity Commission, Integral Energy and Energy Australia.

That the principal business of the defendant is the maintenance of trees and the clearing of power lines.

That Mr Willcocks was a participant in the establishment of a code of practice for the "Amenity Tree Industry" which dealt with issues of safety including the operation of wood chipping machines.

That the defendant has had no prior convictions.

That the defendant operates in its industry in a manner which is cognisant of the need for safety. It operates site safety management plans, safe work procedures, and institutes training of operators.

That the defendant took the machine out of service immediately the accident had occurred. It undertook modifications in accordance with the requirements of the Inspector and sought his approval of the alterations which required the extension of the chute from 830mm to 1400mm. The defendant also undertook two additional alterations of its own volition.

7 A number of testimonials from persons having some relevant business connection with Mr Willcocks spoke of his commitment to good management practices in the context of the dangerous environment in which his business operates. One such was provided by Robert Sweetman, the Risk Management Adviser of QBE Insurance (Australia) Limited in the following terms: To Whom It May Concern:

I have been involved with Active Tree Services Group of Companies as a Risk Management Adviser since July 2001. I am employed by QBE Insurance in this role in the Workers Compensation Division.

During this period I have had considerable dealings with the principle (sic) of the organisation and all levels of employees in relation to Risk Management activities.

As a result of this contact, it is my observation that Active Tree Services Group have made significant steps in implementing prevention strategies as evidenced by their documentation and training requirements. As an organisation they have embraced an approach to Occupational Health and Safety which brings together Prevention, Claims Management and Return to Work as part of a total system. Such an approach is beyond most comparable companies and indeed many larger organisations.

Their approach is one that reflects the commitment of the principal to look after employees and improve all workplaces of Active Tree Services Group. The other testimonials were to similar effect.

8 Mr Colin G Simpson, a consulting engineer and one of the principals of Simpson Associates Forensic Engineering of North Sydney, prepared a report into the chipping machine based not upon an inspection of the machine in the condition it was when the accident occurred (because of later modification) but on the basis of photographs and the dimensions of the machine. The report was tendered in the prosecution case. The hydraulically powered in-feed rollers were identified by Mr Simpson as the first potentially dangerous section of the machine. He expressed the opinion that the only means of effectively guarding the in-feed rollers is by "distance guarding" meaning that they cannot be physically reached whilst in operation. The principle of distance guarding had not been considered correctly in this case, because, having regard to the dimensions of the machine, the in-feed rollers were not guarded at all. He said that "in the opinion of the writer, the set-up of the Rivett Model 60 "Little Rippa Chippa" wood machine in this way is nothing short of dangerous."

9 Mr Simpson also expressed the view that the reversing bar, which when operated reverses the in-feed rollers, was useless in Mr Reedy's context because when his right hand was grabbed by the rollers he was lifted off his feet and dragged bodily into the in-feed chute, and so not able to reach the reversing bar. He said the reversing bar must be made automatic in operation and not be reliant upon the reaction of the person in peril. He also said "This would appear to have been addressed after the accident with the addition of sections of the reversing bar being added up both vertical sides of the in-feed chute and also across the top of the chute."

10 Mr Willcocks also referred in his oral evidence to a committee formed in 1997 to consider a code of practice to deal with wood chipper safety specifically. The committee was made up of manufacturers that supplied operators such as the defendant. Tendered in evidence was a memorandum dated 5 November 1997 over the signature of Mr Hugh D Corner, Senior Inspector, Rural and Technical Support Unit, Engineering Services of WorkCover, which referred to WorkCover currently working with manufacturers, users and suppliers to develop guidance notes. Included within the memorandum is the following: However there appears to be inaccurate and misleading information circulating throughout the industry, that some Manufacturers are pushing WorkCover in the direction of extending infeed shutes (sic) and raising the height of the table.

This is not the case at all, in fact it is industry themselves that is calling for change and guidance in the design and operation of their equipment.

It is not the intention of this committee to cause hardship or to cause injury, but rather to promote safe work practices and equipment that meets the requirements.

11 Also tendered in evidence was a memorandum dated 5 July 1999 over the signature of Terry Atkins, Senior Inspector, to committee members of what was referred to as the "Wood Chipper Guidance Note Committee". The memorandum was in the following terms: Dear Committee Member

This is just a short note to let all know what has been the hold up with the printing of the guidance note.

WorkCover Management have made a decision to hold up the printing of the final document, until some legal proceedings involving a Wood Chipper have been concluded.

This in no way means we have abandoned the project, just had pressure put on us to put it on hold for a short period of time.

As soon as we have the go ahead, we will let all know and put the wheels back in motion.

For any further information, you can contact either Hugh or myself.

12 In cross-examination Mr Willcocks identified, according to his understanding, the legal proceedings to which reference was made in the second WorkCover memorandum as the decision in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81. That judgment was of the Full Bench on appeal from a single member concerning the use of a Little Rippa Chippa Model 80. While the model number is different to that involved in the present case the description of the machine suggests some real similarity. The Full Bench said (at 99): In our opinion, the machine in question was inherently unsafe . . . it was relatively easy for a person to reach into the machine and come into contact with the feed rollers; it was relatively easy to by-pass the safety mechanisms. The distance between the external edge of the in-feed chute and the danger point of the feed rollers took insufficient account of the very real prospect of an operator acting inconsistently with any training or instruction manual or warning signs. The distance left insufficient margin for error or careless, inadvertent or even foolish behaviour on the part of an operator.

13 This accident was caused essentially by Mr Reedy tripping upon accumulated debris on the ground near the truck mounted wood chipping machine and then being capable of contacting the rollers with his hand because of the lack of guarding. The machine was in original condition, that is to say as supplied by the manufacturer, who I understand to be Arbor Products, the subject of the prosecution in the case earlier referred to. The machine was modified by the defendant shortly after the accident in accordance with WorkCover's requirements.

14 Mr Willcocks said in evidence that there is a degree of debate within the tree contracting industry concerning the question of whether extended chutes on wood chipping machines are the most safe or more unsafe. Extended chutes tend, in the view of some, to increase the possibility of the employee putting an arm or leg into a machine in a way which would prevent access to any emergency cut off or reversing devices. In the light of the evidence of Mr Simpson and, indeed, the recognition by the plea of guilty, any debate within the industry about the wisdom of having distance guarding, must be subjugated to a finding that the machine was inherently unsafe.

15 The defendant submitted that this case involves the coming together of unique events: an employee pulling the tree towards the machine who falls backwards and thereby the hand finds its way into the machine. It was submitted that it was not as though the machine was being used for the purpose it was intended. It was a circumstance which was not obviously foreseeable. Any risk involved in the ordinary use of the machine did not materialise.

16 There was some discussion in the submissions of counsel about the principles applicable to the assessment of discount, particularly in the context of the utilitarian value of a plea. That matter is now well settled. It remains the law that R v Thompson; R v Houlton (2000) 49 NSWLR 383 applies in this context to provide that a discount in the range of 10 to 25 percent may be attributed according to the circumstances of the case on account of the entry of a plea of guilty. In assessing the percentage discount to be attributed one factor is the strength of the Crown case and the inevitability of conviction. However, in R v Thompson Spigelman CJ said at p416: In Winchester v The Queen , Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf R v Beavan (at 12). As his Honour put it (at 350): " . . . The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable." In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition, or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.

17 I also note that the Chief Justice said (at 417): Where the accused's own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest possible timing for a plea.

18 This seems apposite in the present case where the summons was misdirected to a wrongly named defendant and this was disclosed by the present defendant thereby permitting the motion for amendment to be filed and the subsequent plea of guilty to be entered.

19 In the course of the argument reference was also made to the judgment of the President in WorkCover Authority of New South Wales (Inspector Mulder) v Yass Shire Council (2000) 99 IR 284. This case also involved a Little Rippa Chippa Model 80 purchased from Arbor Products. In that case an employee had been wearing gloves when using the machine, one of which became entangled in a thorny branch. He tried to release that hand with his other hand with the result that both hands and arms were pulled into the feed rollers and were amputated leaving him with a left above the elbow amputation and a right below the elbow amputation. In that matter the defendant pleaded guilty to two charges under s15(1) of the Act, the first of which related to the failure to provide appropriate and adequate gloves for use with the wood chipping machine and the second of which related to the failure to provide or maintain a system of work which was safe and without risk to health. In those matters the President assessed penalty at $45,000 in respect of each charge, after allowing for the various mitigating features and the particular circumstances of the defendant. This was arrived at by considering that the appropriate penalty in each matter was $65,000 but, applying the principle of totality, a total penalty of $90,000 should be imposed which was applied as I have said.

20 In Arbor Products I was informed that the penalty ultimately imposed was $30,000 but after an appropriate allowance for the economic difficulty affecting the defendant.

21 In the present matter I take into account the facts as found with respect to the defendant. It is a company which has approached its industry with serious concerns for safety. In this case it has been affected by limitations of machinery readily available on the market at the time of its purchase but involving features which exposed workers to danger. I take into account its good industrial record, the fact of its having no prior convictions and the entry of its early plea. I also accept that it has expressed appropriate remorse in the light of the accident. I also take into account the principle of consistency in sentencing (See Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 29 at 56). It seems to me the appropriate penalty here must be of a similar, but not identical, order to those imposed in Arbor Products and Yass Shire Council, but more particularly the latter case.

22 In all of the circumstances I would impose a penalty of $55,250 after a discount of 35 percent in respect of the matters to which I have referred. WorkCover should have a moiety of penalty and its costs as agreed or as assessed. I order accordingly.

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