One Steel Coil Coaters Pty Limited (the offender) has pleaded guilty to an offence that by its acts and/or omissions it failed to ensure the health, safety and welfare of an employee Thuan Luu contrary to section 8(1) Occupational Health and Safety Act 2000 (the Act).
The maximum penalty for the offence is 5000 penalty units ($550,000): section 12(1)(b) of the Act.
On the sentence hearing, Ms James appeared for the prosecutor and Ms McDonald SC appeared for the offender.
[3]
Facts
The parties presented an Agreed Statement of Facts, which can be summarised as follows.
From about 2007 the offender operated a business painting steel strips from premises at 3a Contaplas Street, Arndell Park in the State of New South Wales (the site). The offender was one in a group of companies that at the relevant time employed about 40 people.
At about 7.10am on 6 April 2011 Mr Luu sustained serious injuries when his arm became caught between two in-running lower turnaround steel rollers on a Primer Coater Machine (the Machine) at the site.
On the day of the incident Mr Luu was working in the Primer Coater Room where the Machine was located carrying out tasks related to the operation of the Machine.
The Machine applied undercoat paint (primer) to both sides of the raw steel which was fed into it in a continuous sheet, ie a steel coil. There were a number of rollers within the Machine, including two in-running lower turnaround steel rollers on the exit side of the Machine (lower rollers). The lower rollers were not involved in the application of primer but assisted in providing tension and guiding the steel coil through the line. There was a nip point between the lower rollers.
The Machine had an interlocked trip bar and an emergency stop pull wire. The interlocked trip bar had been installed in an attempt to alleviate the risk of an inadvertent trip or fall into the Machine by an employee. If activated, the interlocked trip bar stopped the entire line, including the Machine. The emergency stop pull wire, if pulled would stop the entire line including the Machine.
Employees working in the Primer Coater Room were required to come into close proximity to the Machine:
1. to view the underside of the strip of metal as it passed through the lower rollers to monitor the coverage and quality of the paint coating; and
2. to clean the lower rollers when paint particles or steel fragments dropped onto the rollers.
In order to clean the lower rollers, employees would be required to crouch down in close proximity to them. They were cleaned by applying a chemical spray to the rollers or a rag and applying pressure to the rag to manually remove the paint particles or steel fragments from the surface of the lower rollers, whilst the machine was in operation. Mr Luu's supervisor accepted that this was a task required of employees working in the Primer Coater Room and that it was a task he had performed himself. Mr Troy Mitchell, an employee who performed the same role as Mr Luu, stated in an interview with the WorkCover Authority on 9 May 2012 that Mr Luu would have only been required to lean into the space where the lower rollers were to undertake work on those rollers when the Machine had been stopped.
On the day of the incident at about 7.10am the emergency stop pull wire was activated. When Mr Luu's supervisor went to investigate he found Mr Luu in the Primer Coater Room unconscious with his right arm caught between the lower rollers. There were no witnesses to Mr Luu's accident.
Mr Luu was freed by emergency services personnel and conveyed to hospital. He later underwent an above the elbow amputation of his right arm. Mr Luu has been unable to return to work.
In May 2009, the offender commissioned an independent risk assessment of the guarding of machinery to be undertaken at the site from an appropriately qualified expert, Mr Roger Lim of Planned Safety Solutions Pty Ltd. Mr Lim did not inspect the Machine, but noted that it was similar to the Chemical Coater Machine that he did inspect.
The assessment recommended, if reasonably practicable, to fit a guard to the Machine between the lower rollers and to extend the existing guards to prevent access to in-running nip points at the sides of rollers at the entry and exit points (the recommendation). The recommendation was set out in a report from Mr Lim dated 20 May 2009.
The recommendation was considered by the Safety Action Plan Team which consisted of the sites Operation Manager, Arthur Crampton and a National Operations Manager who was seconded to the site. The Safety Action Plan Team formed the view that:
1. the foreseeable risk was a risk of inadvertent trip or fall by an operator; and
2. the interlocked trip bar and the emergency stop pull wire were sufficient to minimise that foreseeable risk.
In August or September 2009 capital expenditure was made to implement the other matters identified in Mr Lim's report that were accepted by the Safety Action Plan Team, that included inter alia additional guarding of the Chemical Coater Machine.
The operation of the machine was carried out pursuant to a Standard Operating Procedure (SOP) dated 25 November 2010, which outlined the tasks required to be and undertaken in the Primer Coater Room. Mr Luu had been trained in the SOP and had signed a Competency Assessment Form which indicated that he could satisfactorily describe the potential areas where nip points could occur and could explain the appropriate controls to eliminate or reduce those risks. The SOP provided:
1. that cleaning of Head 1 (the top lower roller) could proceed while the Machine was running;
2. that cleaning of Head 2 (the bottom lower roller) could not be undertaken without "the line being stopped and locked out by use of the line isolator on the control panel";
3. that cleaning should only be undertaken when the rollers were in reverse to eliminate the nip point; and
4. that forward coating was when the Machine was in its most dangerous mode because of the nip point created by the operation of the lower rollers.
In addition to this formal training, there were toolbox talks conducted on a regular basis relating to health and safety in the operation of the Machine, including on the day of the accident. Mr Luu had four to five years' experience working on the Machine.
In his interview with the WorkCover Authority, Mr Luu stated that on the day of the accident he was squatting next to the Machine and cleaning it whilst it was running. He stated that he undertook this task about three or four times per shift. He stated that on the day of the incident the drum had not been cleaned before the paint was changed. The paint that had dripped onto the roller had hardened on the roller surface and was therefore difficult to remove, requiring him to have his hand in the required position for a long time. He did not make any statement relating to how his arm became entrapped between the lower rollers.
In his interview with the WorkCover Authority the Site Manager, Mr Gleeson stated that he never observed Mr Luu cleaning the rollers of the Machine whilst it was running.
Shortly after the accident, the offender:
1. installed additional guarding on the lower rollers of the Machine at a cost of approximately $19,785.00; and
2. installed a Fortress Interlocking System through the production line that requires a key to be placed in the central locking system for the Machine to operate. The cost of the interlocking system was approximately $15,443.00 and the cost of the associated electrical works was approximately $20,250.00;
3. revised the SOP to provide instructions to stop the machine prior to any cleaning task being undertaken.
[4]
The offender's evidence
The offender relied on two affidavits of Geoffrey Wayne Voigt sworn 26 March 2015 and 30 March 2015. Mr Voigt was cross-examined before me on 31 March 2015.
At the relevant time, Mr Voigt was employed by a company within the group as the General Manager Safe Operations Steel. He had been employed in manufacturing management roles for about 29 years prior to being employed in various safety roles for the past 9 years. Mr Voigt has been trained in numerous safety and environmental fields including incident investigation and risk management. He had also received training in 2010 on the Australian Standard relating to machine guarding from Mr Lim.
Mr Voigt gave evidence about the circumstances leading to the commissioning of Mr Lim's report of 20 May 2009. It is sufficient to note that Mr Lim's report was obtained as a response to an accident where an employee of a related company in the group suffered a hand injury that occurred at a different site. In the circumstances that response was a proactive and wide ranging review of the machinery operated throughout the group and not just of the machinery operated by the relevant company.
After the accident Mr Voigt immediately travelled to the site, together with another senior executive. The production line was shut down for two weeks to allow for a full investigation into the accident and to review guarding on the machinery at the site and the relevant procedures. During the investigation process, Mr Voigt spoke to a number of employees and was present whilst various measurements of the Machine were taken.
Mr Voigt accepted that the SOP provided that Head 1 could be cleaned while the Machine was running. He pointed out that Head 2 was covered by the steel coil when the Machine was running.
Mr Voigt provided primary records held by the offender that established that the line and the Machine would have been stopped to change the gauge of the steel coil at approximately 7.15am on the morning of the accident. In other words, if there was a need to clean one of the lower rollers Mr Luu could have waited about five minutes and completed that task when the Machine was stopped.
Mr Voigt gave evidence of his understanding as to how it was anticipated that the employees such as Mr Luu would have attended to cleaning the lower rollers whilst the Machine was running. There were some discrepancies between this evidence, i.e. what the management of the offender anticipated would occur in the course of the cleaning tasks and the description of how the cleaning tasks were actually undertaken as described by Mr Luu and his supervisor in the Statement of Agreed Facts. Mr Voigt's evidence on this point and the Statement of Agreed Facts were therefore not inconsistent.
Mr Voigt was present when employees of the offender attempted to re-enact Mr Luu's accident as part of the investigation undertaken. Annexure C to his affidavit of 26 March 2015 was a photograph taken of an employee with his arm in the Machine, in the position intended to depict where Mr Luu was found immediately after becoming entrapped in the Machine. The photograph depicted the body of the employee being positioned under both the interlocked trip bar and the emergency stop pull wire.
In paragraph 56 of his affidavit sworn 26 March 2015, Mr Voigt set out a series of measurements which were confirmed by photographs annexed to the affidavit and video footage of the measurements being taken. The effect of those measurements was intended to be that:
1. the height of the interlocked trip bar would provide protection to an employee who was crouching in close proximity to the Machine and inadvertently overbalanced towards it; and
2. the nip point was 840mm past the interlocked trip bar, which was longer than the average worker's arm.
Mr Voigt gave evidence that the interlocked trip bar would stop the line and the Machine if it was raised or lowered from its resting position. Mr Voigt gave evidence that the emergency stop pull wire would stop the line and the Machine if light pressure was applied to it in any direction as it was under tension.
Mr Voigt concluded that Mr Luu must have taken some deliberate action to access the rollers underneath the interlocked trip bar and the emergency stop pull wire, in order to become trapped in the Machine.
I would pause to note at this juncture that Mr Voigt was a very impressive witness. I considered him to be appropriately qualified to express the opinions contained in his affidavits. The fact that the offender chose to express its remorse and contrition through such a senior and experienced member of its organisation was also in my view significant.
I will return to other aspects of Mr Voigt's evidence when considering the mitigating factors to be taken into account relating to this offence.
[5]
Consideration
Both the prosecution and the offender reminded me of the general principles to be applied in the sentencing process and I have had regard to those matters, which were helpfully set out in the written submissions of the parties.
[6]
Objective seriousness of the offence
The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v R (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relevant to the gravity of the offence: Capral Aluminium Limted v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of forseeability of the risk is to be determined objectively.
The risk of injury to a worker such as Mr Luu was reasonably foreseeable because the SOP permitted the cleaning task to be undertaken whilst the Machine was running. I accept that the risk was small but it would nevertheless have serious consequences if it was brought home.
Mr Luu suffered serious crush injuries that resulted in an above the elbow amputation of his right arm. Mr Luu, to this point, has been unable to return to work.
Having considered the photographs, the measurements and the opinion evidence of Mr Voigt, I accept that in order for Mr Luu to become entrapped in the Machine he had to take deliberate steps to avoid contact with the interlocked trip bar to carry out the task he was engaged in and that his actions were dangerous to his own safety. I am satisfied on the evidence contained in Mr Luu's statement to the WorkCover Authority that he was trying to diligently and conscientiously clean the Machine whilst it was running.
The Safety Action Plan Team when considering Mr Lim's recommendation identified the foreseeable risk of injury to be an inadvertent trip or fall by an operator and accordingly that the interlocked trip bar and emergency stop pull wire provided adequate protection. Further, the Safety Action Plan Team considered that the provision of further guarding would impede the task of operators inspecting the underside of the strip to monitor the coverage and quality of the primer coating.
In my view the Safety Action Plan Team's consideration was deficient because it did not contemplate the possibility that by permitting at least some cleaning tasks to be undertaken whilst the Machine was running, that an operator may in an attempt to conduct those tasks diligently and conscientiously, take steps to avoid contact with the interlocked trip bar or otherwise put themselves in a position of peril. Further, the later provision of the guarding that is depicted in photographs 29 and 30 of the Prosecution Sentence Bundle indicates to me that the need for the operator to inspect the underside of the strip was not prevented by the guarding, or alternatively if it was prevented by the guarding that it was not an essential element of the process.
In the circumstances, the offender's departure from the standard expected of a reasonable employer in its position was evident but not significant.
For these reasons, the objective seriousness of the offence in my view was in the low range.
[7]
Deterrence
There is a requirement for the penalty imposed in relation to this offence to provide for general deterrence. The penalty should draw attention to persons operating similar businesses, which are inherently dangerous to employees, that it is necessary to ensure that those businesses operate without risk to the health and safety of their employees.
In this particular case, the requirement for the penalty imposed to provide for specific deterrence is reduced to the extent that it can be disregarded for the following reasons.
First, after the accident the offender took immediate steps to provide further guarding of the Machine and to provide other electrical isolation of the Machine when cleaning work was to be undertaken.
Second, the offender by its prior conduct had demonstrated a significant commitment to workplace safety.
Third, the offender has provided support to Mr Luu and his family whilst he was in hospital and has provided ongoing counselling and financial assistance to him after that time. The offender has assisted Mr Luu by providing him with a prosthetic limb, modifications to his car and home, driver retraining and extensive rehabilitation, which is likely to result in Mr Luu being able to return to some form of employment.
Fourth, the offender through the evidence of Mr Voigt has accepted full responsibility for the incident and expressed sincere remorse and regret.
Finally, the offender is no longer operating the relevant business. The business has been sold and the offender has been maintained on the companies register only for the purpose of these proceedings and it will be wound up after their completion.
[8]
Aggravating factors
The injury, emotional harm, loss or damage caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. Mr Luu suffered serious crush injuries
[9]
Mitigating factors.
The offender does not have any prior convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Voigt in paragraphs 89 to 91 of his affidavit sworn 26 March 2015 accepted responsibility on behalf of the entire executive and management team of the offender and the group for the accident. He also expressed sincere regret and remorse for the effect on Mr Luu and his family and for the fact that the Act had been contravened. Mr Voigt gave evidence that the accident has reinforced in the offender the need to be "continually vigilant with regard to matters affecting health and safety". For the reasons I have already expressed I have no hesitation in accepting Mr Voigt's evidence as being genuine contrition and remorse on behalf of the offender. Further, the offender has acknowledged the injury, loss and damage caused by the offence and has made significant payments towards Mr Luu's support and rehabilitation that should be considered as reparation for the injury, loss and damage suffered by Mr Luu.
The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The evidence demonstrated that the offender had a serious commitment to workplace safety. In addition, Mr Voigt gave evidence that the offender contributed to charity events in its local area and that the group made corporate donations on behalf of all of the relevant companies on a structured basis.
The offender is unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender is no longer operating the relevant business, which has been sold.
The offender entered a plea of guilty to the Amended Summons at the earliest possible opportunity: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32] The prosecutor accepted that the offender's plea was an early one. In the circumstances, the appropriate discount for the plea of guilty is 25%.
The offender co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[10]
Capacity to pay a fine
Section 6 Fines Act 1996 provides:
In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider:
(a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and
(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.
The Court is required to have regard to this provision. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine.
The offender did not put on any relevant evidence.
[11]
Penalty
Taking all of those matters into account I find the appropriate penalty to be a fine of $60,000. In recognition of the early plea of guilty that sum is to be discounted by 25%.
I impose a fine of $45,000.
I order that the prosecutor receive a moiety of that fine.
[12]
Costs
To give effect to the agreement of the parties, I order that the offender pay the prosecutor's costs in the sum of $30,000.
[13]
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Decision last updated: 30 October 2015