Inspector Przibilla v Hindmarsh & Roddy Engineering Pty Limited

Inspector Przibilla v Hindmarsh & Roddy Engineering Pty Limited - [2004] NSWIRComm 383 - NSWIRComm 2004 case summary — Zoe

[18]

11 As to the incident itself it was agreed as follows: 41 On the accident date, Mr Hulm was working at the end of the Cooling Shed, within the Kiln Area and near to the Traverser Bay. Mr Hulm was squatting down, with his welding helmet down, welding cleats to fix rails into position. 42 The Defendant now understands that Mr Harry Tuominen (" Mr Tuominen ") Kiln Attendant was operating the Traverser from the primary operator's controls. Mr Douglas Ian Peel (" Mr Peel ") Forklift Operator, was standing on the Traverser platform, a few feet from Mr Tuominen. The Traverser was travelling forward in a westerly direction, laden with timber that was being transported from the Cooling Shed to one of the kilns for heat treatment. 43 With the Traverser laden with the timber Mr Tuominen could not see what was in front of the Traverser as it travelled forward. The Defendant was unaware that the operator's vision was impaired. 44 As Mr Hulm was welding, he was struck by the Traverser and his right leg became pinned and trapped by it. Upon hearing Mr Hulm's screams, Mr Tuominen released the Traverser's travel lever and hit the emergency stop button. 45 The Defendant understands that Mr Hulm was cut free from the Traverser using oxy-acetylene cutting equipment. Mr Hulm was transported by road ambulance to a nearby playing field and thereafter transported by helicopter to Canberra Hospital for treatment. 12 In relation to the system of work, the agreed facts were as follows: 28 Prior to 25 July 2002 Mr Roddy met with Mr Benjamin Don Hobson …Dry Operations Manager, Hyne, to view the work and discuss the scope of the work. The work was to continue with the work already undertaken by Skilled Engineering for 3 to 4 days to relocate hobs and rails in the Cooling Shed so as to line up with railway tracks in the kilns. 29 Mr Hulm underwent Hyne's general site induction at the site on or about 15 June 2002. 30 At all material times Mr. Hulm did not undergo Hyne's specific Kiln Area induction. 31 On the commencement date, Mr Roddy verbally instructed Mr Hulm as to the work that he was to undertake at the site. Throughout that day, Mr Roddy supervised and provided on-the-job training to Mr Hulm as he undertook the work. 32 On the accident date, Mr Smith and Mr Hulm were undertaking the work at the site however Mr Smith did not supervise Mr Hulm, nor was he directed to do so by the Defendant or Mr Roddy. 33 At all material times, Mr Hulm did not receive any instruction, information, training or supervision from the Defendant, Mr Roddy or Hyne in relation to working near to the Traverser while it was operating except that Mr Roddy advised employees to take care and be careful.

[22]

16 Mr A Britt of counsel for the prosecutor submitted the offence was a serious one that called for the imposition of a substantial penalty within the range of penalties available up to a maximum of $550,000. He submitted the risk of injury from an employee being struck by the Traverser was both obvious and foreseeable. When there is a risk to safety that was both reasonably foreseeable and obvious this adds to the overall seriousness of the offence (see WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 452; WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 2) (1999) 101 IR 261 at 267). In this respect Mr Britt submitted: (a) Mr Hulm was a relatively young employee with little experience with the Defendant at the time of the incident. Employers of young persons must be vigilant especially in relation to their young workers especially where a workplace is dangerous and inherently unsafe (see WorkCover (Inspector Ankucic) v McDonald's Australia Limited (2000) 95 IR 383 at 452 and WorkCover (Inspector Guillarte) v Trustees of De La Salle Brothers [2004] NSWIRComm 49 at paragraphs 21 and 25). (b) Mr Hulm was working in close proximity to the Traverser. (c) Mr Hulm did not receive any instruction, information, training or supervision from the Defendant, Mr Roddy or Hyne in relation to working near to the Traverser whilst it was operating except that Mr Roddy advised him to take care and be careful. (d) The Traverser did not have any warning beepers or flashing lights fitted. (e) Mr Hulm did not undergo specific Kiln Area induction. (f) The Defendant through Mr Roddy was aware that the Traverser was operating whilst Hulm was working in the area and this presented a potential risk to Hulm. (g) Mr Roddy did not isolate the Traverser. (h) On the day of the accident the Mr Hulm was not supervised. (i) The Defendant did not erect, nor did the Defendant attempt to erect a barrier or fence whilst its employees, and in particular, Mr Hulm undertook the work. (j) This resulted in the obvious and foreseeable risk of an employee being struck by the Traverser when the Traverser was in motion. (k) The failure to have any system of work to notify an employee of when the Traverser was in operation and to provide any supervision to an employee resulted in an obvious and foreseeable risk of an employee being struck by the Traverser when working in close proximity to the Traverser once the Traverser was engaged.

[25]

19 I have taken into account in assessing the objective seriousness of the offence that Mr Hulm did receive a general site induction, which addressed matters of safety. I have also taken into account that Mr Hulm was warned to be careful of the Traverser. Mr Hulm was also not without experience, having worked for the defendant for some 15 months, and was a competent worker. 20 It may have been inadvertence that caused Mr Hulm to be forgetful of the possibility that whilst he was engaged in welding the rails the Traverser might begin operation or it might have been that he believed the Traverser operator would be able to see him. But whatever the explanation for Mr Hulm placing himself in a position where he might be struck by the Traverser, there was a responsibility on the defendant to ensure that Mr Hulm was not placed at risk of injury regardless of any carelessness or inadvertence on the part of the employee. In putting arrangements into place to protect workers from injury an employer is required to take into consideration human frailties and guard against them. The arrangements this defendant had in place to meet its responsibilities under s 8(1) of the Act were completely inadequate. It meant that a young man was exposed to an unsafe system of work and left working alone without any supervision in circumstances where he was performing work in close proximity to where a machine might travel that could cause serious injury or even death. This represents a serious offence. 21 The prosecutor submitted that there was a need to include an element in any penalty for general deterrence: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, 99 IR 29. The nature of the work undertaken by the defendant is typical of small engineering shops in rural and urban areas and such work is very often undertaken away from the employer's usual workplace. Extra care is required in the circumstances of an unfamiliar environment and the employer has to approach its responsibilities regarding occupational health and safety as though the workplace was its own. It is appropriate that I include an element in the penalty for general deterrence. 22 As to specific deterrence, the prosecutor relies on the fact that the defendant is continuing in the engineering business. I am satisfied, however, that in 14 years of operation, but for this offence the defendant has a good record. The defendant has shown contrition and has taken steps to avoid a re-occurrence of the offence. I consider the defendant now understands the importance to be attached to occupational health and safety and that its propensity to re-offend is low. Accordingly, the penalty will not contain a significant element for specific deterrence.

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties

Cases Cited (5)

Cited By (1)