Inspector Przibilla v Hyne & Son Pty Limited - [2004] NSWIRComm 384 - NSWIRComm 2004 case summary — Zoe

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Inspector Przibilla v Hyne & Son Pty Limited

[2004] NSWIRComm 384

Industrial Relations Commission (NSW)|2004-12-10|Before: Boland J, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-12-10

Before

Boland J, Mr J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Przibilla v Hyne & Son Pty Limited [2004] NSWIRComm 384 PROSECUTOR Inspector Craig Przibilla PARTIES : DEFENDANT Hyne & Son Pty Limited FILE NUMBER: IRC 1954 of 2004 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 - Guilty plea - Manufacturing industry - Employee suffered severe injuries when his leg became pinned under a traverser - Consistency in sentencing - Foreseeability - Offence proven - Penalty imposed. LEGISLATION CITED : Fines Act 1996 Occupational Health and Safety Act 2000 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Inspector Craig Przibilla v Hindmarsh & Roddy Engineering Pty Limited [2004] NSWIRComm 383 CASES CITED : Inspector Ritchie Green v The Crown in the Right of the State of New South Wales (Department of Commerce, formerly the Department of Public Works and Services) [2004] NSWIRComm 64 Nesmat Pty Limited v WorkCover Authority (NSW) (1998) 87 IR 312 Page v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 P F Thearle & Co Pty Limited v WorkCover Authority of New South Wales (Inspector Reynolds) [2002] NSWIRComm 102 Rodney Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 WorkCover (NSW) v Warman International Ltd (2001) 105 IR 236 HEARING DATES: 11/25/2004 DATE OF JUDGMENT: 12/10/2004

[14]

9 Under the Heading 'Supervision' the agreed statement of facts conveyed the following information: 35 The work commenced at the site on or about 25 July 2002 (" commencement date "). Mr Hulm reported for work at the site on the commencement date. Mr Smith [a casual tradesman employed by Roddy and Hindmarsh] reported for work at the site on 27 July 2002. 36 Mr Hobson [the defendant's Dry Operations Manager] had commenced employment with the Defendant on or about 26 June 2002, approximately one month prior to the day of the accident. 37 The Defendant had a requirement whereby all tradespersons and contractors were to undertake a general site induction and an area specific induction prior to commencing work at the site. 38 The general induction training provided by the Defendant at the time of the accident, among other things: (a) included information on site isolation and provided that no work was to be carried out unless relevant area/plant is effectively isolated; and (b) stated that a worker must personally isolate and tag all energy sources before any work, enter any machinery, or perform maintenance tasks. 39 Following the induction, the Defendant provides a questionnaire that all persons must answer correctly. If the questionnaire is not answered correctly, remedial training is given prior to commencing on site. 40 At all material times, it was Mr Hobson's responsibility, on behalf of the Defendant, to conduct the area specific induction for Hindmarsh's [Roddy and Hindmarsh] employees including Mr Hulm. 41 At all material times, it was Mr Hobson's responsibility, on behalf of the Defendant, to ensure occupational health and safety within the Kiln Area at the site. 42 At all material times, Mr Hobson had not been advised by the Defendant that he was responsible for conducting area specific induction to persons prior to them commencing work at the site. 43 On or about 15 June 2002, Mr Bruce Wilesmith presented the Defendant's general site induction at the site to Mr Hulm. Mr Hulm successfully completed the general site induction by completing all answers to the questionnaire correctly. 44 On or about 29 June 2002, Ms Christine Johnstone presented the Defendant's general site induction at the site to Mr Smith. Mr Smith successfully completed the general site induction by completing all answers to the questionnaire correctly. 45 At all material times Mr Hulm did not undergo a specific Kiln Area induction. 46 On the commencement date, Mr Roddy [Francis Clark Roddy was a director of Roddy and Hindmarsh] verbally instructed Mr Hulm as to the work that he was to undertake in the Kiln Area. Throughout that day, Mr Roddy worked with Mr Hulm providing supervision and on-the-job training to Mr Hulm as he undertook the work. 47 On 26 July 2002, Mr Roddy did not attend the site. Mr Hulm performed the work at the site unsupervised. 48 On 27 July 2002, the day of the accident, 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 Mr Roddy. 49 At all material times, Mr Hobson, on behalf of the Defendant, did not supervise Mr Roddy, Mr Hulm or Mr Smith while they undertook the work near to the Traverser while it was operating. 50 At all material times, the Defendant thought Hindmarsh was providing supervision to Mr Hulm, and its other employees, 51 The supervision of the Traverser operators was the responsibility of Mr Hobson. On the day of the accident, 27 July 2002, Mr Hobson was not present at the site as it was a Saturday and Mr Hobson did not work on weekends. 52 At all material times on the day of the accident, the Defendant did not supervise its Traverser operators being Mr Tuominen [Kiln Attendant employed by the defendant] and Mr Peel [forklift driver employed by the defendant]. The Defendant considered Mr Tuominen to be an experienced Traverser operator who required minimal supervision when operating the Traverser.

[15]

10 Under the heading 'System of Work' the agreed statement of facts stated: 53 The Agreement between Mr Roddy and the Defendant did not include a risk assessment, a Safe Work Method Statement or a discussion on how to safely perform the work. 54 At all material times, full and normal Kiln production and operations continued including, the operation of the Traverser and its trolley. 55 At all material times, the operation of the Traverser and the on-going operation in the Kiln Area was not identified as a risk in relation to the undertaking of the work by Mr Hulm, by either Mr Hobson, on behalf of the Defendant, or Mr Roddy. 56 At all material times the Defendant did not put in place any controls to separate the work from operation of the Traverser or normal Kiln production and operations. However, the Defendant provided generic information about safety issues, including isolation of equipment, in its General Site Induction training given to employees and contractors as discussed at paragraph 38 above. 57 Mr Roddy and Tim Smith, an employee of Hindmarsh, carried isolation tags when working on the site, they were aware they could isolate plant and equipment at the site and had done so before. Mr Smith was working on the site on the day of the accident. Mr Roddy was not working on the site on the day of the accident. 58 In Mr Smith's Witness Statement dated 23 September 2002, Mr Smith was asked questions in relation to isolation of the Traverser and provided the following answers to those questions: "Q53: Why was the Traverser operating when you were undertaking maintenance work? A: They got to keep the Traverser going to keep the Mill going. We didn't ask them to stop the Traverser, they never offered either. Hindmarsh and Roddy have isolation tags to isolate plant at the Mill when they need to. Q54: Could you have isolated the Traverser? A: Yes, I suppose I could of. Q55: What was the procedure for you to isolate the Traverser if you chose to? A: I don't know what the procedure actually is. I would have found the isolation switch for the motor and tagged it out using an Isolation/Danger tag. I always try to have isolation tags with me. I would have had them in my toolbox or in the glove box to the ute." 59 At all material times, the Defendant assumed that Hindmarsh would have implemented controls to separate the work from the operation of the Traverser if it considered it necessary to the health and safety of its employees while working in the Kiln Area and near the Traverser Bay. 60 Mr Roddy has isolated plant or equipment at the site previously and acknowledges that the general induction training authorises him, and other persons who have been inducted to the site, to do so if needed. 61 Neither the Defendant nor Hindmarsh isolated the Traverser prior to commencing the hob and rail relocation work in the Kiln Area because it did not seem a significant risk. Hindmarsh did not consider there was a need to isolate the Traverser as it did not think it was necessary to step into the pit to do the welding.

[23]

16 The risk that a person working in close proximity to the Traverser might be injured was both obvious and foreseeable. This was so for the following reasons: (a) The Traverser did not have any warning beepers or flashing lights fitted. (b) The defendant did not supervise Hulm or Smith on 26 and 27 July 2002. (c) The defendant did not supervise its Traverser operators on the day of the accident and they were not supervised by Hindmarsh & Roddy Engineering Pty Ltd. (d) Whilst work was being carried out by Smith and Hulm the full and normal kiln production and operations were continued by the Defendant including, the operation of the Traverser and its trolley. (e) The operation of the Traverser and the on-going operation in the Kiln Area were not identified as a risk in relation to the undertaking of the work by Hulm. (f) The defendant did not put in place any controls to separate the work being performed by Hulm from the operation of the Traverser or normal kiln production and operations. (g) The defendant did not isolate the Traverser prior to commencing the hob and rail relocation work in the Kiln Area by Hulm and Smith because it did not seem a significant risk. (h) With the Traverser laden with the timber, Mr Tuominen (the operator) could not see what was in front of the Traverser as it travelled forward. 17 It would appear from the agreed statement of facts that there was a lack of communication between Roddy & Hindmarsh and the defendant as to who would be supervising the work of Mr Hulm on the day of the incident, a Saturday, when neither Mr Hobson nor Mr Roddy was present. Mr Dobson apparently thought Mr Hulm's employer had arranged for supervision. The defendant also appears to have assumed that if it became necessary, Mr Roddy or Mr Smith would isolate the Traverser because they had been provided with isolation tags. In this respect, it was an agreed fact that: [T]he Defendant assumed that Hindmarsh would have implemented controls to separate the work from the operation of the Traverser if it considered it necessary to the health and safety of its employees while working in the Kiln Area and near the Traverser Bay.