Inspector Ruth Buggy v Kentan Pty Limited

FILE NUMBER(S): Matter Numbers IRC 5075 and 5077 of 2004

CATCHWORDS: Occupational Health and Safety - prosecutions under section 18(1)(a) and (b) of the Occupational Health and Safety Act 1983 - question of penalty and costs - no appearance by defendant - principle of totality and parity - dangerous machinery - fatality - no prior convictions - overlap in two charges - deterrence - penalty imposed - no assessment as to costs

Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Occupational Health and Safety Act 1983

CASES CITED: Inspector Ruth Buggy v Kentan Pty Limited [2005] NSWIRComm 152

PROSECUTOR: Mr R Reitano of counsel SOLICITORS: WorkCover Authority LEGAL REPRESENTATIVES: Legal Group

• 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under s18(1)(a) of the Occupational Health and Safety Act 1983

Prosecution under s18(1)(b) of the Occupational Health and Safety Act 1983

1 Judgment was given in this matter on 12 May 2005 (Inspector Ruth Buggy v Kentan Pty Limited [2005] NSWIRComm 152). At [1] of that judgment it was noted:

On 23 May 2001, Mr Caine Hayward was fatally injured while working as a casual employee of a Mr William Munton, at a property at Millers Forest. Mr Hayward received a fatal crush injury to his head, while working unsupervised with another casual employee, on fencing work being undertaken by use of a Lyco hydraulically powered fence post driving machine. The defendant had supplied this machine to Mr Munton. The investigation after the accident showed that the machine was being operated with a guard placed in a folded position, which allowed the machine's hammer control mechanism to be operated, while the operator was at risk of being crushed by the falling hammer. 2 The defendant was found guilty of offences charged under s 18 of the Occupational Health and Safety Act 1983 ('the Act'). The hearing had proceeded ex parte and the matter was adjourned to provide the defendant with an opportunity to appear and be heard in relation to sentence. 3 There was again no appearance for the defendant at the further hearing on 12 August 2005. The matter was later referred to the Registrar to deal with the assessment of the costs sought by the prosecutor. This judgment deals with the questions of penalty and costs. 4 The charges found proven provided: Matter Number IRC 5075 of 2004

KENTAN PTY LIMITED whose registered office is located at Level 2, 175 Scott Street Newcastle, NSW, on 8 March 1999 at 338 Pacific Highway, Hexham, in the State of New South Wales, did supply for use by persons at work plant being a hydraulically powered post driving machine which plant it failed to ensure was safe and without risk to health when properly used contrary to Section 18(1)(a) of the Occupational Health and Safety Act 1983 .

The particulars of the charge are: (a) The defendant, at all material times, was a supplier of plant; (b) The defendant, at all material times, supplied a hydraulically powered post driving machine ("the machine") to William Munton; (c) The machine was not safe and without risks to health when properly used. (d) The machine could be operated whilst a person's limbs or head were below the hammer so that the hammer could come into contact with that person's limbs or head causing fatal injuries. Matter Number IRC 5077 of 2004 KENTAN PTY LIMITED whose registered office is located at Level 2, 175 Scott Street Newcastle, NSW, on 8 March 1999 at 338 Pacific Highway, Hexham, in the State of New South Wales, did supply for use by persons at work plant being a hydraulically powered post driving machine and fail to provide, or arrange for the provision of, adequate information about the plant to the person to whom it was supplied to ensure its safe use contrary to Section 18(1)(b) of the Occupational Health and Safety Act 1983 .

The particulars of the charge are: (a) The defendant, at all material times, was a supplier of plant; (b) The defendant, at all material times, supplied a hydraulically powered post driving machine ("the machine") to William Munton; (c) The defendant, at all material times, failed to provide, or arrange for the provision, to William Munton of adequate information regarding the operation of the machine to ensure the machine's safe use. (d) The machine could be operated whilst a person's limbs or head were below the hammer so that the hammer could come into contact with that person's limbs or head causing fatal injuries. 5 The statement of facts which I found made out on the evidence in the May judgment provided: 1. The prosecutor is an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter. 2. The defendant is a corporation whose registered address is at Level 2, 175 Scott Street, Newcastle, in the State of New South Wales (annexure K). 3. At all material times the defendant operated a business of supplying farm machinery at premises at 338 Pacific Highway, Hexham, in the State of New South Wales. 4. At all material times Mr William Munton conducted a livestock transport and rural fencing business at 181 Woodberry Road, Millers Forest in the State of New South Wales. 5. On 8 March 1999 Mr William Munton purchased from the defendant a Lyco hydraulically powered post driving machine serial number 4582 S/S 746 ("the machine") (annexure A; annexure J A.41 & 42). 6. The defendant had purchased the machine from its Victorian manufacturer, Lyco Industries Pty Ltd ("Lyco") and had taken delivery of the machine some time after 28 February 1999 (annexure J A.20 to 23). The machine had been ordered specifically for sale to Mr Munton (annexure J A.32). 7. The defendant was an approved Lyco dealer and had acted as a supplier of post driving machines manufactured by Lyco for the previous 10 or 11 years (annexure J A.31 & 37). 8. The machine sold to Mr Munton was new and had a sale price of $9650 (annexure A). 9. The machine was sold to Mr Munton by the defendant for use in operations on Mr Munton's farm (annexure J A.43, 44, 58 to 61). 10. As part of the sale of the machine to Mr Munton, the defendant fitted it to a Fiat 580 tractor owned by Mr Munton (annexure J A.51 to 53). 11. The machine as sold and provided to Mr Munton was fitted with a bi-fold guard (annexure J A.55 & 71; annexure D Munton 19/7/02 T91.28, 91.34, 92.29, 93.39, 93.45). 12. At no stage prior to 23 May 2001 did Mr Munton adjust or modify the bi-fold guard or the manner in which it was installed on the machine as supplied to him by the defendant (annexure D 19/7/02 T 80.38, 80.45, 80.49). 13. The driving mechanism of the machine was a hydraulic hammer that operated by striking the top of the post being installed. The weight of this hammer on a Lyco hydraulically powered post-driving machine as configured in standard form was 227 kg (500 lbs)(annexure H). The weight of the hammer on the machine as supplied to Mr Munton was 272 kg (600 lbs) (annexure A; annexure L p.60 A.295). 14. At approximately 8.30am on 23 May 2001 Mr Caine Hayward, a 26-year-old employee of Mr Munton, sustained fatal injuries when his head was crushed between the hammer of the machine and a wooden fence post. 15. The cause of death of Mr Hayward was a crush injury to the head (annexure M). 16. Pathological testing of blood, tissue and bodily fluids of Mr Hayward resulted in no alcohol or illicit substances being detected (annexure N). 17. Immediately prior to being fatally injured, Mr Hayward was working with Mr Suters who was also an employee of Mr Munton. Both Mr Hayward and Mr Suters were performing rural fencing duties on the property of Mr Munton at 181 Woodberry Road, Millers Forest in New South Wales. The performance of those duties involved use of the machine. 18. On 23 May 2001, the Prosecutor inspected the machine as part of her investigation into the circumstances of the death of Mr Hayward. A copy of the factual inspection report of Inspector Buggy dated 29 May 2001 is annexed hereto and marked with the letter "B". 19. Inspector Buggy observed that the bi-fold guard provided as part of the machine was fixed in a folded position against a section of the hydraulic operating control station located at the rear of the machine (paragraphs 26 to 28 of annexure B). 20. Mr Tony Martin, a mechanical engineer employed by TestSafe Australia, conducted an inspection of the machine on 25 May 2001 and prepared a report dated 30 August 2001 ("the TestSafe report"). A copy of the TestSafe report is annexed hereto and marked with the letter "C". 21. In the TestSafe report Mr Martin considered a hypothesis that Mr Hayward, while standing in a location adjacent to the post being driven, had reached under the bi-fold guard in an attempt to operate the machine's side-shift control lever and mistakenly operated the machine's hammer control lever causing the hammer to fall upon his head. In considering this hypothesis Mr Martin commented: "The fact that the operator could reach and operate the controls when located on the incorrect side of the guard is a cause for concern. The concept of the guard is to keep body parts away from moving equipment, so as to as far as possible eliminate the risk of injury. The guard on this machine would appear to have been ineffective…" (annexure C, page 5). 22. In the course of the Coronial inquest into the death of Mr Hayward, 2 police officers, Detective Constable Glen Ward and Senior Constable Peter Rhodes, gave evidence that in the course of their respective inspections of the machine they were able to access the machine's hammer control lever while standing in the position where, in the hypothesis set out in paragraph 21 above, Mr Hayward was standing. A copy of the transcript of the evidence before Coroner R Wakely is annexed hereto and marked with the letter "D". 23. Detective Constable Ward said that he could perform such an action comfortably (annexure D Ward T19/7/02 at 9.25, 13.23, 13.34, 16.30, 17.31, 21.56, 25.9). Senior Constable Rhodes said that his recollection was that while performing such an action he could reach beyond the hammer control lever to other levers located further away (annexure D Rhodes 19/7/02 T 27.15, 27.25, 27.29, 27.34). 24. The lever that activated the hammer of the machine was accessible from a position that placed the operator between the hammer and the post being driven by it. There was no guard around the machine's moving hammer mechanism that prevented such access. 25. There was no "dead man" facility, control lever, push-button or switch, or any other safety device associated with the machine's hammer mechanism that prevented the possibility of a person placing any part of their body between the hammer and a post while the machine was operating (annexure D Martin 19/7/02 T29.22). 26. It was therefore possible for the operator of the machine to come into contact with its moving hammer mechanism while the machine was operating. 27. Contact with the moving hammer mechanism was also possible when the controls in the tractor to which the machine was affixed were used to lower the machine. 28. The manufacturer of the machine, Lyco Industries Pty Ltd, issued a document entitled "Hazard Identification and Risk Assessment - Product: Power House Post Driver" following an assessment conducted on 1 October 2001. This document was prepared and issued by Mr Jeff Hodson on behalf of that company's occupational health and safety committee. A copy of the document is annexed hereto and marked with the letter "E". 29. Page 2 of annexure E identifies a risk of a crushing injury as a result of the machine's hammer striking its operator if that person were to enter the work area with the hammer in the elevated position. 30. There was no direct witness to Mr Hayward's injury. It appears however that Mr Hayward may have been attempting to manipulate the hydraulic side shift controls located at the rear of the machine in order to straighten a post. Mr Hayward could have placed his head in a position between the hammer section of the machine and the top of the fence post and unintentionally activated the hammer by moving the hammer control lever instead of the adjacent side shift lever. 31. Subsequent to 23 May 2001 Mr Munton modified the bi-fold guard that was fitted to the machine. These modifications consisted of: a. Lowering it a couple of inches b. Re-positioning it so that it was no longer fixed in a folded position behind the hydraulic operating control station at the rear of the machine c. The welding of a metal pipe between the hinge mechanism of the bi-fold guard and the machine (annexure D Munton 19/7/02 T81.19 to 81.34) 32, Annexed hereto and marked with the letter "F" is a series of 5 colour photographs exposed by the Prosecutor which demonstrate the modifications identified in paragraph 31 above. 33. The modifications referred to in paragraph 31 had the effect of preventing access by the operator of the machine to the levers of the hydraulic operating control station at the rear of the machine while standing in a position potentially in the path of the machine's moving hammer mechanism (photograph 5 of annexure F). 34. The machine when purchased by Mr Munton was supplied with an instruction manual (annexure O A.18 & 19; annexure J A.50). This manual provided information in relation to the use and operation of the machine including the installation and operation of the bi-fold guard. A copy of the instruction manual is annexed hereto and marked with the letter "G". 35. Page 6 of the instruction manual contained the following safety rule: Do not operate post driver without guards fitted and closed 36. Figure 3 on page 10 of the instruction manual is identified as indicating the "open" position of the guard for the purpose of assisting in the task of guard attachment. 37. Figure 7 on page 15 of the instruction manual is entitled "Driving a Post". 38. Annexed hereto and marked with the letter "I" is a series of 18 colour photographs exposed by Senior Constable Glen Ward on 23 May 2001 with annotations of Inspector Buggy. ANNEXURES A Copy of the defendant's sale docket number 14380 B Factual inspection report of Inspector Buggy dated 29 May 2001 C Report of Mr Tony Martin (TestSafe Australia) dated 30 August 2001 D The transcript of the Coronial Inquest into the death of Mr Hayward E Lyco Industries Pty Ltd document entitled "Hazard Identification and Risk Assessment - Product: Power House Post Driver" F Series of 5 colour photographs exposed by Inspector Buggy on 3 October 2001 G Instruction manual for Lyco hydraulically powered post-driving machine as supplied to William Munton H Information sheet concerning Lyco hydraulically powered post-driving machine provided to Inspector Ruth Buggy by Mr Brian Thomas Graham on 13 September 2001 I Series of 18 colour photographs exposed by Senior Constable Glen Ward on 23 May 2001 with annotations of Inspector Buggy J Record of interview of Brian Thomas Graham with Inspector Ruth Buggy (nee Huber) on 13 September 2001 K Historical company search relating to the defendant dated 11 April 2005 L William Munton Police ERISP 24 May 2001 M Report to Coroner of Dr Tim Lyons, Newcastle Hospital Department of Forensic Medicine, dated 24 May 2001 N Report of Rajeev Malhotra, Division of Analytical Laboratories, Institute of Clinical Pathology and Medical research, dated 18 June 2001 O Record of interview of William Munton with Inspector Ruth Buggy on 21 February 2003 6 The case advanced for the prosecutor by Mr Reitano of counsel, was that given the two offences charged and proven, in imposing penalty, the principle of totality must be applied. The question of the overlap of the offences had, however, to be considered. 7 The first offence was concerned with the provision of dangerous machinery, the second with the failure to provide adequate information about safe use of that dangerous plant. The common element in the two offences was the existence of the dangerous machine, the differences the provision of that machine and the failure to provide information as to its safe use. 8 It was argued that the evidence graphically demonstrated the foreseeability of the risk which the machine posed. The bi-fold guard on the machine was designed to guard the operator from the dangerous moving hammer of the machine. When the machine was supplied, it was fixed in position, in a way which made the risk posed obvious, given that it permitted contact between the operator and the hammer. The evidence also showed that even if opened, as had been intended, it would not have prevented deliberate, or accidental contact with the moving hammer. The information supplied did not adequately direct itself to these risks. 9 The consequences of the breaches had resulted in a death. The evidence placed the offence in a serious category. There was nothing advanced by the defendant by way of subjective matters relevant to penalty, because the defendant had not appeared to raise them. Questions such as mitigation of penalty and the defendant's means, accordingly could not arise for consideration.

Consideration 10 Consistently with the provisions of the Crimes (Sentencing Procedure) Act 1999, the determination of sentence in a case such as this must be approached from a consideration of the nature and seriousness of the offence in question, together with aggravating and mitigating factors. 11 On the evidence, there can be no doubt that the nature of the risks to safety here in question were both serious and foreseeable. The evidence graphically illustrated the risk of serious injury and even death, which could flow from a person coming into contact with the machine's hammer. The way in which the machine was guarded did not prevent such contact, even if the guard had been properly extended, as was intended. Most regrettably, that risk in fact materialised in May 2001, when Mr Hayward was killed while operating the machine. 12 The evidence also showed the serious inadequacy of the information provided with the machine. It did not adequately draw attention to the grave risks posed, nor did it provide adequate instruction as to how they might be avoided. 13 The sentence imposed must reflect these conclusions, as well as paying attention to the need for both general and specific deterrence to feature in the penalty imposed. As the defendant did not appear in the proceedings, the question of any mitigation of the penalty by entry of a plea does not arise for consideration. Nor was any material put before the Court, as to relevant subjective matters such as the defendant's approach to its safety obligations, either before or after the events here in question, which might have been taken into account by way of further mitigation of the penalty to be imposed. 14 One relevant factor is that the defendant had no prior convictions. The maximum penalty for each offence was $550,000. I accept that the principles of totality and parity must be applied in determining sentence in this case. Totality given the nature of the charge and parity, given that both Mr Munton and the designer and manufacturer of the machine has also been prosecuted and found guilty of offences arising out of the circumstances here before the Court. 15 In terms of parity it is relevant that in the case of the other two defendants, they each appeared and advanced relevant subjective matters to be taken into account, as well as leading evidence as to their financial circumstances. Mr Munton entered a plea, Lyco unsuccessfully defended the charges laid against it. These matters all impacted the penalty imposed on those defendants and there are differences necessary to be taken into account, in determining penalty here, this defendant not having entered a plea, nor having appeared to defend the charges. As far as parity is concerned, it is relevant that I note that the view to which I came on the evidence, in terms of culpability, was that Lyco, the manufacturer of what was on any view an inherently unsafe piece of equipment, which was provided with inadequate information to ensure safety, must be regarded as having the greatest culpability. 16 Having so approached the question of penalty and having taken into account the matters earlier referred to, I have concluded that the appropriate penalty for these serious first offences is $110,000 in Matter Number IRC 5075 of 2004 and $30,000 in Matter Number IRC 5077 of 2004, a total penalty of $140,000. As the prosecutor submitted, there is an overlap in the two charges which must result in the application of the principle of totality. Application of that principle in this case, given the nature of the two charges in question, has led me to the conclusion that the total penalty should be reduced to $75,000 in Matter Number IRC 5075 of 2004 and $25,000 in Matter Number IRC 5077 of 2004, a total of $100,000. 17 The prosecutor also sought an order for costs. The prosecutor is not entitled to an indemnity costs order. I granted the prosecutor leave to file submissions as to the proper basis upon which the costs put forward could be assessed. No submissions were advanced, but a further schedule of costs was filed. In the circumstances, on 24 August 2005, I referred the costs to the Registrar for assessment. The Registrar gave directions for the filing of material to permit the assessment to be conducted. The prosecutor has not responded and hence there has been no assessment of the costs. I have accordingly determined to give judgment.

18 For all the reasons given, I find the defendant guilty of the charges and enter convictions accordingly. The defendant is ordered to pay the following penalties with a moiety to the prosecutor and costs as assessed. Any further application in relation to assessment of costs should be directed to the Registrar in the first instance. 1. In Matter Number IRC 5075 of 2004 - $75,000. 2. In Matter Number IRC 5077 of 2004 - $25,000.

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