Inspector Schultz v Leonard J Williams

PROSECUTOR Mr M P Cahill of counsel

SOLICITOR Pricewaterhouse Coopers SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr D P Robinson of counsel

SOLICITOR Fishburn Watson O'Brien COFFS HARBOUR.

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

INSPECTOR ARTHUR SCHULTZ v LEONARD J WILLIAMS (TIMBER) PTY LIMITED

Prosecution under s.16(1) of the Occupational Health and Safety Act 1983

1 The defendant, Leonard J Williams (Timber) Pty Limited is charged with the offence that it breached s.16(1) of the Occupational Health and Safety Act 1983 ('the Act'). That section requires an employer to ensure that persons not in its employment are not exposed to risks to their health or safety arising from the conduct of its undertaking while they are at its place of work.

2 The charge, to which the defendant has pleaded not guilty, including particulars, is as follows: It is alleged that on 8 September 1998, the Defendant, an employer, breached section 16(1) of the Occupational Health and Safety Act 1983 at a property known as "The Willows" located near Silo Road, Kundabung in the State of New South Wales ("the logging site"), in that it failed to ensure that persons not in its employment were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. Particulars of the Defendant's failure are as follows: (a) the Defendant carried on the logging of timber at the logging site;

(b) the Defendant employed Raymond Frank Tagget as a machinery operator operating a skidder machine at the logging site;

(c) the Defendant contracted with Jeffrey Darren Barnett to provide his services as a log feller at the logging site;

(d) the Defendant failed to ensure that Tagget operated the skidder machine in a manner that did not expose Barnett to a risk to his health and safety while carrying out timber felling, skidding and snigging operations at the logging site ("logging activities");

(e) the Defendant failed to ensure Tagget received adequate instructions and training in the institution of a safe system of work for carrying out logging activities at the logging site;

(f) the Defendant failed to ensure Barnett received adequate instructions and training to ensure a safe system of work for carrying out logging activities at the logging site;

(g) the Defendant failed to ensure that adequate procedures were put in place to ensure a safe system of work for carrying out logging activities at the logging site;

(h) the Defendant failed to ensure an adequate system of communication was established between Barnett and Tagget while carrying out logging activities at the logging site;

(i) the Defendant failed to provide a sufficient number of persons to ensure logging activities at the logging site were carried out safely and efficiently;

(j) the Defendant failed to put in place measures to ensure that no person remained in the danger area in front of and beside a log or tree being snigged by Tagget while operating the skidder machine at the logging site;

(k) the Defendant failed to put in place measures to ensure that adequate warning signals were given by Tagget to Barnett while carrying out log snigging operations at the logging site;

(l) the Defendant failed to put in place measures to ensure that an adequate system for communicating with emergency services existed at the logging site;

(m) the Defendant failed to ensure that an adequately qualified person supervised the logging activities carried out by Tagget and Barnett at the logging site.

3 The defendant's business is that of the buying and selling of timber and from time to time the harvesting of timber. The events which give rise to the charge concern an accident which occurred at a logging site at Kundabung when an ironbark sapling fell upon a contract timber feller, causing serious injury leading to a paraplegic condition. The tree, it is conceded by the defence on the balance of probabilities, was caused to fall by another worker, an employee of the defendant, using a skidder machine, who pushed over a bush oak or casuarina tree which fell upon the ironbark causing it to bend, snap and fall.

4 The defendant has raised the defence provided by s.53(b) of the Act that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. The relevant facts are as follow.

5 It was conceded that Inspector Schultz had authority to prosecute; that the defendant was an employer and that the snigger operator, Raymond F Tagget, was an employee of the defendant. Further, it was not disputed that the risk to the injured worker, Jeffrey D. Barnett, occurred from the conduct of the defendant's undertaking while he was at its place of work.

6 On 8 September 1998 Mr Barnett was working as a contract feller (or "faller") of timber, that is to say the operator of a chainsaw cutting down trees, under contract to the defendant. The work was being undertaken on a property known as The Willows, Silo Road, Kundabung. Mr Barnett had been engaged in this work and also in extracting the fallen timber by the use of a skidder (a large, rubber-tyred, tractor-like machine with a grapple and winch at one end and a dozer blade at the other). Between February 1998 and August 1998 he was working alone undertaking this work.

7 The defendant also had an employee, Raymond F Tagget, who had been performing similar work at Woodenbong in northern New South Wales on the defendant's behalf. Due to heavy rain in the north, the defendant decided to move Mr Tagget to Kundabung. The skidder he was using at Woodenbong was transported by road to Kundabung. Mr Tagget arrived some days later, together with his caravan in which he would live, and thereafter the two men worked as a team, one felling timber and the other extracting the timber ("snigging") utilising the skidder. Their functioning as a team had problems, to which I shall return.

8 The logging site at Kundabung was situated on private property. It comprised a log dump area with a snigging track, leading along the spine of a ridge, of about 200-300 metres with timber being felled on both sides of the ridge.

9 The evidence establishes beyond doubt that Mr Tagget and Mr Barnett were highly experienced operators in bushwork of this kind. At September 1998 Mr Tagget had 22-23 years experience in the timber industry as an operator of crawler dozers and in timber felling. He had completed courses conducted by TAFE and TEMS in those activities. Mr Barnett had approximately 18 years experience in timber felling and tractor operations. He had trained with his father who, like his father before him, was in the timber industry. He had first commenced felling timber with his father at 16-18 years of age. In 1987 he received accreditation from New South Wales State Forests in hardwood falling and possessed the highest level of accreditation in that respect, being qualified and entitled to fell the largest of trees.

10 On 7 September 1998 the team was engaged in the extracting of large logs for use as telegraph poles and building girders, together with some shorter logs for use in sawmilling. Mr Barnett in evidence said he spoke to Mr Tagget, while the latter was sitting in the open cab of the skidder with the engine running, from about 12 feet away and indicated by voice and hand signals that there were four logs for extraction on one side of the ridge and one in another area in which he had to fell one more tree. He believed Mr Tagget to have understood this message. He then proceeded to the latter area where he had previously felled two large ironbarks and a grey gum. He then felled a large blue gum which fell across a creek. He crossed the creek, cut the head from the blue gum and then walked back across the creek. As he did this he became aware of the approach of the skidder. He saw an ironbark sapling and oak tree between him and the skidder. He stepped up onto the blue gum log and was then struck by the ironbark sapling as it fell. He found himself immobilised on the ground under the blue gum log at a point where it was raised due to its lying from the slope on one side of the creek to the slope on the other side.

11 Mr Tagget then, according to Mr Barnett's evidence, extracted another log and took it up to the log dump. When he returned, Mr Barnett was caused to feel fearful that if Mr Tagget attempted to extract the blue gum log he would be crushed under it. He screamed out and threw his safety helmet in the air, then held it up in the air on a stick in an attempt to signal his presence. Mr Tagget eventually found Mr Barnett, who had no feeling in his legs. He was left in situ while Mr Tagget sought help at the farmhouse on the property. Eventually Mr Barnett was extracted from the bush by stretcher operated by Emergency Services and later airlifted to hospital by helicopter.

12 Evidence was called in the prosecution's case from Inspector Schultz, Mr Tagget and Mr Barnett and in the defence case from Christopher L Williams, a Director of the defendant and its executive responsible in a practical sense for the conduct of the timber harvesting and extraction work referred to above. Both sides also called evidence from experts in this work, who expressed their opinions as to the causes of the fall of the ironbark sapling.

13 Inspector Schultz attended the site two days after the accident and took a number of photographs, 16 of which were tendered in evidence. Included amongst the photographs are depictions of the blue gum log with the ironbark sapling lying across it. The photographs also show the stump of the ironbark sapling which was 2.8 metres high. The oak tree is shown branching each side of the broken stump. While at the site, Inspector Schultz also drew a rough sketch plan of the area. The plan shows trunks of the oak tree and the ironbark sapling in virtually perfect alignment, although Inspector Schultz in cross-examination agreed that the direction of fall of the oak and the ironbark sapling were not in a straight line.

14 The State Forests of New South Wales Forest Practices Code Part Two relates to Timber Harvesting in Native Forests - State Forests and Crown-Timber Lands. While it has no direct application to forestry work on private lands, it appears from the evidence that both Messrs. Barnett and Tagget were familiar with and applied the code in their normal work. The Code does not seem to have particular application to the circumstances of this accident, although it does prescribe safe working distances in cl.5.9 (c) as follows: The following minimum safety distances must be observed while operations are active:

Manual tree felling 2 tree lengths Log dump operations 12 metres from the working area Mechanical harvesting 2 tree lengths Active snig track 3 metres from the vicinity of a machine or track

Closer viewing of operations can be arranged with the permission of the visitor guide and the knowledge of the operator. Refer to State Forests "Safety Standards Manual".

15 Curiously, this paragraph appears under the heading 'Safety Precautions for Visitors'. Nevertheless, WorkCover has produced 'Code of Practice, Snigging Logs'. The purpose of this Code is expressed to be "to inform both experienced and inexperienced skidder operators of current safe working practices, and to highlight the limitations of the machinery". It came into operation on 1 February 1994. Of particular relevance to the present matter is the following provision: 6.3 Working with machinery

(i) Operator's responsibility It is the skidder operator's responsibility not to put the faller/dumpman or any other person in the area of operation at risk.

(ii) Pattern of work Generally, the tree faller will determine the pattern of work, i.e., the sequence in which trees are to be felled and snigged. A clear working understanding must be developed between both skidder operator and faller. When a skidder is snigging for multiple tree fallers, it is the required practice for the fallers to be well separated from each other.

(iii) Close proximity It is essential that a skidder operator does not move into an active tree felling area before the faller has been sighted and it is safe to move in. If the faller is not initially sighted, the skidder is to be stopped, engine switched off, and the faller is to be located via the noise of the chain saw. The skidder operator is to ensure that it is safe to enter the area before doing so.

16 The first expert witness who gave evidence, called by the prosecutor, was Barry S. McGregor, the principal of a company entitled Chainsafe Pty Ltd. Mr McGregor had, for over 25 years, been employed with State Forests or the Forestry Commission and also the National Parks and Wildlife Service in harvesting timber and training people in chainsaw operations. He also worked in private industry as a log faller for three or four years whilst he developed Chainsafe which provides chainsaw training in relation to tree felling for the forestry industry. There was no dispute that the evidence of Mr McGregor might be accepted as that of an expert of relevance. The relevant thrust of Mr McGregor's evidence was that in his opinion the oak tree caused the ironbark to fall by striking it, causing it to bend and then break at a point approximately 2.8 metres above the ground. This opinion was formed by reference to photographs of the scene and the ironbark stump and, in particular, the compressed wood on the inner side of the stump at the point of the break and the jagged wood ("sluven") on the outer side of the break. He was of the definite opinion that the ironbark had not been damaged by the felling of other trees at an earlier point.

17 In the defence case another recognised expert, Kevin Joseph Wood, was called. He is a Trainer/Assessor in the timber industry. He has worked in the timber industry for 43 years following a not dissimilar path to Messrs Tagget and Barnett in commencing work at an early age under his father's supervision. His son has followed in his footsteps. He had attended the site at the Willows, Kundabung, on four occasions. He formed the opinion from his investigations that there was "no way that the oak tree could knock down an ironbark sapling over that far away from it and break off that far from the ground". He said that the ironbark sapling is the strongest and most durable timber to be found in the bush whereas the oak tree is one of the lowest in durability. He also indicated that the head of the oak tree, as it fell, would not have reached the top of the ironbark sapling, thereby bending it over and causing it to break at 2.8 metres height. He disputed that one could draw the conclusions from the photographs that Mr McGregor had drawn. However, in his evidence in chief he expressed the opinion that two possibilities occurred with respect to the oak tree contributing to the ironbark sapling falling. The opinion he preferred was that it was a "straw that broke the camel's back" situation. The other was that the oak tree may have been leaning onto the ironbark for some time and, because of damage done at an earlier time to the ironbark sapling, the extra pressure from the oak tree might have helped it fall. However, on the balance of probabilities, he accepted that the oak tree was causally related to the falling of the sapling.

18 The combination of this evidence from the two expert witnesses, and that from Mr Barnett, to the effect that he observed the snigger driven by Mr Tagget to be approaching him separated only by the oak tree and the ironbark sapling immediately prior to his being struck by the latter, establishes to my satisfaction beyond reasonable doubt that Mr Barnett was struck by the sapling which was caused to fall by the oak tree which had been pushed over by the skidder. The skidder breached two rules in this process. It entered an area without knowledge of where the feller was and it pushed over a tree within two tree lengths of the feller. I find that this act was undertaken by Mr Tagget, he not then understanding that Mr Barnett was within the danger zone created by his activities. I specifically reject the proposition advanced in the defence case that what follows from such a finding is that this is not inadvertence or casual negligence but the deliberate taking of a step which is against the Code of Practice under which he was operating. This was no more than the sort of activity which is capable of occurring in the circumstances of a work situation where no more than an assumption is made that safe working practices will be observed. In the words of Bauer J in WorkCover v Mayne Lighting Pty Limited 1995 100 IR 248 at 257: The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

19 Mr Tagget, indeed, contrary to Mr Barnett, misunderstood the obligations of the skidder operator when snigging. The WorkCover Code of Practice for Snigging Logs provides in cl.6.3(b)(iii) that "the skidder operator must not enter an active tree felling area before siting the faller". This provision seems to me to clearly place the obligation in this respect upon the operator of the skidder. Mr Tagget's evidence in cross-examination by Mr Robinson was: Q. In the course of your instruction at these courses, references to codes of practice would have been made, correct? A. The only code of practice we are given was the code of practice of forestry, that Forestry booklet.

Q. But surely-- A. I don't recollect any other code of practice being distributed to us.

Q. Well you were aware of the snigging logs code of practice? A. Yes, through the Forestry code of practice.

Q. And you were aware that under the snigging logs code of practice it is the skidder operator's responsibility not to put the faller or dump man or any other person in the area of operation at risk? A. That's right.

Q. And you knew that entailed the requirement that if you could not see where the feller was, for instance, you do not go into the area? A. That's right, yes.

Q. And that is the set of rules you work by? A. That is the ones I was working by, the only codes of practices I knew of, yes. Excuse me, up until the time of me leaving the industry.

20 In re-examination by Mr Cahill this evidence fell from Mr Tagget: Q. You recall that my friend asked you some questions about your understanding of the Forestry Code of Practice before lunch. In that regard, can you tell his Honour at the time of the incident what was your understanding about the function that Mr Barnett had to fulfil in keeping distance from the snigger? A. In my - from the code of practice the faller's code of practice that he was to keep two tree lengths from me, operating the skidder.

Q. In that regard, insofar as the evidence that you have given, was that something that was active in your mind on the day? A. Yes it was.

21 In relation to this evidence a number of observations may be made. Firstly, the Forestry Practices Code does not make provision for a skidder not entering an area in which a feller is working. That occurs in cl.6.3 of the WorkCover Code of Practice, Snigging Logs. Secondly, Mr Tagget expresses the obligation, as I understood his evidence, as being upon the feller to keep clear of the snigger and not, as the Code of Practice would require, the other way around. I do note that the Australian Standard, SAA Forest Safety Code (AS3574-1988) provides in relation to safety in snigging and skidding in relation to travelling machinery the following safety provisions should apply: Maintaining safe working distances from felling operations (a minimum of two-tree lengths). This document was not placed before Mr Tagget in the course of his evidence but was tendered following his departure. I understand his evidence as to the Code to relate to Exhibit 1, the State Forests of New South Wales Forest Practices Code.

22 The working relationship between Mr Tagget and Mr Barnett was strained. Mr Barnett's evidence was that when the skidder first arrived at Kundabung he commenced to use it for a few days before Mr Tagget arrived. He said that when Mr Tagget arrived, the latter told him "get out of it (the snigger), it is my job". Mr Tagget also attested to having told Mr Williams of Mr Barnett's failure to wear a hard hat. On the other hand, Mr Barnett told Mr Williams that he "wasn't real happy". He described his concern about Mr Tagget this way: "I reckon he used to drive around the bush too fast in his skidder . . . I reckoned he was an idiot".

23 To his knowledge this matter was not raised by Mr Williams with Mr Tagget. When asked whether he discussed with Mr Tagget how they were to work together, Mr Barnett said: "No, he reckoned he was the oldest and he knew everything and that was it".

24 His evidence was: Q. After that conversation with Mr Williams, did you adopt a practice yourself in respect of how you worked? A. Yes, I kept as far away from him as possible.

Q. Can you tell his Honour how you put that into practice? A. Well, I would fall one ridge out and I would always try to keep a ridge in front of me or a certain area in front of me.

25 The evidence of Mr Williams indicates that he, as the person responsible within the defendant company for the supervision of the felling operations, offered no instructions to Messrs Tagget and Barnett in connection with their working relationship. He did not react to the complaints he received from them about the difficulties of the kind I have just described. The workers were regarded as having relevant experience and expertise and an ability to carry out their functions without supervision. Mr Williams' visits to the site were confined to either an examination of the log dump or, on occasions, an inspection of the stumps left after felling by Mr Barnett. Mr Williams, himself widely experienced in the timber industry, was able to "read" the stumps to ascertain the quality of the fellers' efforts.

26 Mr Williams' evidence was that he had been in the timber industry, again following his grandfather and father, over a period of 34 to 35 years. He knew Mr Barnett's father and had met Mr Barnett when he was at school. He knew Mr Barnett to be a good tractor driver and a good faller with the highest accreditation in the bush entitling him to fell the biggest logs available. He said that he told Mr Barnett that when he contracted him to work at Kundabung: "You will be careful about what you do", sort of anything. I didn't want anything untowards happen, or anything like that and, you know, "You conduct the whole situation now in a proper sort of way could have been"; and he used to say to me, "Not to worry, Chris." He said, "I have been around the bush long enough." He said, "I am not going to do anything stupid." The evidence continued:

Q. Is that it? A. We used to talk, you know, like many sorts of things, about certain aspects of work.

Q. Now I want you to concentrate on the things you used to do about safety, or instructions you gave him. I am asking you about the period when he was working by himself on the property. Can you recall any further instructions, or discussions, about safety at that time? A. I wanted him to have a chainsaw with a chainbrake on it.

Q. Anything else? A. A chainsaw with a chainbrake on it, with safety boots and wear a hat.

Q. What about the hat? Was there some difficulty at some stage about that? A. There was one stage there was a phone call about Darren didn't have a hat, or something like that, or no hat; and I told Darren he had to have a hat, otherwise he couldn't work in the bush. He used to say, "It's not State forestry." I still maintained that was the sort of thing.

Q. But subsequently he came to have - I think it is called a - what is that known as a hard hat? A. A safety helmet.

Q. He subsequently came to have a safety helmet? A. Yes.

Q. And do you remember any other instructions, or conversation, concerning safety, what he was supposed to do and how he was supposed to do it? A. I mainly wanted poles and girders material and used to have a few logs, and he used to take a few logs for himself to his own sawmill.

Q. Now is that what you recall speaking to him when he was working on his own? A. That was, yes.

Q. Now is there any reason why you didn't give him any further instructions at that time? I am talking about when he was on his own? A. Darren is an experienced person, a very experienced bushman.

27 As to Mr Tagget's position, Mr Williams' evidence was: Q. In the bush, could you tell his Honour what you observed? A. Well, he was a pretty experienced operator, careful. What else can I say? He had all the accreditations, which in those days you had to have in the forestry. He had exactly the same accreditations as Darren for falling logs and he was a real good tractor operator.

Q. Now when he first came to work for the Williams company, what sort of instructions, or safety conversations, did you have with him? A. When he first worked for us, he started in an area in the bush at a place called Woodenbong.

Q. Yes, but did you give him any formal training, or informal instructions? A. Yes, we did, sort of.

Q. Would you tell his Honour what that was? A. That he had to wear all the safety gear, like safety helmet, boots, all that, boots. If he was doing any falling, he had to have a chainsaw with chainbrake on it, wear a safety vest when he's working in the forestry and his main work was to snig logs because he was working with another chap at that particular time.

Q. I want to ask you this, a safety vest, is that of any particular kind? A. They are orange. Now they have a greenie colour.

Q. What, as you understood it, was the purpose of a safety vest? A. It's just so that you stick out, you know, like people can see you. You can see any object when it's clear. It's the same colour. It's an OH & S vest that has the same colour of your safety hat.

Q. And so that a workman can be seen by other workman? A. Yes. . . . . Q. Did you give Mr Tagget any instruction about how to go about his work? A. I used to give him the list of poles and girder material that would be required at that particular time and he would go and get those particular products. And then he saw logs as well as, that sort of thing, and then have those sorts of products segregated into different heaps, sort of thing, you know.

Q. Now is there any particular reason why you didn't go through with him all the safety procedures which you understood to be applicable to working in the bush? A. Well, I suppose in those days there is - how do I put it? In those days those blokes were pretty experienced. They know far more about bush operations and probably the safe issues and that sort of thing than I would, sort of thing. Like we all say, you know, they have got a duty of care, sort of thing, owing to themselves and to others when they are working together, you know.

Q. Now can you tell me what arrangements you made for directions, for safe procedures in respect of them working together? A. When the skidder got down there, went down and got delivered down there, it'd probably only be a couple of days before Ray went down to Kundabung when he brought his van down there, I wasn't down there to the bush, down there, and told them who was to drive, who was to do what sort of job, Darren was going to do the falling and Ray was going to do the skidder driving.

Q. I suppose you told him what logs you wanted? A. Yes, poles, and mainly poles and girder material.

Q. Now was anything else said on the topic of safety, or directions? A. No, I just wanted them to work, you know, in a safe working conditions.

Q. Just tell me what you said. What did you say when you went down there? Who did you talk to, and what did you say? A. I spoke to both Darren and Ray.

Q. What did you say? A. I told them I just wanted them to work, they were going to work together, sort of thing, that they had got to adopt their own system of signals in the bush. There was no use me trying to tell them exactly what to do, sort of thing, when they worked together sort of thing. I told them they had to work in the safe working conditions of passing one another, made sure that they had - Ray had a two-way radio in his vehicle.

Q. Was he in fact supplied with a two-way radio in the vehicle? A. Yes, he was supplied with a two-way radio, which he used to -

Q. I am going to ask you how it worked later. I just want to deal with what you told them when they commenced work? A. Mainly the safe working conditions when passing one another, which distance is, I think under the brochure of code of practice is two tree lengths when passing one another.

Q. You didn't give them any further instructions? A. No, not really. It's pretty hard to tell the blokes who have been in the bush all their lives a lot of things. They wouldn't take notice of you.

29 This evidence illustrates a total failure to institute any supervision of work to be done. One can understand a developed perception that experienced bushmen might be resistant to instructions relating to how their work is to be done safely but this cannot remove the absolute obligation imposed by the Act upon an employer or contractor or other relevant person on whom the duty is imposed to ensure work is carried out in a safe manner. It is simply insufficient to give general directions and to, effectively, hope for the best. This case is a clear, but tragic, illustration of the consequences of that failure.

30 I consider that the evidence establishes the offence with which the defendant has been charged. I am satisfied that particulars (a) to (h) inclusive and also particulars (j) and (k) have been made out. Those particulars are sufficient to support the charge. Particulars (i), (l) and (m) are in my view not made out on the evidence.

31 The defendant's argument that it has established a defence under s53(b) of the Act on the basis that it could not practicably have made provision to avoid the accident seems to me to fail unavoidably in the circumstances. Where two workers are required to work in association on an operation of this kind in isolated bush, it is obviously insufficient to leave them to their own devices, however much experience in the work they might have. The facts of this matter illustrate the dangers involved in so doing. The strained working relationship between the operators, a matter brought to Mr Williams' attention, indicates the need for care and consideration to be given to their work circumstances. These issues were ignored and no other attempts of a more fundamental kind, leaving aside some work tensions, were considered or implemented. These failures seem to me to have contributed substantially to the creation of the risk which was presented and culminated in the accident to Mr Barnett. They were readily capable of being dealt with to ensure the safety of the workers. The fluorescent vest promised to Mr Barnett was not supplied, nor were any other techniques of a fairly obvious kind employed to mark the presence of a feller in the bush so that an inadvertent contact between snigger and feller could be avoided.

32 I find the offence proved. I convict the defendant accordingly. I will hear the parties on the issue of penalty.

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