Inspector Scott Middleton v ASD Paper Recyclers Pty Limited & Anor [2010] NSWIRComm 33 | Case summary

3 Martin Benedict Jones was employed by the corporate defendant as a dispatch operator. He had commenced employment in September 2001. His duties included the loading and unloading of trucks and the transporting of bales with a forklift to the corporate defendant's warehouse where they were stacked. Stuart Warren Sneddon was employed as an acting shift supervisor. In that role, Mr Sneddon organised shifts, supervised workers and did daily paperwork. Mr Nelson's duties as general manager included the control of day-to-day operations at the corporate defendant's premises. 4 The corporate defendant operated a paper baling machine at its premises. The baler was a large automated machine which compacted and baled up paper and cardboard. Its dimensions were 1,600 mm in height, 1,800 mm in width and 10,000 mm in length. It produced compacted bales of paper and cardboard which were 1,300 mm in height, 1,100 mm in width and up to 1,800 mm in length. The control panel for the baler was located in a deck area which was accessed by a short flight of metal steps adjacent to the baler. 5 In an affidavit sworn on 31 July 2009, Mr Nelson explained the operation and function of the baler. Material consisting of paper and cardboard was fed into the baler via a hopper. Once a bale was complete, the baler automatically tied it with wire. This wire needed to be changed from time-to-time. When this necessity arose, workers manually opened safety gates located on each side of the inserter carriage which housed steel rods known as needles. These needles each measured 2.62 metres in length and were attached in groups of four by three bolts to a vertical tower which measured about 1.28 metres in height. The wire was manually fed from one side of the inserter carriage to the other so that it could be collected by one of the needles. Once the wire was loaded the machine was again powered and the needles would move through ready for removal of a bale. 6 The corporate defendant had a safety procedure in place for when the particular process was being undertaken. The baler, as well as other large machinery located within the premises, was connected to a switchboard which was capable of being isolated by a "lock out" and "tag out" procedure. Once this procedure had been accomplished, the baler could not be operated as there was no power. The "lock out" procedure involved putting a padlock through a metal loop on the "on/off" switch. When the switch was turned off and the lock applied, the switch could not be moved and power to the machine was cut off. The padlock was an approved safety product for this specific purpose. It was resistant to being cut with bolt cutters and was covered with red rubber and plaster to avoid sparking from electrical switchboards. The "tag out" procedure involved affixing a swing tag to the padlock. The name of the worker who performed the procedure was inscribed on the swing tag. 7 At the time of the offence, Mr Jones had completed formal training in relation to the "lock out" and "tag out" procedure set out above. The training was undertaken over a 2-hour period on 22 April 2005. Mr Jones had also completed a more general occupational health and safety training course over a 3-hour period on 11 April 2005. 8 On 1 February 2007, at about 8.55am, Mr Sneddon noticed that one of the reels of steel wire which fed into the bale was empty. He replaced it. He had not previously loaded the wire into the baler, however, so he asked Mr Jones for assistance. 9 In order to change the wire the safety gate needed to be opened manually. On the safety gate was a "safety cut-out switch" which consisted of an electronic box on the baler with a hole into which was fitted a metal rod which was welded to the panel on the safety gate. When the gate was closed the metal rod fitted into the box creating a circuit. When the gate was opened the circuit was broken by the action of the removal of the rod which shut down the baler. On 1 February 2007, the "safety cut-out switch" was faulty such that when the safety gate was open, the baler could continue to function. According to the Agreed Statement of Facts, this state of affairs had prevailed for a number of years before 1 February 2007. 10 Mr Sneddon, who had elicited the assistance of Mr Jones to change the wire did not perform the "lock out" and "tag out" procedure prior to commencing the task. According to him, he was not aware of such a procedure. Mr Jones, on the other hand, said that he had taught Mr Sneddon "about the lock out procedure", although he did not think that Mr Sneddon had received any formal training in how to undertake the procedure. Mr Jones had changed wires in the baler on many occasions. Apparently, the wires needed replacing on a weekly basis. Mr Jones, who had received formal training in the "lock out" and "tag out" procedure, did not perform the procedure prior to commencing the work. Neither worker had received any training in relation to changing the wire. 11 Both workers commenced replacing the wire at about 8.55am. Mr Jones opened the safety gate. He then instructed Mr Sneddon, who was positioned on the opposite side, to feed the wire to him through the section where the main body of the baler and the inserter unit joined. Neither worker could see the other. Mr Sneddon had some difficulty feeding the wire through. Mr Jones put his right hand into the section through which the wire was being fed and grabbed the wire in order to pull it through. At that moment, the baler commenced to operate and the needles started to move. Mr Jones' hand was caught by one of the needles. 12 Mr Jones' injuries, as a result of the accident, were serious. Two of his fingers were later found in the baler when it was inspected shortly after the accident. A number of operations were performed on his injured hand. He was eventually fitted with an aesthetic prosthetic. He lost two fingers and the thumb from his right hand. He was seen by a social worker and a psychiatric team for grief and trauma counselling. He was incapacitated for 18 months and has been unable to return to pre-injury duties. He returned to work on 13 June 2007 and performed office duties for six hours a day, two days a week. He has lost the majority of the functioning in his right hand. The risk of injury: foreseeability and probable consequences 13 The offences occurred in circumstances where an unsafe work procedure had prevailed at the premises for some years. According to the Agreed Statement of Facts, a number of employees of the corporate defendant had known that the baler could continue to operate with the safety gate open. According to those employees this defect had been reported to the maintenance section. Mr Nelson said in his affidavit, which was not the subject of challenge, that he believed the safety gate operated effectively. Following the accident, he reviewed the maintenance logs going back about two years. He found no reference to faulty or inoperative safety switches on the baler. Had he known of the defect he said he would have issued immediate instructions to the maintenance team to repair and replace the faulty safety switches. He said the maintenance team did not require his authority to carry out repairs of that nature. He recalled specifically authorising the maintenance workers to order and/or make necessary repairs. Only those repairs requiring a substantial financial outlay would require his prior approval. He said he issued the following instruction: As was the case with the previous general manager, as long as repairs aren't going to cost a fortune, you don't need to come to me for permission. When there are repairs to any of the equipment which are substantial in cost, just let me know and I'll take steps to make sure that the repair happens quickly. I am obviously keen to ensure the safety of the machinery at all times and would prefer to incur minor stoppages in production for minor repairs or preventative maintenance than to experience a complete break down of the equipment and lose production entirely. 14 It seems from this material that members of the corporate defendant's workforce were aware of the defect, including the maintenance team, but that for some unknown reason the matter was not communicated to Mr Nelson. This is regrettable, to say the least, but it also attests to the importance of the obligation placed on an employer to have in place an adequate system by which defective machinery is brought to its attention promptly. 15 The risk to safety which arose by reason of access to dangerous parts of a moving machine is obvious. It was reasonably foreseeable that a machine in constant use containing a defective component which had existed for a considerable period of time would result in a risk to the safety of those persons operating the machine. These matters render the offences objectively serious. 16 The objective seriousness of the offences also falls to be assessed by a number of features of the corporate defendant's safety system. These features operate to mitigate against the finding that the offence was serious. They include the formal training given to Mr Jones on the "lock out" and "tag out" procedure. Despite this formal training, Mr Jones failed, without any good reason advanced, to implement this procedure. Had he done so, the accident would not have occurred. The real failure, in my view, lies in the failure to implement an adequate maintenance regime. This would have required more than simply authorising the maintenance team to initiate repairs. It required a system of consistent and regular checks and enquiries to ensure that the machine was being properly maintained. In addition to checking the maintenance log books on a regular basis, the maintenance team should have been approached in order to ascertain what sort of matters required attention. Tool box talks which allow the workers to voice their safety concerns may well have alerted the corporate defendant to the problem with the baler. It is hardly a satisfactory situation that the problem appeared to have been widely known among the workers, but that somehow, this critical information had failed to filter through to the corporate defendant's management. There can be no doubt, based on Mr Nelson's evidence, that had he been alerted to the problem, he would have taken immediate and appropriate steps to rectify it. 17 As to the probable consequences resulting from the breaches of the Act, I am unable to agree with the prosecutor's submission that a probable consequence arising from the risk to which Mr Jones was exposed (as well as Mr Sneddon) could have been a fatal injury. The submission was made on the basis of recourse to a photograph which purportedly shows that the aperture through which the wire was being fed was large enough to accommodate the head of either Mr Jones or Mr Sneddon. I am unable to be satisfied by reference to the photograph alone that this could or would have been the case. Nevertheless, the likely or probable consequence of the breach was serious injury as witnessed by the extensive injuries to Mr Jones' right hand. Deterrence 18 General deterrence also falls for application here. In this regard, I adopt in these sentencing reasons the observations I made on the issue in Inspector Stephen Charles v Premier Precast Pty Limited [2009] NSWIRComm 136 at [12]: There are countless cases in this jurisdiction of serious accidents involving dangerous machinery in the workplace. Most of those accidents could have been prevented by the implementation of simple and readily available measures. Members of the workforce who work with potentially dangerous machinery should not be exposed to risks to their safety arising from the failure of their employer, or the owners or controllers of the workplace, or the machinery in question, to ensure that the machinery is safe to operate and that the area in the vicinity of the machinery is safe to work in. 19 In the present circumstances, simple preventable measures, to which I have earlier alluded, were available to avert the risk. They included the implementation of a process of consistent and regular monitoring of maintenance operations not confined to checking the maintenance log books, which, in this case, were clearly not accurate, but also directly approaching members of the maintenance team to ensure that defective machinery was brought to the employer's attention so that appropriate steps were taken to ensure no worker was exposed to danger and the problem is rectified. 20 Specific deterrence is also a relevant consideration here. The corporate defendant continues in operation and Mr Nelson remains as general manager. According to Mr Nelson, the safety switches are now inspected on a weekly basis by the maintenance fitter to ensure that they operate as they are intended to, namely, to shut down or de-activate the baler when the safety gate is opened. The corporate defendant has provided, and continues to provide, training and instruction to its employees on safety matters. The corporate defendant's operations have also been considerably reduced since the accident. It now operates only one 7.6 hour shift per day and employs only four floor staff, one maintenance fitter, one crusher operator, and three office staff. Mr Nelson anticipates that unless an alternative source of product can be found for the corporation's operations that its premises will be closed. These matters do not allow the Court to dispense altogether with the requirement to take into account the principle of specific deterrence. The fact that the corporate defendant continues to operate in the recycling industry requires, without more, that the principle be taken into account: Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610. A small component of the penalties to be imposed will therefore reflect the need to apply the principle. 21 The corporate defendant faces a maximum penalty of $550,000. Mr Nelson faces a maximum penalty of $55,000. Subjective Factors 22 Both defendants entered pleas of guilty at the earliest or first reasonable opportunity. I propose, in these circumstances, to assess appropriate penalties for the utilitarian value of the pleas at 25 per cent. 23 As a separate consideration from the utilitarian value of the pleas, the defendants are also entitled to leniency in recognition of the remorse shown by the pleas of guilty. The absence of prior convictions also entitles both defendants to leniency normally extended to an offender who is otherwise not adversely recorded. 24 The defendants also co-operated with WorkCover during the investigation and prosecution of the offences. 25 The defendants also provided assistance to Mr Jones following his accident. The corporate defendant (and by implication, Mr Nelson, as its general manager) provided him with counselling services and equipment and "home help" upon his release from hospital. The corporate defendant retained the services of a safety consultant firm, AW Workwise, to assist Mr Jones with his rehabilitation. AW Workwise reported to the corporate defendant on 24 November 2008 that Mr Jones had successfully completed a graded return to permanently modified duties on pre-injury hours and that he had sustained those duties for some 13 weeks with no reported difficulties. 26 In addition to the regime instituted after the accident for the weekly inspection of safety switches, the defendants undertook a number of remedial measures with regard to the safe operation of the baler at the corporate defendant's premises. These measures included: · A service and inspection report was conducted on the baler on the day of the incident by Australian Bale Press Company. Two door interlock switches on the needle heads were replaced. The other door safety interlocks were checked and 3 tabs were re-welded. · Periodic maintenance of the baler occurs only if the main control panel isolator is switched to the off position, locked out and the baler tested to ensure that lockout is effective. · Periodic maintenance has been scheduled for the baler which includes daily, weekly and annual checking and testing of all emergency stops and safety switches. · A daily baler service and inspection schedule has been instituted to be completed on a daily basis. · Formal work method statements have been written for the operation of the baler and the changing of the wire. 27 According to the Agreed Statement of Facts, since the accident the corporate defendant has developed safe work procedures for the operation of the baler and the changing of the wire. It has also developed a formal documented risk assessment in relation to the procedures as well as having implemented a documented safe work practice statement in relation to the use of the baler. 28 Mr Nelson also expressed his remorse for the circumstances of the accident and the fact that it occurred. The measures put in place following the accident attest to an acknowledgement on behalf of both defendants of their responsibilities. 29 These matters will be taken into account in mitigation of the penalties to be imposed. 30 Mr Nelson also relied upon two written testimonials in the sentence hearing. The first testimonial has been written by Craig George, Managing Director, Scrutiny Investigations Pty Ltd. The company appears to be engaged in the business of private investigation. Mr George stated that he has known Mr Nelson for seven years and was greatly shocked to hear that Mr Nelson had been charged with an offence under the Act. He said that he had worked closely with Mr Nelson in workers compensation investigations and he described Mr Nelson's approach in this regard as someone who, "does not take short cuts, nor work on the 'She'll be right' factor". He also said that the offence with which Mr Nelson had been charged was, "totally out of character". The second testimonial was provided by Greg Stewart, Managing Director of Hornsby Automotive Group. Mr Stewart described Mr Nelson as a man of good character and a supporter of the local community. He also said that Mr Nelson was, "a hardworking man and a caring man who has always made people extremely welcome and would do anything he can to help you out". 31 The statements attest to Mr Nelson's good character, as well as his professional approach to work-related matters. The testimonials were not challenged by the prosecutor. I therefore accept their contents and will take them into account in mitigation of penalty. 32 It was submitted on behalf of the corporate defendant that it has provided gainful employment in the Central Coast and Hunter Valley regions. This fact was also not the subject of challenge and will therefore be taken into account in mitigation of penalty, insofar as it may reflect the corporate defendant's good industrial citizenship. Capacity to pay

Inspector Scott Middleton v ASD Paper Recyclers Pty Limited & Anor

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