Inspector Woodington v Thiess Services Pty Ltd

PROSECUTOR Mr R Reitano of counsel Solicitor: Ms M Simpson Phillip Fox LEGAL REPRESENTATIVES: DEFENDANT Mr R E Dubler of counsel Solicitor: Mr N Sadhu Crisp Solicitors

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 19 February 2004

Inspector Clive Woodington v Thiess Services Pty Ltd

Prosecution under section 16 (1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 20

1 Thiess Pty Limited ("the defendant") owns and, pursuant to a contract with Sydney Water Corporation, operates a modern lime stabilisation plant facility located at the North Head Sewerage Treatment Plant at Manly in the State. The defendant contracted with Renbec International Pty Limited to provide the services of Renbec's employee, Mr Martin Turner, as a shift supervisor at the plant.

2 On 27 December 2000 Mr Turner was carrying out his duties as a relief shift supervisor at the plant. Shortly after 9.00 pm Mr Turner commenced an inspection of the plant. During the course of the inspection he noticed that one of the conveyor belts had product (treated sewage or biosolids) falling from it. This was caused by a build-up of product on a moving tail end roller on conveyor ME011 that was part of the conveyor system at the premises. Mr Turner said he attempted to clear the product build-up by laying on a walkway adjacent to the conveyor belt and scraping it off with a broom handle. Whilst doing so his gloves came into contact with the belt and his right arm was drawn into the metal framework. His arm became trapped between the conveyor belt, the framework and the roller. Mr Turner was working alone at the time. He took about 10 minutes to free himself. He suffered injuries to his right lower forearm and wrist, including three lacerations, four to five damaged tendons with 50 to 80 per cent damage and third degree friction burns.

3 The defendant was prosecuted by Inspector Clive Woodington ("the prosecutor") of the WorkCover Authority of New South Wales pursuant to s 16(1) of the Occupational Health and Safety Act 1983. Section 16(1) provides: 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

4 The charge and particulars were that the defendant failed to: [E]nsure that persons not in its employment at the premises, in particular, Martin Turner, were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to Section 16(1) of the Occupational Health and Safety Act 1983.

1.1 failed to properly guard the moving parts of conveyor ME011; 1.2 failed to provide an adequate emergency stop mechanism for conveyor ME011; 1.3 failed to carry out adequate maintenance to belt skirting on conveyor ME011; 1.4 failed to ensure a system for cleaning product buildup from conveyor ME011 that was safe and without risks to health; 1.5 failed to ensure that shift supervisors at the premises were adequately trained and instructed in emergency procedures; 1.6 failed to ensure that shift supervisors were adequately trained and instructed in procedures for cleaning product buildup from conveyors; 1.7 failed to ensure that shift supervisors were provided with adequate emergency communication equipment when working alone; 1.8 failed to ensure that conveyors were isolated or stopped prior to commencing the cleaning of product buildup; 1.9 failed to ensure that Turner was adequately supervised when working as night shift supervisor; 1.10 failed to ensure an adequate assessment of the risks posed to operators required to clear product buildup from the conveyor. The defendant pleaded not guilty to the charge against it.

5 Mr Turner was a quality assurance engineer. Prior to 27 December 2000 Mr Turner had done work for the defendant including the writing of quality assurance procedures including safety procedures. Mr Turner said he had written most of the procedures for the plant. These procedures included those relating to occupational health and safety. Mr Turner's involvement in writing the defendant's Work Procedures Manual was "comprehensive" and involved consulting with each staff member to ensure the procedures and plans contained in the Manual were accurate.

6 A procedure with which Mr Turner was very familiar was the work clearance certificate ("WCC") procedure. The WCC required that a number of steps were to be documented for all activities carried out on the plant as follows: (a) All hazard/risks are to be identified;

(b) In respect of any identified risks staff must either:

(i) carry out and complete a risk assessment (RA) or (ii) review existing job safety analyses (JSA) or work method statements (WMS)

(c) Have the JSA/WMS/RA approved by the supervisor/plant manager;

(d) If required the documented isolation procedure must be followed;

(f) Appropriate personal protective equipment as identified in the WCC must be used.

7 The isolation procedure referred to above required machinery and equipment to be isolated/locked out before any person could undertake work on that machinery or equipment. Mr Turner drafted this procedure and had a very clear understanding that its purpose was to prevent persons coming into contact with moving machinery.

8 Mr Turner had worked at the plant in 1998 and returned in March 2000. In June 2000 he was inducted in such matters as:

· the location of the occupational health and safety policies; · the emergency procedures on site (including the use of radios) - and the need to have them at all times when on night shift; · the need for WCC - their use and purpose; · the need for isolation and the need to follow the company's isolation procedure; · the need to complete work permits/risk management summaries and the work then identified is the only work that can be carried out.

9 Mr Turner applied the procedures in a "hands on" way between August and November 2000. He underwent two days' "buddy" training to be a relief shift supervisor in August 2000 and did one relief night shift in September 2000. He did further relief work in December. It may be said that from a theoretical viewpoint Mr Turner was very familiar with the defendant's safety procedures and had acquired practical experience in applying those procedures, including the use of risk identification and assessment procedures and the use of work method statements. On 22 December 2000 Mr Turner performed a risk assessment on the belt conveyor ME011. In his report under the heading "risk control" he said, "walk within walkways and platforms - ongoing" and "Isolate ME011 prior to removing any covers or guards and carry out visual inspections at a 1 meter (sic) distance - ongoing."

10 Mr Turner also understood that it was not his role as night shift supervisor to engage in any maintenance work and that he was required to be in possession of a two way radio and that was to be carried at all times.

11 The conveyor ME011 was situated directly alongside a walkway. On the other side of the walkway was another conveyor, ME012, which was situated about chest-high and ran the complete length of the walkway. ME012 was completely enclosed. ME011 ran almost parallel to the floor of the walkway. From the photographs put into evidence, the conveyor belt was within a metal framework. The return, or bottom, belt of the conveyor appeared to be at about the level of the walkway. The edge of the steel-mesh walkway was constituted by a steel kick plate that appeared to be about 200-250mm high. The nip point between the belt and the tail roller appeared also to be about level with the walkway, that is, about 200-250 mm below the top edge of the steel kick plate.

12 Unlike ME012, however, ME011 was not wholly enclosed but in order for a person to reach the tail end roller with their hands they would need to crouch down on the walkway in order to do so. Having crouched down it would have been relatively easy for someone to come into contact with the moving parts of the conveyor. There was a photograph in evidence of a re-enactment of the accident showing a person crouching on the walkway with his right hand and wrist caught between the bottom belt at the point it rotates around the tail end roller and a metal support bar under the bottom belt.

13 Inspector Woodington's evidence was that there was no guard fixed on or around the tail end of ME011, including the tail end roller, where Mr Turner suffered his injuries and that the tail end of the conveyor was clearly accessible. The Inspector said he was able to put his hand completely into the relevant part of the conveyor where those injuries occurred. The photograph referred to above confirms this. Following the accident a steel mesh guard was placed over the tail end of ME011, including the roller, but because of the distance from the floor of the plant no guarding was installed underneath the conveyor.

14 Principal Inspector Robert Anthony Walker gave evidence for the prosecution. He did not consider that the conveyor was remote from the walkway and was accessible to people who had access to that particular area. He considered that those dangerous points should either have been guarded or a lock out procedure should have been in place before anybody entered that part of the workplace. Inspector Walker conceded that because of the distance from the floor that there was no need to guard underneath the roller but if work was to be performed fixing the belt or maintenance work was to be performed from the floor then it should have been guarded from the other side as well. It was the possibility that someone or their limbs might come into contact with the moving parts of the machine that created the necessity for it to be guarded, according to Inspector Walker.

15 Colin Douglas Foggo was the defendant's health, safety and environmental manager and held a certificate in occupational health and safety. Mr Foggo considered that the guarding of ME011 was adequate to "prevent accidental capture of persons or equipment". He gave evidence that quarterly safety inspections were conducted in the plant. Part of the purpose was to "pick up any guarding issues". None were picked up in relation to the area where Mr Turner was injured. In a report prepared following the accident Mr Foggo said: During normal operations the conveyor belt was considered to be adequately guarded to prevent accidental capture of persons or equipment. Guarding to prevent capture due to possible unsafe behaviour had not previously been identified as a risk, as maintenance awareness and workplace procedures required moving equipment to be turned off and the power sources isolated and tagged out prior to any activity where there may have been any chance of capture or entanglement.

16 In his report Mr Foggo considered that one of the contributing causes of the accident was: Inadequate guarding or procedures to prevent entanglement, due to unsafe actions.

17 Michael Roy Alvaro was the manager of the North Head plant. He was a plant mechanic by trade and had experience in guarding moving machinery. His evidence was that although consideration was given to guarding the tail end roller of ME011 it was not guarded because it was unforeseeable that there could be accidental contact with the roller given its position, which was some 2.9 metres above the floor below and out of sight of any person on the walkway.

18 Mr Alvaro said that: Each month prior to the staff meetings all staff that were present would attend, walk around, inspection of the site. They would use a check list to check off areas of inspection throughout the site including items such as guarding. As a result of the walk around inspection any new potential hazards that were identified would be recorded and then action with a control.

19 An issue in the proceedings was whether the defendant's case was based on an alleged failure to "properly guard" the moving parts of conveyor ME011 and whether this was an issue to be determined according to the relevant Australian Standard. The defendant contended that it was the prosecutor's case that compliance with the Standard represented proper guarding. The defendant submitted that the evidence was that in terms of guarding and the provision of emergency stop measures, it complied with the Standard. The prosecutor submitted that the Australian Standard was not the relevant benchmark but rather it was s 16(1) of the Occupational Health and Safety Act. There was some confusion about which Standard was to be used, either AS 1755 - 1986 or AS 1755 - 2000. In referring to the Standard, Inspectors Woodington and Walker relied on the 1986 Standard. The 2000 Standard was published in November 2000, after the conveyor ME011 had been installed. The 2000 Standard stated that it did not apply to conveyors installed prior to its publication. In my opinion, the relevant Standard as at 27 December 2000 was the 1986 Standard, although in the final analysis not much turns on which Standard applied at the time of the accident.

20 In a report dated 12 February 2001 Inspector Walker said, "There were a number of unsatisfactory items that require attention to ensure compliance with [the Standard]". These related to guarding and the positioning of an emergency stop mechanism. The Inspector referred to the 1986 Standard and in particular cll 4.8.3, 4.8.7.2, 4.8.7.3, 5.1, 5.3.1, 5.4.1 and 5.4.2 In his oral evidence Inspector Woodington stated that with the modifications made after the accident in respect of an emergency stop mechanism and guarding it was now compliant with the Standard. The Inspector gave evidence that the underneath of the roller did not need to be guarded because in accordance with the Standard it was too remote by location and beyond 2.5 metres from the floor below. Inspector Walker said in his oral evidence that "I have only looked at the conveyor as to the danger point for non-compliance with the standard." He also agreed that after guarding in accordance with improvement notices issued by the WorkCover Authority the conveyor was compliant with the Standard.

21 Mr Alvaro's evidence relating to compliance with the Standard was that he believed the conveyor did comply prior to the accident. Mr Foggo's evidence in this regard was contained in the following exchange: Q. Since the accident have you had occasion to look more closely at AS 1775, 1986 regarding conveyers (sic)? A. I have.

Q. What is your opinion about the compliance before the accident? A. I believe that the belts, that particular conveyor was adequately guarded to prevent accidental capture.

22 The 1986 and 2000 Standards were in evidence. The 2000 Standard referred to it as setting "minimum safety requirements for the design, installation and guarding of conveyors and conveyor systems" with the objective being to "minimize the risks to health and safety where conveyors are used." In the definition of the term "guarded" the Standard referred to guards that remove "foreseeable risk of personal injury being caused by accidental contact or approach …" The 1986 Standard also referred to guards that remove "foreseeable risk of personal injury being caused by accidental contact or approach …"

23 It was alleged that the defendant failed to provide an adequate emergency stop mechanism for conveyor ME011. Inspector Woodington gave evidence that an emergency stop button was positioned on a stanchion on the floor of the plant and well out of reach of any person on the walkway above. He said that following the accident the stop button was repositioned near the tail end roller and an emergency stop cable or lanyard was installed running along the length of ME011 and at a height of about 900 mm above the floor of the walkway.

24 Inspector Walker's evidence was to the effect that the emergency stop button on the stanchion below the conveyor was not adequate because it was not in close proximity to the tail of the walkway and was nowhere near where a person might normally be accessing the conveyor. Inspector Walker said in his evidence: the actual plant, ME011 would have normally complied in 1996 where the stop button was in its correct place and that there wasn't a guard required because it was elevated up in the air. What actually happened in the plant was at sometime after 1996 there was a modification. My understanding is that this walkway was put in for people to conduct their business in maintenance and a whole range of issues as providing better access. What my understanding of what did occur, there was a failure then to raise up the emergency stop button and put it into its correct place and there was a failure to then guard the machine because rather than walking from the floor you are now walking in close proximity to that machine and that is my understanding of why the emergency stop button remained where it did until intervention by WorkCover for unfortunately there was this accident and my understanding is that there was no one in the plant that had picked that up and actually then applied the Australian Standard.

25 The defendant submitted that this evidence of Inspector Walker was hearsay but in any event said that Inspector Woodington did not propound an obligation in relation to emergency stop mechanisms beyond that set in the Australian Standard. The defendant submitted that the Court could not find that a stop mechanism that complied with the Standard was "inadequate". In that respect the defendant submitted the Standard only called for one emergency stop mechanism because MEO11 was less than 30 metres in length. The conveyor had two; one at the head and one on the stanchion under the tail. The Standard's requirements were thus exceeded, submitted the defendant. It was further submitted the lanyard wire installed after the accident was required to be 900 mm above the walkway. This meant, it was submitted, it would not assist a person trapped at the tail end roller. Consistent with Mr Alvaro's evidence, it was submitted, the button on the stanchion was the safest option.

26 Inspector Walker did not agree with counsel for the defendant that the emergency stop mechanisms in place on 27 December 2000 complied with the Standard. 27 Mr Foggo, in his report into the accident, made a number of recommendations to eliminate any future risks. One of the recommendations was to "Install adequate emergency stop cables along all conveyors."

28 The 2000 Standard required that for conveyors greater than 2.5 metres in length and located less than 2.5 metres above the floor, walkway or platform, an emergency stop mechanism was to be placed at the head, tail, drive and at intervals not exceeding 30 metres along the length of the conveyor; at positions adjacent to the conveyor at which the conveyor can be started; and, at every permanent working station. Alternatively, a pull wire activated device was considered adequate. Any emergency stop mechanism had to be "clearly visible and readily accessible".

29 In my opinion, in relation to ME011, the 2000 Standard required an emergency stop mechanism at the head and tail of the conveyor or, alternatively a pull wire activated device. The Standard only refers to the minimum that might be required. In the circumstances, it would seem prudent that a stop mechanism was located on the stanchion below the tail end of the conveyor as well as one that was accessible from the walkway or, alternatively, that a pull wire activated device was installed. A stop button at the head of the conveyor and one on the stanchion would be no help to any person caught in the conveyor as Mr Turner was. In the circumstances, the new locations of the stop buttons with the additional pull wire device seems to me to be a sensible solution. If a pull wire device had been installed at the time of Mr Turner's accident I consider he would have been able to access the device.

30 In relation to the 1986 Standard, it is somewhat ambiguous as to the provision of emergency stop controls but reading the relevant Standard as a whole I consider that it required an emergency stop at the head and tail of the conveyor and at intervals not exceeding 30 metres. In the absence of these two stops a conveyor of the ME011 type would require a pull wire device.

31 The particulars alleged that the defendant failed to ensure a system for cleaning product build-up from conveyor ME011 that was safe. The defendant disputed this allegation, relying on its work and isolation procedures. In particular, the defendant pointed to the requirement that persons were not to be within one metre of moving machinery and that if any work was to be carried out on machinery and equipment, including cleaning the machinery or equipment, the isolation/lockout procedure had to be observed.

32 The defendant submitted that no specific procedure applied to the cleaning of product build-up from the tail end roller because prior to 24 December 2000 no build-up on the roller had been experienced. In any event, the defendant submitted, any cleaning work on the tail end roller should have been undertaken in accordance with the procedures laid down for working on machinery and that Mr Turner was aware that it was not his job to attempt to remove any product himself as night shift supervisor.

33 Inspector Woodington observed that the tail end roller on ME011 required a lot of maintenance in relation to its cleaning and that it: [W]as fraught with problems, solids build up, and all the reports that I read indicated that numerous and copious amounts of bio solids have been falling from the conveyor itself. There was an issue of cleaning this conveyor. To clean the conveyor, there was no written policy on how to clean the conveyor. The statements that I took were for shift supervisors to actually hose it by a Karcher or a pressure hose, or by a hose. 34 The relevant Shift Report for 16 December 2000 stated in relation to the skirting: There is a lot of spillage coming from ME011 just above the transition chute - cleaned under the skirting and problem eased - this skirting will need replacing early in the New Year.

35 Mr Turner said in his evidence that "the belt deteriorated to such a stage it required you to clean product off."

36 In relation to the clearing of blockages from the conveyor belt Inspector Woodington said: There isn't a documented procedure of how to clean the belt in a safe manner. It was an ad hoc approach of using hoses, using Karchers, to actually clean the belt and the belt is the issue. The belt was about continually being burdened with solids and there was also an issue about belt maintenance, failure to maintain the belt and the side skirting. It was an ongoing issue. If you read the shift reports. All of that is in there. It's indicated and is highlighted.

So in relation to work method statements, sorry, there should have been a detail procedure of how to clean the belt in a safe manner rather than people adopting their own system of work and that's what they did.

37 However, in cross-examination of Inspector Woodington the following exchange occurred: Q. Now I think you gave evidence about hosing. As you understood it, there was a method of cleaning the build up of solids around the conveyor by hosing, correct? A. There was a system of hosing, yes.

Q. And the risk assessment says specifically, does it not, that the work must be within walkways and platforms and that's ongoing and that visual inspections must be at the 1 metre distance and that's ongoing?

Q. So those two clear and specific written instructions make the procedure for hosing safe? A. If you put it as simple as that, yes. Q. The other aspect you mention in your evidence is maintenance and you refer to shift reports. If I could just show you a document, I am showing you two documents, please, Mr Woodington (shown). Firstly, have you seen those before? A. I don't believe I have, no. They would be in my report if I had seen them. No.

Q. Do you accept that if the system for maintaining MEO 11 was documented in the appropriate work method statement which includes isolating the plant, that that would be an appropriate risk assessment covering maintenance? A. For cleaning?

Q. For maintenance. A. Maintenance, not cleaning?

Q. No, maintenance other than hosing? A. Other than hosing?

Q. That would involve routine maintenance such as changing of belts? A. I don't think there is an argument with routine maintenance. I think the company did have a system in place for hands on maintenance of plants.

Q. Which includes isolation procedures? A. Yes.

Q. And you are told about that? A. Yes. 38 Mr Turner gave evidence that the first time he had encountered product build-up on the tail end roller was 24 December 2000. Peter Osbourne, a shift supervisor employed by the defendant, also said that prior to Christmas 2000 he had not experienced product build-up on the end roller. Mr Alvaro said that significant product build-up on the tail end roller had not occurred prior to December 2000. Mervyn Roger Kennedy, another shift supervisor employed by the defendant also gave evidence about product build-up on the roller. However, I consider his evidence to be such that I am not prepared to place any reliance on it. It was inconsistent and vague.

39 I noticed in the shift reports for the period 16-29 December 2000 the problem of spillage from ME011 and the need to clean it up was consistently referred to by the supervisors on duty. The first reference of the need to clean the bottom roller was on 24 December then again on 25 and 26 December. Based on Mr Osborne's evidence and that of Mr Turner, I consider that the cleaning of the roller was carried out by hosing, either from the walkway or the floor below, or both, and that this was done whilst the conveyor was moving. I refer in particular to the evidence of Mr Osborne in this respect.

40 The defendant was aware, by virtue of the shift reports, of the product build-up problem on the end roller prior to the date of the accident, namely 27 December 2000, and of the attempts by supervisors to clean the belt and roller. Notwithstanding that knowledge the defendant did not have in place a specific procedure for cleaning the roller and there was no evidence of any steps taken by it to ensure that in carrying out the cleaning the supervisors were adhering to safe working procedures in circumstances where they were working alone. Mr Turner and Mr Osborne were, of course, both well aware of the defendant's procedures for working near moving equipment, including the requirement for isolation and the prohibition against being within one metre of the moving machinery.

41 It was alleged that the defendant failed to carry out adequate maintenance to belt skirting on conveyor ME011. The evidence in relation to this matter was somewhat confused. The reference to skirting refers to rubber skirts along the side of ME011 designed to prevent material falling off the sides of the conveyor. There was apparently also skirting on ME09, the conveyor that fed ME011, and it was the defendant's contention that it was these skirts that had worn and not those on ME011. The defendant did not point out to the Court where these skirts were located or how it was they caused the product to spill. The colour photographs that were tendered into evidence suggest that it was the skirts on ME011 that were at fault. The photographs show product that had fallen off the side of the conveyor belt on ME011 between the tail end roller and ME09. To add to the confusion, however, there was evidence that it was the belt on ME011 that was causing product to fall because the belt was worn and needed replacing. A new belt had been ordered and the defendant was awaiting delivery.

42 The defendant contended that it could not have been the skirting on ME011 that was worn because it had only recently been replaced.

43 The prosecutor relied on some evidence of Mr Foggo that "the only part of the conveyor belt worn was in fact some skirts from ME09 through to ME011 …" However, this was what Mr Foggo had been told and he had no direct knowledge that this was the case. As for the prosecutor's reliance on Inspector Woodington's evidence about the large amount of material falling from the conveyor belt, Inspector Woodington considered that it was the belt and the side skirts that were at fault.

44 I have considered whether it was only the belt itself that was causing the product to spill but I note that in a Shift Report dated 16 December 2000 it was stated that "ME011 skirting to be replaced in the new year" and, importantly, that in a later Shift Report of 29 December 2000 it indicated that "the skirting rubber on ME011/Transition Chute" was replaced. The skirting referred to in this report is most likely the skirting in the transition chute leading from ME09 to ME011, which Mr Osborne said in his evidence was "breaking" and causing product to fall down onto the bottom roller of ME011.

45 It was alleged that the defendant failed to ensure that shift supervisors at the premises were adequately trained and instructed in emergency procedures. I have already addressed much of the evidence in respect of this allegation. I would add that it was Mr Turner's evidence that he was aware of the defendant's requirement for the wearing at all times of a two-way radio.

Supervision when working as a night shift supervisor

46 It was alleged the defendant failed to ensure that Mr Turner was adequately supervised when working as night shift supervisor. The evidence was that the job of a night shift supervisor was to monitor only. No maintenance was to be undertaken. Mr Turner agreed that he understood no maintenance was to be undertaken on night shift and that his was a monitoring and general housekeeping role. He agreed that his attempt to reduce the build up of product on the tail end roller on 27 December 2000 required the conveyor to be first isolated and that he should not get within one metre of moving machinery.

47 It is to be noted, however, that the line between maintenance and housekeeping or cleaning was somewhat blurred because no specific instructions had been issued to night shift supervisors as to what to do when they encountered the problem of excess product build up affecting the rollers on the conveyor belt and causing excessive spillage of product.

48 As I have already observed, Mr Turner understood he was to carry a two-way radio at all times. Mr Alvaro's evidence was that working alone with a two-way radio was adequate supervision. The prosecutor relied on Mr Foggo's opinion that a contributing cause of the accident was "Operator inexperience (2 months) in position". There was no evidence, however, that in expressing this opinion Mr Foggo relied on anything other than the fact that Mr Turner had been in the position for two months or that he had any knowledge of other experience gained by Mr Turner or the training undertaken by Mr Turner.

49 It was alleged the defendant failed to ensure an adequate assessment of the risks posed to operators required to clear product build-up from the conveyor. 50 Risk assessments were required to be carried out for all activities carried out on plant. In respect of ME011, personnel were required to work within walkways and platforms and to isolate the conveyor prior to removing any covers or guards and carry out visual inspections at a one-metre distance.

51 There was no specific risk assessment in circumstances where product build-up occurred on a conveyor belt and rollers. The defendant contended that there was no requirement to clear product build-up from ME 011 and that the shift supervisor's role was limited to monitoring. However, prior to 27 December 2000 the defendant was aware, via the shift reports, that an unusual problem was occurring on ME 011 and that supervisors were having to clean the belt and bottom roller using hoses, including the high pressure "Karcher" hose. There was no evidence of any action taken by the defendant to ensure that supervisors were adequately assessing the risks associated with this unusual occurrence.

52 It is appropriate to deal firstly with the submissions of the defendant who was represented in the proceedings by Mr R Dubler of counsel. Mr Dubler dealt in considerable detail in written submissions as to why it was that the prosecutor had failed to make out each of the 10 particulars to the charge, why Mr Turner's injury was not foreseeable and what were the misconceptions in the prosecutor's case. In his oral submissions Mr Dubler condensed his submissions down to the following six essential elements and elaborated on each of them: 1. The defendant had a proper system in place for dealing with the conveyor and in particular for dealing with the issue of contact with moving machinery;

Mr Turner was fully aware of the system and had been fully trained in the system;

On 27 December 2000 Mr Turner knowingly went outside the system that he had been trained in and which he had substantially drafted;

The manner in which Mr Turner went outside the system was sufficiently deliberate and bizarre to mean that without the benefit of hindsight it would not have been foreseeable: WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 36; the act of Mr Turner in attempting to reduce the product build-up was a novus actus interveniens breaking the causal nexus to the defendant: State Rail Authority v Dawson (1990) 37 IR 110 at 120-121;

The standard for guarding the conveyor had been complied with and even today the risk of injury for conduct engaged in by Mr Turner is just as great as it was on 27 December 2000;

The emergency stop mechanism complied with the Standard and notwithstanding the measures taken since the accident the risk remains the same.

53 Mr R Reitano of counsel appeared for the prosecutor. He also addressed the particulars in considerable detail in his written submissions as well as the defendant's submission on foreseeability and referred in this respect to Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ching) (1999) 90 IR 432 at 452 where Wright J, President and Walton J Vice President observed that: The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 469. Under section 15(1) the obligation of the employer is "to ensure" health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of section 15(1) specify that the obligation under the section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in section 15(1).

Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH & S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158 - 159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health, safety and welfare of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. (see also the discussion in Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 156 - 157).

54 Mr Reitano also sought to counter the defendant's submission that Mr Turner was engaged in a "frolic of his own" and addressed the defendant's attempt to distinguish Riley v Australian Grader Hire (2001) 103 IR 143 and WorkCover Authority of New South Wales v Maine Lighting Pty Ltd (1995) 100 IR 248.

55 Mr Reitano relied on the report by Mr Foggo and submitted that the report "demonstrates amply the Defendant's real view as to its breach of the Act".

56 In his oral submissions counsel for the prosecutor focused on the issues of foreseeability, the relevance of the Australian Standard and Mr Foggo's report.

57 In any prosecution under the Act the prosecutor must prove the essential legal elements of the offence beyond reasonable doubt. The elements of an offence under s 16(1) are as follows: 1. The defendant was an employer;

2. There were persons not in the defendant's employment; 3. The persons were at the defendant's place of work; 4. The defendant failed to ensure those persons were not exposed to risks to their health or safety; 5. The risk arose from the conduct of the defendant's undertaking.

58 The defendant did not put in issue that it was an employer or that the North Head Sewerage Treatment Works was its place of work and undertaking for the purposes of s 16(1) of the Act. Nor does it appear that there was any contest about the fact that Mr Turner was a person not in the defendant's employment at the defendant's place of work. It was the fourth and fifth elements of the offence that were strongly in dispute.

59 It is necessary to, firstly, say something about this issue of reasonable foreseeability. The prosecutor was correct to submit that the issue is not whether the injury to Mr Turner was foreseeable: Drake Personnel at 452. In other words, the test under s 16(1) is not whether a defendant could reasonably foresee an injury occurring but rather whether the defendant failed to ensure that persons at its place of work, but not in its employment, were not exposed to risks to health and safety arising from the conduct of the defendant's undertaking. The difference in the two tests is very considerable. On the former test the defendant is only required to show that the injury or accident was not reasonably foreseeable. The latter test is far more strict, requiring the defendant to ensure or "make certain" that persons were not exposed to risk.

60 In this case, the defendant's reliance on reasonable foreseeability is misplaced. However, as I understand its contentions the defendant says that it met all of the requirements for providing a safe system of work, including adequate training and supervision and that Mr Turner's behaviour in placing a broom handle into moving machinery was so out of the ordinary, so "bizarre", so remote a possibility, that there could not be said to be any causal nexus between the defendant's conduct and any risk arising from the defendant's operations. Mr Dubler drew an analogy with the circumstances in Maitland City Council, a prosecution under s 16(1) where a person apparently ran or moved quickly across a road behind a reversing truck and in attempting to climb up on the back of the truck, fell and was killed.

61 At 380-381 Hill J said: There is obviously no doubt that there was a detriment to safety but in my view it arose not from "the conduct" of the defendant's undertaking but from the fact that Mr Scoles ran across the road and attempted to access the vehicle, on which he had no duties or role, while it was reversing. As Mr Fitness said: 'He never had nothing to do with it.' I am not satisfied beyond a reasonable doubt that he would not have attempted to do so if the cockerel box had been fenced in the manner suggested by Mr Jennings, or indeed, if the truck had been equipped with a side access only cockerel box, that he would not have attempted to gain access thereto whilst the vehicle was reversing, and if he had, that he would not have been subjected to risk and seriously or fatally injured. It is not part of the Court's functions to deal with matters on the basis of possibilities or probabilities; it must deal with them on the basis of beyond a reasonable doubt. … Even if the view were taken that the risk to Mr Scoles arose from the conduct of the employer's undertaking, I consider that it was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision. In my opinion the actions of Mr Scoles were not reasonably foreseeable. … It does not follow, in my view, from the fact that the Council had standing instructions forbidding employees on penalty of dismissal, to, amongst other things, mount or dismount moving vehicles, that it was reasonably foreseeable that a person would run across the road and attempt to climb onto the back of the cockerel box of a truck on which he was not employed, while it was reversing and laying blue metal on recently laid hot bitumen. If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. In light of the decision in Drake Personnel which was applied in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2002) 115 IR 78 it is, with respect, questionable whether Maitland City Council would be decided in the same way today.

62 In addressing whether the defendant failed to ensure that persons were not exposed to risks to their health or safety, I turn to the particulars of the charge. The first particular was that the defendant failed to properly guard the moving parts of conveyor ME011. It was submitted for the defendant that the claim of lack of "proper guarding" has not been established beyond a reasonable doubt; it had not been established that there was a foreseeable risk of accidental contact and, hence, a contravention of the relevant Australian Standard relating to guarding.

63 The defendant submitted that in alleging there was a lack of proper guarding the prosecutor relied on the Australian Standard and, therefore, the test of whether the guarding was proper had to be based on the Standard. In this respect the defendant referred to the prosecutor's brief of evidence (which was not in evidence in the proceedings) and the evidence of Inspectors Woodington and Walker who relied on the 1986 Standard in contending there was no proper guarding.

64 Whether one uses the 1986 or the 2000 Standard, they cannot be regarded as a substitute for the provisions of s 16(1) or, for that matter, s 15(1) of the Occupational Health and Safety Act. The 2000 publication refers to the Standards as setting out the "minimum safety requirements" for, amongst other things, the guarding of conveyors with the objective of enabling employers, etc., to minimise the risks to health and safety. This is to be contrasted with the requirement under s 16(1) of the Act to ensure persons are not exposed to risks. In the context of guarding, the 1986 Standard refers to the removal of "foreseeable risk of personal injury" and removal of "the foreseeable risk of accidental contact by persons or objects". Again, this is to be contrasted with the requirements of the Occupational Health and Safety Act.

65 That an employer's system of work or machinery, equipment or appliances complies with an Australian Standard will not, of itself, mean the employer has met its obligations under s 16(1) of the Occupational Health and Safety Act. The Standards are no more than an expert guide to enable designers, manufacturers, suppliers, installers, users and owners of systems and plant to minimise the risks to health and safety.

66 In the present case, Mr Alvaro and Mr Foggo gave evidence that, in their opinion, the conveyor ME011 complied with the 1986 Standard because there was no foreseeable risk of accidental contact by persons with the moving machinery of the conveyor. As I have already explained, the test under s 16(1) is not foreseeability and whether the contact was accidental or deliberate, that is not a determinant under s 16(1) of the Act.

67 Mr Dubler contended, however, that the case presented by the prosecutor in relation to guarding and the placement of emergency stop mechanisms was based on the 1986 Standard and that was the case the defendant was required to meet. Mr Dubler submitted that the prosecutor should not now be allowed to go outside its case. Mr Dubler relied, in particular, on the brief of evidence and the evidence of Inspectors Woodington and Walker where they referred to the Standard in contending that there had been a breach of s 16(1).

68 The entire brief was not in evidence and although no doubt parts of it were, the Court is not aware of the contents of the brief. Further, the prosecutor in opening did not rely on the Standard and there is no mention of the Standard in the charge or its accompanying particulars. Mr Reitano, in his written submissions, did not rely on the Standard. As to the evidence of Inspectors Woodington and Walker regarding the Standard, it is apparent that both of them took the view that having regard to, amongst other considerations, the nature of the incident involving Mr Turner, the guarding of the conveyor did not meet the requirements of the 1986 Standard. But this cannot be taken as the basis for a proposition, as the defendant would have it, that: there is proper guarding if the guarding is sufficient to remove the foreseeable risk of accidental contact; that as the risk was not foreseeable there was no inconsistency with the Standard; and, that therefore, there was no breach of s 16(1) of the Act by the defendant.

69 It may well be the case that both Inspectors took the view that the risk of accidental contact presented by ME011 was foreseeable as referred to in the 1986 Standard but this does not amount to the prosecutor adopting as an element of his case that the Standard is the test for determining whether there was a breach of s 16(1) and that this was the case the defendant had to answer. Clearly, in launching the prosecution I would have thought that if the prosecutor considered breach of the Standard was a key aspect of the case against the prosecutor it would have found mention at least in the particulars or counsel's opening address, but as I have observed, this was not the case.

70 In considering Mr Turner's conduct it is apparent from the evidence that he did not set about to intentionally injure himself. He was attempting to clear excess build-up on the tail end roller that was having an adverse effect on the operation of the conveyor belt. His action in using a broom handle was the height of foolishness. As I have already stated, the defendant contended that such action was so improbable or unpredictable that there could not be said to be any causal nexus between the defendant's conduct and any risk arising from the defendant's operations. This submission has to be considered in the light of the evidence that: 1. In the absence of any guard or covering, Mr Turner was able to access the moving machinery of the conveyor with relative ease. 2. The defendant was aware of the risk to safety of the moving parts of the conveyor. 3. The defendant did not guard the relevant parts of ME011 because the defendant considered it was not foreseeable that any person would come into accidental contact with its moving parts. However, the defendant failed to properly consider the prospect of non-accidental contact by a person trying to clean the belt and roller of the conveyor.

3. The defendant was aware since at least 24 December 2000 that a build-up of product was occurring that adversely affected the operation of that part of the conveyor ME011 between the transition chute from ME09 to the tail end roller of ME011, including the roller. 4. The shift supervisors were reporting the constant need to clean down the belt and the roller. 5. The defendant made no assessment of the risks that might be associated with the cleaning down work of the affected area of the belt and roller in circumstances where night shift supervisors were working alone.

71 The defendant submitted that the build-up of product on ME011 had never occurred prior to 24 December and, therefore, no risk assessment had been carried out. The fact, however, that this was an unprecedented occurrence should have alerted the defendant to take steps on or after 24 December to ensure that the occurrence was not going to present an unanticipated risk to health and safety. I do not consider that, in the circumstances, the prospect of a risk arising from contact with the moving parts of conveyor ME011, in the absence of proper guarding, was so remote as to break any causal nexus between the conduct of the defendant and the detriment to safety.

72 The defendant contended that a system was in place that if followed would have avoided the risk. In the present case the defendant submitted that Mr Turner was fully aware of and trained in the need to isolate any machinery and equipment before doing any work on it; that he was under instructions not to come within one metre of moving machinery; that he was instructed not to undertake any maintenance work and his role was limited to one of monitoring; and, that if a problem arose he could use his two way radio to call for assistance. All of this, I consider, is correct. However, on the testimony of Mr Alvarez and Mr Foggo, the measures put in place by the defendant to avoid risk were largely premised only on the identification of the foreseeable risk of accidental contact with moving machinery. That is where the defendant's focus tended to be rather than on unexpected or unforeseen causes brought about by human foolishness, negligence or inadvertence. This was particularly evident in relation to the guarding issue. Both Mr Alvarez and Mr Foggo said in their evidence that guarding of the tail end of ME011 was not necessary because it was located in such a position that there was no foreseeable risk of accidental contact. As it was observed in Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210 the duty of employers under the act is absolute. It is not confined to the taking of precautions only when there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires a remedy".

73 Notwithstanding Mr Turner's training and his instructions as to safe working, the flaw in the defendant's approach to safety was that in failing to follow up and deal expeditiously with reports regarding the unprecedented spillage of product, and the implications that might have for health and safety in the absence of proper guarding, the defendant failed to ensure that persons were not exposed to risks to their health and safety. I consider that the first particular is made out.

74 The second particular alleged was that the defendant failed to provide an adequate emergency stop mechanism for conveyor ME011. The conveyor was some 16 metres in length. It had a stop button at the head of the conveyor and an emergency stop button located on a stanchion on the floor below the conveyor. It may be that such an arrangement was acceptable in circumstances where there was more than one person present in the plant who could come to the aid of anyone trapped in the conveyor but it could not be said that it was acceptable where only one person was on shift. The defendant contended that the pull wire device installed after the accident would not have been any better because Mr Turner would not have been able to reach it. I do not consider that to be correct. But in any event, the onus is not on the prosecutor to advocate an alternative method of safe working, only to prove that the existing method was not adequate in ensuring that persons were not exposed to risks. In this case I am satisfied the prosecutor has discharged that onus in relation to the second particular.

75 The third particular was that the defendant failed to carry out adequate maintenance to belt skirting on conveyor ME011. I am not satisfied the prosecutor has proved this particular beyond reasonable doubt. In my opinion, the faulty skirting was that attached to the transition chute coming from conveyor ME09 and not ME011. The particular is not made out.

76 The fourth particular was that the defendant failed to ensure a system for cleaning product build-up from conveyor ME011 that was safe and without risks to health. For the reasons I consider I have already expressed I am satisfied the fourth particular is made out. The defendant did have a system for cleaning normal product build-up from the conveyor but the system did not have regard to abnormal build-up that might affect the operation of the conveyor and in respect of which shift supervisors might be tempted to take extraordinary measures to deal with, as Mr Turner did on 27 December 2000.

77 The fifth particular was that the defendant failed to ensure that shift supervisors at the premises were adequately trained and instructed in emergency procedures. I am satisfied Mr Turner was provided with extensive training and instruction in emergency procedures. In any event I do not understand how a failure to be adequately trained in emergency procedures could be said to be connected with the relevant risk in this case. The abnormal build-up of product could not be classed as an emergency. The emergency arose when Mr Turner became caught in the conveyor. He was unable to free himself for ten minutes and he failed to carry the two-way radio with him as trained and instructed to do in order to call for assistance. I do not consider this particular is made out.

78 The sixth particular was that the defendant failed to ensure that shift supervisors were adequately trained and instructed in procedures for cleaning product build-up from conveyors. For reasons that I have already given, this particular is made out. I would add that whilst the supervisors had received training and instruction in cleaning product build-up the training and instruction did not cover the abnormal situation that arose at least by 24 December 2000 and continued through until 27 December.

79 In Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at [58] the Full Bench observed: 58 The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education).

80 I do not consider the defendant in this case educated Mr Turner "to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character."

81 The seventh particular was that the defendant failed to ensure that shift supervisors were provided with adequate emergency communication equipment when working alone. I do not consider this particular is made out. Supervisors were provided with a properly functioning two-way radio and were required to carry it at all times. There was no evidence that the defendant was aware of any practice of supervisors not to carry the radio and failed to take corrective action.

82 The eighth particular was that the defendant failed to ensure that conveyors were isolated or stopped prior to commencing the cleaning of product build-up. It seems to me this particular duplicates the fourth and/or sixth particulars. I do not propose to treat it as a separate particular.

83 The ninth particular was that the defendant failed to ensure that Mr Turner was adequately supervised when working as night shift supervisor. The prosecutor contended that Mr Turner was working alone on the night of 27 December 2000; he had no supervision whatsoever; and, he was relatively inexperienced. It was submitted that: Proper supervision would have, at the very least, ensured that Turner was not placed in a position where he would engage in what the defendant chooses to characterise as a "frolic" and which may be considered to be foolish conduct. This is particularly so having regard to the lack of appropriate training and his relative inexperience which is identified by Mr Foggo in his report.

84 I do not consider there was sufficient evidence to allow me to accept Mr Foggo's assessment of Mr Turner's experience. However, in circumstances where I have held that Mr Turner was not adequately trained and instructed in procedures for cleaning product build-up on the conveyor and where the defendant failed to ensure a safe system for cleaning the product build-up it follows, in my opinion, that in circumstances where Mr Turner was working alone he was not adequately supervised. "Adequately" is treated in the sense of ensuring Mr Turner was not exposed to the risks arising from the defendant's failures to train, instruct and provide a safe system of work. This particular is made out.

85 The tenth and final particular was that the defendant failed to ensure an adequate assessment of the risks posed to operators required to clear product build-up from the conveyor. I have already addressed this issue and concluded that the defendant did fail to ensure an adequate risk assessment. This particular is made out.

86 The fifth element of the charge that the prosecutor is required to prove beyond reasonable doubt is that the risk arose from the employer's undertaking. It is evident from my treatment of the particulars that there was a risk and I find that it arose from the defendant's undertaking.

87 I am satisfied beyond reasonable doubt that on 27 December 2000 the defendant failed to ensure that persons not in its employment at the premises, in particular, Martin Turner, were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to Section 16(1) of the Occupational Health and Safety Act 1983 in the manner particularised in particulars 1.1, 1.2, 1.4, 1.6, 1.9 and 1.10 of the charge.

88 I find the offence under s 16(1) of the Act proven. I will hear submissions on penalty on a date to be fixed.

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