SafeWork NSW v Auen Grain Pty Ltd and SafeWork NSW v Merrywinebone Pty Ltd

District Court of NSW|2015-09-22|Before: Curtis J

JUDGMENT

On 21 July 2010, Mr Stephen Martin, a farm labourer, then 16 years old, suffered severe injuries to his left leg when it was crushed by an 8.4 tonne counterweight falling from a caterpillar 345BL excavator in the course of its removal from the excavator. Mr Martin was, at the time, working under the direction of Mr Peter Bradford the farm manager.
Both Mr Martin and Mr Bradford were employed by a partnership of Merrywinebone Pty Ltd and Auen Grain Pty Ltd trading as Greentree Farming, to work on the property, Milton Downs, some 75 kilometres north of Narrabri.
Each company has pleaded guilty to a charge that contrary to s 8(1) of the Occupational Health and Safety Act 2000, it failed to ensure the health, safety and welfare at work of its employees, Mr Martin and Mr Bradford.

THE FACTS

The counterweight was suspended from the excavator by six bolts. Mr Bradford, under the mistaken belief that the counterweight would remain supported by the excavator once these bolts were removed, instructed two other workers to remove the bolts so the counterweight could then be lifted by a crane. These men removed four bolts, the remaining two being rusted on. Mr Bradford borrowed a large rattle gun from a neighbouring property and returned to complete the work himself. This device required two persons to operate it and Mr Bradford asked Mr Martin to assist him in the task. When the second and single remaining bolt was removed, the counterweight fell from the excavator, pushing Mr Bradford to one side and crushing Mr Martin's leg. Mr Martin was taken to Tamworth Hospital and later required surgical amputation of his left leg below the knee. Mr Bradford sustained some bruising to his arm.

PARTICULARS OF THE CHARGE

The failures pleaded against the defendants may be summarised as follows: (a) Failure to require employees to read the operator's manual. (b) Failure to adhere to the safe work procedures set out in the operator's manual. (c) Failure to instruct their employees to properly inspect the excavator before carrying out the work. (d) Failure to undertake an adequate risk assessment.

CULPABILITY

Although at the time of the incident the partnership did not have a specific documented work procedure for removal of the counterweight, the partnership did have a job safety analysis for an excavator that had previously been located on the property. This job safety analysis was reviewed by Mr Bradford on 9 January 2010, within a year of the accident. Under the heading, "Sequence of Basic Job Steps", was a step entitled, "Maintenance", which identified a potential hazard as being, "crush injury from falling object". The recommended safe job procedure was, "use mechanical aids to remove or replace counterweights; follow instructions in manual".
The operator's manual was located behind the operator's seat in the cabin of the excavator. It contained a simple eight‑step guide to the safe removal of the counterweight. The fifth step required tensioned connection to an appropriate lifting device. The sixth step required removal of the six counterweight mounting bolts. The manual included the warning that the operator was to "make sure that the lifting device is in good condition and is capable of handling the weight of the counterweight".
Prior to the incident, Mr Ronald Greentree, a director of Auen Grain with the day to day management and control of its activities and the activities of the partnership, asked Mr Bradford whether he had read the maintenance manual and whether there was a section on removal of the counterweight. Mr Bradford answered that there was and he had read it.
In fact, Mr Bradford did not read or otherwise refer to the manual. When he decided to remove the counterweight, Mr Bradford merely spoke to a person from WestTrac in Moree. He asserts that he was told, "you've got six bolts on the back of it, you've got to undo them and lift it up with a crane, turn some lugs around to the side and then lower it down with the winch of the crane".
Although Mr Bradford had many hundreds of hours experience operating different types of excavators, he did not hold a Certificate of Competency. Prior to the incident he had carried out or helped carry out maintenance work on the excavator, including general maintenance such as changing oil and water, and putting in a trunnion seal. Although he had held no qualifications as a plant mechanic, he was well experienced in these tasks.
There is, however, no evidence that Mr Bradford was incapable of understanding or following the simple instructions in the maintenance manual.
Because, as was declared by Lord Bramwell in Arbroath v North Eastern Railway Co (1886) 11 App Cas 247, 250 to 251: "A fictitious person is incapable of malice or of motive", it is necessary for the purpose of attributing and weighing culpability, to determine the natural person whose act or state of mind was, for the purpose of discharging the responsibilities under the Act, the act or state of mind of the defendant company. See the recent discussion by the United Kingdom Supreme Court in Bilta (UK) Ltd v Nazir (2015) WLR1168.
In the present case, Mr Ronald Greentree had turned his mind to safety considerations that may arise in maintaining an excavator and had prepared a written job safety analysis, pursuant to which the recommended procedure was to, "follow instructions in manual". Mr Bradford was well aware of that analysis.
Mr Greentree took the trouble to ask Mr Bradford whether he had read the maintenance manual and in particular, the section on removing the counterweight.
Notwithstanding this care, for the purpose of the statute, the failures of Mr Bradford are the failures of the defendant because it was to Mr Bradford that the partnership had delegated the particular function of performing the work safely.
Nevertheless the gravity of the offence is reduced by the circumstance that the failures for which the defendants are responsible in law were not systemic failures, but failures on the part of an individual that senior management had no cause to foresee.
The prosecutor submits that there was a personal failure on the part of Mr Greentree because he did not formally request of Mr Bradford that he prepare a written job safety analysis. I do not accept this contention. The job safety analysis had been prepared earlier and Mr Bradford was aware of it. It is patent from the conversations between Mr Greentree and Mr Bradford that Mr Greentree directed the mind of Mr Bradford to the safe manner in which the counterweight may be removed. It is absurd to suppose in this circumstance that there was a failure because these instructions were not reduced to writing.

INDIVIDUAL DETERRENCE

The systems devised by Mr Greentree for the partnership were sound. Farm managers were responsible under the direction and guidance of Mr Greentree, for every aspect of management on the farms, with personal responsibility for work, health and safety.
The farm managers' responsibilities included training and inducting employees to the farm, inducting workers into risk assessment processes and supervising employees to ensure they were able to complete the tasks safely. These responsibilities included conducting toolbox meetings and ensuring that employees were properly qualified to operate the plant. The managers were also involved in developing and reviewing the job safety analysis forms, one of which was that relating to maintenance on excavators. Mr Greentree personally selected each farm manager and ensured they had the required level of skill and experience by questioning their qualifications and experience, and assessing their suitability during the early months of employment, in particular, their ability to work safely and supervise others.
Mr Greentree, in cross‑examination, stated that in the time that he had known Mr Bradford "he never took a shortcut to save time, money or effort". There is absolutely no evidence to suggest other than that Mr Greentree reasonably relied upon the skill and experience of Mr Bradford.
After the incident, the partnership engaged WestTrac to replace the counterweight on the excavator and complete the repairs. It also undertook a formal risk assessment for the removal of the counterweight from the excavator. The risk assessment included a sequence of basic steps as follows, "remove covers from top of counterweight"; "fasten lifting crane to counterweight"; and, "take the weight of the counterweight with a crane". This sequence adds absolutely nothing to the instructions contained in the driver's manual which is in evidence before me.
After the accident the partnership undertook a variety of measures to improve the occupational health and safety performance. One of the measures taken was to engage an occupational health and safety consultant to complete a full systems audit of physical hazards and a farm safety course.

GENERAL DETERRENCE

Injuries involving plant and machinery are not uncommon in the farming industry. I accept that some penalty should serve to place employers and employees in that industry on notice that extreme diligence is required to prevent such injuries.

AGGRAVATING FACTORS

I recognise that the vulnerability of Mr Martin because of his tender years, the grave risks faced by him including the possibility of death, and the substantial nature of his injuries, are aggravating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999.

MITIGATING FACTORS

I also recognise in mitigation, that the defendants are of good character, have no previous convictions, are extremely unlikely to reoffend and have expressed remorse. The defendants have pleaded guilty and have assisted WorkCover in its enquiries.

CONCLUSION

Were it not for the terrible consequence of Mr Martin losing the lower part of his leg at such a young age, this matter may have been dealt with pursuant to the provisions of s 10 of the Crimes (Sentencing and Procedure) Act 1999 because of the good character of the defendants and the extenuating circumstances in which the offence was committed.
The maximum penalty is $550,000. I find the appropriate penalty before discount to be $55,000. The defendants are entitled to a 25% discount in recognition of their earlier pleas of guilty and cooperation with the authorities.

ORDER

The defendant Auen Grain Proprietary Limited is convicted and fined $41,250. WorkCover is to have a moiety of the fine. The defendant is pay the prosecutor's costs agreed in the sum of $20,677.98.
In the matter of WorkCover v Merrywinebone Pty Ltd, 196686 of 2012, it is appropriate to recognise that each defendant was, although independently liable for the discharge of the duties pursuant to the Act, engaged in a joint enterprise, where it is appropriate that one penalty only be visited upon the partnership. That penalty having been borne by Auen Grain Proprietary Limited, it is appropriate that in the matter of Merrywinebone, I convict the defendant. I order that in the circumstances no penalty be imposed and order that defendant to pay the prosecutor's costs in the sum of $20,677.98. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2015

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Judgment (10 paragraphs)

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