SafeWork NSW v Bullock MFG Pty Limited

SafeWork NSW v Bullock MFG Pty Limited - [2020] NSWDC 457 - NSWDC 2020 case summary — Zoe

[8]

Guarding

Although the Press was fitted with an interlocked guard, the guard was not adjusted correctly to prevent access to the moving parts. The Press still functioned when the guard remained partially open.
The finger guards at the front of the machine were ineffective to prevent access to moving parts. The finger guards consisted of ten steel brackets which were set at various lengths across the width of the guard. The gaps between the guard base and the press machine operating area (die area) varied between 35-90mm for the whole width of the guard, which was approximately 715mm in length. The gaps were large enough to allow an operator's hands or fingers to access the die area. Had the finger guards been appropriately adjusted, and therefore functioning as designed, Mr William would not have been able to access the die area and sustain the injury that he did.
On the right hand side of the machine, the metal guard over the flywheel was loose, which allowed access to moving parts of the flywheel. The flywheel guard was held in place by a piece of timber.
Clause 203 of the Work Health and Safety Regulation 2011 (the Regulation) provides: "A person with management or control of a plant at a workplace must manage risks to health and safety associated with plant, in accordance with Part 3.1".
Clause 208(2) of the Regulation provides: "If guarding is used, the person with management or control of the plant must ensure that: (a) if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or (b) if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or (c) if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools."
SafeWork NSW Code of Practice Managing the Risks of Plant in the Workplace (the Code) commenced on 18 July 2014 and is an approved Code of Practice under Section 274 of the Act. It provided practical guidance on how to manage the risks to health and safety associated with plant in the workplace and in particular, guidance in relation to guarding.
Section 4.1 of the Code describes a guard as a physical or other barrier that can perform several functions, including preventing contact with moving parts or controlling access to dangerous areas of plant. It also states that guarding must:
Be of solid construction and securely mounted so as to resist impact or shock
Prevent by-passing or disabling of the guard
Be properly maintained
Control any risk from potential broken or ejected parts and workpieces
If guarding is removed the plant cannot be restarted unless the guarding is replaced.
Section 3.6 of the Code states, under the heading "Inspecting plant", that control measures such as guards must be regularly inspected and tested to ensure they remain effective. Had appropriate inspections of the various guards on the Press been carried out by a competent person, it would have been immediately apparent that the guards were ineffective to prevent contact with moving parts.
The risk of the workers coming into contact with moving parts of the Press could have been eliminated or reduced by: 1. reviewing the operation and effectiveness of all guarding on the machine; 2. putting in place a schedule of maintenance of the guarding mechanism; 3. instructing operators to test the guarding mechanism prior to operating the machine; and 4. if the guard was ineffective, not operating the machine until it was repaired and rectified.

[13]

Evidence for Bullock

Mr Christopher Graeme Mason affirmed an affidavit on 5 August 2020. His affidavit was admirably concise and frank. Mr Mason first worked with Bullock in 1997 as an Apprentice. He left after four years. He returned to Bullock to work in a sales role between 2010 and June 2017. He has been employed as the New South Wales State Manager at Bullock since June 2017 and was authorised to make the affidavit on its behalf.
Bullock was established in 1974 by Mr Roy Jackson, whose son Mr Rodney Jackson is now the sole owner of the business. Bullock manufactures and supplies sheet metal products for the commercial air-conditioning industry, including duct hardware, fire and air volume dampers, seals and insulation. It operates two sites in New South Wales, one at Rydalmere and the other at Ingleburn. Sixteen employees work at Rydalmere and eight employees work at Ingleburn.
Pre-Incident Systems and Acceptance of Responsibility
Prior to, and at the time of the incident, the following safety procedures were in place at Bullock: 1. Informal induction training; 2. On-the-job training and supervision by senior staff; 3. Machinery maintenance on an as-needed basis; 4. Hazardous goods assessments; 5. General toolbox talks; 6. Informal discussions and reviews; 7. Work instructions for the Press, which were located next to the machine.
Mr Southwood has been employed by Bullock for 23 years and was one of only two workers at Rydalmere who were permitted to set up the Press. Setting up the press required the guarding to be removed and adjusted so that the die could be fitted. Until the incident, Mr Mason did not think it was necessary to train the operators to check that the Press was properly guarded, as the die setter had this responsibility.
Mr Mason accepts on behalf of Bullock that the company's system failed. The company acknowledges that had Mr William been trained to recognise that the guarding had not been appropriately set up, the risk to Mr William would have been minimised so far as was reasonably practicable.

[18]

Objective Seriousness of the Offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. Justice Basten at par 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the [event] which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the offender's level of culpability are based upon the following: 1. The risk was actually known to Bullock, and in any event was completely foreseeable. Guidance material dealt with the potential risk. 2. Mr William was an inexperienced labour-hire worker who was put to work on a machine which had not been properly set up, checked or maintained. There was thus a high chance of the risk arising. 3. The potential consequences of the risk included death or serious injury. 4. Bullock took the machine out of operation and replaced it with a safer device at a cost of $7,700. It did this for a variety of reasons, including the morale of its staff. 5. Bullock has since spent a significant amount of money upgrading its safety generally, but only to bring its plant and systems at several sites up to an appropriate standard. As Mr Mason bluntly said in his affidavit, Bullock had become complacent. 6. The harm caused to Mr William was very significant. He has been left not only with serious physical limitations, but continues to suffer great economic hardship. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence.
I find that Bullock's level of culpability is in the mid range.

[23]

Victim Impact Statements

Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
Mr William provided a Victim Impact Statement to the court. In his statement, he explains that life prior to his amputation injuries included many years of working in roles that involved hands-on tasks. He worked as a barista, car detailer, security camera installer and more recently as a machine operator. He also worked as a Master of Ceremonies (MC) and a Disc Jockey (DJ) for many years. He used to enjoy playing volleyball with his cultural and Church group. He serviced and detailed his own cars.
Mr William described the tremendous impact the loss of his index and ring fingers has had on his life. In terms of the physical impact, he explained that there are many simple daily tasks he struggles with such as writing, holding a soap bar, getting dressed, squeezing toothpaste out of a tube, opening and closing jars and packets, using eating utensils properly, using keys, hanging clothes with pegs, operating a car indicator, and utilising tools. He has to take pain medications that make him feel tired and severely affect his sleep patterns. He feels phantom pains and hypersensitivity, especially in colder weather. He has required hand therapy sessions and constant exercises to improve pinch and grip strength. Mr William is currently awaiting further operations to improve his neuromas, which would require more hand therapy. He cannot obtain or tolerate prosthetic fingers on the existing stumps until this additional treatment has occurred.
Psychologically, Mr William now struggles with anxiety and is worried about what will happen in his professional and personal life in the future given his limited capacity to resume the work he once engaged in. He described himself as a once bubbly and confident public speaker. Now he is self-conscious about his fingers so he will not hold a microphone. When he is in public, he tries to hide his hand in his pocket as he has had too many people ask him what happened to his fingers, causing him to re-live the traumatic experience. Sometimes people have made fun of him. He feels that he now is much more pessimistic about life and he lacks the routine and future goals he had prior to the incident. He has become more agitated and impatient, especially when he cannot do a task independently.
Mr William feels resentment to those responsible for the incident and he is angry that he was neither given a proper induction nor checked upon after the incident. He has sought psychological assistance from two psychologists but feels this has made no difference to his mood or coming to terms with his injuries.
Socially, Mr William now avoids spending time with family and friends. Most of his socialising is now limited to his immediate family members. He is too embarrassed to dine out at restaurants or at friends' places due to his difficulty in using cutlery. He has stopped playing volleyball because it would put his finger stumps at risk of injury. His friends from volleyball no longer engage with him. Before the incident, much of his socialisation was with the people he interacted with through his DJ work and he has lost friends as a result of no longer being invited to perform this work. He feels the impact of his injury has reduced his chance of meeting someone and having a stable relationship and a family of his own.
Mr William also described the financial impact the injuries have had. He no longer has a full-time income as a machine operator and can no longer obtain a side income as a DJ or MC. He receives minimum wages through workers compensation and struggles to get by for basic rent, food and utility bills. Mr William explained that he often needs to borrow money from his sister to make ends meet and feels like he is "just existing, not living life".

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