SafeWork NSW v Carroll Springs Pty Ltd

THE INCIDENT

1. Between 2.30pm and 3.00pm on 25 May 2015 Mr Zappia and another employee Mr Gadd commenced working on the installation of a new suspension spring kit on a Toyota Landcruiser motor vehicle ("the vehicle").
2. The vehicle was placed onto stands and an inspection of the underside of the vehicle was conducted. During the inspection they saw that the vehicle's suspension had been modified and a number of metal brackets needed to be removed in order to install the new suspension kit. The metal brackets were approximately 2.5 centimetres thick.
3. Mr Zappia and Mr Gadd discussed what steps should be taken to remove the metal brackets and it was determined that Mr Zappia would remove the metal brackets with an angle grinder.
4. Mr Zappia elected to use the angle grinder. The angle grinder was stored in the workshop cupboard.
5. Mr Zappia then positioned himself under the vehicle and commenced cutting the metal brackets. Mr Zappia was sitting down on the ground with his arms outstretched at approximately head height. He was wearing safety glasses and was holding the angle grinder approximately 40 cm in front of his face.
6. At approximately 3.40 pm Mr Zappia heard a loud screeching sound. The cutting disc on the angle grinder then either 'kicked back' or shattered and struck Mr Zappia on his left shoulder and face.
7. Mr Zappia got out from under the vehicle and informed Mr Gadd of the incident. Mr Gadd was collecting a tool immediately prior to the incident and was walking back toward Mr Zappia when the incident occurred.
8. Mr Zappia was conveyed by ambulance to Westmead Hospital, where he received stiches. The following day Mr Zappia underwent surgery at Norwest Private Hospital to repair his facial wound.

INJURIES AND AFTERMATH

1. The impact of the disc caused a deep laceration (in some areas down to the bone) on the left side of Mr Zappia's face and a fractured cheekbone. The laceration was approximately 8 cm in length and ran from the corner of Mr Zappia's eye to the bottom of his cheek.
2. Mr Zappia returned to work on 8 June 2015 on a graduated work plan. On 22 June 2015 Mr Zappia re-commenced pre-injury duties. Mr Zappia resigned from the service of the offender in November 2015.

THE ANGLE GRINDER

1. The offender owned a piece of plant known as a 'Black and Decker' KG1200-XE 125 mm electric angle grinder' (angle grinder). The angle grinder required a cutting disc to be fitted which had a maximum diameter of 125mm and which was rated to at least 12,000rpm.
2. The offender had a stock of PFERD 150mm diameter cutting discs rated to a maximum of 10,200 RPM. One of these was fitted to the angle grinder at the time of the incident.
3. At the time of the incident the angle grinder lacked a machine guard as it had been removed some time ago. Since the start of Mr Zappia's employment on 27 October 2014 there had been no machine guarding on the angle grinder. Mr Zappia had used the angle grinder on approximately three occasions prior to the incident and on each occasion the angle grinder had not been fitted with a guard. He did not know where the guard was located.
4. On 26 May 2015 Inspector Karen Coulson of SafeWork NSW attended the premises in response to the incident notification. Inspector Coulson inspected the angle grinder involved in the incident and made the following observations: 1. There was a label on the body of the angle grinder; 2. The label stated that the angle grinder was a 125 mm grinder and contained the following warning: "To reduce the risk of injury user must read and understand instruction manual. Always use proper guards when grinding. Always wear eye protection. Use accessories rated at least 12,000/min RPM..." 1. A broken cutting disc was attached to the angle grinder; 2. The cutting disc was a 150 mm cutting disc; and 3. No guard was in place on the angle grinder.
5. Inspector Coulson also observed a new 150 mm cutting disc which was identical to the broken disc attached to the angle grinder. Markings on the 150 mm cutting disc indicated that the disc was rated to a maximum of 10,200 RPM.

Training for Mr Zappia

1. Mr Zappia was provided with the Carrolls Work Health & Safety Policy and instructed to read it and sign an acknowledgement that he had read the WHS Policy. Mr Zappia signed the WHS policy on 27 October 2014.
2. The offender did not direct its employees, including Mr Zappia, that only appropriately sized and rated cutting discs consistent with the manufacturer's specifications should be used on the angle grinder. The offender did not instruct Mr Zappia to read the Black & Decker instruction manual prior to him operating the angle grinder.

Risk assessment and safe operating procedure

1. At the time of the incident the offender had not developed and implemented a safe system of work for the use of the angle grinders or how to select the correct grinding or cuttings discs for the angle grinders.
2. The manufacturer's instructions for the angle grinder were located in a drawer in the supervisor's office at the premises.
3. Prior to the incident the offender conducted general inspections of the workplace to identify safety hazards. The inspections occurred approximately every two to three months and involved a visual inspection of the workshop and factory areas. The results of the inspection were recorded in a workplace inspection checklist. These inspections were generally conducted by Ms Giles and Mr Borg.
4. The inspections involved conducting a general review of plant and tools in the workplace but did not include an individual inspection of each power tool. The inspection was limited to checking that the power tools were appropriately tagged and tested and checking that they were suitable for intended use.
5. At the time of the inspection of 31 March 2015 the angle grinder was kept in a locked cupboard away from where the tools are normally kept. The angle grinder was not inspected during the workplace inspection.

Absence of guarding on the angle grinder

1. Ms Giles, who was employed as an office administrator and was responsible for work, health and safety at the premises, became aware that after the incident the guard had been removed by a previous employee. She was told this by Mr Vella.

The cutting disc

1. At the time of incident the angle grinder was not fitted with an appropriately sized and rated cutting disc as recommended by the manufacturer.
2. At the time of the incident Mr Zappia did not know that the disc was the incorrect size and rating for the grinder. The angle grinder had been set up with an oversized and under-rated cutting disc since Mr Zappia commenced employment with Carrolls.
3. Mr Zappia had replaced the cutting disc on the angle grinder on two occasions. Mr Zappia replaced the disc with a new disc matching the same size disc as the one he was replacing.
4. The cutting discs were located in a storage cupboard in the workshop that could be accessed by the workers with a key. Mr Vella kept the keys to the cupboard in his top drawer and would provide them to workers upon request.
5. There was no set procedure for selecting the correct disc to be used on the angle grinder. The workers would either ask Mr Vella to give them a disc or get the disc themselves.
6. Mr Vella was aware that workers were using the grinder with the bigger disc.
7. Mr Zappia said there were no 125mm discs for the angle grinder in the workshop at the time of the incident and that the 150mm disc which was on the angle grinder was the only option available for that grinder. However, Mr Vella believed that there were 125mm discs available at the premises but could not recall if they were rated to 12,000 rpm or higher.
8. On 12 November 2015 the offender advised SafeWork NSW it had located one box of PRFERD 115 mm cutting and grinding discs (13,300 rpm) in the workshop cupboard.
9. The cost involved in having available appropriately sized and rated cutting discs was minimal. Mr Vella estimated that the cost of a box of these discs would be about $60.00 (containing 10-12 discs).

Prior conviction of the offender

1. On 30 August 2005, Mr Shane Swasbrick suffered crush injuries to his left hand as a result of operating an unguarded VicRoc guillotine at the Smithfield premises.
2. On 20 December 2005 Inspector Wayne James of SafeWork NSW conducted an inspection of the Smithfield premises and issued four Improvement Notices to Carrolls for the following reasons: "(a) Improvement Notice 7-99595 employee/person(s) may be exposed to risk(s) of injury due to inadequate guarding of the VicRoc hydraulic guillotine, in particular. (i) Lack of adequate front guard (ii) Lack of adequate rear guard (b) Improvement Notice 7-99596 and Improvement Notice 7-99597 -employee/person(s) may be exposed to risk(s) of injury due to inadequate guarding of the friction screw press identified as No. 15 and No.16, in particular: (i) No rear guard on the press (ii) No front guard on the press (iii) No guarding on the drive system (iv) No guarding of the in running nips of the clutch. (c) Improvement Notice 7-99598 - employee/person(s) may be exposed to risk(s) of injury due to inadequate guarding of the John Heine 203A power press, in particular: (i) No top front guard (ii) Need for additional guarding to front and the left/right side...."
3. The offender was directed to a number of documents in compliance with the Improvement Notices including Australian Standard AS 4024.1 Safeguarding of Machine, WorkCover Guide - Plant and WorkCover - Principles of Machine Guarding.
4. On 8 October 2007, the offender was convicted of an offence pursuant to section 8(1) of the Occupational Health and Safety Act 2000, arising out of the injury to Mr Swasbrick.

Guidance Material

1. Clause 205 of the Work Health and Safety Regulation 2011 ('WHS Regulation') provides that a person with management or control of plant at a workplace must, so far as reasonably practicable, prevent alterations to or interference with the plant that is not authorised by the person.
2. Clause 206 of the WHS Regulation requires that a person with management or control of plant at a workplace must ensure all safety features and warning devices, such as guarding, are used in accordance with the instructions and information provided.
3. The Black & Decker manufacturer's instructions for the KG1200 angle grinder stated: "Safety warnings specific for grinding and abrasive cutting-off operations The guard must be securely attached to the power tool and positioned for maximum safety, so the least amount of wheel is exposed to the operator. The guard helps to protect operator from broken wheel fragments and accidental contact with the wheel." and "Fitting and removing the guard Warning! Never use the tool without the guard." and "Fitting and removing grinding or cutting discs Always use the correct type of disc for your applications. Always use discs with the correct diameter and bore size." and "Additional power tool safety warnings … The rated speed of the accessory must be at least equal to the maximum speed marked on the power tool. Accessories running faster than their rated speed can break and fly apart. The outside diameter and the thickness of your accessory must be within the capacity rating of your power tool. Incorrectly sized accessories cannot be adequately guarded or controlled." and "Safety warnings specific for grinding and abrasive cutting-off operations Use only wheel types that are recommended for your power tool and the specific guard designed for the selected wheel. Wheels for which the power tool was not designed cannot be adequately guarded and are unsafe."
4. The Carrolls Work Health & Safety Policy in place at the time of the incident also provided: "Machine Guarding The protective guards placed on plant are not to be disabled or removed for any reason except as part of a documented maintenance program for that plant."
5. Clause 213 of the WHS Regulation provides that a person with management or control of plant at a workplace must ensure that the maintenance and inspection of the plant is carried out by a competent person and in accordance with the manufacturer's recommendations.
6. The SafeWork Code of Practice for Managing the Risks of Plant in the Workplace states: "3.6 Inspecting plant Regularly inspect hand-held powered plant and repair or replace them when necessary, and replace damaged or worn parts (such as grinder wheels). Any control measures implemented, such as guard and warning devices, must be regularly inspected and tested to ensure they remain effective."

Systems of work following the incident

1. On 28 May 2015 Inspector Coulson issued a Prohibition Notice (002161) and an Improvement Notice (7-277590) to the offender.
2. The Prohibition Notice required the offender to "remove the grinder involved from use until such time as the guard is replaced and the correct cutting wheel is attached or replaced with a grinder that is safe to operate".
3. In response to the Prohibition Notice the offender permanently removed the angle grinder from use and cut its power cord to disable the tool. The angle grinder has been retained onsite and is now used as part of the offender's training and induction materials.
4. The Improvement Notice required the offender to ensure that "if guarding is used as a control measure to prevent any moving parts that may break from injuring a worker, the guards are in place and maintained to the manufacturer's recommendations", and "develop, implement and maintain a system of work to ensure that plant is regularly inspected to ensure guards are not removed or tampered with".
5. In response to the Improvement Notice the offender undertook the following steps: 1. Conducted an inspection of all hand tools in the workshop and factory areas; 2. Removed tools from the workshop that were deemed unsafe and purchased replacement power tools to ensure safety features were compliant; 3. Adopted a more comprehensive inspection and hazard identification process and amended the workplace inspection checklist so that the inspection of tools included ensuring that safety features/guards are in place; 4. Developed an itemised inventory of hand tools which is now used as part of the workplace inspection process; 5. Increased the frequency of workplace inspections so that they occur monthly; 6. Conducted a formal risk assessment for the use of the angle grinder; 7. Developed a SOP for the use of angle grinders in the workplace. The safe work instructions in the SOP state: "Ensure all guarding, safety switches and any other safety devices for these tools and equipment are in place and in good working order. Ensure all tools and equipment are up to date with maintenance requirements and in good working order. Ensure correct blades, disc or any auxiliary components are within manufacturer's specifications. Have I been trained to use these tools or equipment - if not refer to supervisor NOTE Ensure personal protective equipment (PPE) is worn when angle grinder is in operation. Ensure correct disc for job and specification of grinder is fitted. Ensure guard is in place." 1. Circulated a staff notice and included an equipment & safety notice in the WHS Policy to ensure that all equipment, machinery, hand tools and bench tools are used correctly. The notice states: * Do not remove guards or safety protection from equipment * All equipment must be used in accordance with manufacturer's instructions and specifications. * No one is permitted to use equipment or tools unless they have been trained. * Correct PPE as per manufacturer's and Carroll's instructions must be worn. 1. Amended the offender's WHS policy to include information regarding guarding of plant and tools. The amended WHS policy states: "Hand & Bench Tools All hand & bench tools must have guards. Correct PPE as per Safe Operating Procedures MUST be worn when using any hand or bench tools. Only persons who are trained or hold a relevant certificate of competency AND are authorised by the company are permitted to operate tools." 1. Implemented a new induction and training process for employees; provided training to workers in the new SOP and instructed workers not to use unguarded angle grinders; 2. Undertook a formal induction with Mr Zappia including a review of all SOP relevant to his position; 3. Purchased new personal protective equipment for workers to wear whilst using power tools including full face shields and gloves; and 4. Arranged for three workers to undertake external work health and safety training.
6. The offender also purchased a new angle grinder and discs for that grinder after the incident. The angle grinder cost approximately $750.00 and the discs cost $35.00 (for 10 cutting discs) and $56.00 (for 10 grinding discs).

THE OFFENDER'S EVIDENCE

1. The offender tendered the affidavit of its Managing Director Mr Borg, affirmed on 18 August 2017. He deposed that the offender was founded by his grandfather in 1962 and now has branches in three States. The offender employs 15 people at its Smithfield location. The offender had a written work health and safety policy which provided that protective guards were not to be removed. Inspections of the workplace to identify safety hazards were carried out every 2-3 months.
2. Mr Borg said that since 2012 the offender had subscribed to SafeWork Services. It was involved in the SafeWork Mentor Program, under which a small business like the offender was mentored by a representative of a big business. Documents were produced from SafeWork to show the ongoing involvement of the offender in the mentor program. Ms Giles, who was responsible for work health and safety responsibilities at the offender since 2012 had participated in a customer insight panel held at the SafeWork Leadership Forum. Mr Borg was proud that Ms Giles had been invited onto the panel of that forum.
3. Mr Borg said that he and Ms Giles were devastated when the incident occurred during which Mr Zappia was injured. The offender has always been a family company and had always sought to protect the employees' safety as if every employee was a member of the owner's family. The offender operates in what is classified for insurance purposes as a high risk industry. Mr Borg pointed out that two incidents in 55 years in such an industry is a relatively good record and demonstrates that the offender has tried to achieve a perfectly safe workplace.
4. In his affidavit Mr Borg accepted entirely that the offender had failed in its work health and safety duties as particularised in the Amended Summons. After the incident he and Ms Giles found out that the grinder had been kept by a Mr Vella, who was effectively the supervisor of Mr Zappia, in a locked cupboard away from where the tools were normally kept. Thus the safety inspections of the workshop had not resulted in the defects in the grinder being ascertained by Mr Borg and Ms Giles.
5. Mr Zappia told a WorkCover inspector that when he started on the job Mr Vella had discussed with him the proper use of a grinder and the fact that it had to be guarded. Mr Zappia by that time already had 25 years of experience as a motor mechanic.
6. While an audit and safety inspection of all equipment in the workshop was carried out on a regular basis, the storing of the grinder by Mr Vella out of sight meant that those safety inspections did not reveal its dangerous condition.
7. Mr Borg gave evidence about the steps taken after the accident, which were summarized in the Agreed Statement of Facts.
8. Mr Borg personally, and on behalf of the offender company, expressed deep regret and remorse that the incident occurred. He gave evidence, which was accepted by the prosecution, that the offender had co-operated fully with SafeWork and continued to have an involvement with SafeWork through the Mentor Program and the Leadership Forum.
9. Mr Borg was not cross-examined about any of this evidence, and most of it, having been accepted by the prosecutor, was incorporated into the Statement of Agreed Facts.

Consideration

1. I have had regard to the objects of the Act set out in Section 3 and the purposes of sentencing set out in Section 3A of the Crimes (Sentencing Procedure) Act 1999.

Objective Seriousness of the Offence

1. 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 R (No. 2) (1998) 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) 66 NSWLR 566 at [15].
2. 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 (1998) 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].
3. 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].
4. 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) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 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; 93 NSWLR 338. His Honour Justice Basten at paragraph 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."
6. Further at paragraph 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 pressure event of the force 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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
7. My findings about the offender's level of culpability are based upon the following: 1. Mr Zappia had not been instructed by the offender as to the need to use an appropriate disc when using the angle grinder; 2. There was no risk assessment which identified using an angle grinder without a guard as being a risk; 3. There was no risk assessment which identified using an inappropriately rated disc as being a risk; 4. The appropriate cutting discs and the guard were available on the site, but in a locked cabinet. Employees should have been made aware they were accessible; 5. From the matters above, the strong inference arises that it was not part of the system of work at the site, employed by any worker, to use a guard with the angle grinder, or to use the appropriate disc; 6. The cost to the offender of overcoming the risk was nil as it already owned the guard and a number of appropriate discs; 7. The risk to which Mr Zappia was exposed was a serious risk to his health and safety; 8. The existence of the risk was known or should have been known as the risk was identified in the publications of the angle grinder manufacturer, the Carrolls Work Health & Safety Policy, and the Work Health and Safety Regulations 2011. 9. This is not a case where there was a momentary lapse in ensuring that safe working methods were followed. Until this event, there was no adequate system of work requiring use of a guard and an appropriately rated disc in the angle grinder. 10. In part this was because the grinder was never inspected.
8. The risk of this accident happening was an obvious risk.
9. The likelihood of the risk coming home was quite high.
10. Simple remedial steps were available which would have completely avoided the risk.
11. The risk was one of serious injury or death.
12. I find that the offender's level of culpability is in the upper end of the low range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash (2016) NSWCCA 37 at [180].
2. The penalty must reflect the need for specific deterrence. The offender is still conducting a business. Many of its operations involve the use of potentially dangerous equipment. It still has many employees.

Aggravating Factors

1. The injury, emotional harm, loss or damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.

MITIGATING FACTORS

1. The offender has one previous conviction in 55 years of operation, so it does not have a significant record of previous convictions: Section 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999.
2. Apart from the offence in 2005, the offender was otherwise of good character: Section 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999. The steps which the offender took after the incident demonstrate this. The offender has been in business since 1962.
3. The offender is unlikely to re-offend: Section 21A(3(g) of the Crimes (Sentencing Procedure) Act 1999.
4. The offender has good prospects of rehabilitation: Section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
5. The offender has shown remorse for the offence: Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has provided evidence through Mr Borg that it has accepted responsibility for its actions and has acknowledged that the injury to Mr Zappia was caused by its actions.
6. The offender entered a plea of guilty: Section 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: Section 22(1) Crimes (Sentencing Procedure) Act 1999. In my view the offender entered the plea of guilty at the earliest possible opportunity. It is appropriate to apply a discount of 25%.
7. The offender gave assistance to law enforcement authorities: Section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

1. I am required to have regard to Section 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
2. I have no evidence from the offender that it has a limited capacity to pay a fine, so this issue does not arise.

Costs

1. The parties have agreed to an order that the offender is to pay the prosecutor's costs as agreed or assessed.

Penalty

1. The offender is convicted.
2. The appropriate fine is $100,000 but that will be reduced by 25% to reflect the plea of guilty.
3. I impose a fine of $75,000.
4. I order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
5. I order the offender pay the prosecutor's costs as agreed or assessed.

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: 23 August 2017