SafeWork NSW v Carroll Springs Pty Ltd

SafeWork NSW v Carroll Springs Pty Ltd - [2017] NSWDC 222 - NSWDC 2017 case summary — Zoe

[12]

Guidance Material

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.
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.
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."
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."
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.
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."

[13]

Systems of work following the incident

On 28 May 2015 Inspector Coulson issued a Prohibition Notice (002161) and an Improvement Notice (7-277590) to the offender.
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".
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.
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".
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.
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).

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THE OFFENDER'S EVIDENCE

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.
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.
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.
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.
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.
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.
Mr Borg gave evidence about the steps taken after the accident, which were summarized in the Agreed Statement of Facts.
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.
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.

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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 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].
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].
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) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively.
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."
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."
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.
The risk of this accident happening was an obvious risk.
The likelihood of the risk coming home was quite high.
Simple remedial steps were available which would have completely avoided the risk.
The risk was one of serious injury or death.
I find that the offender's level of culpability is in the upper end of the low range.

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