Safework NSW v Dongwha Timbers Pty Limited

Safework NSW v Dongwha Timbers Pty Limited - [2020] NSWDC 9 - NSWDC 2020 case summary — Zoe

[4]

The Satellite Line Plant

Timber packs were loaded by forklift onto the satellite line infeed unit, after being dried in a kiln. When loaded onto the satellite line infeed unit each layer of the timber pack was separated by smaller pieces of wood called fillet sticks. The purpose of the fillet sticks is to allow timber boards to dry properly in the kiln.
The task of the satellite line infeed unit is to mechanically separate each timber board, and to remove the fillet sticks entirely, so that the timber boards can be re-palleted and distributed.
After loading by forklift onto the satellite line infeed unit, the timber pack is moved towards and onto the tilt hoist by the satellite infeed chains.
The tilt hoist is then used to lift the timber packs off the satellite infeed chains, to separate the fillet sticks, and to feed the timber boards onto the grading conveyor chain.
The hoist component of the tilt hoist consists of six individual steel lift arms measuring 2.0m x 0.12m x 0.15m. The lift arms lift the timber packs. The lift arms are held together by a single steel bar and are spaced along the bar at regular intervals of 1.3m. The lift arms have a lifting and lowering motion and move through a 90 degree trajectory. The lift arms are controlled by an electrically driven drive chain mechanism that raises the arms of the tilt hoist against the steel plate. The drive chain is located behind and beneath the steel plate.
When the timber packs are lifted and fed onto the grading conveyor chain, the fillet sticks automatically separate from the timber boards due to their much smaller size. The fillet sticks drop onto a fillet stick unscrambler.
The satellite line plant is located in the satellite shed. Within the satellite shed and surrounding the satellite line plant is a satellite line infeed unit which was enclosed by a 0.9m high mesh fence and the shed walls. A gate measuring 0.75m in height x 1.0m in width provides access to the restricted access area near the tilt hoist. The gate is fitted with an interlocking switch that is designed to isolate the supply of electricity and disable the operation of the satellite line plant once opened.
The component parts of the satellite line plant are controlled by three separate control panels that independently control the infeed chain, the tilt hoist and the grading conveyor chain.

[10]

Training, Procedures & Supervision

Dongwha provided an induction program to workers prior to commencing work at the premises. This program including training on Dongwha's Standard Operating Procedures (SOPs).
Records signed and dated by Mr Olsen on 18 February 2016 indicate he received safety training, including the Satellite Line SOP and the Satellite Line Infeed Lockout Procedure on his first day at work.
The Satellite Line SOP stated that the satellite infeed unit was to be isolated and locked out with a safety padlock before entering the area for cleaning, unblocking jams or maintenance. It did not state that a maintenance employee was to be called by a worker to attend the area to clear or unblock the jams.
The Satellite Line SOP did not state that the chains of the arms of the tilt hoist could become slack which could result in the arms falling to their resting position in the process of clearing or unblocking jams.
The Satellite Line SOP stated that under no circumstances was a worker to access the infeed chain area before isolation and lockout of this area was completed and to refer to the Satellite Infeed Isolation Procedure.
The Satellite Line SOP also stated that a worker was not to operate the satellite infeed unit if they had not received safety training, and not to operate the satellite infeed unit if it was beyond the worker's ability or training level of authority.
The SOP entitled "Satellite Line Infeed/Grading Conveyor Chain Area Individual Lockout Procedure" set out the guidelines to be followed for an individual lockout or isolation by all workers whenever the satellite line infeed/grading conveyor chain area was required to be locked out or isolated for maintenance, jams or cleaning. However, neither this SOP nor the Lockout Procedure stated that a maintenance employee was to be called by a worker to attend the area to clear or unblock the jams.
The SOP also did not specifically mention the risk of being struck by an arm of the tilt hoist while accessing parts of the production line for cleaning, unblocking jams or maintenance purposes.
Dongwha did have an undocumented informal procedure in place for clearing jammed timber from beneath the tilt hoist. Only maintenance personnel were to remove or clear jammed timber from beneath the tilt host (Clearance Procedure). The Clearance Procedure required operators to contact the maintenance crew. This would involve a satellite line plant operator walking over to the forklift operator to use the radio to call the maintenance crew. An electrician would then come to the satellite line infeed unit and rewind the chains of the tilt hoist electronically with a laptop ensuring that there would be no more slack in the drive chains.
In practice the Clearance Procedure was not always followed and, on occasion, workers cleared jammed timber themselves without calling maintenance personnel.
While Dongwha did not expect production line operators to remove jammed timber from the hoist, some operators understood that if, after assessing the situation, the operators could safely rectify any issues themselves, they should do so instead of calling maintenance personnel.
It was not unusual for workers to enter the satellite infeed area without isolating the machinery to fix any issues or clean the area. However, even if the satellite line plant was isolated and locked before a worker entered the restricted access area, there would still be a risk of the arms of the tilt hoist falling on workers who were clearing jammed timber due to slack in the drive chains.
Dongwha's organisational structure required that production team members reported to leading hands. Mr Korrie Elton (Mr Elton) was the team leader who had overall supervision of the satellite shed. Mr Simpson was the leading hand and Mr Olsen's direct supervisor. At the time of the incident Mr Simpson was working in the strapping and wrapping area in the satellite line which was approximately 50 metres away from where Mr Olsen was working. Mr Elton had finished work for the day and was not at work at the time of incident.

[12]

Systems of Work Following the Incident

On 2 August 2016 in response to the incident SafeWork NSW issued three improvement notices requiring Dongwha to develop and implement a system for ensuring the safety of workers operating the tilt hoist and to ensure adequate information, training and instruction was provided to workers for the safe operation of the tilt hoist.
In compliance with the SafeWork improvement notices, Dongwha conducted a risk assessment for the operation of the satellite line plant between 9 August 2016 and 25 August 2016.
The risk assessment identified various additional control measures which Dongwha subsequently implemented as follows: 1. Erected new safety fencing around the restricted access area, particularly near the satellite line infeed unit and raised the height of the gate. 2. Installed new position sensors on the drive chain mechanism to detect slack in the lifting chains of the tilt hoist. 3. Installed new anchor points in the floor for attaching a hand winch to lift the tilt hoist during maintenance or while releasing jammed timber. The floor anchor plate was positioned to allow a 1500kg comealong (a hand-operated winch) to be connected to hold the tilt hoist backrest in a fixed position. This meant that if the tilt hoist is jammed in a set position the comealong would hold it in that position until the maintenance work was completed. 4. Implemented a system for steel pins to be inserted in the side of the tilt hoist to secure it during maintenance, stopping the arm from moving. 5. Clearly marked designated exclusion zones and installed prominent signage around the satellite line infeed unit area.
The risk assessment also required the existing unwritten practice of calling maintenance to remove jams in a controlled manner to be incorporated into the operational manual.
Dongwha prepared an incident investigation report dated 12 September 2016 which reached the following conclusions: 1. The training system currently in place was not being implemented. 2. The training package was outdated and referred to a different satellite line. 3. Common practices were not formalised and not effectively communicated to new workers. 4. Safety protocols were not being uniformly followed and leading hands were not enforcing compliance with them. 5. Safety culture in the satellite line was ineffective.
The investigation report made a number of recommendations which included: 1. updating Dongwha's SOPs; 2. updating training manuals; 3. considering disciplinary action for non-compliance with safety protocols; 4. risk assessment of satellite infeed; 5. implementing recommendations of risk assessment; and 6. developing individual training plans for all satellite line employees.

[21]

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].
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 v The Queen [2011] HCA 39; (2011) 244 CLR 120. 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 recently 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. His Honour 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 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, 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 Dongwha's level of culpability are based upon the following: 1. The risk of a worker being impacted by the arms of the tilt hoist on the satellite line infeed unit when clearing or removing jammed timber from beneath the tilt hoist was obvious and foreseeable. Guidance material in any event made such a risk known to the industry. 2. The likelihood of the risk of a worker being struck by tilt arms falling as a result of dislodging a fillet stick was significant. 3. There was potential for serious injury or death. Mr Olsen could have easily died or suffered catastrophic injury if he had been struck on the head or neck. 4. There was no risk assessment undertaken relevant to the task that Mr Olsen was performing. This step would have assisted in minimising the risk. Additionally, the SOP should have referred to the fact that the hoist arms could become slack with the result that they may fall to the horizontal position if an obstruction is removed. 5. There was little or no burden or inconvenience in conducting a risk assessment relevant to the task that Mr Olsen was seeking to complete, nor would it have been a burden to formalise the undocumented informal procedure that required maintenance personnel to become involved in the clearing of jammed timber. 6. The significant injury suffered by Mr Olsen was a manifestation of the risk. 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. 8. Dongwha did have a commitment to safety and a detailed (but incomplete) system of written safety documentation. The unwritten informal Clearance Procedure was not followed on this occasion, and the absence of that procedure being put in writing and taught to the workers is an important factor in understanding why the risk existed and why the accident occurred. To adapt the lawyer's aphorism about verbal contracts, an unwritten safety procedure "is not worth the paper it is not written on".
I find that the Dongwha's level of culpability is in the mid range.

[27]

Penalty

Counsel for the defendant submitted that it would be appropriate to deal with Dongwha by way of a bond under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). This section enables a court to deal with a matter without convicting the offender, having regard to the offender's character, antecedents, the trivial nature of the offence, any extenuating circumstances and any other appropriate matter. Counsel submitted that the court should consider "the consequences of a conviction to Dongwha's business". There was no evidence that there would be any consequences arising from a conviction per se.
I am of the view that it would not be appropriate to decline to record a conviction against Dongwha. The offence was not of a trivial nature. There are no extenuating circumstances. The risk was there to be foreseen and it was not perceived. The character and antecedents of Dongwha operate in its favour, but not to the extent sufficient to lead the court to give it the benefit of an order under s 10. To deal with the matter without imposing a conviction would fail to recognise the objective seriousness, the principle of deterrence and the nature of the offence - see Safework NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66 at [62].
Counsel for the defendant also submitted that an order could be made under s 239 of the Act to adjourn the matter upon Dongwha giving a "court-ordered WHS undertaking". It was submitted that such an undertaking should require Dongwha to make reasonable enquiries as to which other businesses within New South Wales operate satellite line infeed units, advise them of Dongwha's prosecution, the particulars of the prosecution and the orders made by the court. It was submitted that this would achieve one of the objects of the Act, by alerting similar businesses to the particular risk which came home in the present case.
There was no evidence placed before the court that the risk involved in this case, or the type of accident which occurred, was a common occurrence. There was no evidence that any such enquiries had been made to date, and there must be doubt as to whether Dongwha's competitors would be keen to speak to it about their particular commercial operations. I cannot see any utility in making an order under s 239 of the Act and I decline to do so.
My orders are: 1. The offender Dongwha Timbers Pty Limited is convicted. 2. The appropriate fine is $120,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order the offender Dongwha Timbers Pty Limited to pay a fine of $90,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 5. Order the offender Dongwha Timbers Pty Limited to pay the prosecutor's costs.

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