SafeWork NSW v Duct Australia Pty Ltd

District Court of NSW|2018-07-31

Judgment

Duct Australia Pty Limited (Duct) has pleaded guilty to an offence that on 4 October 2014, contrary to s 32 (1) of the Work Health and Safety Act 2011 (NSW) ("WHS Act"), it failed to comply with its duty under s 19 (1) of the WHS Act, such failure exposing a worker in the business, Jagdeep Singh, to a risk of serious injury or death.
Duct pleaded guilty to the offence when an Amended Summons was filed in Court on 28 May 2018 (the Amended Summons). The plea encompasses admissions by the offender that it owned and operated a 100 tonne hydraulic press brake (the press) and that there was a risk of a worker suffering crush injuries from the moving parts of the press, including the press blade (the risk).
The maximum penalty for the offence is a fine of $ 1,500,000.
The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below.
The breaches arose from events that took place on 4 October 2014 at Duct's factory premises in Wetherill Park, NSW.

THE PRESS

At the time of the incident giving rise to this proceeding, Mr Singh was operating a 100 tonne capacity hydraulic brake press (the press). The press is a machine designed to bend or fold plate material between a moving ram and a fixed plate.
Duct purchased the press on 25 April 2014, and received a manufacturer's manual (the manual). The manual was not made available to workers, or referred to for induction training and operation of the press prior to the incident giving rise to this proceeding. The manual did not contain any information concerning the safe operation of the press.
The press consisted of a fixed bed plate, a hydraulically driven ram which moved in a vertical direction (up and down) and a die set comprising a fixed die mounted to the bed plate and a blade mounted to the ram.
Sheet metal was fed into the press from the front and placed against the back stop plate. By depressing the foot pedal, the ram will complete one cycle in a downward then upward direction, which creates a bend in the sheet metal. The bend is created by the force exerted on the sheet metal by the ram.
The press was manufactured with the following safety features:

Side safety guards;
Enclosed rear door with sensor;
Control panel with emergency stop;
Foot pedal with emergency stop;
Shroud guard; and
Key locking system requiring that the machine be unlocked prior to operation.

At the time that the press was purchased, Duct instructed the manufacturer to fit the press with additional guarding at an additional cost. The guarding purchased was a multibeam with a light sensor, frequently referred to as a light curtain.
The light curtain consists of a transmitter and receiver. The receiver registers when light beams emitted from the transmitter are interrupted by an object passing through the beams and prevents the blade of the press from descending or descending further.
The light curtain can be adjusted relevantly up or down to accommodate differing thickness of materials. The nature of the adjustment required the use of an Allen Key.
Duct engaged J.B. Machine Tools Pty Ltd to set up the press once it had been delivered to the premises. John Baker of J.B. Machine Tools attended the premises on or about 22 August 2014 to set up the tooling parameters on the press and install the light curtain. The light curtain was set at the minimum clearance achievable, being 10 mm, and in front of the tooling.
Upon purchase and installation of the press, Mr Sood, Mr Kumar and Mr Seth were trained in its safe operation.
Mr Baker recommended to Mr Sood that the light curtain be fixed in place, however Mr Sood declined this recommendation as it had the potential to limit the future use of the press. Only select employees received training about the light curtain. Duct did not authorise any employees to adjust the light curtain, unless Mr Sood's prior approval had been obtained.

THE INCIDENT

On 4 October 2014, Mr Singh was instructed by Mr Kumar to fold channels in sheet metal using the press. Mr Singh noticed that the channels were not folding at the correct angle. He called over Mr Kumar to review the folds. Mr Kumar programmed the angle required and metal thickness into the press' console to address the issue.
Mr Singh resumed folding channels in the sheet metal using the press. He again observed that the channels were not folding at the correct angle. Mr Singh turned his head to speak to Mr Kumar without moving his hands, which were positioned under the ram and die. The ram and die then descended, crushing four fingers on Mr Singh's left hand. As a result of serious crush injuries suffered, Mr Singh has had a partial amputation of four fingers. Mr Singh was 20 years old at the time of the incident.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

Duct had undocumented systems for induction, training, competency assessment, instruction and supervision of workers, however did not have a documented Safe Operating Procedure for the press.
The only training for the press provided to workers was conveyed verbally by Mr Kumar. The training was only in regard to the functioning of the press, where to stand when operating the press, and the safety features of the press. No worker was permitted to work on the press unless the worker had received training from Mr Kumar. It was only after Mr Kumar had seen a worker competently use the press that a worker was permitted to use the press unsupervised. Mr Kumar had observed Mr Singh operate the press on a few occasions.
Prior to the incident, guidance was available on the minimum safety distances required to be maintained by the light curtain to prevent injury by reference to Section 4.2.4.1, Table 4 of the Australian Standard AS4024.1801:2014 - Safety distances to prevent danger zones being reached by upper and lower limbs.
Prior to the incident, Mr Sood was not approached by any worker seeking approval to adjust the light curtain. He was not aware of any worker adjusting the light curtain.
Mr Kumar did not provide any training to any worker with regard to the adjustment of the light curtain.

SYSTEMS OF WORK AFTER THE INCIDENT

Immediately after the incident, Mr Sood held a tool box meeting where he discussed the incident and reinforced to employees the risks presented to them by the machinery in the factory, and the risks involved in parts of their bodies coming into contact with the machinery.
In consultation with workers, Duct developed and implemented a Safe Operating Procedure (SOP), which included requirements for an operator to check that the sensors for the light curtain were set to minimum practicable clearance for the material being pressed, and to ensure that a person's fingers cannot enter the die press area. Workers were trained in the SOP and also trained in emergency procedures and fault reporting. The SOP emphasised the need for workers to ensure their hands were away from the pinch point, and highlighted the emergency stop on top of the foot pedal.
An external work health and safety consultant was engaged to develop formal policies and procedures and develop an employee manual containing safe work method statements, plant assessment forms and developed and implemented dangerous goods registers and the like.
A WHS coordinator was appointed to review and oversee Duct's compliance with its work health and safety duties.
New roll-forming machinery was purchased at considerable cost (exceeding $200,000) and the use of the press was consequently decreased.

CONSIDERATION

Both the prosecution and the offender reminded me of the general principles to be applied in the sentencing process, and 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.

DETERMINING OBJECTIVE SERIOUSNESS

Objective seriousness of the offence is to be assessed by having regard to the failures particularised in the charge and found proven, assessed with reference to all the circumstances surrounding the offence.
The proportionality principle requires that a sentence should not exceed nor be less than the gravity of the crime having regards to the objective circumstances. See Veen v R (No 2) (1988) 164 CLR 465.
The process of assessing relative culpability with regard to sentencing matters under the Act was recently considered by the Court of Criminal Appeal in Silver City Drilling (NSW) Pty Ltd; Attorney General for NSW v Silver City Drilling (NSW) Pty Ltd (Silver City Drilling). In reassessing the objective seriousness of the offending, Basten JA said the following at [42]: '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, cost. That assessment will involve both objective considerations and a consideration of what the respondent's responsible officers knew or ought to have known.'
The task requires the court to consider where in the range of conduct covered by the offence, the conduct of the offender falls. (see Baumer v R (1988) 166 CLR 51 at 57) Such assessment will usually suggest the appropriate range of sentences available within the range, so as to reflect the objective seriousness of the offence committed, and provide a guideline as to the limits within which a sentence proportional to the criminality of the offender will lie. (see BW v R [2011] NSWCCA 176 at [70])
In these proceedings, the risk was the risk of a worker suffering crush injuries from the moving parts of the press, including the press blade, when the light curtain was not properly adjusted.
The particulars of the breaches are as follows; 1. Failure to develop a safe operating procedure for the operation of the press, including the adjustment as necessary of the light curtain, 2. Failure to ensure workers were trained and assessed as competent in the safe operating procedures for the press, 3. Failure to prohibit workers, including Mr Singh, from operating the press unless and until they were properly trained in and assessed as competent in the use of the press and the light curtain, in particular the safe operating procedure of the press, and 4. Failure to ensure the light curtain on the press was adjusted for the correct size of metal being worked on so as to prevent a person's hand or other body part entering within the operating space of the press blade.
The serious injuries sustained by Jagdeep Singh were a manifestation of the risk.
The nature of the risk of having hands or fingers crushed my moving parts of the press was plainly foreseeable. It is obvious as a matter of common sense. If the light curtain could be adjusted, there was clearly the possibility that the fingers or hand of any one operating the machine, and unaware of the dimensions of the light curtain, could easily inadvertently put their fingers or hand in and sustain a serious injury.
The conduct is more serious when regard is had to the recommendations made by Mr Baker when installing the machine. He recommended that the light curtain be fixed in place at the minimum clearance of 10mm, presumably so that exactly what did happen in this incident, could not happen. It is reasonable to presume that if the light curtain had been so fixed, Mr Singh would not have been injured. Duct chose not to do so for operational reasons, which led to such a serious injury to their young worker.
Moreover, there had been no training provided to Mr Singh on the adjustment of the light curtain - only select employees were given such training. Duct being so aware, allowed Mr Singh to use the press regardless. The risk of such serious injury was there from the day the press was installed until after the incident.
The duty owed to the workers was a simple one, and the foreseeability of the risk was high. Whilst the offender had in place a safety system, and did not disregard its safety obligations, the steps that could have been taken to avoid the risk were straightforward, readily available and involved little inconvenience or costs to the offender.
The risk was identified by the Australian Standard, of which the offender should have known. It was in fact known to the offender as demonstrated by the fact that Duct required the manufacturer to supply the press with a light curtain and side guarding.
The light curtain would only be effective if it was correctly located and the photoelectric beams adjusted accordingly. Mr Baker recommended that the light curtain be fixed in place at the minimum clearance of 10mm. However Mr Sood declined this recommendation for operational reasons.
It is well established in R v Commercial Industrial Construction Group [2006] VSCA 181 that the duty holder must make allowances for human error, such as inadvertence or inattention on the part of an operator of dangerous machinery. In this instance, it is not the case that the worker had shown foolish disregard for his own safety, but that he had turned away from the press to speak to Mr Kumar when the incident occurred.
There were simple and straightforward remedial steps that the offender could have taken to eliminate or mitigate the risk to safety. The offender should have prepared and implemented a written safe working procedure so as to ensure that the light curtain was adjusted to the minimum practicable clearance, such that the hands or fingers of an operator did not enter the danger zone. This was done after the incident had occurred in response to Prohibition and Improvement Notices issued by SafeWork NSW. Had this been done, the incident would have been prevented.
Another simple step that the offender could have taken, and did so after the incident, was to ensure that workers were trained and assessed as competent in the SOP for the press, and in particular as to the proper adjustment of the light curtain. In fact, the offender could and should have prohibited workers including Mr Singh from operating the press unless and until they were appropriately trained and assessed as competent. This could have been achieved by effective supervision of Mr Singh and the workers.
All of these measures would have involved little effort and minimal cost, and this is a factor that increases the objective seriousness of the offender's conduct.

DETERRENCE

The penalty imposed by the court must provide for general deterrence. The community is entitled to expect that all employers, weather large or small are aware of, and comply with their safety obligations towards their workers and others. Employers must take the obligations imposed by the legislation seriously. General deterrence is a significant factor for consideration by the court when safety obligations are breached. (see Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37.
Whilst there is a need for specific deterrence in this matter, I accept that the measures that have been taken and the machinery that Duct has acquired suggest that they are unlikely to re-offend. (see Capral Aluminium Ltd v WorkCover Authority of NSW (2000) 49 NSWLR 610)

AGGRIVATING FACTORS

The potential consequences of the breach were obvious, serious and long lasting. Mr Singh's index middle, ring and little fingers on his left hand were crushed. They were partially amputated as a result of the incident. Mr Singh was only 20 years old when the incident occurred and just starting out in his working life. However, I do accept that the risk of an injury was not an injury that could be described as catastrophic. In this instance it was limited to the hands and/or fingers of the worker.
The offender accepts that I should properly take into account that in s.21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) namely that "the injury, emotional harm, loss or damage caused by the offence was substantial".
I accept that the offence was not part of a planned or organised criminal activity. Duct had made a genuine attempt to ensure its operation was safe for workers and others in the business. It engaged a diligent and experienced person, Mr Kumar, as its factory supervisor, gave him instruction about the provision of appropriate training and supervision. Duct had a light curtain fitted to the press to try and lessen the risk of employees suffering an injury and coming in contact with moving parts of the machinery. Mr Kumar was in close proximity to Mr Singh at the time the incident occurred.
Unfortunately, these steps were insufficient. Reliance on the light curtain and Mr Kumar's supervision to manage the risks of the press falls short of reasonably practical steps that could have been taken to ensure health and safety.
I accept that the event that occurred was unexpected, and the injuries were not life-threatening. The dimension of the risk and the outcome in the present matter is less than that in Silver City Drilling, and as such the attitude of the employer is less blameworthy.
The offender accepts that the aggravating circumstance in s 21A(2)(g) is made out by reason of the injuries sustained by Mr Singh. However they submit that the court cannot rely in it to find any other aggravating circumstance. I have taken the injuries sustained by Mr Singh into account in accordance with the comments made by Basten JA in Silver City Drilling. I accept that so far as consideration of the harm and injury suffered by the victim, and accepting that the circumstances in which Mr Singh now finds himself are unquestionably sympathetic ones, sentencing law does not allow me to impose a more substantial sentence by virtue of those circumstances.

MITIGATING FACTORS

Duct has no previous convictions, in unlikely to re-offend, and has good prospects of rehabilitation. Mr Sood, the director of the company has been genuinely chastened and troubled by the incident. Significant steps have been taken at considerable cost to decrease the use of the press, and comprehensive measures have been created and applied in the workplace with regards to safety. An external consultant has been engaged to monitor safety issues, and training procedures have been increased. Following the incident Duct communicated with both Mr Singh and their workers compensation insurer to ensure that Mr Singh was receiving appropriate support.

Considerations

I have had regard to the objects set out in section 3 of the Act and in section 3A of the Crimes (Sentencing Procedure) Act 1999 for the purpose of sentencing.

Objective Seriousness of the Offence

The proportionality principle requires that sentence should neither exceed nor be less than the gravity of the crime having regard to objective circumstances: Veen v R (No. 2) (1088) 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 of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 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 attached to the failure to guard against 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 and overall evaluation of various factors, which may pull in different directions.'
The offender entered a plea of guilty to the Amended Summons at the first available opportunity, and is therefore entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining the range into which the discount should fall is the timing of the plea. The earlier the plea the greater the discount. (see R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1) In the circumstances, the appropriate discount for the plea of guilty is 25%.

CAPACITY TO PAY A FINE

Section 6 of the Fines Act 1996 provides: 'In the exercise by a court of a discretion to fix the amount of any fine, the court is required to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and, (b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount.'
Whether an offender seeks to have a fine reduced on the basis of limited capacity to pay, it bears the evidentiary onus of satisfying the court that its discretion ought be exercised in limiting the fine. No such application was made.

PENALTY

Having taken all of the matters referred to above in consideration of the appropriate fine, I am of the view that this is at the lower end of the scale and that the appropriate fine is $150,000. As a consequence of the early plea, there is to be a discount of 25%.
The offender is convicted and fined $112,500.00
I order pursuant to s 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

COSTS

The defendant has agreed to pay the prosecutor's costs and disbursements 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: 27 August 2018

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