Turfco Australia Pty Ltd (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Blaine Rozs to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $1.5 million.
[2]
Facts
The parties presented an Agreed Statement of Facts that can be summarised as follows.
The offender conducts a business growing, harvesting and selling turf. The offender owned and operated a turf harvester (the harvester) consisting of a tractor with a harvester mounted on one side of it. The tractor was driven over the turf by an operator (the driver) while the harvester cut slabs of turf. These slabs were fed onto a conveyor, and manually stacked on a pallet resting on two forklift tines at the back of the harvester. The driver was assisted by a turf stacker, who stacked the slabs of turf while standing on a side platform located at the rear of the harvester between the conveyor and the tines. The side platform had an exposed edge at the rear of the harvester, with no physical barrier to prevent the turf stacker from falling to the ground. The driver was seated between the rear wheels of the tractor component. When seated in the tractor the driver faced forward, with the side platform behind them.
As the harvester cut and harvested turf, it moved forward at a walking pace (approximately one to two kilometres per hour). This allowed the driver to alight from the cabin of the tractor while it was in motion, and walk back to the platform to assist the turf stacker. Near the completion of the turf cutting, the driver would alight from the platform and return to the driver's seat to stop the harvester. This was known as the hop-off system.
With the turf stacker riding on the side platform, the harvester was then driven in reverse to transport the slabs of turf from the paddock to the unloading points (the reversing system). The reversing system exposed the turf stacker to an open edge of the side platform which led directly onto the ground in the path of the harvester when it was being reversed.
The offender had in its possession a Brouwer Owner/Operator's Manual (the operator's manual), which was applicable to a later, but sufficiently similar model of turf harvester. Mr Smith, the farm's operations manager, used the operator's manual for the purpose of maintaining the harvester. The front cover of the manual stated: "Those who use and maintain this machine should be trained in its proper use, warned of its danger and should read the entire manual". There was a sign affixed to the harvester, next to the driver's seat, stating: "Caution - avoid injuries, read operator's manual before operating machinery".
The operator's manual contained a direction never to try to get on or off a moving harvester, which the hop-off system contravened. It also stipulated a method of harvesting turf that involved the use of a separate vehicle to transport the cut turf to the unloading point. Reversing the turf harvester was not part of this recommended system, though it was not expressly prohibited. It was, and is, occasionally necessary to operate the turf harvester in reverse, to for example enable it to change direction. However, the harvesting method detailed in the manual obviated the need to repeatedly operate the turf harvester in reverse over substantial distances.
The offender did not inform Mr Rozs or the driver, Mr Seymour, about the contents of the operator's manual relating to safety, nor did it train or instruct them in relation to its contents. Mr Parker, the logistics manager, had never read the operator's manual, and was not aware of the harvesting method contained in it. Mr Smith did not consider that there was any need to modify the offender's harvesting system.
On 1 December 2014, Mr Parker instructed Mr Rozs and Mr Seymour to go to the field and harvest turf. The ground in the field was damp with heavy dew. When the harvester was reversed over muddy or wet terrain, a slight bouncing rhythm was induced on the harvester. Mr Rozs and Mr Seymour harvested around 20 rows of turf from the field using the hop-off and reversing systems outlined above, with Mr Seymour operating the harvester and Mr Rozs standing on the side platform and assisting as a turf stacker. Pursuant to the reversing system, the turf harvester was driven over distances of up to 150 metres in reverse to deliver pallets of cut turf to the unloading point. Fresh pallets were then loaded onto the harvester to collect more turf.
Mr Franks was operating a forklift, which was used to load the pallets of cut turf onto the truck. This was one of two all-terrain forklifts available for use in the field on the day of the incident. These forklifts could have been, but were not, used to deliver fresh pallets to the harvester to enable it to continue cutting turf in a forward direction after setting aside loads of cut turf, as set out in the operator's manual.
At approximately 7:07am, Mr Seymour had just completed cutting a pallet of turf and had begun reversing the harvester back to the unloading point. He estimated the harvester was travelling in excess of two kilometres per hour. He last saw Mr Rozs standing on the side platform, behind his right shoulder. After glancing to the side and failing to see Mr Rozs on the platform, Mr Seymour immediately stopped and shut down the harvester, and alighted onto the field. He saw Mr Rozs' arm coming out from underneath the harvester, where he had become trapped. Emergency services personnel pronounced Mr Rozs deceased at the scene. The cause of death was traumatic asphyxia resulting from external pressure on Mr Rozs chest or abdomen that was exerted by the tractor component of the turf harvester, which weighed almost 4 tonnes.
[3]
The Offender's Case on Sentence
The offender relied on an affidavit of Alison Roach, the director and general manager of the offender, affirmed on 5 July 2018. Ms Roach was present in Court and not required for cross-examination. Her evidence can be summarised as follows.
The offender commenced operating as a small family-owned business in 1987, and was incorporated in 2006. It is a proprietary company limited by shares, with 4 of the 7 shareholders currently working within the business. The offender currently employs approximately 18 people.
Ms Roach took up the position of general manager of the offender in September 2011. She oversees the offender's office and manages staff, as well as being involved in financial management and business development.
Ms Roach acknowledged the continuing impact of Mr Rozs' death on his family, describing Mr Rozs as a valued employee. She accepted responsibility on behalf of the offender for the company's acts and omissions which contributed to the risks to which Mr Rozs was exposed on the day of the incident. She expressed remorse, personally and on behalf of the offender, stating that she often loses sleep thinking about the incident.
The offender fully co-operated with the investigations of both the NSW Police and SafeWork NSW following the incident.
The offender arranged for Mr Rozs' family, and its own staff members, to have access to counselling in the days following the incident. It contributed $8,226 towards the cost of Mr Rozs' funeral, with the offender's founder Gavin Rogers and his wife Sue contributing a further $17,000 to assist with funeral and personal expenses. The offender has permitted Mr Rozs' friends and family access to the incident site, for the purpose of commemorating his life.
In response to the incident and an improvement notice issued to it by Safework NSW, the offender modified its systems of work. The harvester was fitted with rear view mirrors, a reverse beeper, and increased safety signage. The turf stacker did not ride on the side platform of the harvester while it was being reversed. While in operation, the harvester was only to be driven in reverse when absolutely necessary. The driver of the harvester was prohibited from leaving the seat until the machine was parked and switched off. The offender also reviewed its systems of work for all machinery used by its employees.
In 2015, the offender replaced the harvester with a new automatic "Robomax" harvester, which requires only one operator. The offender specifically installed a reversing camera on the Robomax to enhance the driver's field of vision. The Robomax is operated solely by either Mr Smith or Mr Parker. A Safe Operating Procedure (SOP) has been developed for the use of the Robomax harvester, and both Mr Smith and Mr Parker have been trained in this procedure.
The offender holds regular documented tool box meetings, where staff can discuss any safety concerns and make recommendations. It also holds regular work health and safety management meetings.
Since December 2014, the offender has engaged the services of Eric Young Consulting Pty Ltd to audit and document its work health and safety systems. Mr Young has assisted in developing the offender's safety management systems and documentation, training staff, developing safe operating procedures for the use of the offender's machinery, and conducting site inspections. The offender budgets for safety-related expenses, and has implemented an electronic document management system for retention of its safety documentation. The offender offers staff the opportunity to participate in first aid training, and all vehicles are outfitted with first aid kits.
The offender is a founding member of Lawn Solutions Australia, a national network of turf farming businesses. The offender informed Lawn Solutions Australia of the incident involving Mr Rozs, and has since assisted the network in developing work safety compliance guidelines, resources and certification standards for the turf industry.
[4]
Consideration
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 Crimes (Sentencing Procedure) Act 1999.
[5]
Objective Seriousness
This case is one of significant objective gravity. The offender's system of harvesting turf was seriously deficient for the reasons set out below. There is no evidence that the offender considered the risks involved in the system adopted by it or took any steps to control those risks. This amounts to a serious breach of the offender's obligations under the Act.
The harvester was driven for long distances in reverse to deliver the harvested turf back to the unloading point. This involved the driver of the tractor having limited vision of the turf stacker and exposed the turf stacker to the risk of falling off a narrow unfenced platform into the path of the reversing harvester. The risk of the turf stacker falling was exacerbated by the bouncing of the harvester in reverse and the presence of heavy dew. The reversing of the harvester for long distances was unnecessary and unsafe.
The risk of injury to the turf stacker was obvious. The risk could be implied from a complete reading of the operator's manual for the harvester. The precise risk was not identified because the system employed by the offender was not one that was considered in the operator's manual. The hop-off system used by the offender was contrary to the safety advice contained in the operator's manual. The offender had not provided training to Mr Seymour or Mr Rozs in relation to the contents of the operator's manual, despite the warnings clearly displayed on the harvester.
The risk to the turf stacker was a risk of serious injury or death as a result of being crushed by the harvester.
There were simple steps which the offender could have implemented at no cost to eliminate the risk, such as implementing the harvesting system outlined in the operator's manual or directing the turf stacker to alight from the harvester when it was travelling in reverse. The available steps would not have caused any inconvenience to the offender.
The death of Mr Rozs was tragic. He was 19 years of age. His death has had profound effects on his family that are likely to be longstanding.
I have taken into account the maximum penalty for the offence.
[6]
Deterrence
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 Ltd v Nash [2016] NSWCCA 37 at [180].
There is also a need for specific deterrence because the offender continues to operate in an industry that presents significant risks to the health and safety of its workers. However, the need for specific deterrence is reduced. The offender has taken extensive remedial steps to implement a safety system that should have been in place prior to the incident. I am satisfied that its present systems will ensure a significant improvement to the safety of its operations. The system it has now implemented meets the standard required by the Act. On the other hand, the penalty imposed on the offender must bring home to it the need to maintain and review its safety systems to ensure the health and safety of its workers and other persons.
[7]
Aggravating factors
The injury, harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The Victim Impact Statement (VIS) was not objected to or called into question, and in my view it is proper to take it into account in consideration of the establishment of the aggravating factor: R v Tuala [2015] NSWCCA 8. The incident caused the premature death of a young man and has had profound effects on his family members, particularly his mother. The harm caused to the family is evidence of harm to the community. I am satisfied beyond reasonable doubt that the injury, harm and loss caused by the offence was substantial.
[8]
Mitigating factors
The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender commenced operation as a family-owned business in 1987, and has been incorporated since 2006. The business has operated safely without prior incident in that time.
The offender has good prospects of rehabilitation : section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken considerable steps to improve its safety systems since the incident. I am satisfied on the balance of probabilities that the offender has demonstrated through its actions after the incident that it has good prospects of rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse through the affidavit of Ms Roach. The offender also provided financial support to Mr Rozs' family. I am satisfied on the balance of probabilities that the offender has accepted responsibility for its actions and demonstrated genuine remorse and contrition.
The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offender co-operated with the Safe Work investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
[9]
Penalty
The offender is convicted.
The VIS was read aloud by Mr Rozs' mother. The statement was thoughtfully prepared and conveyed the love and respect held for him as well as the pain and loss suffered by each of the family members. The prosecutor has applied to have the content of the statement considered in determining the appropriate punishment for the offence on the basis that the harm caused to the deceased's family by the offender is an aspect of the harm done to the community: section 28(4) Crimes (Sentencing Procedure) Act 1999. I find that it is appropriate to do so.
The appropriate fine is one of $500,000 that will be discounted by 25% to take into account the plea of guilty.
I impose a fine of $375,000.
I order that pursuant to section 122(2) Fines Act 1996, 50% of the fine is to be paid to the prosecutor.
I order that the offender pay the prosecutor's costs as assessed or agreed.
I certify that this and the previous 11
pages are the reasons for the Judgment
of his Honour Judge A Scotting
Associate
16 July 2018
[10]
Amendments
20 November 2019 - Catchwords added
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Decision last updated: 20 November 2019