SafeWork NSW v Williams Timber Pty Ltd

SafeWork NSW v Williams Timber Pty Ltd - [2020] NSWDC 777 - NSWDC 2020 case summary — Zoe

[6]

SYSTEMS OF WORK PRIOR TO THE INCIDENT

The defendant had a Safety Induction Training Manual ('Safety Induction') which workers were required to sign when they commenced their employment with the defendant. The Safety Induction provided, inter alia, the following: '[The defendant] has a safety representative who is responsible for conducting a safety meeting every 3 months … to consult/interact with employees about OH&S issues which may be present … Never operate machinery unless you have been authorised and received adequate training … Never operate a machine unless the guards are in place … Never carry out maintenance, cleaning or blade changing until the machine is switched off, isolated and the run-down time is completed.'
Gibson had provided a Risk Assessment and Hazards Identification document ('RAHID') to the defendant when the defendant purchased the GTE Saw. The RAHID, though not provided to workers or enforced in the workplace, recommended the following to ensure the safety of personnel and integrity of the GTE Saw: 1. Staff and operator training; 2. Risk and hazard identification; 3. Continual instruction of staff regarding hazards and procedures; 4. A suitable isolation procedure; 5. Clearly identified and marked out work areas and 'no go' areas; 6. Training a 'safety minded work team'; 7. Diligence in ensuring all personnel involved with the installation, maintenance service and operation of the GTE Saw have recognised trade qualifications to safely and competently fulfil their roles and responsibilities.
The RAHID also instructed users to keep out of the area of the GTE Saw 'when it is live' and recommended that the machine be fully guarded.
The defendant had a Safety Operating Procedure for various plant, including the GTE Saw ('GTE Saw SOP'). The GTE Saw SOP, though not provided to the workers or enforced in the workplace, provided, inter alia: 'Ensure all guards are fitted correctly and are adequately guarding blade, nip points and moving parts. Guarding includes: (a) Fence guarding around the saw and carriage. (b) Riving knives fitted to the back of saw blades. (c) Fixed guards over drive belts and chains. … Make sure the work area is clear of people before starting up the machine. … Never place your hands near moving saw. … Saws must be turned off when adjusting saw packing.'
Prior to the incident, the defendant did not have in place an adequate physical barrier which prevented access to moving parts of the GTE Saw while it was in operation, such as an interlocked physical barrier which allowed access to moving parts only at times when that area did not present a risk. The documented Safe Operating Procedures, including the GTE Saw SOP, were not seen by all workers.
The defendant did not develop, implement and enforce a safe work procedure for the manual adjustment of the packing mechanism of the GTE Saw which prohibited workers from approaching the saw blade unless the saw was isolated or turned off and the blades had stopped running, and which specified that the packing spanner was the only tool to be used to adjust the packing mechanism.
The defendant did not provide adequate information, instruction, training or supervision to workers regarding the safe operation of plant, including the GTE Saw, and in particular, in relation to safely adjusting the alignment of the blade. Workers learned on the job.
The defendant did not have documented or formal competency assessments of workers prior to those workers adjusting the packing mechanism of the GTE Saw, including assessment of each worker's competency to isolate or turn off plant prior to approaching moving parts (for example, to adjust packing).
When workers commenced with the defendant, they were required to review and sign the Safety Induction. The Safety Induction only included general machine safety tips and did not include specific control measures to be implemented when operating the GTE Saw.
Workers, including Mr Kelly and Mr Smidt (another sawmill worker), had raised safety concerns with Mr Williams regarding the packing mechanism being too close to the blade of the GTE Saw. The defendant did not address this concern.
The defendant, as part of its system of work, allowed workers to adjust the GTE Saw's packing mechanism while the blades were in motion.

[7]

Work Health and Safety Regulation 2017

The defendant had obligations under Part 3.1 of the Work Health and Safety Regulation 2017 (NSW) ('the Regulation'). Regulation 34 requires a duty holder to identify reasonably foreseeable hazards that could give rise to risks to health and safety. Regulation 35 requires a duty holder to eliminate risks to health and safety so far as is reasonably practicable or, if not reasonably practicable to do so, minimise those risks so far as is reasonably practicable. Regulation 36 sets out a hierarchy of control measures that duty holders must put in place when minimising a risk to health or safety, and Regulations 37 and 38 provide that a duty holder must maintain and review control measures to ensure they remain effective.
Clause 208 of the Regulation reads as follows: '208 Guarding (1) This clause applies if guarding is used as a control measure in relation to plant at a workplace. (2) The person with management or control of the plant must ensure that - (a) if access to the area of the plant requiring guarding is not necessary during operation, maintenance or cleaning of the plant, the guarding is a permanently fixed physical barrier, or (b) if access to the area of the plant requiring guarding is necessary during operation, maintenance or cleaning of the plant, the guarding is an interlocked physical barrier that allows access to the area being guarded at times when that area does not present a risk and prevents access to that area at any other time, or (c) if it is not reasonably practicable to use guarding referred to in paragraph (a) or (b), the guarding used is a physical barrier that can only be altered or removed by the use of tools, or (d) if it is not reasonably practicable to use guarding referred to in paragraph (a), (b) or (c), the guarding includes a presence-sensing safeguarding system that eliminates any risk arising from the area of the plant requiring guarding while a person or any part of a person is in the area being guarded. … (5) Despite anything to the contrary in this clause, the person with management or control of the plant must ensure - (a) that the guarding is of a kind that can be removed to allow maintenance and cleaning of the plant at any time that the plant is not in normal operation, and (b) if guarding is removed, that, so far as is reasonably practicable, the plant cannot be restarted unless the guarding is replaced.'

[12]

CONSIDERATIONS

The risk was one of serious injury or death as a result of coming in to contact with the moving parts of the GTE Saw, in particular the blades. The defendant, by its plea of guilty, accepts that the facts in the Agreed Statement of Facts establish each of the particulars of the risk.
The process used by workers prior to the incident was to stand to the side of the saw blade whilst the saw blades were rotating and use a specifically designed spanner to adjust the adjustment mechanism which in turn adjusted the vertical stance of the saw blade.
The use of the specifically designed tool and standing to the side of the blade was considered at the time to limit the risk to the person adjusting it and it was thought by Mr Williams and the workers that the saw blades had to be rotating for them to be properly adjusted.
The exposure to the risk was significant as the work was done regularly, and had been done in such a fashion for a lengthy period of time. The only difference that had occurred in the months before the incident was the installation of a new GTE Saw which had shorter packings (adjustment mechanism) which meant that the person adjusting the verticality of the saw blade was closer to the saw blade than on the previous machine.
The underlying problem for the defendant was that the two persons who were effectively running the operation either did not know (Mr Williams) or did not believe Thomas Seccombe ('Mr Seccombe') (a dockerman in the saw mill and the supervisor on the floor as at the date of the incident) that it could be done without the saw blades rotating. Even though there were documents which referred to adjustments occurring when the blades were not rotating, that system did not exist in practice. There is no evidence as to how that system came to be on paper.
It is clear from the evidence: 1. That the personnel who were responsible for both adjusting the saw blades and supervising the saw blades had significantly more experience than Mr Williams in that regard; 2. Mr Williams had done significant amounts of work to educate himself in the sawmill industry so that he could ensure that the defendant provided a safe workplace; 3. Mr Williams had invested significant amounts of money to ensure that the defendant provided a safe workplace; 4. It was not from a lack of effort that Mr Williams did not know that it was possible to adjust the saw blades without them rotating. It was simply that throughout all of his enquiries and learning, he had not seen anyone adjust the saw blades other than when they were rotating, and had understood that it was necessary for them to be rotating to adjust them properly; 5. Whilst Mr Williams' attention had been drawn to the issue of the new packings being closer to the saw blade than the packings on the older machine, his only recollection of this being raised was when the machine was delivered and prior to its installation and use; 6. Mr Seccombe, who was working on the floor, and was supervising the workers and interacting with them on a daily basis, did not receive any complaints.

[16]

OBJECTIVE SERIOUSNESS OF THE OFFENCE

The duties of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.
Although the gravity of the risk, degree of foreseeability of the risk and the ease of implementation of remedial measures are relevant to the assessment of objective seriousness, I am not limited to taking into account such factors.
The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464, 474-5.
Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [714].
The gravity of the offence is determined by the extent of the duty holder's failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 at [62], and Veen v R (No. 2) (1988) 164 CLR 465.
An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61.
In Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96, Basten JA explained the approach to sentencing as follows: '[34] 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 to guard against 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. ….. [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, were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs. ….. [53] The legitimate purpose of intervention in the present case are twofold. The first purpose is to identify the proper approach to considering the objective seriousness of the offences under the Work Safety Act. 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 materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken.' (my emphasis)
The more obvious the risk, the ease with which it can be controlled or eliminated and the more serious the consequences of the offence, when considered together, the more serious the offence will be.
The crux of the matter was the failure of Mr Williams on behalf of the defendant to recognise the risk.
Mr Williams is a director of the defendant, and the person who had day to day carriage of the operations, but is relatively new to the business. I accept that he spent a considerable amount of time educating himself about the equipment used in the business and how he could improve safety at he sawmill, and he put that knowledge to good use. However, somewhat incredibly, Mr Williams and persons managing the company were not aware of the risk.
It almost seems unbelievable that Mr Williams, or anyone else for that matter, could not foresee that workers attempting to adjust the blades whilst they were rotating would give rise to a significant risk of harm.
I accept that Mr Williams had only ever seen the blades being adjusted when they were rotating. However, common sense would suggest that to attempt to adjust the blades whilst they were moving would create a significant risk of injury, as unfortunately happened in this instance.
I also accept that Mr Williams hired Mr Seccombe who had years of experience, to manage the on the floor operations of the sawmill and that unfortunately Mr Seccombe also thought that the only way the blades could be adjusted was when they were rotating. However, the defendant's duty is non-delegable (s 14 of the Act), and the duty to ensure the safety of workers rests solidly on the defendant and therefore on Mr Williams.
Counsel for the defendant submitted that the actions of Mr Williams in educating himself about the operations of a saw mill would mitigate against the objective seriousness of the incident, and that whilst the breach was serious, it was not based on lack of commitment to safety nor a blatant disregard for safety, or lack of resources. It was further submitted that it came down to the fact that he understood that this was the only way the task could be done and that he did not come across any information that caused him to question this issue.
Whilst I accept that there has been a lot done by Mr Williams to educate himself and hire the appropriate workers for the business, the risk was obvious, glaringly so. I find it inconceivable that anyone could look at the system of adjusting the blades whilst they were moving and not appreciate the significant risk involved in that task, and the defendant concedes that is the case.
There is also the question of guarding of the machine. Again, it is difficult to imagine a more obvious guarding risk than that presented by a quickly moving saw blade that rotates within 100mm of where an operator's hands are placed some 8 to 10 times per day.
A slightly less obvious risk, but still a severe risk was also present by any person being able to approach the operating saw whilst the blades were turning.
The defendant did have the written GTE Saw SOP which provided that the "saws must be turned off when adjusting the saw packing". It seems as plain as night follows day that this is what should be done, however this document was not made available to the workers and not enforced in the workplace.
This is not a case in which the defendant's workers had been acting contrary to the defendant's GTE Saw SOP and put themselves in danger, but rather one where the defendant has expected the workers not to perform the work in accordance with the GTE Saw SOP, but to act contrary to it. The obvious result is that the workers were faced with a serious risk of injury every time the blades were adjusted.
The attitude of the defendant continued despite the defendant having available to it the assistance of guidance material such as the Plant COP, WHS COP and AS2404.
It is clear to me that having regard to the obvious nature of the risk, the fact that it must have been known to the defendant for it to be incorporated in their GTE Saw SOP, taken together with the expectation of the defendant that the workers would act contrary to the SOP and thereby put themselves at risk, means that this matter falls into the middle range of seriousness. This is because the blades which are used to cut hardwood are dangerous and any person who is required to work in close proximity to them when they are rotating is exposed to a serious risk.
The court is obliged to make an assessment of where, on the scale of criminality, the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 per Latham J at [17]-[18].
The maximum penalty for this offence by the corporate defendant is a fine of $1,500,000.00 which reflects the legislature's view of the seriousness of the offence.
By its plea, the defendant has however conceded that there were steps which, in all the circumstances of the incident were reasonably practicable, and if taken, would have reduced the risk.

[17]

DETERRENCE

In fixing a penalty in relation to this offence, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.
General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the court to ensure a level of penalty for a breach will compel attention to work, health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388
When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68. The Prosecutor submits that the facts of this case do not present any basis for departing from the established principles relevant to deterrence.
The Court of Criminal Appeal in Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 at [177]-[180] reaffirmed the principle that both aspects of deterrence are matters which should be normally given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610: '[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. … [75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.'
General deterrence must be a significant feature of the sentence imposed upon the defendants. The failure by a company to recognise the dangers and risks that arise to persons adjusting blades whist they are rotating is very difficult to understand.
Workers subjected to a risk of serious injury or death as a result of being injured in circumstances where they are working with unguarded rotating blades is not unique to the circumstances of this defendant. The imposition of a component directed towards general deterrence, it is hoped, will highlight the need for other corporations and individuals of proper planning and development of procedures to eliminate, or at the very least severely minimise, the presentation of such a risk.
Similarly, general deterrence can be appropriately used to direct the industry's attention to the consequences of inattention and the need for greater concentration on the potential risks associated with the operation of machinery in an industrial context.
In relation to specific deterrence, the attitude of the defendants to questions of workplace safety and any steps taken to improve the safety following a breach of a duty are relevant, as is the propensity for the defendants to reoffend.
The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all factors.
In Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Walton J observed at [241]-[242]: 'There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety (McDonald's) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); WorkCover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; WorkCover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) (2002) 112 IR 312; WorkCover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and WorkCover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316.'
In these circumstances, I find that the need for specific deterrence is significant given that this defendant failed to appreciate what to my mind was such an obvious risk to the safety of the workers, to which I have previously referred.
The protection of workers from injury to parts of their body coming into contact with moving parts of machinery has been one of the fundamental health and safety concerns since the inception of occupational health and safety legislation.
Regulations have been put in place, Codes of Practice have been written and distributed and standards have been written seeking to overcome the risk generated by unguarded or inadequately guarded machinery.
General deterrence is necessary so as to assist in once again bringing to the attention of companies engaged in industries that require workers to come into close contact with large, potentially hazardous machinery that such machinery needs to be so engineered so as to remove a risk of injury to those workers.
The defendant remains in the industry and continues to perform the building work as it did before the incident.
Photographs in the tender bundle show guards have been installed, including an interlocking gate mechanism immediately at the entrance to the GTE Saw, modifications to the packing mechanism for the GTE Saw and guarding installed near the blades of the GTE Saw.
It is hoped that the imposition of a fine will specifically focus the defendant's attention as to the need to protect the health and safety of its workers rather than having an attitude that its procedures should be directed by what it observes other sawmills doing.

[20]

CAPACITY TO PAY

The defendant has raised the issue of its ability to pay any fine due to its financial circumstances. However, the defendant does not make an application under s 6 of the Fines Act 1996 (NSW).
I accept that payment of a fine might be difficult for the defendant, but the objective seriousness of the offence is such that it must be reflected in a significant fine. I accept that the defendant is unlikely to reoffend, but the seriousness of the offence is such that a fine must be imposed to send a message to employers that they must take their obligations to protect their workers from a risk of injury very seriously. To reduce the fine significantly would not provide the level of general deterrence that is expected, nor specific deterrence given the risk that Mr Kelly was exposed to, and which unfortunately came home causing Mr Kelly significant injuries which have left him permanently disabled.
The court is entitled to take into account the fact that the defendant will be liable to pay the prosecutor's costs when considering any monetary penalty to be imposed on the defendants, particularly in circumstances where there is evidence of a limited capacity to pay a fine. The costs payable to the prosecutor are an important aspect of the punishment of the defendants. The Court can also have regard to the defendant's own costs that it will have to bear as a consequence of a breach of the Act: Environmental Protection Authority v Barnes [2006] NSWCCA 246 at [78].
In Mr Williams' affidavits (Exhibits 1 and 2), he has identified that there is an issue with resources and the current future of the company is uncertain. There are two aspects to this, both related to resources available to the defendant.
The first is related to the bushfires and the likelihood that suppliers may not be able to meet their contracts. The second aspect is that a Bill which has been before Parliament which could mean that the properties that the defendant had previously purchased to future proof the business may not be available to be used as a resource. I accept that the defendant's future is uncertain, and I will allow some leniency in those circumstances.
As I have accepted that the defendant may have some difficulty paying the fine, I am of the view that to waive the payment of the prosecution's costs forms a balance between the need for general deterrence, specific deterrence and the defendant's somewhat limited capacity to pay.
The appropriate fine for the defendant is $200,000.00. The defendant is entitled to a discount of 25% for the early plea.

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Judgment (23 paragraphs)

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Legislation Cited (4)

Cases Cited (26)

Cited By (1)