Peter Vincent Twigg AND Hughes and Hessey Pty Ltd (C/2005/66)

On 17 May 2005, Peter Vincent Twigg, a public officer within the meaning of s. 142A of the Justices Act 1886 and an Inspector duly appointed under the provisions of the Workplace Health and Safety Act 1995 ("the Act"), made a complaint before a Justice of the Peace at Caboolture in the following terms:

" ... on 20th day of September 2004 at Caboolture ... Hughes & Hessey Pty Ltd ['the Respondent'] being a person on whom a workplace health and safety obligation prescribed by section 28(1) of the Workplace Health and Safety Act 1995 is imposed, did fail to discharge the obligation contrary to section 24 of the Workplace Health and Safety Act 1995 in that being an employer, the ... [Respondent] did fail to ensure the workplace health and safety of each of the employer's workers in the conduct of the employer's business or undertaking.".

Particulars of the complaint were given. An injured worker was nominated, viz Vivian Frank Santi. The workplace was particularised as Unit 2, 10 Boeing Place, Caboolture. The risk of injury was said to be "the risk of injury, including the risk of tendon, nerve and bone injuries to the right hand of Mr Santi.". The source of the risk was said to emanate from "the use of plant, namely a 'Luna F101 copy router'. ". It was further alleged as a circumstance of aggravation, that in consequence of the failure to discharge the workplace health and safety obligation, Mr Santi sustained grievous bodily harm.

There was a plea of guilty. The Industrial Magistrate imposed a fine of $12,000, ordered payment of costs of Court in the sum of $62, allowed twelve months for payment of the fine and did not record a conviction. There was neither an application for professional costs nor an application for investigative costs. On the Appeal, only the quantum of the fine is put in issue.

Appeals under the Act going to the quantum of the fine imposed by an Industrial Magistrate are always difficult appeals. The principles to be applied are neither uncertain nor difficult. For present purposes I am content to adopt the formulation in Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652 at 655-666 per Dixon CJ, Fullagar, Kitto and Taylor JJ. (There is no utility in reproducing yet again what is a very well-known passage.) The difficulty which faces this Court on Appeal is the same difficulty which confronts Industrial Magistrates. Whilst any work related injury is one work related injury too many, there are (thankfully) not many of them. A consequence is that it is rarely possible to identify a tariff sentence or a range within which any fine should fall. Whilst there are exceptions in the case of minor bodily harm injuries and burning injuries, in ordinary circumstances guidance will be sought in fines imposed in cases in which the facts were quite discrete. There is also the problem that because one is dealing with money penalties one will not have, e.g., a head sentence from which an actual sentence has been derived, and the additional problem that one will be dealing with a global sum set after allowance has been made for mitigating factors. There are the further problems that the maximum penalty has steadily increased and, in the case of decisions of this Court, a decision is often no more than a decision that a fine fixed at first instance is not so erroneous that it should be interfered with. Very often, the previous decisions will be little more than signposts along the way.

The maximum penalty in a case such as this is $375,000. There is no suggestion that the Industrial Magistrate was mistaken about that.

The legislature has recently and over a period of time increased the level of the maximum fine. Whilst it would be wrong to magnify the precedents in a linear mathematical way it would be equally wrong to ignore the indication from the legislature that fines should increase and treat the increase as applicable only in a hypothetical worst case scenario. It is not disputed that the Industrial Magistrate so conducted the proceedings as to indicate that His Honour was perfectly well aware of all of that.

The obligations imposed by the Act verge on absolute. Observance of the statutory obligations may require the doing of more than is reasonable and the expenditure of more than is reasonable. The Act does not create an exception for small business and does not provide a defence of impecuniosity. Rather, the approach of the Act, understandably in light of its objects, appears to be that those who cannot afford to ensure safety in embarking upon the undertakings and activities which are the subject of the Act, should refrain from embarking upon the undertakings and activities at all. Whilst it is appropriate to examine the financial circumstances of a Respondent with a view to avoiding oppression in sentencing, there is no justification for the granting of such indulgence to small and struggling businesses as to undermine the incentive to comply with the obligations imposed by the Act.

Blameworthiness is always a material consideration. However, caution must be exercised to ensure that blameworthiness is not taken into account in assessing the objective gravity of the offence and weighed again in mitigation. Additionally, consideration of blameworthiness in sentencing should not be permitted to reintroduce at that level the defences at ss. 23 and 24 of the Criminal Code which are excluded by s. 24 of the Act.

Mr Santi was injured when his right hand came into contact with the moving bit of a copy router. His ligaments were severed. He sustained orthopaedic, nerve and soft tissue injuries. His hand came into contact with the bit of the router as he was trying to position aluminium door jambs in order to perform certain operations upon them. The machinery was so designed that the operator might switch it off and bring the bit to a halt before positioning items. Mr Santi who, amongst other things, had had responsibility for training incoming staff in the use of the router, knew that the bit could be brought to a halt and knew that for safety reasons it was important to bring the bit to a halt. He could and should have done so. Mr Santi was 54 years of age. He had had approximately 20 years' experience in the use of copy routers. He had been employed by the respondent for about six and a-half years. Upon commencement of work he had been assessed and identified as competent to use the router and, as I have mentioned, had been entrusted with the training of others. At the risk of tautology, this was not one of those serious cases in which a youthful and/or inexperienced worker is injured at the commencement of a career and/or a new engagement.

The Respondent, by its sole director (Mr Hughes), was aware of the hazard posed by the unguarded router bit. Sometime prior to the accident the Respondent had contacted the supplier of the router and inquired if there was some form of safety guard available which might be attached to the machine. The supplier had informed the Respondent that no such guard was available. The Industrial Magistrate treated that inquiry as going to blameworthiness and to mitigation. On the Appeal, the criticism is that the Industrial Magistrate fastened on a factor favourable to the Respondent without taking into account that, in context, the factor was very much a mixed blessing. After the incident involving Mr Santi, a prohibition notice was issued pursuant to the Act. That led to the Respondent undertaking an upgrade of the copy router. The Respondent purchased a braked motor to shorten the "rundown" time when the machine was switched off, installed dead man switches on the operating handles and a guard around the rotating bit. It would be optimistic to assume that the changes have secured the safety of the operator. Prosecutions under the Act have shown workers to have displayed extraordinary ingenuity to neutralise safety devices. But the changes were a big step forward and should have been taken before the incident. The obligation is to prevent injury to workers, not to take reasonable or some steps to do so. Additionally, having been induced to believe that mechanical protections were not available, one might have expected the Respondent to put in place and police such administrative controls as it should. There has been some suggestion on the Appeal that window and door frames were commonly positioned whilst the router bit was in motion. This Court, on Appeal, is not the appropriate tribunal in which to resolve issues of that type. It seems to me that I should deal with the quantum of the fine on the basis that Mr Santi's failure to bring the bit to a halt was attributable to something in the nature of complacency, torpor or inadvertence rather than a culture of bravado. But on any view of the evidence there seems to be no attempt to audit or police any instructions which have been put in place. Indeed, it appears that it was not until after the incident that written directions about use of the router were put on display. And those failures occurred in a regime which treats administrative controls as a "least preferred" method of elimination of risk because of their vulnerability to human frailty.

At first instance much was made of the Respondent's financial position. I accept that there were proper evidentiary materials before the Industrial Magistrate. The Industrial Magistrate was not asked to act upon bald statements from the bar table. As a courtesy to the Respondent I refrain from publishing the details of its financial position which, if published, would then be re-published in the Queensland Government Industrial Gazette. It is sufficient to say that like many new market entrants the Respondent has struggled to find a niche in the market. The Industrial Magistrate rightly described it as a "fledgling" company. It has struggled to make profits and also to pay an appropriate salary to the sole working director. The sole director, who with his wife owns the shares in the Respondent, is also the Respondent's principal creditor. I appreciate that, unless he can draw both salary and profits, he has merely bought himself a job and has advanced his prospects not at all. But on a global assessment the Respondent is not in the dire situation of the Respondent in Newman v Aldo's Fine Foods Pty Ltd [2002] QIC 5; (2002) 169 QGIG 151. It is not suggested that the Industrial Magistrate erred in principle in considering the Respondent's financial situation. Neither is it contended that the Respondent's means are other than slender. The contention rather is that the Respondent's prospects are not as bleak as those of the Respondent in Newman v Aldo's Fine Foods Pty Ltd [2002] QIC 5; (2002) 169 QGIG 151, are probably brighter than the prospects of the Respondent in Newman v Andgra Pty Ltd [2002] QIC 105; (2002) 171 QGIG 883 (where the business had largely been disposed of by the time of the Appeal) and not dissimilar to the situation of the Respondent in Garaty v Friendly Sofa Designs Pty Ltd [2003] QIC 140; (2003) 173 QGIG 1027. The submission is that comparability requires that the assessment of the impact of the fine upon the Respondent should be less sympathetic and more measured.

There are significant mitigating factors. The router had been appropriately serviced. The Respondent was a first offender. Mr Santi had "let down" the Respondent by attempting to do something which he knew he should not be doing and which he had the means to avoid doing. There was cooperation with the investigating officers and a timely plea of guilty. There is no suggestion that the Respondent has other than a "good" industrial record.

The attack upon the quantum of the fine primarily is that the quantum is so low as in itself to indicate that the Industrial Magistrate's discretion has miscarried. Notwithstanding the care taken by the Industrial Magistrate, and I note that His Honour had "stood the matter down" in order that a search might be made for more helpful authorities, and not withstanding the difficulties which I have acknowledged in settling on a money figure, I have on balance come to the view that the submission is correct. Apart from the matters of "blameworthiness" and "impecuniosity" which I have discussed above, I have been principally influenced by the quantum of the maximum fine available and the steady increases in the maximum fine.

A submission was put to the Industrial Magistrate that the correct range was $30,000 to $40,000. I am inclined to agree with that view. However, on the Appeal, the Appellant nominated a range of $25,000 to $30,000. It is always distressing to a party to find that apparently concluded proceedings are to be re-opened by appeal. The sense of grievance would be greater if, in a criminal matter, the Appeal court was to go beyond the relief sought by the Appellant. In my view, justice requires that I observe the range nominated by the Appellant on the Appeal.

The order of the Industrial Magistrate imposing the fine in the sum of $12,000 is set aside. In lieu thereof I order that the defendant company pay a fine in the sum of $30,000. In default of payment levy and distress are to apply. All other orders of the Industrial Magistrate are confirmed. I reserve liberty to apply on the matter of time to pay.

Mr P. Matthews, directly instructed, for the Appellant.

Mr M.T. Brady, instructed by Patrick Ebert & Associates, Solicitors, for the Respondent.