WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International

PROSECUTOR: Mr J W Nolan (Barrister) SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr R S Warren (Barrister) SOLICITORS: Hunt & Hunt

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No. IRC 820 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MULDER) v ARBOR PRODUCTS INTERNATIONAL (AUSTRALIA) PTY LTD Prosecution under section 18 of the Occupational Health & Safety Act 1983 JUDGMENT

1 The defendant Arbor Products International (Australia) Pty Ltd has been charged by summons with breach of s 18(2)(a) of the Occupational Health and Safety Act ("the Act") by the prosecutor, Inspector Angela Mulder of the WorkCover Authority of New South Wales. The charge as ultimately stated in an amended summons is as follows: The Defendant being a supplier supplied plant, namely a machine known as a "Little Rippa Chippa Model 80" ("the machine"), to the Yass Shire Council for use by its employees at work. The Yass Shire Council purchased the machine on 27 February, 1997 for $35,760.00 with the machine being delivered by the Defendant on 28 February, 1997. The Defendant supplied the machine for use at work of employees of the Yass Shire Council and in contravention of s.18(2)(a) of the Occupational Health & Safety Act (NSW) 1983 ("the Act") did fail to ensure that the machine was safe and without risk to health when properly used.

2 The particulars of the charge as contained in the summons are as follows:

1. The Defendant, Arbor Products International (Australia) Pty Limited (CAN 054 186 319) was at all material times a company duly incorporated with its registered office in the State of Victoria.
2. On 27 February, 1997 the Defendant sold the machine to the Yass Shire Council for the sum of $35,760.00. On 28 February, 1997 the Defendant delivered the machine to the Yass Shire Council for use by its employees of the Council at work.
3. On 28 February, 1997, a Mr Nicholas Rivett conducted a training session for staff of the Yass Shire Council who were to use the said machine. On the delivery date, Mr Rivett supplied a document addressed to the Yass Shire Council which is entitled "Hazard Identification Document". This document was annexed to a letter addressed to the Yass Shire Council on the letterhead of the Defendant.
4. On 4 May, 1997, a Council employee, Mr Peter Bell, whilst using the said machine suffered the traumatic amputation of both of his arms. Mr Bell did not attend the training session on 28 February, 1997 conducted by the Defendant.
5. It is alleged that on 27 February, 1997 the Defendant sold the machine to the Yass Shire Council for the sum of $35,760.00, It is alleged that on 28 February, 1997, the Defendant supplied the machine to the Yass Shire Council for use by employees of the Yass Shire Council at work and in so doing did fail to ensure that the plant was safe and without risk to health when properly used in that:- (i) The distance from the chute to the in feed roller was insufficient and allowed the operator to reach the feed roller during normal running conditions; (ii) The machine did not comply with Australian Standard AS 4024.1 - 1996. The defendant pleaded not guilty.

3 Section 18 of the Act in the form which applied at the date of the alleged offence was as follows: 18 Manufacturers, suppliers etc to ensure health and safety as regards plant and substances for use at work (1) In this section: credit-sale agreement means an agreement for the sale of goods, under which the purchase price or part of it is payable by instalments, but which is not a hire-purchase agreement. hire-purchase agreement includes: (a) a hiring of goods with an option to purchase, and (b) an agreement for the purchase of goods by instalments (whether the agreement describes the instalments as rent or hire or otherwise), but does not include any agreement whereby the property in the goods passes at the time of the agreement or upon or at any time before delivery of the goods. lease means any kind of agreement or arrangement under which payments are, or are to be, made for the supply of goods for use by any person, except a credit-sale agreement, a hire-purchase agreement or a contract of sale. manufacture includes design. plant for use at work means any plant designed for use or operation (whether exclusively or not) by persons at work, and includes any article designed for use as a component in, or an accessory to, any such plant. substance for use at work means any substance intended for use (whether exclusively or not) by persons at work. supply, in relation to any plant or substance, means supply the plant or substance by way of sale, transfer, lease or hire, whether as principal or agent for another. (2) A person who manufactures or supplies any plant for use at work or any substance for use at work shall: (a) ensure that the plant or substance is safe and without risks to health when properly used, (b) carry out or arrange for the carrying out of such research, testing and examination as may be necessary for the purpose of the discovery and the elimination or minimisation of any risks to health or safety to which the plant or substance may give rise, and (c) take such steps as are necessary to make available in connection with the use of the plant or substance at work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about the results of any relevant tests which have been carried out on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) A person who erects or installs any plant for use at work in any premises where that plant is to be used by persons at work shall ensure that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used. (4) Nothing in this section shall be taken to require a person to repeat any research, testing or examination which has been carried out otherwise than by the person or at the person's instance, in so far as it is reasonable for the person to rely on the results thereof for the purposes of this section. (5) A requirement imposed on any person by any of the provisions of this section shall extend only to things done in the course of a trade, business or other undertaking carried on by the person (whether for profit or not). (6) Where a person manufactures or supplies any plant for or to another on the basis of a written undertaking by that other to take specified steps sufficient to ensure, so far as is reasonably practicable, that the plant will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first-mentioned person from the requirements, in relation to the plant, of subsection (2) (a) to such extent as is reasonable having regard to the terms of the undertaking. (7) Where a person (in this subsection referred to as the ostensible supplier) supplies any plant for use at work or substance for use at work to another (in this subsection referred to as the customer) under a hire-purchase agreement or credit-sale agreement, and the ostensible supplier: (a) carries on the business of financing the acquisition of goods by others by means of any such agreements, and (b) in the course of that business acquired the person's interest in the plant or substance supplied to the customer for the purpose of financing its acquisition by the customer from a third person (in this subsection referred to as the effective supplier), the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the plant or substance to the customer, and any requirement imposed by this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier. (8) Where a person (in this subsection referred to as the ostensible supplier) supplies any plant for use at work to another (in this subsection referred to as the customer) under a lease, and the ostensible supplier: (a) carries on the business of financing the use of goods by others by means of leases, (b) in the course of that business acquired the person's interest in the plant supplied to the customer for the purpose of financing its provision to the customer by a third person (in this subsection referred to as the effective supplier), and (c) has not had physical possession of the plant or has had physical possession only for the purpose of passing it to the customer, the effective supplier and not the ostensible supplier shall be treated for the purposes of this section as supplying the plant to the customer, and any requirement imposed by this section on suppliers shall accordingly fall on the effective supplier and not on the ostensible supplier. (9) For the purposes of this section, any plant or substance is not to be regarded as properly used where it is used without regard to any relevant information or advice relating to its use which has been made available by a person by whom it was manufactured or supplied. (10) Nothing in this section shall affect the operation of the Sale of Goods Act 1923 or the Fair Trading Act 1987.

4 The defendant conceded that for all relevant purposes it was a corporation and that it supplied plant being the "Little Rippa Chippa Model 80" to the Yass Shire Council for use by its employees at work.

5 Evidence about the circumstances in which the machine was purchased from the defendant by Yass Shire Council was given by Mr Gary John Chapman currently the General Manager but previously Director, Engineering Services and by Mr Graham Andrew McGinley, Technical Services Engineer, Mr Warwick Leahy an agent of the defendant and Mr Nicholas Rivett who described himself as a consultant to and General Manager of the defendant.

6 An advertisement was placed in the Sydney Morning Herald seeking expressions of interest in supplying a wood chipper machine to the Council. Mr Rivett of the defendant company demonstrated the wood chipper machine initially at about that time and subsequently, after a number of tenders had been received demonstrated the machine again. The machine was chosen from a number of machines that the defendant offered, and presumably from machines offered by other tenderers because it was thought to suit the needs of the Council best, especially as it was mobile and could be taken to other sites although it was predominantly intended to be used at the Waste Transfer site.

7 In a record of interview provided by Mr Rivett to the WorkCover Authority of NSW and as confirmed in evidence given in these proceedings Mr Rivett said that when he attended upon Yass Shire Council personnel to demonstrate the wood chipper he advised them it was designed to be intended for use as a mobile chipping unit being transported behind vehicles and it was not an appropriate piece of machinery for use at a waste transfer site where the material to be processed consisted more of foliage and was contaminated. He said that there was other more suitable machinery which could be loaded with a front end loader or in a bucket type operation and which did not require manual feeding.

8 The cost of that machinery was about $70,000, approximately twice the cost of the machine which was ultimately purchased. Neither Mr Chapman nor Mr McGinley recollected Mr Rivett advising them that a larger machine would be more suitable for Council's purposes.

9 One of the features of the machine which was attractive to Mr Chapman was the fact that it had a knee bar which differed from other machines and which he thought gave it a safety advantage.

10 Ultimately the Council determined on the recommendation of Mr Chapman to purchase the machine. It was offered with training for twenty persons at a fee of $450 and Council purchased the training as well. A short time after the machine was delivered, in February 1997, training was undertaken for eight or nine Council employees. The training consisted of an explanation about the machine and how it worked and the employees were shown how to operate the machine including the safety features. They were told that material should always be fed into the machine from the cut end so that any branches would not catch clothing. They were also told to feed the material into the machine from the left side of the body. Mr Leahy who conducted the training said that one person should operate the machine but a second person should always be in attendance for safety reasons. Mr McGinley said that the training session lasted about three quarters of an hour. He also said that the Council received a hazard instruction sheet but never received any other document in the nature of an operating manual.

11 Mr Rivett said that an operating manual concerning the wood chipper machine was forwarded by the defendant to the Council on 27 February 1997 together with a vehicle identification plate and other documentation. A letter from the defendant to Mr Gary Chapman of Yass Shire Council dated 27 February 1997 attaching a number of items including an operating manual for the wood chipper machine was tendered into evidence during the course of these proceedings. It bears a stamp of the Yass Shire Council and a date 3 March 1997. Mr Donald McIver, the Council's plant superintendent recollected receiving the operating manual at about that time. He retained the manual at the workshop, and it remained there until after the accident and, indeed, until it was found as a result of a search conducted for the purpose of these proceedings. Apart from Mr McIver reading through the manual after delivery of the machine, the manual does not appear to have been used by Council for any purpose. Mr McIver retained the manual because it might be used in connection with the servicing of the machine. However the machine was never serviced by him or anyone else in his area. He assumed that any servicing that had been carried out had been undertaken by operating staff.

12 The manual contains inter alia material covering safety procedures for the use of the machine, a description of the machine and its component parts, instructions for the operation of the machine and instructions for its servicing and maintenance.

13 The "Safety Section" appears towards the front of the material and highlights the necessity for operators to read the manual and observe the precautions contained in it. It contains the following invocation: Don't ever take the machine for granted. This is when an accident will happen. The machine is designed to do a job, and it does. The chipper disk turns very fast and can be dangerous! The feed wheels are designed to pull limbs and branches into the chipper. They really do not know the difference between a branch or a hand, they just do their job.

14 The manual also advises against wearing loose clothing or big bulky gloves when operating the machine in order to avoid them becoming tangled.

15 The operation manual contained a number of observations about the efficient and safe use of the machine. In particular it stated, in part; Do not reach into the Feed Chute for any reason. If you have short pieces, simply lay them on top of longer material while it is feeding into the machine ….do not waste time watching the wood feeding. Insert the material, get more material and lay it on top of the feeding wood .… if you have large diameter wood to chip, try to insert it in the feed wheels while smaller pieces are going through, the small pieces will partially open the wheels which allows easier access for the larger diameter wood …. Normally start the larger end (Butt end ) of the wood into the feed wheels first. 16 A number of decals were affixed to the machine. In particular within the hopper there was a decal which in my opinion was prominently displayed stating: "Danger moving parts do not reach into this area for any reason" and a decal on the side of the machine to the following effect: "Danger moving parts the top roller carriage moves up and down when the wood is feeding into the chipper. Do not reach into this area for any reason when the engine is running."

17 From evidence given by a number of witnesses, namely Messrs Leahy, McGinley, Todd, Hansen and Winter I am satisfied that between six and nine employees of Council attended the training session conducted by Mr Leahy which lasted between forty minutes and one hour. During that session those attending were shown how to use the safety control mechanisms including the use of the knee against the knee bar, and that it was preferable that there should be another person present near the machine whilst it was operating.

18 The operating manual also makes it clear that the machine should not be used with dull knives and that the knives must be maintained in a sharpened state. There is a regime of daily, weekly and monthly maintenance.

19 Mr Bell did not attend the training session conducted by the defendant.

DESCRIPTION OF THE MACHINE 20 The following description of the wood chipping machine contains sufficient details for the purpose of these proceedings and is based on the documentary evidence tendered in the proceedings as well as expert reports prepared by Mr Colin Simpson, a forensic engineer who gave evidence on behalf of the prosecution and Professor Churches of the School of Mechanical and Manufacturing Engineering, University of New South Wales who gave evidence on behalf of the defendant. The machine is intended to transform green foliage into wood chips and/or mulch. It is in the form of a towable trailer mounted on a single axle assembly. The operator stands next to an in-feed chute which has a rectangular opening being approximately 122cm in width and 75cm in height. The underside of the chute is approximately 68cm above ground. The chute tapers down to a rectangle of 42cm x 32cm. There is located at the base of the chute an in-feed roller which is hydraulically driven and which is mounted on a spring loaded and hydraulically controlled vertical shaft system. The roller propels the material which is being fed into the chute into the path of revolving cutting blades. The blades cut the material into small pieces which are the expelled through an outlet chute.

21 The point of the in-feed roller closest to the operator was variously described by the several witnesses as being between 815 and 830mm from the open end of the hopper. However the actual "pinch point" which is the point at which the in-feed rollers come closest to the in-feed chute as they revolve was estimated by Mr Roger Roberts Coordinator Rural and Technical Support Unit of the WorkCover Authority of New South Wales as being 880mm from the open end of the in-feed chute but was assumed by Professor Churches who was qualified on behalf of the defendant to be 950mm from the open end of the in-feed chute. The distance between the pinch point to the closest point on the revolving blades is a further 150mm.

22 There are three control devices which are located at the front of the in-feed chute. Across the top of the chute there is a "lift and crush control bar" which consists of a single steel pipe of 2.5cm diameter. This bar controls the vertical movement of the hydraulically powered feed roller. When the operator pulls on this bar and moves it towards the face of the chute the feed roll is lifted vertically which increases the gap at the base of the in-feed chute to up to 20cm in height. This is to allow the passage of logs up to 20cm in diameter and also has the effect of rendering the feed roller inoperative because at that height it does not come into contact with any material of a lesser diameter. There is a second control bar which runs laterally across the face of the in-feed chute about 7.2cm below its base and extends 5cm in front of the face of that chute. If this lower bar is pushed inwards towards the machine using either the knee or by hand this also lifts the feed roller. When either the top mounted lift and crush control bar or the bottom pressure bar is released then the feed roller returns to its stand-by position at the bottom of the chute.

23 On each side of the machine there is located vertically a safety control bar which stands about 5cm outside the front of the chute. When away from the chute the feed roller operates normally. However when either vertical bar is pushed towards the machine to a first position the feed roller stops. When pushed further through a total distance of about 125mm from normal operating position, the rotation or direction of the feed roller is reversed so that it in fact expels material out of the machine and towards the in-feed chute.

24 The knee bar is located about 450mm above ground level and the lift and crush control bar is about 1450mm above ground level.

25 It follows that an operator standing next to the machine while it is in operation will necessarily stand away from the knee-bar. The leading edge of the knee-bar was said to be situated about 5cm outside the front of the chute although Professor Churches noted when he carried out an inspection of the machine on 29 June 1998 that "the centre of the knee-bar appeared to have been bent forward, consistent with impact whilst reversing, or similar incident, and projected no more than 6mm beyond the rear end of the hopper." There is no evidence as to whether the knee-bar was in this bent position at the time of the accident on 4 May 1997, and there is no evidence as to whether the knee-bar had been bent at the time of delivery.

26 The state of the evidence is such that I am unable to conclude on any basis what are the precise measurements involved in ascertaining the distance between the nip point of the feed roller and an operator. The distance must be, even on the most conservative measurements in excess of 880mm without allowing for the fact that the knee-bar was proud of the end of the in-fed chute to some extent and without allowing further for the fact that the operator must have stood at least some little distance from the knee-bar to avoid making contact with it whilst feeding material into the machine in a normal operating situation. There is no doubt however that whilst operating the machine the operator would be physically constrained by the knee-bar located about 450mm above ground level, the bottom edge of the in-feed chute located about 680mm above ground level and the top edge of the in-feed chute located about 775mm above ground level. Accordingly, if the operator wished to be positioned closer to the feed roller it would be necessary for him or her to put some part of his body from the shoulder up into the in-feed chute.

THE ACCIDENT ON 4 MAY 1997 27 Peter James Bell had been employed by Yass Council as a casual labourer and had worked about four to five months during the twelve months prior to the accident in which he was involved on 4 May 1997. During the time that he performed duties for the Council he worked about 30 hours a week. His work was carried out at the Transfer Waste Station operated by Council. He was engaged in using a press to compress plastic bottles, he collected money from customers using the council tip and he also used from time to time a wood chipper machine.

28 Prior to operating the wood chipper machine on which he was engaged on 4 May 1997 Mr Bell had spent some little time using two other machines. During this time he had received some instruction in the use of these machines.

29 He first saw the machine on which he sustained horrific injuries and which is the subject of these proceedings a couple of weeks before the accident. He was instructed in its use by Mr Ian Todd who supervised him. He said that Mr Todd told him how to use the safety bar on the machine and that he was not to get too close with his hands. The safety bar was below the chute and runs right around the chute. Mr Todd's training in the use of the machine took about twenty minutes. Mr Bell was not given any booklet and he relied on what he had been told by Mr Todd.

30 Mr Bell said that there was no special way in which the machine was used. He was told just to chuck the material into the chute. The machine was similar to the other machines he had used except one of them had safety buttons on the side of the chute.

31 Mr Bell did not know of any particular problems with the machine before the day of the accident. He knew that the blades had become blunt a few days before the accident and that the blades had to be changed. He knew also that the machine used to clog on foliage and garden waste and the way in which he had been told to clear this was to feed some larger pieces of waste into it.

32 Mr Bell had never been involved in the clearing of the machine other than by putting larger material in to clear a jam and had never been involved in the maintenance of the machine. However he had been shown how to raise the roller permanently by putting a pin in a socket to keep the roller up. This then allowed the machine to be cleared although, as I understand Mr Bell's evidence, he never cleared the machine out using this method.

33 Mr Bell said that he had also seen some small signs on the inside of the chute warning operators not to go near the rollers.

34 On the day of the accident, a Sunday, Mr Bell had been involved in pressing plastic bottles and cardboard and had written out receipts for moneys collected. Mr Todd had been using the wood chipper. After smoko Mr Bell then started to use the wood chipper. He was wearing new boots which he said fitted him and gloves which he said were a little big because he had small hands. He was also wearing ear muffs. Mr Todd was working about fifty metres away collecting money from customers.

35 Mr Bell used the machine for fifteen to twenty minutes without any difficulties and it was feeding well. He then went to put in some large privet branches. In order to do this he needed to lift the roller. Instead of placing his knee against the knee bar to achieve this he placed his right foot on the bar. He said that he had never been told to put his knee against the bar by Ian Todd who had shown him to put his foot on the bar. The wood chipper was on level ground. As he put his foot on the bar, which was about two feet high and which he found fairly high for him because he was short his foot jammed and he could not get it out. At the same time he was feeding a large piece of privet into the machine which he thought was about three to four feet long. He said it was about eight inches in diameter. He threw it in with his left hand as he had been shown and as it went into the chute his left glove became caught on the branch and he was drawn from his left side towards the chute. He instinctively put his right hand into the chute to help extricate his left hand. Both arms went into the chute. Somehow he managed to free his right foot and extricate himself from the machine.

36 He then screamed for help and was subsequently taken by ambulance to hospital. When presenting in Court to give evidence Mr Bell had lost his left arm to just below the shoulder and his right arm to just above his elbow. He wore a prosthesis on the right arm.

37 Mr McGinley said that after the accident to Mr Bell he attended the scene whilst the feeder roller was raised. He saw that there was a blockage of pine foliage material which was very green and that there was no obvious wood from a tree. The material was released by Mr David Hall an ambulance officer who used his hands for this purpose.

38 Mr Todd gave evidence. He explained that although the demonstration conducted by the respondent required the use of the knee against the knee bar, he used his foot to press the bar when putting in long branches. This positioned him further away from a branch which, if not straight, might have a tendency to flick. He said that he had been hit on the jaw numerous times by crooked branches. He used his knee against the knee bar for shorter material.

39 Mr Todd used the wood chipping machine on a regular basis. He said that when he was putting in lawn clippings it was necessary to throw the material in hard and to this extent he had to put his hands further into the chute. He was aware of the signs on the chute but had to get his hands past the end in order to get the light material near the rollers.

40 Mr Todd said that he had some difficulty supervising Mr Bell who kept forgetting to put the cut end of the material into the machine first.

41 On the day of the accident Mr Bell used the machine after Mr Todd had spent an hour on it. Whilst Mr Bell was using the machine Mr Todd could hear that it was not working correctly from the sound of the motor. He was working abut fifty metres away and went down to the machine and saw that it was blocked. He grabbed a branch, put it into the machine and cleared it and then resumed dealing with some customers, again about fifty metres away. He subsequently heard the motor revving and went down to the machine. Mr Bell stepped out from behind it covered in blood. He called for an ambulance and gave Mr Bell what help he could.

42 Mr Todd undertook routine checking of the machine but did not check or measure the distance between the anvils and the blades. It seems that this was not attended to by anyone because evidence was later given by Donald McIver, the Plant Superintendent who was in charge of the workshop near the Transfer Station that whilst his department was responsible for servicing the machine, it had no responsibility for routine maintenance and in fact did not carry out any servicing of the machine at any relevant time.

43 Mr Todd was aware that the hazard documentation given to the Council by the defendant made reference to the fact that if gloves are worn the cuffs should not become a catch point. He said that after the accident he saw Mr Bell's gloves, one was under the chute which had drops of blood on it and one was under the back wheel. Neither glove was torn nor particularly marked.

44 David Hall was the ambulance officer who attended at the scene shortly after the accident. He said that both Mr Bell's arms were missing around the elbows. He saw a glove at the scene and took it with the stretcher to the hospital but did not know what happened to it subsequently.

DOES AS4042 APPLY? 45 Particular 5(ii) of the charge as contained in the amended summons asserted that the machine did not comply with Australian Standard 4024.1 - 1996. A copy of that document was tendered into evidence in the proceedings by the prosecutor with the consent of the defendant. It says that the Standard was prepared by a committee entitled "General Principles for the Guarding of Machinery" and was approved on behalf of the Council of Standards Australia on 23 February 1996 and published on 5 July 1996. A number of interests were said to be "represented" on the committee including the WorkCover Authority of New South Wales. The document was published by Standards Australia ("Standards Association of Australia") of Homebush, New South Wales. Evidence was given in the proceedings by Mr Roger Roberts the Coordinator, Rural and Technical Support Unit, of the WorkCover Authority of New South Wales. It was Mr Roberts who represented the WorkCover Authority of New South Wales on the committee which created AS 4024.1. He said that the persons who drafted the document canvassed widely throughout Australian industry in formulating the material which it contained. 46 The preface to the document says: "It is intended that this Standard contain the general underlying principles for the safety of machine systems in general, whilst leaving requirements unique to a particular type of machine in a Standard covering the guarding of that class of machine. Therefore, within the Standard, emphasis has been on the principles of risk control relative to the hazards associated with machine systems in general, without regard to a specific type. In this way, it is hoped that engineers, designers and other persons who may be required to design, build, or evaluate the effectiveness of machine safety systems, will be able to apply the principles to many applications not specifically included herein. Particular emphasis has been placed on the selection of appropriate safeguarding methods. …. The Standard applies ergonomic principles to machinery and workplace design, with the intended result that this will lead to improved safety and operational efficiency." 47 Clause 1.1 of the document states that: "Although reference is made to specific types of machine, specific recommendations are not given for every type of machine or application." 48 The document deals in cl 3 with the application of ergonomics to the safe use of machine systems. When referring to anthropometric data cl 3.2.1 states that: "The general principles and the use of such data are to place dangerous features out of reach of the 95th percentile of the population, while access should be designed for the largest people." 49 When dealing with posture cl 3.2.6 states: "The workplace should enable the adoption of a posture which will not produce unnecessary static muscle loads. Static loadings may occur where unnatural postures must be maintained, and induces rapid fatigue." 50 Appendix A to the Standard deals with ergonomic data which is said to be "provided as guides for users who need to design and build guards that prevent persons from encroaching into a danger-zone associated with the machine." A figure of a male worker is used as an illustration of the distance of various danger points between a guard or barrier and danger situated within the worker's reach. A table is reproduced which on the vertical refers to the height of the danger-zone and on the horizontal gives both the horizontal distance to a danger-zone and the height of the protective structure or barrier used for guarding. For example if the height of the danger-zone is one metre from floor level then a barrier needs to be erected to a height of 1.4m to stop the worker from bending over so as to make contact with the danger point with his or her outstretched hand. There is a notation to the table that "there should be no interpolation of the values in the table". 51 A great deal of debate occurred in the course of the proceedings between Professor Churches and Mr Simpson about whether or not AS 4024.1 applied to the machine the subject of these proceedings. A great deal of debate also occurred in connection with the interpretation of the table to which I have briefly referred. 52 Neither Mr Nolan nor Mr Warren asserted that the document AS 4024.1 had any particular status in law. Mr Nolan submitted: Because Standards Australia is not a government body, its Standards are not legal document in themselves. But many become mandatory when Federal or State governments call them up in legislation. Currently about 2,400 Standards have become mandatory in this way. However, most Standards are used voluntarily by people who value their combination of engineering expertise and common sense. Australian Standards are practical documents and do not set impossible goals. They are based on sound industrial and scientific experience, and regular revision ensures that they keep pace with new technologies. 53 Mr Nolan also referred me to a portion of a judgment of Wright J in the Supreme Court of Tasmania in Wright v Edgell Birdseye, a Division of Petersville of 7 November 1995 in Matter No. 535 of 1992. Whilst I have not cited the extract of his Honour's judgment I reproduce verbatim an extract to which I was referred by Mr Nolan: It has been my experience in the past that from time to time, counsel for an injured plaintiff has sought to rely upon Standards Association publications as constituting some kind of standard, design or operational criteria, non-compliance with which constitutes prima facie evidence of negligence. This is not necessarily so. Frequently such publications provide valuable guidance within an industry and, on many occasions, engineering or other experts will acknowledge the publication as being an appropriate and recognised authority within a particular field. Such is not always the case however and disputes between experts as to the status and acceptability of published standards is by no means unknown. Without expert endorsement or agreement between counsel an SAA Australian Standard Publications will not normally be admissible in evidence and will certainly not constitute an unassailable basis for a finding of negligence. 54 There was no evidence given in the proceedings as to the standing and status of Standards Australia and Australian standards issued by it. There was no suggestion that AS 4024.1 was an industry code of practice approved for the purpose of s 44A of the Act and thereby able to be used to establish an alleged contravention of the Act under s 44B.

55 The document AS 4024.1 contains some material about the organisation known as "Standards Australia" It states that that organisation "is an independent not-for-profit organisation, established in1922. It operates formally under a Royal Charter as the Standards Association of Australia and has recognition as the peak Standards body in Australia through a Memorandum of Understanding with the Commonwealth Government. The essence of its operation is to bring together individuals and organisations committed to a common objective - to establish Australian Standards as national benchmarks for products and services so as to enhance quality of life and industry efficiency." The document also describes the standards as being "prepared by committees made up of experts from industry, governments, user groups and other sectors. The requirements or recommendations contained in published Standards are a consensus of the views of representative interests and also take account of comments received from other sources. They reflect latest scientific and industry experience. Australian Standards are kept under continuous review after publication and are updated regularly to take account of changing technology." 56 In the absence of any evidence or submissions to the contrary, I do not accept AS 4024.1 as having any particular status or as creating any particular standard, a breach of which would ipso facto give rise to a breach of an obligation under the Act. However, the standard having been admitted into evidence without objection I am prepared to accept it as constituting an expert opinion concerning the specific and general matters to which it refers. Accordingly I propose to approach the contents of the standard as representing an expert expression of opinion, albeit one which is accepted having regard to the qualifications contained within the document itself (some of which I have referred to), and subject of course to the acceptance of any contrary expert evidence. 57 It follows that failure to comply with AS 4024.1 cannot per se constitute a failure to comply with the provisions of s 18 of the Act but may be considered in the context of an allegation that the defendant was in breach. I propose to approach the particulars of the charge in par 5(ii) accordingly. 58 Having regard to the totality of the document AS 4024.1 which I should add is 185 pages in length, and having regard specifically to those parts of the document to which I have referred, I prefer for the purpose of determining these proceedings to rely on the expert evidence adduced by the witnesses called for both the prosecution and the defence which was directed more specifically to the machine the subject of these proceedings rather than to the material contained in AS 4024.1 which is, of necessity, of general application because, as Mr Roberts conceded in evidence, that document does not specifically refer to a wood chipping machine.

THE ADEQUACY OF THE DIMENSIONS OF THE CHUTE 59 The depth of the chute and the distance between the pinch point of the in-feed roller and the extremities of the chute were, in reality, at the heart of these proceedings.

60 Some historical evidence about this was given by Mr Nicholas Rivett. He described himself as a horticulture and enviroculture consultant, and an "expert in trees". His record of interview prepared for the prosecutor and his oral evidence in these proceedings created an impression of a long standing involvement by Mr Rivett with the use and design of wood chipping machines, although no precise evidence was given by him as to the nature and extent of any such involvement. He said in his record of interview that he had worked for the defendant for all of his working life. Although he was born on 5 March 1947 there is no evidence as to the duration of his working life.

61 Mr Rivett said that in 1983 the defendant arranged for a dealership with a US manufacturer importing some wood chipping machines being the Chipper unit and the chassis, including the in-feed chute. He was given an opportunity to tender to supply twelve machines to the State Electricity Commission of Victoria ("SECV") and loaned that organisation a machine for three months for evaluation. On behalf of the defendant he met with personnel employed in the ergonomics section of the Victorian Department of Labour and Industry and spent more than half a day on site with an experienced contractor and ergonomists. He had made a telescopic in-feed chute which at its shortest point was 600mm in length but could extend to 900mm and then to 1200mm. At one stage it had been suggested that the machine be modified to provide what was described as a "drop down chute" which, as I understand the evidence, consisted of an extension to the chute positioned at its bottom part which had the effect of extending the bottom section. This was rejected by those present at the meeting because the contractor said that he had had experience in using one of these chutes and always sat on the base of it even though the machine was in operation.

62 Mr Rivett said in evidence that after consultation during the course of that particular day all present agreed that having regard to the manner in which the machine was to operate a length of three feet (which now equates most readily with 900mm) provided the best overall working conditions having regard both to safety and also the working position of the operator. This allowed for the fact that the operator stood outside the in-feed chute when operating the machine and that the top part of the chute was about four feet off the ground which would prevent 95 percent of operators from putting any part of their body into the chute because the upper part of the arm would come into contact with the upper part of the in-feed chute. He said a length of about 900mm would provide an overall distance of about 1200mm from the external part of the chute to the nip point of the in-feed roller and this was the most ideal length for the feeding in of material most likely to be encountered when using the wood chipper machine in mobile locations. This was described as trees of about four inch diameter which needed to be carried comfortably and fed comfortably into the machine.

63 In his expert report tendered on behalf of the prosecutor Mr Colin Simpson stated that the machine was unsafe in a number of respects including the failure to provide an emergency stop button. He said that two persons should be present whilst the machine was being operated. Relevantly, however, Mr Simpson said that the length of the in-feed chute should be extended to 1400mm so as to avoid any possible contact between the operator and the in-feed roller mechanism. He based this assessment on the application of AS 4024. In normal operation Mr Simpson observed that the natural tendency of an operator to position material near the in-feed roller would mean that when a hand and arm were extended the hand could be as close to the nip point as about 400mm.

64 Professor Churches disagreed. In his opinion any safety requirement stipulating that there should be a certain distance between a dangerous part of the machine and any part of the operator's body likely to come in contact with it (known as distance guarding) was incompatible in this case with the need for operational access. He said: In the particular case of the wood chipper chute, it is considered that an extended chute may well pose greater risks than one of the present length, due to the risk of an operator crawling bodily into the chute, thereby being totally out of reach of safety devices. The further objection to a longer chute is that, since the top of the chute is approximately 1300-1400mm above ground level (which is lower than head height of most of the adult population), and the in-feed roller is then further from the operator's position, operators may then find it necessary to partially crouch and partially lean into the chute to place chipping material during normal operation of the machine. This brings a risk of overbalancing (with attendant risks, as well as creating an unnatural posture which might well result in long term spinal problems). It is considered the wood chipper chute with its in-feed roller is similar in ways to tools such as chain saws, circular saws (bench or hand held), angle grinders, etc. These tools cannot be completely guarded without totally preventing their use. The areas of danger are obvious to all users and there can be no doubt that hands must be kept clear of moving parts. …. Normal operation (of the wood chipper) certainly does not require the operator to place hands or other body parts within the chute - in fact quite the contrary. It is not a matter of the hands being frequently placed close to operating parts. It is not a matter of the pinch point being so close to the normal operating position that a small inadvertent slip puts the hands at risk.

65 In all the circumstances it seems to me that it is necessary to take a holistic approach to the question of safety in terms of the operation of this particular machine. In common with other forms of equipment used in the workplace, there are obvious dangerous parts. This danger must be obvious also to the persons who would normally be expected to operate this machinery. In my opinion one cannot look in isolation at one particular part of the machinery and determine whether the machinery as a whole is safe or unsafe by reference only to that matter. It is necessary to look at the totality of the implement, the environment and circumstances in which it is used including the characteristics and nature of the persons who it could reasonably be contemplated would operate the machinery, the training instruction and supervision which they might properly be subjected to, the conduct of the supplier in connection with the supply of the machinery, and the obligations imposed on any employer whose employees use the machinery.

66 AS4024.1 contains some interesting material about the physical reach of people. Under cl 3.3 entitled "Human Performance" there is a figure 3.3 entitled "reach envelope for fifth percentile person when using one hand only (for controls only)." This figure depicts a person standing in an upright position with the right foot slightly in front of the left foot and the right knee protruding. The person remains upright. The right arm is rotated from above the shoulder to the knee area. The maximum reach of the fifth percentile person is measured from the trunk. I should add that the person depicted in the figure is a male, and I am unsure as to whether the fifth percentile person refers to 95 percent of males or includes females. In any event it is possible to utilise the results depicted in figure 3.3 as a general guide. At a height of 75cm above ground level the maximum reach to finger tips is less than 25cm. At 100cm above ground level the maximum reach extends to about 45cm and the maximum possible reach is achieved between 125 and 150cm above ground level at a distance of about 60cm. If one takes the nip point of the in-feed roller as being the most relevantly dangerous part of the defendant's wood chipper machine, which is about 75cm above ground level, then the maximum reach of the fifth percentile operator as shown in figure 3.3 is about 25cm. In order for one of the operator's hands to come any closer to the nip point he or she must insert one or both shoulders and his or her head into the in-feed chute. 67 Prima facie, therefore, an operator of the wood chipper machine who was positioned in a manner contemplated by the defendant's instruction manual and in the manner shown during the defendant's training programme would be unable to reach into the in-feed chute more than about 25cm. This is a considerable distance in relative terms from the pinch point being the point at which the in-feed rollers come closest to the in-feed chute which, as I have previously observed, is about 90cm. If an operator entered the in-feed chute so that the hand became closer to the in-feed roller it would be necessary to place the head and shoulders into the in-feed chute for what is, in relative terms, a considerable distance. Subject to the observations which I make when considering the phrase "when properly used" it would seem to me that the machine was safe and without risk to health by reason of the distance from the edge of the chute to the in-fed roller during normal running conditions.

WHEN PROPERLY USED 68 There is no definition of the phrase "when properly used" although s 18(9), a subsection contained within s 18 in the form in which it existed and applied as at the date of the alleged offence (but no longer contained within s 18) does provide some assistance. I shall return to the provisions of subs (9) later. 69 The word "proper" is defined in the 2nd Ed. of Macquarie Dictionary as, relevantly, "adapted or appropriate to the purpose or circumstances; fit; suitable ….". However "properly" used as an adverb in the context of the phrase "properly used" within s 18 of the Act connotes a different meaning. The obligation under subs (2) is to ensure that the plant or substance is safe and without risks to health when properly used. The obligation is imposed on a manufacturer and supplier of plant and substances for use at work. Other obligations are created by paras (b) and (c) of s 18(2). While paras (b) and (c) are directed to obligations to be discharged prior to the use of the plant or substance, para (a) seems to focus on the actual use of the plant or substance at work. Perhaps it is for this reason that para (a) contains the qualification "when properly used" whereas paras (b) and (c) do not. 70 In this context and having regard to the absolute nature of the obligations, what is the proper approach to determining what was intended by the legislature in qualifying that absolute obligation by reference to the proper use of the plant or substance? In my opinion the answer does not lie in having regard only to the manner of use. It is necessary, for present purposes, to have regard to the use of the plant in all the circumstances of its supply. That is in identifying the nature and extent of the obligation of the supplier of the plant (as relevant for the purpose of these proceedings) one takes into account all of the circumstances in which the plant was supplied including its intended and represented use, the manner and method of use, any instructions which should properly have been given in all the circumstances either by way of the provision of an adequate manual and/or training, and the total environment in which the plant was intended or represented to be used as known to the supplier. This includes significantly all reasonably foreseeable working environments and the nature and characteristics of persons who could reasonably be foreseen to have used such plant. 71 Because the obligation in s 18(2) is imposed on a manufacturer or supplier who will not usually have any direct involvement in the use of the plant after it has been supplied to the end user, it is reasonable in my opinion to confine the absolute obligation imposed to that which bears some realistic relationship to the circumstances of manufacture and supply. On this basis "when properly used" describes the proper use as reasonably contemplated by reason of the factors to which I have referred and not to proper use in a more idealistic environment such as one would expect to be created by an employer who is or ought to be intimately involved in all aspects of the day-to-day use of the plant. 72 Accordingly, in determining whether the defendant in these proceedings has breached the obligation contained within in s 18(2)(a) one has regard not only to the physical attributes of the machinery, but also to what steps the defendant was required to take as a supplier of the equipment so as to ensure that it was safe and without risks to health when properly used. Apart, then, from the physical aspects of the equipment, I intend taking into account the following factors:

1. The use to which and the circumstances under which the defendant knew the equipment would be put, and the persons it should reasonably have contemplated would use the equipment;
2. the steps taken by the defendant to communicate to the Council what it knew and ought reasonably to have known about the manner in which the equipment should be used to ensure that it would be safe and without risks to health;
3. the facilities which the defendant offered to provide to the Council to ensure that the equipment was safe and without risks to health by its proper use. 73 Having reviewed the evidence I am satisfied beyond a reasonable doubt that the manual which the defendant provided to the Council (and which never appears to have been utilised by the Council at any stage) was adequate to warn the Council of any risk to the health and safety of persons using the equipment in accordance with the manual, and that the same conclusion can be drawn with respect to the training which the defendant offered to provide and in fact did provide. I am also satisfied that when used by operators in accordance with the manual, the training provided following the warnings on the decals signage to which I have previously referred that the machinery was safe and without risks to health. used. I have previously referred to the dimensions of the machine. I am satisfied that the machine was safe and without risk to health by reason of the dimensions of the in-feed chute and the distance between the operator (using the machine in accordance with the manual and training) and the in-feed roller. Such distance also accommodates, in my opinion, any circumstances in the nature of an accident apart from an operator deliberately placing himself or herself within the in-feed chute whilst the machine is in operation. 74 A decided case to which I was referred by counsel which examined the meaning of the expression "when properly used" was a decision of Fisher P in the Industrial Relations Commission of New South Wales in Court Session in WorkCover Authority of New South Wales v Acimall Australia Pty Ltd (unrep. CT 1065 and 1066 of 1996, 27 February 1998). His Honour said in part that: " 'When properly used' includes use after training in the use of the machine as it stands including training in the avoidance of dangers which have been adequately described and discussed." I am fortified that the approach which I have adopted is consistent with the approach of Fisher P in those proceedings.

THE DEFENCE UNDER SECTION 18(9) 75 Strictly speaking it is not necessary that I deal with the provisions of s 18(9) but I shall do so in deference to the submissions put by counsel. As I have already indicated subs (9) no longer forms part of the provisions of s 18 of the Act but did apply at the time the of the occurrences which gave rise to these proceedings. Both parties asserted that the subsection was relevant to these proceedings. 76 It was the submissions of the prosecutor that this subsection should be read down so as not to save a manufacturer or supplier from breach in circumstances where the plant or substance is clearly unsafe and in breach of s 18(2). It was submitted that a defendant could avoid responsibility under s 18 by providing, for example, minutely detailed instructions which would be sufficient to exculpate it from any liability. 77 I do not apprehend the defendant's submissions to be contrary in approach to that contended for by the prosecutor. The defendant's submissions in this area concentrated on the factual circumstances as disclosed by the evidence. This was to the effect that the machine was used without regard to relevant information or advice relating to its use which had been made available by the supplier. For example, Mr Bell must have reached a considerable distance into the hopper for the accident to have occurred and must have removed his gloves before doing so (in that neither was found to be significantly damaged after the accident), no other person was present whilst Mr Bell was using the machine, the machine does not appear to have been serviced at all by the Council (as required by the defendant's manual), and Mr Bell utilised the knee-bar by placing his foot on it rather than pressing it with his knee. 78 I accept the submissions of the defendant that if s 18(9) did apply to these proceedings, the defendant would be entitled to rely on the provisions of this subsection by way of defence in the circumstances which applied on 4 May 1997 when Mr Bell was injured. However I should comment that the defence available under subs (9) of s 18 is conditional upon relevant information or advice relating to the use of the plant having been made available by the manufacturer or supplier. Thus, the defence will in most cases only be available to a manufacturer or supplier who has, in effect, complied with the provisions of s 18(2)(a). The inclusion of s 18(9) within s 18 was probably designed to safeguard the position of manufacturers or suppliers who, having complied with s 18(2)(a) may have nevertheless have faced a prosecution because a third party or entity had used the plant without regard to the information or advice which had been made available. Construed in this way it may well be that s 18(9) does not have much room for operation. 79 There is one matter however which concerns me about the application of s 18(9) which was not the subject of submissions by counsel and which I have not raised with the parties, because of the primary conclusion which I have reached that the prosecution has failed to make out a case under s 18(2)(a) in any event. Section 18(9) can only operate, in my opinion, where the plant or substance has actually been used. This is because of the reference to the words "where it is used without regard for ….". The charge levelled against the defendant by the amended summons is predominantly directed to the supply of the machine on 28 February 1997. At that stage the machine, if it had been used, had only been used in connection with the training session which was conducted using the machine. Although the particulars of the charge contain, in para 4, a reference to the accident on 4 May 1997, para 5 makes it clear that the charge relates to the state of the machine on 28 February 1997 at the time of its supply. Accordingly, the use of the machine on 4 May 1997 is irrelevant to a determination of the application of s 18(9) by way of defence to what occurred on 28 February 1997 because there is simply insufficient or no evidence as to the actual use of that machine on that day other than, perhaps, by way of demonstration during the training programme. For this reason, it may well be that consideration of the application of s 18(9) is irrelevant in any event.

CONCLUSION 80 For the above reasons I find that the prosecutor has failed to make out a case against the defendant based on the allegations contained within the charge and the particulars of the charge as referred to in the amended summons. Accordingly the summons is dismissed. 81 The prosecutor is to pay the reasonable costs of the defendant to be taxed by the Registrar or his nominee in default of agreement.

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