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

WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International - [2000] NSWIRComm 12 - NSWIRComm 1998 case summary — Zoe

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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.

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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.

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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.

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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.

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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:

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;
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;
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.

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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.

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Judgment (63 paragraphs)

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Cited By (6)