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

HEARING DATES: 08/21/2000 DATE OF JUDGMENT: 05/15/2001

APPELLANT: The Hon. JW Shaw QC with Mr A Searle of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES:

RESPONDENT: Mr R S Warren of counsel Solicitor: Ms A Clark Hunt & Hunt

JUDGMENT: - 59 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WALTON J, VICE-PRESIDENT KAVANAGH J BOLAND J

Matter No IRC1963 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR ANGELA MULDER) v ARBOR PRODUCTS INTERNATIONAL (AUSTRALIA) PTY LIMITED.

Application for leave to appeal and appeal from a decision of Justice Marks given on 14 April 2000 in Matter No. IRC820 of 1999.

1 This is an appeal by the WorkCover Authority of New South Wales (Inspector Mulder) against a decision and order of Marks J given on 14 April 2000 ([2000] NSWIRComm 12), whereby his Honour acquitted the defendant. The appellant now appeals to the Full Bench of this Court against that judgment under s197A of the Industrial Relations Act 1996 (NSW) ("the IR Act"). 2 The defendant had supplied to the Yass Shire Council a mobile wood chipping machine known as a "Little Rippa Chippa Model 80" to be used by the Council's employees in their work. 3 On 4 May 1997, Peter James Bell, a casual labourer employed by the Council was operating the machine at a Waste Transfer Station operated by the Council. Both of Mr Bell's arms became caught in the machine and he lost his left arm to just below the shoulder and his right arm to just above his elbow. 4 The defendant was charged by summons with a breach of the then s18(2)(a) of the Occupational Health and Safety Act 1983 ("the Act"). The amended summons was in the following terms:- 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 by 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. 5 The particulars of the charge were as follows:- 1. The Defendant, Arbor Products International (Australia) Pty Limited (ACN 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 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; 6 The defendant pleaded not guilty.

The Legislation 7 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), (c) 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.

The Decision at First Instance 8 The wood chipping machine was described by Marks J in his judgment as follows: … 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. 9 Marks, J described the accident as follows: (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 to 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 on 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. ... (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 though was about three to four feet long. He said it was about eight inches in diameter. He threw it in with the 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 should and his right arm to just above his elbow. He wore prosthesis on the right arm. 10 In relation to the critical issue of the distance between the nip point of the feed roller and an operator of the machine, his Honour found: (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 (sic) 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. 11 In assessing the safety of the machine, Marks J said: (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. 12 After considering material contained in Australian Standard 4024.1 - 1996, Marks J observed: (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 (sic) roller during normal running conditions. 13 Marks J then considered the phrase 'when properly used' in s18(2)(a) of the Act. His Honour found that: … 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 (sic) 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 (sic). 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.

Submissions on the Merit of the Appeal by the Appellant 14 The Hon Mr J W Shaw of Queens Counsel and Mr A Searle of counsel appeared for the appellant. The main points argued by the appellant on appeal were as follows:

a) The defendant supplied the plant for use knowing that the use intended for the plant by the Yass Shire Council was inappropriate. That is, the mobile wood chipping machine was not an appropriate piece of machinery for use at a waste transfer site where the material to be processed consisted more of foliage that may be contaminated and consequently blockages would regularly occur. Nevertheless, the defendant supplied the plant knowing that it would be used at the waste transfer site;

b) Where the plant was provided for use in circumstances which the defendant knows to be inappropriate, the defendant cannot avail itself of the qualification to the absolute obligation of the plant being safe and without risk to health, namely, the qualification of "when properly used" in s18(2)(a);

c) The Court is bound to have regard to the form of the charge and whether the elements of that charge are made out as at the date of supply of the plant. Marks J had regard to matters extraneous to the charge by taking into account factors beyond the physical aspects of the plant. These factors were: 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.

d) Section 18(2)(a) on its proper construction requires a dual test. First, the plant or substance must be safe per se and secondly, it must also be without risk to health when properly used;

e) A trade off between safety and productivity took place when the length of the in-feed chute of the machine was being considered by the defendant;

f) Since the supply of the machine the defendant now offers a machine with an optional extended feed chute. In the circumstances where the defendant is offering an extended feed chute, it can neither be an impracticable amendment nor an amendment which prevents the machine from being used for its purpose. However, such an extension of moving the operator further away from the moving parts of the plant;

g) The evidence discloses that there is potential for entanglement with the machinery. Even on the evidence of the defendant, the plant does not meet the standard of strict liability required by the defendant;

h) The defendant's expert acknowledged the potential for the operator to take a short-cut around the safety features of the machine placing himself or herself at risk of serious injury;

i) His Honour erred in failing to find that plant which enabled operator access to its moving parts was safe and without risk. Whilst it is necessary to provide operators of plant and machinery with training and warnings, such training and warnings regarding the use of the machine are insufficient to satisfy the absolute duty of care contained in s18 in circumstances where an operator is able to come into contact with moving parts of the machine. To allow training and warnings which are delivered by a supplier, however detailed, to constitute satisfaction of the "when properly used" qualification in relation to a machine or plant with dangerous parts, would be to remove incentive or encouragement from suppliers or designers of plant and machinery to ensure that, as far as practicable, dangers are "designed out" of machinery. If the construction of s 18(2)(a) of the Act as described by Marks J is correct, the section would, for all intents and purposes, be deprived of efficacy in that a supplier, manufacture or designer of plant could obtain protection from prosecution, notwithstanding the physical aspects of the plant, provided that an extensive manual and detailed training is provided to potential operators. The absolute duty of s18(2)(a) cannot be intended to have been circumscribed in such a manner.

Submissions on the Merit of the Appeal by the Respondent 15 Mr R S Warren of counsel, who appeared for the respondent, submitted, in summary, as follows:

a) To cater for particular difficulties that may be associated with the use of the machine at the transfer station, the respondent had emphasised the need for proper maintenance and operation procedures on the machine. If the machine had been properly maintained and operated in accordance with the respondent's Operation Manual and training provided, then the machine would have been properly and safely used. Comprehensive training was provided by the respondent;

b) The matters relied upon by Marks J in coming to his conclusion were matters to be properly taken into account by his Honour. The phrase "when properly used" was carefully analysed by Marks J and his Honour satisfied himself that the respondent was entitled to rely upon this qualification in its defence;

c) There is nothing in s18(2)(a) which suggests that the respondent needed to satisfy a dual test. Marks J embraced the test of proper use considered by Fisher P in WorkCover Authority of New South Wales v Acimall Australia Pty Limited (unreported CT 1065 and 1066 of 1996, 27 February 1998);

d) There was no trade off between safety and productivity by the respondent;

e) The option of providing an extended feed chute on the machine was as a result of a direction given by WorkCover. The respondent and its expert Mr Churches considered that the extended feed chute to be more of a hazard than a help and its provision is not recommended by the respondent to its customers;

f) There is only the potential for entanglement in the machinery if the operator does not use the plant in accordance with the respondent's operating manual and training provided and if the operator deliberately places himself/herself inside the chute in close proximity to the in-feed roller;

g) If properly used the machine supplied would not have a propensity to clog thereby averting the potential for an operator to take a short cut and place himself/herself at risk of serious injury;

h) In finding in favour of the respondent's submission on the meaning of the phrase "when properly used", Marks J did not limit his consideration to a situation where "notwithstanding the physical aspects of the plant, provided that an extensive manual and detailed training is provided to potential operators" the absolute duty under s 18(2)(a) can be avoided. His Honour comprehensively considered all of the evidence with respect to the supply of the machine including the physical aspects of it, its dimensions, chute length, height and safety bar operations before he then considered that the machine was safe when properly used.

Leave to Appeal 16 Mr Warren submitted that leave to appeal was required in relation to an appeal brought against an acquittal pursuant to s197A of the IR Act. He also made submissions as to why, in the circumstances of this matter, leave to appeal should not be granted. 17 The prosecutor submitted that leave to appeal was not required. It was submitted, in the alternative, that if leave to appeal were required, this was an appropriate case for the grant of leave, particularly having regard to issues arising as to the construction of s18 of the Act. We note that this contention was resisted by the defendant who pointed to significant changes to the provisions of s18 of the Act as a basis for the refusal of leave. 18 It is not necessary to decide in this case whether leave to appeal is required in appeals under s197A of the IR Act since we consider that, if leave to appeal is required, leave should be granted in this matter. The appeal raises important questions as to the construction and application of s18 of the Act. We note that whilst the form of the section which applied at the date of the alleged offence has altered, the principal obligation or duty arising under the section has not. The section, in its current form, still imposes upon a person who manufactures or supplies any plant for use at work, and any substance for use at work, an obligation to ensure that the plant or substance is safe and without risk to health when properly used. It is the nature of that obligation which occupied much of the proceedings at first instance and in this appeal.

Nature of the Appeal 19 During the hearing of the appeal counsel did not address upon the principles relevant to an appeal under s197A of the IR Act. The nature of an appeal under that section was, however, discussed by a Full Bench of the Court in WorkCover Authority of NSW (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 260 - 261 as follows: During the hearing of the appeal, there were no detailed submissions by the parties in relation to the principles relevant to an appeal under s197A of the Act, although the appellant initially submitted that the relevant principles were those laid down in the Full Bench judgment in Warman International Ltd v WorkCover Authority (NSW) (1998) 80 IR 326 and by the Court of Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683. We do not consider that those authorities set out the principles relevant to an appeal, as here, under s197A. The principles laid down in those authorities provide that the approach to be adopted on appeal under s196 of the Act and s5AA of the Criminal Appeal Act 1912 is that there is to be a rehearing on the evidence given during the original proceedings. However, s197A provides, in terms, in subs (6) thereof, that s191 of the Act applies to an appeal brought under its provisions. That section is in the following terms: 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. The terms of that provision clearly indicate that an appeal under s191, and thus an appeal under s197A, is not to be by way of a new hearing and is to be determined on the evidence and material adduced at first instance. It also provides that the principles applying to appeals from discretionary decisions are to be applied in relation to the hearing of such appeals. Although there is now clear authority that s191 does not require that the principles in House v The King (1936) 55 CLR 499 apply to every element of a decision subject to an appeal to which s191 applies, but rather only to those elements of the decision which are properly to be considered as being or amounting to a discretionary decision (see, for example, Re Solicitors (State) Award (No 3) (1996) 72 IR 225 and Stone Miscrosystems (Aust) Pty Ltd v Kwong & Datamax Pty Ltd (1997) 42 NSWLR 160), the incorporation of s191 into the scheme of appeals under s197A is sufficient to indicate that the approach in the judgments in Warman International and Camilleri's Stock Feeds is not applicable in the present appeal. Again, because of the conclusions to which we have come in relation to the appeal, it is not necessary to further elaborate the principles which should be adopted in relation to appeals under s197A. 20 We consider that that analysis is correct and we adopt it. We would add that, in our view, the appropriate principles for an appeal brought pursuant to s197A of the IR Act are those referred to by the Full Court of the Industrial Court of New South Wales in Haynes v CI & D Manufacturing Pty Limited (1995) 60 IR 149 at 153 - 154, except as noted in the judgment in WorkCover Authority v Technical and Further Education Commission, where House v The King principles apply. Notwithstanding that the Industrial Court was considering in Haynes the provisions of ss297 and 299 of the Industrial Relations Act 1991, we consider that the discussion of principle in that matter is applicable to an appeal brought under s197A of the IR Act (where the provisions of s191 of the IR Act apply). We consider, therefore, that an appeal brought under s197A is an appeal stricto sensu on both fact and law and not by way of a hearing de novo. 21 As we shall now discuss in our conclusions in this matter, there were errors of law in the judgment at first instance. We consider that the assessment of the expert evidence by the trial judge was conditioned by those errors. We have considered the expert evidence before his Honour and considered the opinions of experts in the light of the appropriate principles governing the appellate review of findings of fact made by a trial judge (see for example, Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 at 428; Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446 and Abboud v NSW Department of Education (1999) 92 IR 32 at 42 - 44). In this matter, the Court has made an assessment of those opinions and, where appropriate, drawn inferences from the primary facts giving due weight to the reasoning of the trial judge. We note that no issue as to the credibility of the expert witnesses emerged at first instance or in the findings made by Marks J.

Consideration 22 The issue at the heart of this appeal is whether there is appellable error in the decision of Marks J that the defendant had not breached s18(2) of the Act. The question thereby raised in this appeal is whether the decision by his Honour, that the prosecutor had failed to establish beyond reasonable doubt that the mobile wood chipping machine supplied by the respondent to Yass Shire Council for use at work was not "safe and without risks to health when properly used" for the purposes of s18(2) of the Act, revealed any error authorising appellate interference. 23 In arriving at his conclusion, Marks J took into account the following issues: 1. The physical aspects of the equipment. In this respect his Honour took into account the dimensions of the machine and in particular, 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. Marks J concluded that for the defendant to reach into the in-feed chute more than about 25 cm it would be contrary to the instruction manual and training programme and would involve the operator placing his or her head and shoulders into the in-feed chute. To reach the in-feed rollers an operator would have to reach in to a depth of about 90 cm. His Honour said "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." 2. 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. Marks J was aware that the Council intended to use the machine at a waste transfer station as well as "out on the road". The evidence of the respondent was that it had said to the Council that the machine was not an appropriate piece of machinery for use at the transfer station where the material to be processed consisted more of foliage and the machine had a propensity to block up. The respondent said to the Council that if the machine was to be used at a transfer station "they would have to be particularly diligent in the maintenance and how it is to be operated and fed." 3. 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. This consisted largely of the instruction manual provided to the Council by the respondent and the warnings on the decal signage of the machine. 4. 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. This consisted largely of the training course provided by the respondent to the Council's employees. 24 We have noted that Marks J did not confine his consideration to the provision of an instruction manual and training for employees although as we comment later, these factors appeared to carry considerable weight in his Honour's final determination. Marks J also paid regard to the physical dimensions of the plant and, in particular, 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. The conclusion his Honour reached was that if an operator used the machine according to the supplier's instructions and training and did not reach into the chute as Mr Bell did, the plant was safe and without risks to health. 25 Mr Colin Simpson, an Ergonomist and Consulting Industrial and Automotive Engineer, provided an expert report on the accident on behalf of the prosecutor. Mr Simpson's initial report was based on reports prepared by the WorkCover Authority, photographs, a sketch and various dimensions of the wood chipping machine. Mr Simpson later prepared a supplementary report following an inspection and testing of the machine. In his supplementary report Mr Simpson said: The inspection and operation of the machine by the writer reinforces the views expressed in the original report of the writer dated the 2nd June 1999, particularly those related to the period of time available for an operator, such as Mr. Bell, to react to an emergency. 26 In his original report Mr Simpson, in referring to the feed roller, said: This is an extremely dangerous part of the machine and requires guarding. There is no guarding of any type, in any form, for this dangerous part of the machine. 27 In referring to the efficacy of guards, Mr Simpson expressed the opinion that the machine "… is for all intents and purposes, unguarded." Mr Simpson added "The well known Engineering principle of guarding by distance or "distance guarding" is not complied with as the relevant distance from the front face of the inlet feed chute is required to be at least 1400mm away from the danger zone, i.e. the nip point created by the powered feed roller (not the chipper). This deficiency could be readily overcome by extending the length of the inlet feed chute by at least 600mm." The reference to "1400mm" (Mr Simpson later conceded that figure should be 1300mm) was the distance necessary, in Mr Simpson's opinion, for the machine to comply with Australian Standard 4024.1. Marks J found, however, that this standard did not apply to the wood chipping machine and that the standard did not have any particular status or create any particular standard, a breach of which would give rise to an offence under the Act. His Honour did say, however, that "the standard having been admitted into evidence without objection I am prepared to accept it as constituting an expert opinion concerning the general and specific matters to which it refers … subject of course to the acceptance of any contrary evidence." It is to be noted that the appellant did not press the particular in the charge that the machine did not comply with AS 4024.1 - 1996. 28 Mr Simpson also expressed the opinion that the machine was one "that can only be operated on a two man basis" and that "a conspicuous and readily activated control needs to be provided so as to immediately cease all operation of the feed roll, in particular, and also to disconnect drive to, and brake, the chipper." 29 Professor A E Churches, Adjunct Associate Professor, School of Mechanical and Manufacturing Engineering, University of New South Wales, provided an expert report for the respondent. He disagreed with Mr Simpson. 30 In the Comments and Conclusions of Professor Churches' report of 3 February 2000, he said: Further, the concept of distance guarding is to a large extent incompatible with the need for operational access; Clause 7.3 of AS 4024.1 does not include distance guarding as an option. 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. A further objection to a longer chute is that, since the top of the chute is approximately 1300-1400 mm above ground level (which is lower than 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 that the wood chipper chute with its in-feed roller is similar in many 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. In the case of the wood chipper, feeding just one branch through the in-feed roller and cutting blades must demonstrate the power of the machine and the need to keep hands clear of the operating parts. Normal operation 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. In the event of a mistake occurring due to improper operation, the knee bar is an obvious, virtually intuitive and readily accessible safety mechanism, rapidly lifting the in-feed roller and quickly and effectively stopping the in-feed process. The cutting knives and disc are so far beyond the in-feed roller as to require very deliberate insertion of the hands to make contact, even with the in-feed roller fully raised. It is suggested that there is no good reason why the Rivett "Little Rippa Chippa" in its present form should not be on the market and, given well instructed operators, no reason to expect injuries to those operators.

31 In relation to his opinion that an extended chute may pose greater risks to an operator's safety, Professor Churches said in his report: In fact if an operator deliberately attempts to circumvent the safety features (by placing himself in the chute), his safety with a longer chute may be more precarious than with the present chute because he is then more remote from the safety controls. 32 Mr Simpson's response was that: I agree. If someone is intent to circumvent a barrier, then the barrier is clearly of no use, no matter what type of barrier it is. In this case to "circumvent", in inverted commas, the barrier as it exists - all you have to do is reach in with your hand. You may bend your body to a small degree. You certainly then are within very close proximity to the nip point created by the feed rollers and should your hand or something be grabbed by a branch that is being in fed, you have an extremely short period of time to react. Whether you have reaction time to reach a control is highly debateable. It is a well known engineering and ergonomic awareness that the average reaction time for a person to realise that something dangerous is presenting itself, to physically doing something, is about a second. You realise it is happening a bit faster but by the time you have got a chance to do something you have got about a second. As it is you won't for a second. Your hand is in the machine before you can react. Whatever control you have on the outside, a switch or the like, is basically irrelevant. It would only be useful if there was another person present. If it was longer you would physically have to lean in. There is a danger that you might over balance but it is a deliberately leaning in act and leaning towards a machine that you know is in-feeding and that you will then have no opportunity of reversing, is tantamount to suicide and I don't believe that any machine can be designed to prevent that. 33 In response to a question as to whether he had any general observation to make on the relevance of the length of the in-feed chute to the opportunity for operators to take short cuts in order to clear blockages, Mr Simpson said: The shorter the chute the greater the incentive and the greater the propensity to take short cuts. If it is obviously out of reach and your only alternative is to crawl in there well you take the risk. If you remove that incentive you then have a stronger incentive to follow proper procedures, in other words turn the thing off. But if this was close and was handy and quite frankly if it has been doing it all morning, getting blockages for example as I saw it doing, I can well imagine someone might be driven to grab a piece . 34 In the same vein, Mr Simpson said: The lengthening of the chute places you further away from nip point or danger point. The controls are also of course placed further away so you and the controls are further from danger. The only way you could get yourself into danger is by physically leaning in or crawling in. I do not think unless you were going to commit suicide that is an option. 35 In his judgment, Marks J took what he described as "a holistic approach to the question of safety in terms of the operation of this machine". His Honour took the view that he should have regard to the totality of the machine, the environment and circumstances in which it was used, the persons who might be expected to operate the machine, the training of operators, the conduct of the supplier and the obligations imposed on the employer of operators of the machine. 36 We think, with respect, that the holistic approach adopted by Marks J was wrong. Such an approach has the potential to, and in this matter did, obscure or overshadow the central issue which, in our view, is whether the plant supplied for use at work was safe and without risks to health. If the answer to that is "no" then, prima facie, the supplier has committed an offence under s18(2)(a) of the Act. If the answer is in the affirmative but a person uses the plant improperly or in a manner for which it was not designed, then the supplier, if charged with an offence, may rely on the defence of "when properly used". This is consistent with the view expressed by Fisher P in Callaghan v Theiss Contractors Pty Limited (unreported, Matter No. 1377 of 1989, 20 December 1990) where his Honour held that: Section 18(2)(a) which speaks of plant being safe and without risks to health when properly used still requires that the plant is to be "safe and without risks to health" which this compactor never was. It is only when the safe and risk free plant is not properly use (sic) that the proviso operates to assist the manufacturer. 37 The supplier of plant for use at work has a duty to "ensure" that it is "safe and without risks to health". In describing the duty imposed by s15(1) of the Act, the Full Bench in Drake Personnel at 449, stated : This Court and its predecessors have frequently emphasised the breadth of the duty imposed by s 15(1) of the OH&S Act: see, for example, WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at 478 and WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85. The duty imposed by s 15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty. In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469-470, Watson J said: "I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear. Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the Industrial Safety, Health and Welfare Act 1972 (SA), where in reg 4 the phraseology used is "shall take all reasonable precautions to ensure' ( see Smith v Elliott Bros (1980) 26 SASR 138) ... In their context and purpose, there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain." 38 We see no reason in construing the statute that the word "ensure" as it is used in s18(2)(a) should be given any different meaning to the same word in s15(1). 39 In Rice v Henley (1914) 19 CLR 19, Isaacs J commented at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. 40 On its proper construction s18(2)(a) is not intended to provide protection to a supplier of plant which is unsafe or poses a risk to health by allowing, for example, a defence that unsafe plant was not used according to the supplier's operating manual or a defence that the unsafe plant was not "diligently" maintained (in circumstances where the supplier knew the machine was to be used for an inappropriate purpose). Such a construction would, in our view, be contrary to the purposes of the section and inconsistent with the objects of the Act. That construction is contrary to the evident purpose of s18 when considered as a whole and as conveyed by the context in which the provision appears; for example, the terms of s18(2)(b). It is inconsistent with the object of the Act, namely, "to secure the health, safety and welfare of persons at work". 41 The evidence in this case was that Mr Rivett, the General Manager of the defendant, informed the Council that use of the machine in a waste transfer station was inappropriate unless the machine was diligently maintained. We do not think it is open to a supplier to supply plant for an inappropriate - and ultimately unsafe - use and then seek to rely on a defence that the machine was not properly used because it was not diligently maintained. 42 We think that in taking a holistic approach to the issue of the safety of the machine, Marks J gave too much weight to the provision by the defendant of a manual and training to the Council and its employees. In his judgment, Marks J said: 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 previously referred that the machinery was safe and without risk to health.

43 As to the qualification in s18(2)(a) arising from the phrase "when properly used", we conclude that the qualification is intended to limit liability of a supplier where the plant which is supplied is safe (in the sense that the safety is ensured) but such plant becomes unsafe because of misuse (for example, the wilful misuse of a machine by removal of a guard). It was plainly not the intention of the legislature to allow, by the use of that phrase, a limitation in the obligations arising under the sub-section where the defendant had, for example, provided an instruction manual or advice on how to use the plant supplied or had provided training for employees in the proper use of the plant at work where the plant was unsafe. If this were the case, it would be open to manufacture and supply plant for use at work that was not safe and posed risks to health. A supplier could simply argue on a prosecution under s18(2)(a) that, notwithstanding the plant supplied was inherently unsafe, an instruction manual was issued on how to properly use the plant and, consequently, no liability arose. In reaching this conclusion we have accepted the appellant's submission that the duty that arises under s18(2)(a) cannot be intended to have been circumscribed in the way contended for by the respondent and accepted by his Honour at first instance. 44 In our opinion, the machine in question was inherently unsafe. In this regard, we consider that Marks J made an appellable error in his finding of fact as to the physical aspects of the equipment in question (in terms of its unsafe characteristics) and the dangers posed by the equipment in the circumstances under which it was to be operated. His Honour gave insufficient weight to the evidence of Mr Simpson as to the physical aspects of the machine and the consequences for the safety of operators deriving therefrom. On the evidence of Mr Simpson, it was relatively easy for a person to reach into the machine and come into contact with the feed rollers; it was relatively easy to by-pass the safety mechanisms. The distance between the external edge of the in-feed chute and the danger point of the feed rollers took insufficient account of the very real prospect of an operator acting inconsistently with any training or instruction manual or warning signs. The distance left insufficient margin for error or careless, inadvertent or even foolish behaviour on the part of an operator. This was particularly so in the environment of a waste transfer station where the machinery had a propensity to clog. There was a likelihood in this environment that, driven by the frustration of repeated blockages, the temptation for an operator to use his or her hands to clear those blockages would become overwhelming. The respondent's own material warns of the dangers to an operator's hands being drawn into the machinery or loose clothing or big, bulky gloves becoming entangled with the machinery. 45 The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248. 46 We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [at 15] as follows: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry."

(See also WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722). 47 We see no reason, in the circumstances of this case, why these principles should not apply and be generally applicable to a supplier of plant. 48 The employer must also guard against acts of inadvertence to the fullest extent practicable: Inspector Ankucic v Naomi Cotton Co-operative Ltd (unreported, 97/2251, 14 July 1998, Hill J). We note in this respect the observations of the Full Bench in Australian Grader Hire [at 16] as follows: Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)." 49 In our view, a similar obligation applies to a manufacturer or supplier of plant. 50 We note Professor Churches' comparison in his evidence of the wood chipping machine with tools such as chain-saws and he makes the observation that: It is considered that the wood chipper chute with its in-feed roller is similar in many 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. 51 The fact that there are machines supplied for private and commercial use in respect of which the dangers are obvious (and where hands must be kept clear of moving parts) does not obviate the need to guard those machines or other machines to the fullest extent practicable. There is no proper analogy between this machine and the machines referred to by Professor Churches above. The evidence was that a person could reach the in-feed roller on the wood chipping machine with ease and, in doing so, by-pass such safety mechanisms as existed in order to clear blockages in circumstances where the supplier knew the machine was being used for a purpose which the supplier knew to be inappropriate. The machine was not guarded to the fullest extent practicable. 52 In the proceedings below there was considerable debate about the merits of an extended chute. It was argued by the respondent that an extended chute would present even more dangers than the existing chute. Mr Simpson, on the other hand, expressed the opinion that "the shorter the chute the greater the incentive and the greater the propensity to take short cuts" and that "the lengthening of the chute places you further away from the nip point or danger point." 53 It is not our task to determine the safety of an alternative design of the chute or other appropriate safety measures that might be adopted in relation to the machine in question: Drake Personnel at 451. The issue raised by s18(2)(a) of the Act is whether the wood chipping machine supplied by the respondent to Yass Shire Council for use at work was safe and without risks to health when properly used. 54 We find that the machine was not safe and without risks to health when properly used and that the offence is made out.

Conclusion and Orders 55 We, therefore, conclude that the trial judge erred in acquitting the defendant. The appeal must be upheld, the acquittal quashed and an appropriate verdict entered. We accordingly propose that the following orders be made: 1. Appeal upheld; 2. The acquittal of the respondent, as ordered by Marks J, be quashed; 3. A judgment entered that the respondent is guilty of the offence as charged; 4. These proceedings are adjourned to a date to be fixed to deal with the issue of sentence and costs.

REASONS FOR JUDGMENT OF KAVANAGH J 56 This is an appeal pursuant to s197A of the Industrial Relations Act 1996 by the WorkCover Authority of New South Wales from a decision and order of Marks J of 14 April 2000. 57 The proceedings before Marks J concerned a prosecution brought by Inspector Mulder of the WorkCover Authority for a breach of s 18(2)(a) of the Occupational Health and Safety Act 1983. The prosecution was dismissed by Marks J in finding there was no liability by Arbor products, the supplier of plant, for a breach of s18(2)(a) of the Act. He ordered costs against the Prosecutor. 58 On 28 February 1997, Arbor Products ("the defendant") and respondent to the appeal, was the manufacturer and supplier of a mobile wood chipping machine known as a "Little Rippa Chippa Model 80" to the Yass Shire Council. The summons alleges the defendant as the supplier: . . . did fail to ensure that the plant was safe and without risk to health when properly used in that:

1. The distance from the chute to the in-feed roller was insufficient and allowed the operator to reach the feed roller during the normal running condition; and

2. The machine did not comply with Australian standard AS4042.1-96.

Particular 2 of the charge has not been pleaded as a ground in the Application for Leave to Appeal or as an Appeal point. 59 I have had the benefit of reading in draft the reasons for judgment of the majority, Walton J, Vice-President, and Boland J but find myself in disagreement with the conclusions which they have reached. I consider the learned trial Judge correctly dismissed the prosecution and on the evidence I find myself of the same opinion and would dismiss the appeal.

Law as to the Appeal 60 I concur with the finding of the majority that it is not necessary to decide, in this case, whether leave to appeal is required in appeals under s197A of the Act but if leave to appeal is required I concur should be granted as the appeal raises important questions as to the construction and application of s18 of the Act. I also concur with the finding of the majority that by the operation of s197A of the Act (in which the provisions of s191 of the Act apply) this appeal is an appeal stricto sensu on both fact and law and not by way of a hearing de novo. The question therefore is whether his Honour fell into any error sufficient to authorise appellate interference. 61 For this appeal to succeed, the Full Bench must reject his Honour's findings where his Honour heard from the manufacturer and supplier, weighed the views of two experts and enjoyed his own inspection of the machine in operation on two separate occasions. It requires the Full Bench to adopt another expert's sole view as to the facts. The Full Bench must adopt this expert's view without the advantage of having seen the machine in action or assessing the credibility (demeanour) of the witnesses. The primary judge has given reasons for his findings of fact. (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Trawl Industries of Australia Pty Limited v Effem Foods Pty Limited (1992) 27 NSWLR 326 at 349). 62 The principles to be applied by the Full Bench reviewing findings of fact made by a trial Judge below are clear. As was held in Morris Abboud v The State of New South Wales (Department of Eduction) 92 IR 32 (at 42): . . . An appeal brought under Pt 7 of Chapter 4 of the Act will generally attract the normal principles which apply to appeals stricto sensu on questions of fact and/or law: see Re Solicitors (State) Award (No 3) (1996) 72 IR 225 at 234 and Stone Microsystems (Australia) Pty Ltd v Kwong & Datamax Pty Ltd (1997) 42 NSWLR 160 at 163; 85 IR 237 at 238. In the case of an appeal from a judge in the strict sense, the appellate court will substitute its own judgments only if the trial judge has fallen into error of law or has made a finding of fact which is clearly wrong or are not reasonably open on the evidence: Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 688. Otherwise, the appellate court should not intervene. As Priestley JA recently observed in Martin v Byrnes (unreported, Court of Appeal, Priestley , Stein JJA and Sheppard AJA, 25 May 1999): The cases running through the hundred years from Coghlan v Cumberland [1898] 1 Ch 704 to Earthline Constructions [(1999) 160 ALR 588] all show that courts such as this Court are duty bound to reverse conclusions based on trial judges' views of fact when those views of fact are plainly wrong but are equally duty bound not to reverse such decisions of a trial judge merely because the intermediate appellate court itself takes a view different from that of the trial judge of the factual findings that should have been made.

This has been the position generally adopted by this Court and its predecessors: see Hussmann Australia Pty Limited v Walker (1993) 48 IR 396 at 406 and Haynes v CI&D Manufacturing Pty Limited (1994) 60 IR 149 at 154.

63 The Commission therefore is duty bound not to reverse decisions of a trial Judge merely because the appellate court itself takes a view different from that of the trial Judge of the factual findings that should have been made. 64 In a case which relies on the assessment of the credibility of witnesses generally, the High Court in Walsh v The Law Society (1999) 164 ALR 405 [at 54] recently looked at the question of disturbing the findings of the primary tribunal, warning: ... the appellate court will be bound generally to defer to any conclusions on the questions of credibility formed by the court or tribunal from whom the appeal is brought where the latter has seen and heard the witnesses. (Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193 at 197-8; 54 ALJR 378 at 318; cf McCormack v FCT (1979) 143 CLR 284 at 323-4; 23 ALR 583). In particular circumstances, it will be open to an appellate court to reach conclusions contrary to those of the court or tribunal below, notwithstanding a credibility finding. (see, for example, State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 607, 620-2, 632-3; 73 ALJR 306 at 321 paras [63]-[64]; 331-2 para [93], 340 para [146]. Sometimes it will be authorised to reject those findings where they are "glaringly improbable" ( Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53 at 57; 59 ALJR 842 at 844 or "contrary to compelling inferences" of the case. ( Chambers v Jobling (1986) 7 NSWLR 1 at 10; cf State Rail Authority of NSW v Earthline Constructions Pty Limited (in liq) (1999) 160 ALR 588 at 620-2, 73 ALJR 306 at 331-2 para [93].) But the caution required of all appellate courts in such matters has long been recognised and frequently upheld in decisions of this court. (see for example Jones v Hyde (1989) 85 ALR 23; 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167; 96 ALR 354; Devries v Australian National Railways Commission (1993) 177 CLR 472; 112 ALR 641. For recent example see Effem Foods Pty Limited v Lake Cumbeline Pty Ltd (1999) 161 ALR 599. 65 As to the nature and evaluation of expert evidence, the findings as to expert evidence in Holtman v Sampson (1985) 2 Qd R 472 are summarised as follows: A primary tribunal's duty is to find facts and, when expert evidence has been given, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness but to examine the substance of the opinion expressed. In cases where the experts differ the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted. The evaluation of an expert's evidence will also involve questions of credit and credibility. On appeal, by way of rehearing, against a finding of a disputed fact based upon the primary tribunal's view of the credibility of expert witnesses, the appellate tribunal will have regard to the significant advantages enjoyed by the primary tribunal in forming a judgment between the conflicting views of expert witnesses ( Warren v Coombes 1979 142 CLR 531; Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378 at 381; and Joyce v Yeomans [1981] 1 WLR 549; [1981] 1 All ER 21 at 27 followed). (See Headnote at 472) 66 The Full Court of the Federal Court recently also examined the role of an appellant court in assessing the value of expert evidence. As was held in Black v Lipovac ([1998] 699 FCA unreported), Federal Court, Full Court, No. 65 of 1996, 4 June 1998) by Miles, Heerey and Madgwick JJ [at 63-65]: 63. The task of the trial judge was to find the facts on which he could proceed to determine the issues raised on the pleadings. The issues raised on the pleadings limited the range of facts that it was necessary to find. The necessary facts to be determined were primary facts, the subject of direct observation by witnesses and, further, facts drawn by way of inference from the primary facts. In the present case the trial judge was not left to his own devices in the drawing of inferences but was assisted by expert . . . evidence as to the inferences to be drawn.

64. It is well established that where the finding of primary facts depends, even if only in part, upon the credibility of witnesses, then an appellate court will defer to the advantage enjoyed by the trial judge who has seen and heard the witnesses. In deference to the trial judge, an appellate court will not interfere with the findings of the trial judge or substitute its own findings of fact unless the trial judge has misused the advantage. On the other hand, where the factual findings challenged on appeal are made by way of inference drawn from primary facts, an appellate court is regarded as being in as good a position as the trial judge and the appellate court "should not shrink" from drawing its own inferences: Warren v Coombes (1979) 142 CLR 531.

65. It has become common for appellate courts in Australia to be asked to determine almost as a threshold point whether a particular appeal is one in which the trial judge's findings depend upon the credibility of witnesses or whether the appellate court is in as good a position as the trial judge to draw its own conclusions. However, primary facts and facts established by way of inference are often bound up together and it is not always easy to distinguish between them, particularly where much of the evidence is given by way of expert opinion. Moreover, the Warren v Coombes approach still requires weight to be given to the conclusions of the trial judge drawn by way of inference in the sense that it has to be shown that some contrary inference should be drawn. Further, where there is expert opinion as to what inferences should be drawn, the trial judge's advantage in assessing the credibility of the witnesses who express the expert opinion is to be recognized. 67 Therefore, this Commission sitting on appeal is required generally to defer to any conclusions on questions of credibility formed by the primary tribunal unless those conclusions are glaringly improbable or contrary to compelling inferences in the case.

The Legislation 68 Section 18 of the Act, in the form which applied at the date of the alleged offence, relevantly reads: 18 Manufacturers, suppliers etc to ensure health and safety as regards plant and substances for use at work (1) In this section: . . . 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. . . . 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,

(9) For the purposes of this section, any plant . . . 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.

Factual Background 69 His Honour in his judgment recited a number of relevant facts which are not in dispute in this appeal, namely: 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. 70 So on 27 February 1997 the defendant supplied the Little Rippa Chipper Model 80 to the Yass Shire Council for use at work in a depot. Along with the supply of the Little Rippa Chipper the defendant supplied Hazard Identification documents to Yass Shire Council and an operating manual in relation to the operation of the Little Rippa Chipper Model 80. On 4 March 1997 the defendant's representative conducted a training session for Yass Shire Council staff at the waste transfer station. 71 On 4 May 1997 an employee of Yass Shire Council, Mr Peter James Bell while operating the said machine, suffered serious injury. His arms became caught in the machine and he lost his left arm to just below the shoulder and his right arm to just above the elbow. He had not attended a training session and the evidence revealed the operators had no access to the operating manual.

Grounds of Appeal & Consideration 72 The Honourable J.W. Shaw QC with Mr A. Searle of counsel appeared for the appellant. The appellant submitted the following:

Section 18(2)(a) on its proper construction requires a dual test. First, the plant must be safe per se, and secondly, it must also be without risk to health when properly used. The challenge to his Honour's findings by the appellant are threefold:

(i) the appellant challenges the findings of fact as to whether the machine by design was "safe"; (ii) the appellant questions what is the proper construction of s18(2)(a) of the Act; and (iii) the appellant contends, in the application of those facts to the proper construction of s18(2)(a) of the Act, the appeal should be upheld. 73 As to the design of the machine, it is the appellant's contention that the plant, which enabled the operator to access its moving parts, was unsafe. The appellant contends the plant was faulty in its design and there was a trade-off by the manufacturer between productivity and safety. The appellant submits the evidence would persuade the court the plant could have been re-designed to make it safe. 74 The appellant submits, in accordance with the offence, as pleaded in the summons, the attack on the design of the machine was clearly stated at the hearing at first instance namely: Essentially, the complaint raised by the prosecutor was that the distance between nip point of the plant and the operator of the plant was insufficient.

And his Honour commented in the primary judgment at [par 50]: The depth of the chute 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.

Marks J then analysed the design of the machine. In his findings, he referred to the evidence of two experts. His Honour also viewed the machine twice in operation. 75 Mr Colin Simpson, an ergonomist, and Consulting Industrial and Automotive Engineer provided, as an expert, two reports on the accident which were relied upon by the prosecutor. He based his original report on WorkCover Authority reports, photographs, sketches and the various dimensions of the wood chipping machine and in his second report his opinion arises from an inspection and testing of the machine. Mr Simpson's view of the machine, as to the feed roller was: . . . an extremely dangerous part of the machine and requires guarding. There is no guarding of any type in any form for this part of the machine.

He also expressed the opinion the machine should: . . . only be operated on a two man basis and a conspicuous and readily activated control needs to be provided so as to immediately cease all operation of the feed roll, in particular, and also to disconnect drive two and break the chipper."

76 However, Prof A.F. Churches, Adjunct Associate Professor, School of Mechanical and Manufacturing Engineering, University of New South Wales, provided an expert report to the respondent. He opined: It is considered that the wood chipper chute with its in-feed roller is similar in many 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.

77 The evidence revealed the machine had a safety switch knee bar through the end of the in-feed chute. This required the operator to stand some little distance away from the knee bar whilst feeding material into the machine. Marks J found: 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.

78 The learned primary judge considered both the evidence of Mr Simpson and Prof Churches and twice undertook his own view of the machine. His Honour reasoned [at 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 880 mm without allowing for the fact that the knee-bar was proud of the end of the in-fed (sic) 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 450 mm above ground level, the bottom edge of the in-feed chute located about 680 mm above ground level and the top edge of the in-feed chute located about 775 mm 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.

79 His Honour then analysed the machine "in use" and found [at 67]: . . . 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. . . . 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. (Emphasis added)

80 His Honour therefore clearly addressed the issue the prosecutor at first instance identified as at the heart of the challenge to the design of the machine. His Honour found against the prosecutor in his consideration of the evidence. 81 His Honour also rejected any argument there was error or carelessness, or inadvertent or even foolish behaviour on the part of the operator. He expresses he perceived a deliberate act on the part of the operator. From the evidence before the court this analysis as to how the machine worked led his Honour to then make the relevant finding of fact: 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.

82 His Honour on the evidence found the design of the machine was such as to make it safe. 83 On the appellant's submission, this appellate court must prefer Mr Simpson's view, that is, the expert relied upon by the WorkCover Authority, the Prosecutor in the case, without the advantage of having seen the machine in action or hearing the witnesses. It must reject the other expert's, that is, Prof Churches', opinion. It must reject the lay evidence of the manufacturer and dismiss the fact that the primary Judge saw the machine twice in action. It must come to a different conclusion from the primary Judge by preferring one expert, whose evidence the primary Judge rejected, against the weight of all the other evidence. 84 On the facts I would defer to the conclusions on questions of credibility formed by the primary tribunal and cannot find those conclusions, formed from his Honour's assessment of credibility of expert witnesses and the inferences he drew from that evidence and other evidence including twice seeing the machine in action himself, are glaringly improbable or contrary to compelling inferences of the case. I cannot concur with the majority reasoning that his Honour's assessment of the expert evidence was conditioned by any error of law. His Honour preferred one expert's evidence as more credible in the context of all the evidence before him. Both experts' evidence was referred to by his Honour in his findings as to facts and on appeal I have regard to the significant advantages enjoyed by the primary tribunal in forming a judgment between the conflicting views of the expert witnesses. 85 The appellant further submitted, since the accident, a machine with an optional extended feed chute has been made available. The submission was the Full Bench should accept this evidence in support of the twofold proposition, namely, the machine was unsafe and that an unsafe machine could be made safe. However, there was comprehensive evidence in the hearing from both Mr Rivett and Prof Churches, the company representatives, both called by the defendant, that the machine with the extended feed chute was more of a hazard than a help and was not recommended. The redesign of the chute had been in accordance with a direction given by WorkCover after the accident. Prof Churches said the extended chute, as directed by WorkCover, created a greater likelihood that an operator would lean into the chute to engage short material and would thus be further removed from some of the safety controls. The extension would also upset the ergonomic balance of parts of the machine. Additionally the operator's balance would be impaired and thus he would be likely be placed in potentially a dangerous position. 86 The evidence revealed the machine had dangerous parts - namely, the blades for cutting up the foliage. Neither the WorkCover Authority nor the two independent experts nor the manufacturer have suggested the blades could be completely covered. 87 While the court is not obliged to determine an alternative design to this machine, in the circumstances, it must determine whether the machine was safe. No evidence persuades the court this was not so. Mr Simpson himself conceded: I agree. If someone is intent to circumvent a barrier then the barrier is clearly of no use.

In this case to "circumvent" a barrier as it exists - all you have to do is reach in with your hand.

However he then qualified this comment by saying: You may bend your body to a small degree.

In other words the operator had to deliberately place part of his body into the machine. This was the finding of fact by his Honour. Such a finding was supported by the evidence of both experts. 88 The appellant further asserts the defendant, as the supplier, was involved in a "trade-off between safety and productivity . . . when the level of the in-feed chute of the machine was being considered . . .". The defendant was the manufacturer and supplier of the machine not the employer. There was no evidence of any consideration by the supplier as to "productivity" but, evidence revealed, there had been a conscious consideration by the manufacturer/supplier as to the purpose of the machine, that is, its use. It was designed for the easy in-feed of material. The evidence revealed the in-feed chute had been designed with ergonomic considerations in mind to ensure no excessive back strain on the worker placing the material into the chute. 89 In consideration of this evidence the appellant's submission that it can be concluded the design of the machine compromised safety for productivity must be rejected. Productivity may be a consideration of the purchaser, namely, the employer. The manufacturer and supplier, the evidence reveals, considered the design in terms of ergonomics and purpose.

As to the construction of s18(2) of the Act: 90 Marks J correctly identified the obligation on the supplier under the Act as an absolute obligation. His Honour then posed the question [at 70]: 70. . . . 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. 91 The Industrial Relations Commission of New South Wales in Court Session in WorkCover Authority of New South Wales v Acimall Australia Pty Ltd (unreported, Fisher P, CT1065 and 1066 of 1996, 27 February 1998) considered the provision of s18(2) and stated: '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. 92 In another analysis of the section, Fisher P found in Callaghan v Theiss Contractors Pty Limited (unreported decision, No 1377 of 1989, 20 December 1990): Section 18(2)(a) which speaks of plant being safe and without risks to health when properly used still requires that the plant is to be "safe and without risks to health" . . .

It is only when the safe and risk free plant is not properly use (sic) that the proviso operates to assist the manufacturer. 93 In my respectful opinion the Parliament, in placing into s18(2)(a) the words 'when properly used', qualified the test to be applied under the section. Fisher P referred to the phrase as a "proviso". The obligation on the manufacturer is to provide plant that is safe and without risks to health 'when properly used'. 94 Further the act itself guides the Court as to the appropriate indicia to be applied to the proviso/qualifier phrase "when properly used" by way of a specific provision, namely, s18(9) which states: . . . 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. 95 So plant can be properly used when regard is had to relevant information or advice supplied by a manufacturer/supplier. This section of the Act infers a responsibility on a manufacturer/supplier to supply, inform and advise on the proper use of the plant. The circumstances reveal this manufacturer/supplier complied with this obligation, gave the appropriate advice and training and made available such information as to the proper use of the plant. 96 While accepting the obligation for this supplier under the Act is to "ensure" the supply of safe plant without risk to health when properly used, I cannot concur with the approach of the majority that the obligations which are placed on an employer under s15(1), as to supervision and instruction of employees, are of their nature, the same obligations which the Act enunciates under s18(2)(a) as that placed on a manufacturer and supplier of plant. There can be no transposition of the separate nature of the obligations so defined. 97 The wording of ss15 and 15(2) and the wording of ss18(2)(a) and s18(9) is clearly distinct as is the nature of the obligations they define. Later amendments to the Act place s18(9) as a separate provision under s15. The distinction as to the nature of the obligations is retained. The effect of the movement of the provision has not been argued in this case nor is it relevant when assessing the obligation of a manufacturer/supplier. 98 The Act defines a manufacturer/supplier's obligation to ensure the supply of safe plant, with the proviso, it should be properly used. There is no obligation on a supplier beyond giving relevant information and advice relating to a safe machine's proper use. In this case the advice was by way of warnings, documentation as to the operation of a machine and a comprehensive training programme related to its use. 99 The appellant submits training and warnings regarding the use of the machine are insufficient to satisfy the absolute duty of a manufacturer under s18(2)(a) in circumstances where clearly an operator was able to come into contact with moving parts of the machine. 100 I accept the submission of the appellant that to allow training and warnings delivered, however detailed, to constitute satisfaction of the "when properly used" qualification in relation to plant with dangerous parts would be to remove incentive or encouragement from suppliers or designers of plant and machinery to ensure that as far as practicable dangers are "designed out" from machinery. However, Marks J found the machine was safe in its design. He then made a further finding it was safe when properly used. He took into consideration the advice, manuals and training provided by the supplier in accordance with a supplier's obligation under the Act. 101 I reject the appellant's submissions that a finding of the Full Bench in support of his Honour's judgment would "for all intents and purposes deprive the Act of efficacy in that a supplier, manufacturer or designer of plant could obtain protection from prosecution, notwithstanding the physical aspects of the plant, provided that an extensive manual and detailed training is provided to potential operators". 102 His Honour accepted the absolute obligation on the manufacturer/supplier under s18(2)(a) of the Act. The evidence revealed much thought had been given to the design of this machine. It was ergonomically designed to protect workers from injury, including the angle of the chute and the placements of the nip point down the chute and the placement of the safety bar. The evidence disclosed the potential for entanglement with the machine's moving parts and Marks J found it required a deliberate act of an employee to physically put part of his body into the in-feed chute. Such entanglement could not have occurred had the plant been properly used. 103 His Honour found on the evidence the design of the machine was safe. He also found, having regard to the use of the plant in all the circumstances of the supply, he was satisfied the defendant, the manufacturer/supplier, had ensured that the machine was safe and without risk to health when properly used by the provision of advice and information to the Council. To ensure the machine's safety, the defendant also conducted a training programme. 104 His Honour weighed the evidence of the two experts. He preferred the view of Prof Churches in the context of the evidence of all witnesses. He considered the evidence of Mr Simpson but was not persuaded by it. I cannot be persuaded that his Honour's decision which involved an in-depth analysis of the workings of the machine after two viewings and an independent assessment of the conflicting views of the experts, which assessment allowed for a consideration as to the credibility of these witnesses, reveals any error as to findings of fact. 105 I am further satisfied his Honour applied the correct principle of law in taking into consideration, in compliance with the Act, matters such as the advice and information provided by the supplier in his finding that not only was the machine safe but, in accordance with the proviso/qualifier as contained in the Act, the defendant met its obligations under the Act to ensure the machine was safe "when properly used". 106 I am satisfied his Honour's finding as to the machine being safe were reasonably open to him on the evidence. I find it was open to his Honour to reject the evidence from the expert, Mr Simpson, who, in effect, opined all machines which have moving parts exposed are ipso facto unsafe. 107 I am satisfied the decision of his Honour reveals no error authorising appellate interference. 108 Accordingly I would uphold the decision and orders of the court and order the appeal be dismissed.

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