Legislation: Occupational Health and Safety Act 2000, Section 8(1)

Representation: Solicitor for the Prosecutor: Mr J Doo, Shaw McDonald Solicitors

Solicitor for the Defendant: Mr M Wells, Lough Wells Duncan, Solicitors

1. The defendant has entered a plea of not guilty to a charge laid under the provisions of Section 8(1) of the Occupational Health and Safety Act 2000. The offence alleged against the defendant is that on 1 July 2004 at Huskisson in the state of New South Wales the defendant being an employer failed to ensure the health, safety and welfare of his employees at work and in particular Joshua Tyrell.

2. The short particulars of the alleged offence as contained in the Court Attendance Notice are as follows:-

(a) The defendant failed to ensure that the systems of work and the working environment of his employees, and in particular Joshua Tyrell, were safe and without risks to health in that:-

(i) He failed to apply and monitor a safe work method for the use of the "Storey 25" brand gear driven drill press;

(b) The defendant failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety of his employees at work, and in particular Joshua Tyrell in that:-

(i) He failed to provide adequate instruction and supervision in relation to the safe use and operation of the "Storey 25" brand gear driven drill press.

3.The relevant factual background matters which are not in dispute can be summarised in brief terms. The defendant Mr Corey Egan operates a business which trades as Crafted Stainless. Mr Egan is the owner and operator of the business which manufactures metal products including stainless steel products. At all relevant times the workforce at the defendant's place of business consisted of Mr Egan himself, two tradesmen with qualifications in metalwork and the injured worker Mr Joshua Tyrell who was a third year apprentice at the time of the incident on 1 July 2004.

4. At the defendant's premises there were a number of electrically powered drills that were designed for use in drilling holes through metal. On 1 July 2004 Mr Joshua Tyrell had been allocated a task which involved the manufacture of a lamp washer out of steel. Mr Tyrell had made use of one of the drills to drill a hole in the piece of steel he was using to manufacture the washer. When Mr Tyrell operated the drill onto the surface of the steel the piece of steel rotated rapidly striking his hand and causing injury to his thumb. Mr Tyrell's left thumb was amputated close to the knuckle following microsurgery.

5. At the time of the incident metal clamps were available at the defendant's premises which were available for use on the drills that were located in the factory for use by employees. If the piece of stainless steel had been clamped into position before the drill was operated the stainless steel would not have been able to rotate at speed and strike Mr Tyrell on his left hand.

7. It was clear from the evidence that at the time of the incident Mr Egan and the two tradesmen he employed in the business were present on the premises although none of them observed the incident.

8. It was submitted on behalf of the prosecutor that the Court should be guided by the approach taken by his Honour Mr Justice Boland in Inspector Covi -V- the Crown in the State of the Right of New South Wales (NSW Police)(2004) NSW IR Comm 128. In that case his Honour had said:-

"The elements of the offence to be proved by the prosecution beyond reasonable doubt are as follows:

(1) The defendant was an employer for the purposes of the Occupational Health and Safety Act;

(2) The defendant failed to take steps, as exemplified or particularised in Section 15(2) of the Act, to ensure the health, safety and welfare at work of all its employees;

(3) One or more of the defendant's employees was exposed to a risk to their health, safety or welfare, whilst at work; and

(4) There was a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions."

9. In relation to the first element it was clear that the defendant was an employer and this issue was not in contest.

10. In relation to the second element the prosecutor has alleged in the Court Attendance Notice that the defendant "Failed to apply and monitor a safe work method." The prosecutor relied on the record of interview of the defendant Mr Egan conducted by Inspector Drain as well as the record of interview of Mr Joshua Tyrell, both of which were tendered in evidence, to support the contention that the safe system for the performance of the work in question was to use drill clamps to hold the job in place when using the powered drill. The prosecution relied on the uncontested fact that on the day in question Joshua Tyrell had not used that system. The evidence indicated that the defendant was some twenty feet away in another part of the workshop and was not watching Tyrell as he performed his work. It was submitted on behalf of the prosecutor that the above facts indicated that there was no chain of management in place or an appropriate system of checks and balances and that in those circumstances the Court should conclude that the defendant had failed to apply and monitor a safe work method.

11. Mr Docking of Counsel took the Court to the decision of his Honour the Vice President Mr Justice Walton in Workcover Authority of New South Wales -V- Fletcher Constructions Australia Limited [2002] NSWIRComm 316; (2002) 123 IR 121 including a reference to a decision of the full bench in Ridge Consolidated Pty Ltd -V- Mauger [2002] NSWIRComm 108; (2002) 115 IR 78. In that matter the full bench had noted:-

"The Act is designed to protect against human errors (including foolish disregard for personal safety) as well as technical risks. Appropriate established systems or procedures known and understood in advance by the workforce, together with a clear, practical, chain of supervision or management, goes some considerable way to achieving this aim. The mistakes of an individual are less likely to be made, or left unrectified if that individual is accountable or if an appropriate system of checks and balances has been instituted."

12. The second particular relied upon by the prosecution concerns the allegation that the defendant "Failed to provide such information, training and supervision as was necessary to ensure…" In relation to this particular the prosecutor relied on the evidence that the defendant had instructed Mr Tyrell to make a part for the lamp. When giving that instruction the evidence showed that the defendant had not instructed Mr Tyrell to use clamps. Although there was evidence that Mr Tyrell had been instructed to use clamps on previous occasions no such instruction was given on this occasion. The evidence showed that Mr Tyrell was left to do the job by himself. The prosecutor relied on the fact that following the incident the defendant installed large signs in the workplace stating "Clamps must be used". The prosecutor submitted that such warning signs should have been in place on the date of the incident due to their eliminating, or preventing or minimising exposure to any risk.

13. The prosecutor noted the evidence of the defendant to the effect that Mr Tyrell was well aware of the necessity to clamp the piece of steel for drilling it both because of his TAFE training as part of his apprenticeship and also because of instructions given to him by the defendant when his employment commenced. The Court was taken to the decision of his Honour Mr Justice Peterson in Inspector Schultz -V- Leonard J Williams (Timber) Pty Ltd (2001) NSW IR Comm 286 where Peterson J said:-

"One can understand a developed perception that experienced bushmen might be resistant to instructions relating to how their work is to be done safely but this cannot remove the absolute obligation imposed by the Act upon an employer or contractor or other relevant person on whom the duty is imposed to ensure work is carried out in a safe manner. It is simply insufficient to give general directions and to ,effectively, hope for the best."

14. As to the second particular namely the alleged failure "to provide information, instruction training and supervision as was necessary to ensure the health and safety of his employees…" the prosecution contended that the evidence before the Court justified the following findings of fact. The evidence was that the defendant's role in the business was generally to provide management and supervision. He was present at the premises when the incident occurred. He was responsible for supervision of Mr Tyrell at the workplace. At the time of the incident Mr Tyrell was not being supervised. Mr Tyrell did not know where the defendant was at the time of doing the job. One of the qualified tradesmen who was employed by the defendant Mr Lidbetter was at a bench approximately five or six metres away from the drill where Mr Tyrell was working. Mr Lidbetter had his head down and he was wearing a helmet and was not watching Mr Tyrell. Meanwhile, the other employed tradesman Mr Cottrell was at the other end of the factory approximately 15 or 20 metres away. Mr Cottrell was welding stainless steel at the time in an area known as the welding bay and he could not see Mr Tyrell due to a welding screen. Mr Cottrell was not supervising Mr Tyrell at the time.

15. It was contended on behalf of the prosecution that it was the defendant himself who failed to provide supervision to Mr Tyrell and further he had not put in place an alternative system of supervision by anyone else. The prosecution asserted that Mr Tyrell was effectively left to his own devices. The prosecutor submitted that whilst a number of the relevant authorities relating to supervision dealt with the liability of employer in relation to qualified and experienced workers it was relevant in this case to note that Mr Tyrell was a third year apprentice and was aged 18 at the time of the incident.

16. In relation to the third element namely that one or more of the defendant's employees was exposed to risk to their health, safety or welfare whist at work it was submitted on behalf of the prosecutor that the risk was "A piece of metal being drilled with the "Storey 25" brand gear driven drill, spinning around and catching the drill operator's body including on or other of the operator's hands." The prosecutor contended that the evidence of the risk included admissions made by the defendant in his record of interview, photographs taken by Inspector Drain and exhibited before the Court together with the oral evidence of Mr Lidbetter whose evidence was that if you failed to clamp a job when using the larger drill the piece of stainless steel would turn around and spin as the machine had no give. It was submitted that the evidence of Mr Lidbetter was that to use a drill without first clamping the job was an obvious risk and that all jobs should be clamped as it was safer because things can spin around even on the smaller drill. In relation to this element the prosecution also relied on the fact that Mr Tyrell was an 18 year old third year apprentice at the time.

17. The fourth element identified by Boland J in Inspector Covi -V- The Crown in the Right of the State of New South Wales (NSW Police) was the requirement of a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions. The Court was taken to the decision of Boland J in Cahill -V- The State of New South Wales (NSW Police)(2005) NSW IR Comm 33 where his Honour found that in considering whether a causal nexus exists it is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "Substantial or significant cause (of the risk) viewed in a commonsense and practical way".

18. On behalf of the prosecutor it was put that it was not necessary for the prosecution to establish that it was foreseeable that Mr Tyrell, having been instructed to use clamps when using drills, would disregard or disobey such instruction and perform the work without using a clamp. In any event, the prosecution submitted that the Court would find on the evidence that Mt Tyrell had previously used some or all of the three other drills at the premises without clamping. The prosecution contended that Mr Tyrell should not have been permitted to exercise discretion on any of the drills as to whether or not clamps were used.

19. Mr Docking submitted that the defendant had failed to present evidence which would enable him to discharge the onus to the civil standard on the available defences pursuant to Section 28 of the Act. In relation to Section 28(b) there was simply no evidence whatsoever to support a proposition that the defendant was impeded by any lack of control over the premises. In relation to Section 28(a) there was no evidence to support a proposition that the defendant had done all that was reasonably practicable to safeguard the health safety and welfare of employees at the premises.

20. Ms Healey of Counsel for the defendant acknowledged that there was no issue in relation to the first element namely that the defendant was an employer. In relation to the second element it was submitted on behalf of the defendant that the Court should not find that the defendant failed to take steps to ensure the health, safety and welfare at work of all of its employees.

21. In relation to the first limb of the alleged offence namely the claim that there "…was no chain of management in place or an appropriate system of checks and balances" the defendant submitted that there was a safe work method in practice in relation to the use of drill clamps at all times on the drill press being used by Mr Tyrell on the day of the incident. It was submitted that the evidence showed that the reason for the injury to Mr Tyrell was a result of operator error. The defendant relied on the evidence of Inspector Drain and Mr Tyrell in relation to this proposition. The Court was taken to the decision of his Honour Chief Justice Street in Collins -V- State Rail Authority of NSW (1986) 5 NSWLR 209 where it was observed;

"…a failure to "provide and maintain…systems of work such that, so far as practicable…the employees are not exposed to hazards" is not proved against an employer simply by proof that an employee did something that was not in accordance with the system."

22. It was submitted that the placement of warning signs at the premises following the incident was not probative of a lack of a safe system of work at the time of the incident.

23. In relation to the second limb of the alleged offence namely the alleged failure to provide adequate instruction and supervision the defendant submitted that the obligation upon the employer is to provide supervision to employees which is reasonable supervision necessary to ensure the health and safety of the employees. In determining the nature and extent of necessary supervision employers must have regard to the competence, experience and age of each employee. This is clear from the Occupational Health and Safety Regulation 2001 Section 14(3). It was submitted in determining whether an employee has failed to properly supervise an employee the Court must subjectively assess the nature and extent of necessary supervision on a case by case basis.

24. In this case Ms Healey submitted that the Court would find that Mr Tyrell was a competent third year apprentice who did not need to be constantly supervised for every moment of his employment. It was conceded by Ms Healey that an apprentice may require a higher level of supervision than an experienced and qualified tradesperson. However it was submitted that the duty to provide reasonable supervision of an apprentice does not extend to a requirement of direct and constant watching by the employer or their delegate. In support of this proposition Ms Healey took the Court to Workcover Authority -V- Profab Pty Ltd (1999) NSW IR Comm 289 where his Honour Mr Justice Peterson held "Constant supervision of a properly qualified employee, who has adequate training in the context of a system which is designed to be and is accepted to be, if properly applied, a safe system, cannot be constant."

25. It was submitted on behalf of the defendant that Mr Egan had positively ensured that Mr Tyrell had adequate knowledge, skill and training to perform the task he was given to perform on the drill press on 1 July 2004. In addition Mr Tyrell had been properly briefed and trained on the risk to health and safety that may arise as a result of the use of the drill press. It was submitted that it could not be inferred that an employer has a duty to canvas all possible hazards and risks to safety every time an employee is given a task to undertake.

26. In relation to the appropriate standard of proof Ms Healey took the Court to the Decision of his Honour the President Mr Justice Fisher in Cullen -V- State Rail Authority (NSW)(1989) 31 IR 207 where Fisher P said:-

"… where it is…obvious that the elements that a safe system of work were not being observed, there is nevertheless a criminal onus on the prosecution to prove the employers failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt."

26. It was submitted that the injury to Mr Tyrell was not caused by failure on the part of the employer to ensure a safe system of work and supervision and as such the defendant is entitled to the benefit of the doubt.

27. In relation to the third element the defence admitted that one or more of the defendant's employees was exposed to a risk to their health, safety or welfare whilst at work at least in so far as Mr Tyrell was injured at work on 1 July 2004.

28. The defendant denied element four namely that there was a causal relationship between the facts causing the detriment to safety and the defendant's acts or omissions. It was submitted that the drill press being used by Mr Tyrell at the time of the incident was not one that would ever call for the exercise of discretion to clamp or not. The evidence before the Court was that the subject drill press would have resulted in injury every time it was used if not clamped and that this was well known to all users of that press including Mr Tyrell. Although there had been some evidence relating to limited occasions when clamps were not used in relation to specific jobs on the smaller drills it was not foreseeable that Mr Tyrell would use the subject drill press, namely the large drill press without clamping. Ms Healey submitted that the cause of the accident in this case was the inexplicable inadvertence on the part of Mr Tyrell and that his actions rendered it impracticable to make a proper provision for his safety. The Court was reminded of the evidence given by all three employees namely Mr Tyrell, Mr Cottrell and Mr Lidbetter to the effect that Mr Egan was vigilant in promoting a safe workplace and that he regularly supervised all employees including Mr Tyrell.

29. it was submitted that the Court would find that the prosecution has failed to make out a causal connection between the facts causing the detriment to safety and the defendant's act or omissions. It was submitted that it was not more supervision but rather constant supervision which could have possibly prevented the injury to the worker which was caused by his own inexplicable and previously undemonstrated inadvertence. It was submitted that the law does not require an employer to constantly supervise a competent third year apprentice undertaking a minor task he had done numerous times before without incident.

30. The primary submission of the defence was that the prosecution had failed to establish liability in the employer for a breach of duty to provide a safe system of work pursuant to Section 8(1)(c) or for a failure to supervise pursuant to Section 8(1)(d) of the Act.

31. In the event that the Court did not accept that primary submission it was further submitted that the defendant has discharged his onus to the civil standard on the available defences pursuant to section 28 of the Act.

32. In relation to Section 28(a) it was submitted that the Court would find Mr Egan was entitled to the defence that he had proven that it was not reasonably practicable to comply with the provision. It was submitted that the level of supervision that Mr Tyrell which the prosecution relies upon as adequate is one of constant supervision. It is not reasonably practicable for an employer such as Mr Egan to provide constant direct supervision of an employee at all times in the workshop. It was further submitted that the law did not demand constant supervision but rather, in determining the nature and extent of necessary supervision the employer must have regard to the competence, experience and age of the employee. The evidence before the Court would, it was submitted, satisfy the requirements for adequate supervision for an 18 year old, third year, competent apprentice.

33. In relation to Sectio 28(b) a further defence is available where the Court finds that the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. It was submitted that the lack of reasonable foreseeability is relevant to the making out of this particular defence. Ms Healey submitted that it is an accepted principle that where the occurrence of an event is not reasonably foreseeable then it will generally be impracticable to make provision for such an event. Further, it was submitted that the Court would have regard to the consideration given to this issue by his Honour the Vice President Mr Justice Walton in Workcover -V- Kirk Group Holdings Pty Ltd and another [2004] NSWIRComm 207; (2004) 135 IR 166 where his Honour held:

"Rather, to the extent that the behaviour of careless or disobedient employee may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under Section 53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, was not reasonably practicable for an employer to guard against."

34. Ms Healey submitted that the cause of the accident to Mr Tyrell was his inexplicable inadvertence on the day which had never been previously demonstrated to his employer. It was submitted that it could not be reasonably foreseen that Mr Tyrell would use a drill press without a clamp when it was a well known risk that metal would spin off the drill press in question if a clamp was not used.

35. On the day of the incident, and it would appear on a regular basis, the system of work at the defendant's premises as far as the injured worker was concerned was that Mr Tyrell would approach the defendant and advise that he had completed his previous task and request a new task. Mr Egan would then consult the various jobs he had for customers on his books and allocate a task to Mr Tyrell that was appropriate for an apprentice of Mr Tyrell's level of experience and skill to undertake. Having allocated a task to Mr Tyrell Mr Egan would supervise Mr Tyrell in the same way that he supervised his two tradesmen employees, namely by walking around the workshop and observing the manner in which the employees were going about their tasks. The evidence of Mr Egan, which was in no way contested, was that he would supervise his staff in that manner and his observations within the workshop took place when he was not otherwise occupied in work in the office, telephone work or from time to time going away from the workshop to quote on jobs for customers.

36. The Court accepts that when Mr Tyrell undertook the relevant component of his TAFE course as part of his apprenticeship obligations he was given basic training in a number of occupational health and safety matters including instruction concerning the need to use clamps when operating high speed electric drills. The Court also accepts that when he first joined Mr Egan as an employed apprentice it was part of his induction to be warned about the need to use clamps when operating drills within the workshop.

37. The Court finds that on the evidence there was a lack of reinforcement of this fundamental message which Mr Tyrell had obviously received both from his TAFE lecturers and from his employer Mr Egan. It is clear from the evidence that Mr Tyrell had some history of preferring his own judgment in relation to the issue of using clamps when using the electronic drills. The prosecution submits that cross-examination of Mr Tyrell in relation to his record of interview with Inspector Drain makes clear that Mr Tyrell had in the past from time to time dispensed with the use of clamps not only on the smaller drills in the workshop but also on the large drill that he was using on he day of the incident. The Court is not satisfied that the questioning of Mr Tyrell in the record of interview or the questioning in cross-examination by Counsel for the prosecutor managed to elicit a clear response in that regard. In any event, it is not necessary in the view of the Court, for the prosecution to establish that prior conduct on the part of Mr Tyrell to be successful in establishing an offence under the Act. The Court is satisfied on the evidence at least in relation to the smaller drills Mr Tyrell had from time to time formed the view that he need not use clamps. His practice in that regard was rather different to that of Mr Lidbetter a qualified tradesman who gave evidence to the effect that he always used clamps or other restraining equipment on all four drills including the smallest and weakest because that was the safest system to adopt. Mr Tyrell in his record of interview recalled that Mr Egan had "Only picked me up once" for failure to secure material on the drill press. The Court is satisfied that Mr Tyrell did not share Mr Lidbetter's view that the appropriate course to adopt was to use clamps on all four drill machines whenever in use.

37. The court is also satisfied that there was a failure on the part of the defendant to properly reinforce the system of work which had been put in place in the workshop. For the system of work to provide ongoing protection there needed to be a system of monitoring and reinforcement. This could have been done by appropriate signage or by regular safety meeting or by other methods calculated to impress strongly upon all participants in the workplace, including 18 year old apprentices, that it was not a matter for their judgment or discretion whether or not the employer's system was adhered to but rather a rigid requirement.

38. The Court notes the evidence of Mr Egan that Mr Tyrell was a confident apprentice and was entitled to be so because he was highly competent and performing well both in the workplace and in relation to his TAFE Course. Mr Egan had stated in the record of interview that Mr Tyrell had achieved distinction level each year in the use of power tool as part of his TAFE course.

39. The Court finds that the defendant is in breach of Section 8(1) of the Occupational Health and Safety Act both in relation to the failure to apply and monitor a safe work method and also in his failure to provide adequate instruction and supervision in relation to the safe use and operation of the gear driven drill press.

40. Having found that an offence has been committed it is necessary for the Court to give consideration to the defendant's submissions in relation to the statutory defences. The Court agrees with the submissions of the prosecutor that no issue arises on the evidence which would indicate that a defence is available under Section 28(b) on the basis that the defendant was inhibited in his control of the premises. In relation to the Section 28(a) defence the Court finds that there is no basis for the proposition urged on behalf of the defendant that only constant direct supervision of Mr Tyrell could have protected him from the risk. If that were the case it would not be difficult for the Court to find that this would have been an unreasonable and impractical test. Were the Court to adopt such a test it would no doubt be extremely difficult for apprentices and other trainees to find employment. The Court is satisfied that in setting up such a proposition the defence was setting up a "straw man" target. There were many steps available to the defendant, some of which have been referred to above, falling well short of constant direct visual supervision of Mr Tyrell. The Court is satisfied that the defendant could, without employing unreasonable resources, have imposed systems of supervision and reinforcement on safety issues that would have taken into account Mr Tyrell's propensity to prefer his own judgment on some matters where he was clearly the least qualified to form such a view. This was a small workshop where approximately four people worked in close quarters on a daily basis. There is no reason for Mr Egan not to have made close observation of Mr Tyrell and to have communicated with Mr Lidbetter and Mr Cottrell in relation to their observations of Mr Tyrell. The Court is satisfied that the defence has failed on the civil onus to make out the statutory defence pursuant to Section 28(a).

41. Having found the offence proven the Court proposes to give the parties liberty to apply so that an appropriate date can be set for the hearing of submissions going to the issue of appropriate sentencing. In the event that the liberty to apply has not been exercised within 21 days of the date of this decision the Court will appoint a time and date for the hearing of further submissions in relation to the question of sentence. The matter is otherwise adjourned.