WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation

PROSECUTION: Mr R Reitano of counsel SOLICITORS: Phillips Fox

DEFENDANTS: LEGAL REPRESENTATIVES: Mr J Phillips SC SOLICITORS: Deacons

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staunton J DATE: 10/12/2004

IRC Matter No 3374 of 2002 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited Prosecution arising under s15(1) of the Occupational Health and Safety Act 1983

IRC Matter No 3376 of 2002 WorkCover Authority of New South Wales (Inspector Mansell) v Thomas Edwin Curtis Smith Prosecution arising under s15(1) and s50(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2004] NSWIRComm 349

1 The defendant Daly Smith Corporation (DSC) is an industrial labour hire company. Mr Thomas Smith is the owner and managing director of that company.

2 In 2000, one of the employees of DSC was Mr Steven Rowe. Mr Rowe had commenced employment with DSC on or about 19 May 2000.

3 Towards the end of May 2000, Mr Rowe was sent by DSC to work at Hayman Industries Pty Limited at Padstow. Hayman Industries is a medium sized company engaged in the business of metal trade manufacturing and had earlier contracted with DSC for the provision of labour hire workers. As part of its business, Hayman Industries operated a John Heine 208AG Series One Power Press (the Press) otherwise referred to as a pole press.

4 At DSC, Mr Rowe was engaged as a process worker and press operator - the latter task involving the operation of the Press earlier referred to. The Press was being used by Hayman Industries to produce metal pole caps.

5 On 30 June 2000, Mr Rowe was operating the Press undertaking a task referred to as stamping out and removing pole caps. In the course of the procedure, Mr Rowe lost the four fingers of his left hand when the die of the Press closed and crushed his left hand against the die block.

6 As a result of that accident, DSC and Mr Smith were each charged with an offence arising under s15(1) of the Occupational Health and Safety Act 1983 (the Act) and, in the case of Mr Smith, the deeming provisions of s50(1) of the Act in his capacity as managing director of DSC. The alleged breach with respect to both defendants was in similar terms in that each had failed to ensure the health, safety and welfare at work of its employees, in particular Steven Rowe, and each had failed to ensure a system of work for the operation of the Press that was safe and without risks to health. Specifically, the defendants' failures were identified as: (a) It failed to make adequate enquiries as to Rowe's qualifications to operate the Press; (b) It failed to provide adequate warnings and/or information to its employees about the risks involved and the safety precautions to be utilised while operating the Press; (c) It failed to provide adequate instruction and training to its employees in relation to the operation of the Press; (d) It failed to provide adequate supervision to its employees operating the Press; (e) It failed to carry out an adequate risk assessment of the hazards of operating of the Press; (f) It failed to ensure adequate guarding of the die area of the Press;

8 On behalf of the defendants, no issue was taken as to the Inspector's authority to prosecute the charges before the Court. Nor is it disputed that DSC was Mr Rowe's employer and, at the time of the accident on 30 June 2000, Mr Rowe was at work.

9 It is stating a general principle long established that s15 imposes an absolute liability on an employer subject to s53 which provides for a defence in certain defined circumstances: Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 at 431: Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359.

10 The absolute nature and extent of the liability arising under s15(1) and s16(1)) of the Act was described by the Full Bench in Drake Personnel t/a Drake Industrial v WorkCover Authority of New South Wales (1999) 90 IR 432 at 449 in the following terms: This Court and its predecessors have frequently emphasised the breadth of the duty imposed by s15(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 s15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty.

11 The duty imposed by s15(1) requires an employer to provide a workplace free of risks to safety. As the Full Court of the Industrial Court of New South Wales expressed in Haynes v C.I and D Manufacturing Pty Limited (1994) 60 IR 149 at 157 stated: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace.

12 As in all criminal matters, the absolute nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the employer's failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated: Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety'.

13 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the alleged conduct of the defendant and the alleged risk.

14 This point was emphasised in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) where a Full Bench of the Court stated at 449: However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injury to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant 'failure' on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees.

15 On that point see also: Cullen v State Rail Authority of NSW (1989) 31 IR 207 at 209; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 and Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 at 156-157.

16 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt.

17 The risk to safety only has to be a potential risk, not an actual incident causing an injury; See Drake Industrial v WorkCover Authority of NSW at 452 where it is stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

18 The facts and circumstances before me concern a labour hire company. It is well settled in earlier decisions of this Court both at first instance and appellate level that in prosecutions involving a labour hire company, the obligation cast upon such an employer under the Act is no less onerous than that imposed on traditional employers. This principle was clearly expressed by the Full Bench in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 455 as follows: A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under s15(1) of the OH&S Act to 'ensure the health, safety and welfare at work of all the employer's employees'. Indeed, in our view, an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under s15(1).

and further at 456: A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety. This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner which is unsafe.

19 On 9 May 2000, Mr Steven Rowe made application for employment with DSC. He completed the defendant's Application for Employment Form. In that form he provided details of his prior employment from May 1998 to May 2000. He was a New Zealand national who had arrived in Australia in 1998. He worked initially in Queensland and moved to Sydney in 1999. By the time he applied to DSC for employment, Mr Rowe was 19 years old. Mr Rowe was essentially unskilled and had obtained diverse employment as a builders labourer/seviceman/driver and yardsman. Some limited on-the-job skills development with certain plant and equipment was seemingly encompassed within those jobs. That on-the-job experience did not include operating a Power Press such as he subsequently encountered when he went to Hayman Industries.

20 At his interview for employment, in addition to the relevant personal and past employment information required, Mr Rowe was given a small card titled DSC Personnel Information for Employees. Amongst other details, that card set out the following information: Safety Whilst working for DSC you are instructed not to undertake any unsafe activities. If your supervisor asks you to perform any tasks that you consider may be a danger to yourself or others, or any other problems arise, please politely ask the supervisor for the opportunity to consult with DSC first. Ring your Branch Manager immediately for guidance.

21 At the completion of his interview, Mr Rowe was advised by an employee of DSC that work was available the following day with Dunlop Bedding. That work involved shifting boxes from one container to another and lasted three days. After that, Mr Rowe was directed to Hayman Industries. Mr Rowe commenced there on an afternoon shift. He reported in the first instance to Mr Cyril Tipping.

22 Mr Tipping then and still is employed by Hayman Industries as Production Manager. According to Mr Rowe, Mr Tipping gave him a brief induction by showing him around the factory floor. Mr Tipping also told him about the 'ear muffs and safety glasses, you have got to have them on all the time when you work the machines and stuff.' Mr Tipping recalled having a brief conversation with Mr Rowe at that time and he was put to work on the Press. He was given instruction in relation to the Press by Mr Dennis Laycock. Mr Laycock is a leading hand with Hayman Industries. Mr Rowe's evidence as to those instructions was as follows: Q. Did anyone give you any instruction or training or tell you about the pole press? A. Yes, Dennis Laycock took me to the machine, give me the rundown. Q. This is a little bit important, so can I ask you to take it as slowly as you can, and tell us what Dennis Laycock said to you, or how he gave you the rundown? A. He just said, 'This is the pole cap press' and what we are doing. 'You just have to grab the sheets of steel over here and slide it through'. Q. Sheets over here, and you indicated on your left hand side? A. Yes, and then they have got a safety gate, 'You have got a safety gate, put your hands in there and you slice the sheet through, and then close the gate'. Q. You are just indicating there you put your hands above your head on both sides, shoulder press and bring it down? A. And bring it down to close. They close together. Q. They both close together? A. It is like a guard at the bottom and the top and they close like that. Q. Then what did he say to you? A. I said, 'There is no way that can come down?' and he said, 'There is no way that can come down'. Q. What can come down? A. The die can come down with the gate open. Q. What is that, the die? A. The die is a round thing. It is actually what is pressing the caps. It comes down. I don't know what it is made of, some hardened steel. It is just like a stamper. It is a stamp. Q. So that you indicated the guards coming down, was that inside the machine? A. Yes, that is correct. Q. What else did he tell you? A. He pretty much just - he pressed one himself and then he said to me, 'You do that' and I pressed one and he said, 'Watch the press go up and I will watch you press a couple', and that was it, I was doing them. Q. Did he tell you anything else about the machine? A. No, not really. Q. Was that it? A. That is pretty much it.

23 It should be said that Mr Rowe was quite adamant in his evidence that the essence of Mr Laycock's instructions to him about the Press was that it would not stroke if the guard doors were open. An alternative way of expressing the same proposition was that the Press would not stroke if any part of the operator's body 'got into the Press', the implication being that the only way that could happen was if the guard doors of the Press were open.

24 Mr Laycock confirmed that he had trained Mr Rowe in the use of the Press on at least two or three occasions. He described the training process thus: A. I showed him, as I show everybody, to make him aware straightaway, if you put your hand inside the press when the door is down, if you get your hand in there, it will take whatever is put in there, no, no matter if it's a one-tonne press or a 100-tonne press it's a danger. That's what I start off. Then I show him the safe operations. I show him where all the interlocking is, all the safety mechanisms, that they are all working. Q. Well, can you do it as though you are showing someone now? A. Right. Okay. This is a power press, the 208 power press. The op on switch is there, I show him where the op on switch is, the safety stop switch, how the door opens. Back then the door opened like that (indicated). Q. When you do that you have got ... A. The two doors. I got in front of the press, like that, when the doors are shut, like that, and when they are open, it's like that (indicated). Q. I will stop you there. What you have done is put both hands in front of your face like that with one hand down and one hand up? A. Yes, well, the doors were like that when I opened it; and it closed like that (indicated). Q. So you had shown him that? A. I had shown him that, that's how the door opened and how the guard - how to start the press up with a piece of sheet metal, put a little bit of oil, spray on, stick it in the press. You shut the door. Put the foot pedal, what we call the floating foot pedal, you drag it around on the floor anywhere you like, in front of the press. You put your foot on the pedal and press on the pedal. Take your foot off the pedal. The press is shut and it goes round and round. Then you knock the pole cap out of the press and then you just punch three holes by a little foot pedal next to it and throw it into the bin. Q. Is that all you showed him on his training? A. What I show everybody in the training. Q. How did you satisfy yourself that he knew how to do the job? A. I stood there and watched him.

25 Mr Laycock stated that on the first occasion he stayed and watched Mr Rowe for half an hour or more.

26 Mr Laycock was also responsible for setting up the Press for operation on 30 June 2000 - the day of Mr Rowe's accident. According to Mr Laycock: I had a bit of a problem with the air gauge on the side of the Press. The alignment was thrown off it ... We cable tied that back on.

27 Once that problem was resolved, Mr Laycock completed the setting up of the Press and, as part of that, checked the operation of the guard. According to his evidence, no problems were encountered.

28 In addition to Mr Laycock, Mr Winston Dennis played a part in supervising Mr Rowe in the operation of the Press. Mr Dennis is employed at Hayman Industries as steel fabricator leading hand. He has been with Hayman Industries for five and a half years and works predominantly as the afternoon supervisor. Mr Dennis was the afternoon supervisor on the day of Mr Rowe's accident. As well, according to the evidence of Mr Rowe, Mr Dennis had been his shift supervisor on the days preceding his accident on 30 June 2000.

29 According to Mr Rowe, Mr Dennis enquired as to his familiarity with the Press and said to him that 'if I had any questions or anything, I just go to him and ask'. The Press that Mr Rowe was working on was 'right at the back' of the factory on its own and most of the other employees were working at the front. According to Mr Rowe, he was 'the only guy at the back'. On the days Mr Rowe worked at the factory prior to the accident and on the day of the accident, Mr Dennis, as the shift supervisor, 'would walk around every hour or so and check up on me'.

30 Mr Rowe worked at Hayman Industries for some 25 days or so before the accident and, it would seem, predominantly worked on the Press. During that time he encountered no difficulties with its operation.

31 Central to Mr Rowe's understanding as to the safe operation of the Press was his belief, as told to him by Mr Laycock on more than one occasion, that the die of the Press would not operate unless the guard doors were completely closed.

32 On the day of the accident, Mr Rowe was working an afternoon shift operating the Press at the back of the factory on his own. He described the relevant events as follows: Q. Can you tell us the sequence of events up until what happened when the inquiry occurred? A. Yes, it was running smoothly I thought. Q. And then tell us about the incident itself? A. About the injury? Q. How that happened, what you were doing? A. I was pressing caps and I have put - like I will go to the - just say I have pressed, and I will open up the gate and I have pulled that one out and put it away, and there was the one that I pressed before the accident, and I have got the steel and it was still warm underneath the dye, still had to make another cap, closed the gate, pressed it, released the gate, then I have gone to get that cap out and done the same thing what I had done probably 300 times that day, I have gone to get that cap out and I have heard the machine make these noises up top when it is just about to stamp down, and yeah, just, I would have had my whole hand on the cap, so I then - I have just pulled my hand as quick as I could, and it just came down like that. Q. When you say you pulled it out, you pulled it out without the four fingers on the left hand? A. Yes.

33 Following the accident, the Press was isolated and subsequently inspected by Inspector Mansell from WorkCover. As part of his examination and testing of the machine, Inspector Mansell was able to show that the Press would stroke with a 80mm gap between the guard doors. In other words, contrary to the accepted belief that the Press would not stroke unless the guard doors were completely closed, testing of the Press after the accident demonstrated that it would stroke with the guard doors partly open up to a gap of 80mm.

34 Subsequent to the accident, management at Hayman Industries arranged for the Press to be inspected by John Heine & Son Pty Limited.

35 John Heine & Son Pty Limited are the manufacturers of the 208AG Power Press that was involved in the accident with Mr Rowe. It was they who had the contract with the defendant at the time of the accident to maintain the Press, amongst others, in working order. Following the accident involving Mr Rowe on 30 June 2000, Mr Citroni, the Service/Spare Parts Manager for John Heine, undertook a visual inspection of the 208AG Press and provided a brief report to the defendant dated 20 July 2000 in the following terms: Please find following, a brief report on what I found on your 208AG Series 1 Press. This is based on a visual Inspection carried out with you and Cyril Tipping on the operation of the clutch and die guard. 1. Die guard is early model type, which has upper and lower front gates, and manually closes before operation of clutch is allowed. 2. Interlock was in working order, but clutch was able to operate with 2 ½ " gap between upper and lower gates. During operation the gap increased to 4". 3. Camplate was not retracting completely after clutch disengagement. A gap of approximately ½" was between gearwheel boss face and camplate. This gap was insufficient to allow clutch to engage automatically. 4. Press has standard single and continuous stroking air treadle system. That is, if pedal is kept depressed, the clutch will stay engaged and continue operating and the die guard gates stay closed.

36 At the request of Hayman Industries, an additional report was provided by Mr Citroni dated 12 March 2003.

37 It is not my intention to repeat it in toto for the purposes of this judgment. Suffice to say that relevant extracts of it are as follows: Further to paragraph 2 of my report on inspection of the 208AG Power Press, I observed that guards had to be brought within 2 ½ inches of the fully closed position before the interlock block or bar would allow the camplate to move across to the engaged position and allow a Press cycle to commence. In other words the machine could not be reactivated if the bi-fold guards were open any more than a distance of 2 ½ inches or 62mm.

However during the Press cycle or operation of the Power Press, that is (when the camplate is in the engaged position) the die guard could be forced to open to a maximum of 4 inches or 100mm by causing the backlash in the linkage mechanism to be compressed. On my investigation, if this die guard position were to be maintained at 4 inches until the Press cycle was completed, at completion of the cycle the camplate would still disengage, and the interlock block would engage to prevent the Press from stroking again. At all times the interlock was functioning in the designed manner and would return to its position. On my inspection I observed that in order for the clutch to re-engage and allow the Press to stroke again, the die guard would need to be closed to within 2 ½ inches or 62mm of the fully closed position.

Finally I wish to confirm the results of my inspection of the 208AG Series 1 Power Press as contained in my report of 20 July 2000 indicated that whilst the Press could be operated if the die guards remained open to a gap of 62mm, the die guards could not open more than 100mm until the Press had completed the cycle and the interlock block had re-engaged. I did not, and do not consider that the original bi-fold guards were defective in design or in function (apart from the adjustment and wear in the linkage system)

38 What Mr Citroni's further report confirmed, but in more detail perhaps, was what he had already stated in his earlier report. That is, based on his inspection, the maximum distance the guard could be opened and the Press would stroke was 4" or 100mm.

39 It should be noted that it was always Mr Rowe's evidence that at the time the die of the Press operated and crushed the four fingers of his left hand, the guard doors were 'fully open'. DSC as an employer

40 On behalf of DSC, evidence was received from the following current and past personnel:

· Mr Thomas Smith: Mr Smith is the owner and Managing Director of DSC. As a corporation, DSC has been in existence since 1980 as an industrial labour hire company.

· Mr Gerald Teahan: Mr Teahan is currently the General Manager of DSC. He has been employed by DSC since 1986 initially as a staff coordinator and, via a series of promotions, was appointed to the position of General Manager in 1998.

· Ms Julianne Carydias: Ms Carydias was initially employed by DSC in about 1993/94. She ultimately became the Branch Manager for DSC at its Liverpool Office. Ms Carydias had a break in her employment with DSC in 1998, resumed in January 1999 and proceeded on maternity leave in September 1999. She returned to DSC in September 2000 and remained with the company until May 2001. She was not working at the time of Mr Rowe's employment.

· Ms Michelle Parkyns: Ms Parkyns was employed between April 2000 and July 2001 by DSC as the Branch Manager at the Liverpool Office. Given that time frame, she would have been the Branch Manager when Mr Rowe attended the Liverpool Office in May 2000 for his employment interview. Ms Parkyns had no recollection of meeting Mr Rowe until after his accident.

41 DSC has been a client of Hayman Industries since 1994. Between then and June 2000, some 120 employees of DSC had been engaged by Hayman Industries over different periods of time and sometimes on more than one occasion. The main contact person between DSC and Hayman Industries was Mr Cyril Tipping.

42 I turn now to consider the offences charged by reference to the failures as alleged. In doing so, I do so within the context of the defendants' obligation to 'ensure the health, safety and welfare' at work its employees and, in this case, Mr Rowe.

43 Before dealing with the specific failures, it is necessary to deal with the submission by counsel for the defendants as to the way in which the alleged failures are pleaded and the implications, it was said, that gives rise to as far as the defendants are concerned.

44 On behalf of the defendants, it was contended that the way in which the prosecutor had pleaded the particularised failures gave rise to a proposition that it was being alleged that the use of the expressions in the alleged failures pleaded of 'it failed to provide', 'it failed to carry out' and 'it failed to ensure' gave rise to the assertion on the part of the prosecution case that it was an absolute requirement on the part of the defendants to have, for example, employed its own persons to provide the requisite training, instruction and supervision, to carry out its own risk assessment and inspection of the Press for the purposes of confirming adequate guarding. I have to say that it is not a proposition that I believe can be construed from the pleadings, nor indeed as the law applies, in relation to labour hire companies for the purposes of their obligations arising under the Act.

45 Further, the obligation imposed on the defendants has to be seen in the context of the offence alleged, arising as it does under s15(1) of the Act. The nub of that obligation giving rise to the offence is that the employer, that is, he, she or it, shall ensure the health, safety and welfare at work of its employees by providing a workplace free of risks to safety. In relation to a labour hire company, that obligation remains constant and is not subrogated by any obligation that arises under s16(1) of the Act on an employer who has the labour hire company's employees working at its premises. The issue as to how that absolute obligation may be or is discharged is a matter I will deal with later in this judgment. (a) Failed to make adequate enquiries as to Mr Rowe's qualifications to operate the Press

46 I am not satisfied the prosecution have established this failure to the requisite standard. To start with, it is not entirely clear what act or omission constituted a failure on the part of the defendant to make 'adequate inquiries'. In other words, was it a failure to make inquiries of Mr Rowe as to his qualifications for operating the Press or was it a failure to inquire of Hayman Industries as to what qualifications were required for the job and then match them to Mr Rowe's already assessed qualifications? There is a pervading uncertainty as to the nub of this alleged failure that does not assist the prosecution to establish it beyond reasonable doubt.

47 In his submissions, counsel for the prosecutor stated: 'It is clear the defendant did not make any enquiry at all of Rowe as to his total lack of experience and formal qualifications in working on the Press'. I have to say that the evidence of Mr Rowe on that issue is not as unequivocal as that submission suggests. His relevant evidence as to his employment by DSC and allocation to Hayman Industries was as follows: Q. In any event, you went there and you spoke to someone. What happened after that? A. I just gave them my details and stuff.

A. Bank account number, tax number, three prior jobs that I had, where I had worked before and that was about - yeah, that is about it.

A. She said she actually had some work the following day after that for me at Dunlop Bedding.

A. Yes she did. She said it was - they had some containers to empty out, some boxes and containers and just beds and stuff.

A. Yes we did move boxes from one container into another container. There were two of us, so it was just lifting and moving them. Q. For how long did you do that?

A. They actually ran out of work at Dunlop Bedding, so I went one day without work and they rang me up and said there was some work at Hayman Industries.

Q. I think you said she told you there was some work at Hayman Industries? A. Yes. Q. Did she tell you to go there? A. Yes.

Q. Did she give you the address? What was that, or do you remember where it was?

A. Cyril Tipping, he was the boss there, just told me about the ear muffs and safety glasses, you have got to have them on all the time when you work the machines and stuff, and yeah - well, I can't remember. 48 As well, when he went for his job interview with DSC, Mr Rowe agreed he was asked questions in relation to his work history. The extent of those questions is not entirely clear but is evident to a certain extent by the details of prior employment set out in his Application for Employment Form.

49 There was before me as evidence a job specification document prepared by Hayman Industries for the classification of Process Worker that was applicable to Mr Rowe at the time. One of the responsibilities of that job was 'To operate presses and other machinery as instructed by the leading hand'. That job specification for Process Worker was applicable to Mr Rowe for the work he undertook at Hayman Industries. That document identifies 'Experience not needed' in relation to the Process Worker classification.

50 The evidence I have establishes that Mr Rowe was asked by DSC to disclose his last three employment placements, the positions held and the names of his work supervisor from those positions. What enquiries, if any, were made on behalf of the defendants to those prior employers is not known.

51 Certainly Mr Tipping stated that when Mr Rowe had presented himself at the Hayman Industries factory, he (Mr Rowe) 'sort of indicated that he did not have a lot of experience in factory situations'. Evidence that the defendants most probably did not discuss with Hayman Industries any matters going to Mr Rowe's ability to operate the Press was given by Mr Tipping in the context of what he would have advised the defendants, as follows: Q. And you would have told them that he had been trained on the machine and you were satisfied that he was capable of working on that machine safely? A. Yes, if they had asked me I would have told them, yes. Q. This is because nothing had happened in relation to Mr Rowe working on that machine that had caused you any concern, so much so that you had to contact Daly Smith? A. No. Q. And they certainly were not on any notice that anything wrong could happen to Mr Rowe on that machine. A. They didn't ask anything.

52 Mr Rowe's evidence and that of Mr Tipping, Mr Laycock and Mr Dennis certainly points to the operation of the Press as being an inherently straightforward task requiring no particular skill set, formal or prior qualifications or experience as a prerequisite to operating it. The evidence given by Mr Rowe as to his prior employment experience suggests a young man essentially unskilled but who had acquired a modicum of knowledge and skills as a result of hands-on work experience in a diversity of general labouring and handyman type employment positions over a couple of years. In short, there is nothing I can discern in the evidence before me that suggests that Mr Rowe was being sent to Hayman Industries to do a task that required a formal or prior qualification or any particular experience. All the evidence discloses that the operation of the Press was a relatively simple and straight forward task requiring no specific trade skills or experience or prior qualifications.

53 Mr Rowe himself acknowledged that there was nothing inherently difficult in the operation of the Press and, by all accounts, he experienced no problems in picking up the rudiments of the task at hand. In all the circumstances, I am not satisfied the prosecution have established the failure as pleaded to the requisite standard. If I am wrong as to that conclusion, I am not satisfied as to the causal connection between the failure as pleaded and the risk to safety identified.

54 True it is that the relatively straight forward task involved in operating the Press involved working with a piece of machinery that was inherently dangerous if not used safely. However, that issue goes to matters such as instruction, training, supervision and risk assessment, not necessarily to any or any particular qualifications to do the task. Those are matters that have been separately pleaded and will be dealt with on that basis. It is those specific matters that I will now consider. (b) It failed to provide adequate warnings and/or information to its employees about the risks involved and the safety precautions to be utilised while operating the Press. (c) It failed to provide adequate instruction and training to its employees in relation to the operation of the Press.

55 I propose to deal with the above particularised failures together because, I believe, when taken together, they are inherently duplicitous. The need to provide adequate warnings and/or information about risks involved and the safety precautions to be observed in operating the Press would be part of a proactive approach to training and instruction in relation to the safe operation of the Press. In short, it would be part of any proper training and instruction, it seems to me, to warn and inform an employee about matters that went to the safe operation of the Press. Further, there is also an inherent duplicity as between a failure to warn and inform as to risks involved in the simple operation of the Press and a failure to carry out an adequate risk assessment as to the hazards of operating the Press.

56 For that reason, I believe that any reliance by the prosecutor on particular (b) must fail for duplicity.

57 There is no doubt in my mind that the safe operation of the Press demanded a rigorous approach to the provision of adequate training and instruction. The Press was, and is, an inherently dangerous piece of machinery. Evidence of that is found in the Bulletin issued by the manufacturers of the Press, John Heine & Son Pty Limited, titled Press Die Guards. That Bulletin was sent by Mr Citroni to Hayman Industries as part of his second report dated 12 March 2003 detailing his observations and inspection of the Press after the accident. As the Bulletin states: This Bulletin has been prepared to assist industry in preventing accidents on power presses and I most earnestly commend its contents to both employer and employee.

58 Further, at the beginning of that Bulletin, the following words appear in large, bold type: GUARDING OF MACHINES The Power Press has been recognised for many years as being one of the most dangerous machines used in industry. Records clearly indicate that many serious accidents are still occurring due to persons' hands being trapped between the tool and die, resulting in severe mutilation of the fingers or hand. It is essential for the safe operation of Power Presses that both the employer and employee should recognise the hazards connected with their use.

59 By way of emphasis, in that Bulletin, under the heading 'Construction and Purpose of Guards used on Power Presses' it states: Power Presses must be safe by construction, or alternatively, must be securely fenced. A vital factor in the prevention of accidents on Power Presses is the effective maintenance of both the Press operating mechanism and the guard mechanism, both of which must be kept in a sound working condition. Many accidents are attributed to the lack of maintenance of guards and by reason of Press mechanism defects, such as worn parts of the clutch mechanism. (my emphasis)

The guard covering the tool, die and ram must be so constructed to allow adequate vision of the work area, but at the same time openings must be restricted in size so that the tip of one's finger cannot reach the danger zone.

60 Against that background, training and instruction was paramount. That DSC recognised that fact as a general proposition is evident by reference to its occupational health and safety policy. That policy had been in place for some time before Mr Rowe's accident. If anything, it is a policy that identifies clearly what the corporate defendant's obligations were in relation to occupational health and safety. It is relevant to set out that policy in large part as follows: DSC POLICY 1. Upon taking an order from clients we must:- (a) Establish exactly what duties the worker is required to perform. Where duties are to be performed and under what circumstances. (b) Establish exactly who from the client company will supervise and direct the worker. (c) Establish exactly what plant/machinery/equipment the worker will be required to operate and to what extent will the supervisor train the worker in operation of equipment and a safe system of work to perform duties with the equipment. 2. When a client orders a worker to operate plant/machinery/equipment that has the potential to cause injury (even if injury can only occur through operator carelessness or neglect) branch managers must:- (a) Visit the site where the work is to be performed. Inspect the particular plant/machinery/equipment to be operated and satisfy themselves that the machinery is adequately guarded etc to prevent accidental injury and satisfy themselves that the client/supervisor has in place a 'safe system of work' and that the supervisor will instruct and supervise the worker in that 'safe system of work'. 3. When assigning a worker to a client to operate equipment DSC must advise the client of the workers skills, qualifications and experience. DSC must also advise the client of what training the worker will require in order to safely operate equipment. In most circumstances DSC will have to advise the client that the worker needs full training in operational features and hazards of a particular piece of equipment and also full training in a 'safe system of work' to operate the equipment along with on-going supervision of the task being performed. 4. When assigning a worker to a job/client requiring operation of potentially dangerous plant/machinery/equipment DSC must:- (a) Advise the worker of the exact requirements of duties to be performed and equipment to be operated. (b) Advise the worker of potential hazards if equipment is incorrectly or carelessly operated. (c) Advise the worker what training will be provided to them by the client supervisor in features and hazards of equipment and most importantly the 'safe system of work' in which to operate the equipment. (d) Advise the worker not to operate any equipment where they have not received adequate training in features and hazards and a 'safe system of work'. (e) Advise the worker not to operate any equipment that is defective or not safely guarded in their judgment. 5. When a worker has been assigned to a job using potentially dangerous equipment DSC must:- (a) Follow up with the worker that they have received adequate training from the client in a 'safe system of work' and that equipment being operated is not defective. (b) Follow up with the client that adequate training has been given to the worker in equipment features and hazards and a 'safe system of work' and that the worker is adhering to the 'safe system of work'. ... 7. If upon a Branch Manager conducting a site/equipment inspection and not being able to satisfy him/herself that the equipment is safe and that the system of work is safe, the Branch Manager is authorised to offer the client one (1) hour (for free and at DSC expense) of an occupational health and safety consultants time to do a specific inspection and recommendation.

61 The evidence of Mr Smith, the Managing Director of DSC, was that DSC expected that the clients would provide the necessary training in relation to any particular machines that required to be operated. As he answered in cross examination: Q. I now just go back to the question of training. You said you rely on the integrity of the training being given to your employees by the client? A. That's correct.

62 Given that approach, it was imperative that DSC take steps to ensure that the training and instruction that was given to its employees was indeed adequate in every respect. On the evidence before me, the training and instruction that was provided to Mr Rowe by Hayman Industry employees was inadequate. I say that having regard to the evidence in the first instance of Mr Rowe which was consistent as to what was his understanding as to the safe operation of the Press. That was, that whilesoever the guard of the Press was up, it would not stroke. That, to him was the bottom line as he understood it and that was a critical aspect of the training and instruction he received about the operation of the Press. It was on that basis that he believed that whilesoever the guard was up, then it was safe for him to put his hand in or near the die area of the Press. Indeed, I am satisfied that he believed that it was permissible for him to put his hand into the die area in order to pull off the pole cap once it had been pressed and rounded by the die. His initial evidence on that point has already been detailed earlier in this judgment but, by way of emphasis, it is clear that once he released the gate, and it opened, then he 'got that cap out'. Further, it is clear that the way in which he got the cap out was with his hand. That much was clarified by him in answer to clarifying questions posed by me at the end of his cross examination, as follows: HER HONOUR: Q. Mr Rowe, do you recall the evidence you gave that, once the dye came down, it created that - created what you described as a large bottle top really? A. Yes. Q. That you put your hand in to remove it and then obviously pulled at something? A. Yes. Q. Were you ever provided with what I would describe as like a pair of tongs to reach in and lift it out and put it in, or was it your understanding that you could use your hand for that purpose? A. That is how I got trained to do it and that is how I done it the whole time I was there.

63 True it is, as he acknowledged in further cross examination, in undertaking the removal of the cap, he also had in one hand, a pair of pliers or tinsnips, as they were called. It is clear also that those pliers were to be used to trim the edges of the metal cap, not necessarily to be used to formally pull off the cap from the die base. Undoubtedly, it was possible for Mr Rowe to use the pliers to assist in 'flicking off' the cap, as he acknowledged. Nevertheless, there is no doubt in my mind, on his evidence and on other evidence to which I will refer, that part of the instruction and training he received in relation to the operation of the Press involved him inserting his hand, and particularly his left hand, into the area of the die in order to remove the metal cap from the die area.

64 Reference to the requirement or approval to put ones hands in or near the die was described by Mr Tipping in the context of the use of what he referred to as the 'tinsnips'. That is his word for the pliers earlier referred to. They were used to snip or cut away what was left on the edge of the pole cap once it had been pressed. As he explained: A. We have the guys, when they press the pole cap out, there is some material that is left on the edge and they use tinsnips to cut that and extract it out and they use the tinsnips just to connect the pole cap to the side and then they pull it away and we used to tell them never to put your hand into the working area. Q. Was it considered to be a working area with the guard open? A. No, it was considered to be a safe area once the interlock system had been connected. Q. By using the tinsnips as you have described, it involved putting your hand in near the die? A. You effectively had to put your hand near the die but not physically under the die. Q. And do I understand now that the tinsnips are not used and what is used are tongs? A. That is right.

65 The evidence of Mr Laycock in relation to what he alleges he told Mr Rowe as part of the training and instruction he gave him in the use of the Press was somewhat more equivocal as to the use or otherwise of his hands. In other words, as Mr Laycock said: I showed him, as I show everybody, to make him aware straight away, if you put your hand inside the Press when the door is down, if you get your hand in there, it will take whatever is put in there, no, no matter if its a one tonne Press or a one hundred tonne Press, its a danger. That's what I start off. Then I show him the safe operations. I show him where all the interlocking is, all the safety mechanisms, that they are all working.

66 Mr Laycock was at pains to emphasise in his evidence that underpinning his training and instruction to Mr Rowe about the safe operation of the Press, was his constant assurance that the Press would not cycle if the guard doors were open but if one was foolish enough to put one's hand inside the Press when the guard door was down, then it would be a real danger. Mr Rowe was perfectly aware of that.

67 It is apparent that the inadequacy as to the training and instruction given to Mr Rowe never centred on what should have been the primary piece of information, warning, instruction and training about the Press which was, under no circumstances, regardless of whether the guard was up or down, should the operator place his or her hands anywhere into the working parts of the Press. Hayman Industries seems to have taken that particular point on board in the sense that since the accident, they now have a long magnetic stick of some 500mm with a magnet on the end and the use of that long magnetic stick now does not require the operator to use his or her hands with or without the tinsnips or pliers to remove the pole cap from the die or the die area. As Mr Laycock explained: The magnet is about 500mm long so that they didn't have to use their hands right - you know, the other thing was only short so their hands could go near the die set but didn't necessarily have to go underneath the die set when they were shorter. When they are longer, the guys could actually put the magnet on, pull up to the side, pull up to the front and extract them. 68 In addition to the introduction of the extended or the longer magnetic stick, there are now also safety signs on the Press saying 'Keep Hands Free' and 'Do not put hands into the working area'. As well, there is a sign advising the operator to use the magnetic stick to extract the product from the die.

69 The role of DSC in the provision of instruction and training to Mr Rowe was cursory, to say the least. Certainly it in no way accorded with the requirement of their own policy to 'establish exactly' what plant and equipment Mr Rowe would be required to operate and, given the Press had the significant 'potential to cause injury', the absolute requirement of DSC's own policy was that the Branch Manager must not only visit the site where the work was to be performed but inspect the particular equipment and to satisfy themselves not only as to the adequacy of guarding of that machinery but that there was in place a safe system of work both as to instruction, training and supervision of their employee. The evidence of those employees of DSC best placed to ensure that the company's own policy was adhered to and that the company's obligation to ensure the health, safety and welfare of its employees at work was not merely a piece of paper, but one that was carried through in practice, was unconvincing to say the least. On the evidence before me as to instruction and training in relation to Mr Rowe, I am of the view that the following through of the DSC policy fell far short of what would be required of an employer in discharging it's obligations to ensure a workplace free of risk to safety.

70 Ms Carydias was the Branch Manager of DSC at Liverpool for a number of years but during the period of time in which Mr Rowe was engaged through the Liverpool branch of DSC, Ms Carydias was on maternity leave. As a result, she was not aware of and had no dealings with Mr Rowe. Certainly, Ms Carydias had knowledge of Hayman Industries. It was a client that, in her view, she had brought on board for DSC and she had visited the Hayman Industries premises in her words, 'ten, twenty or thirty times'. Ms Carydias' evidence was very much couched on the basis of what she believes she 'would' have done rather than having any direct or independent recollection of any steps taken vis-à-vis Mr Rowe and his employment at Hayman Industries. As she expressed in her evidence: A. When I first went to the site, of course, when I go, when I would go to the client's sites, I would obviously go and introduce myself to the clients, talk to them, and then I would actually ask them to show me around, because I needed a good understanding of who they required and what sort of people skills, what were they operating, machinery, those types of things. Q. In order to look at the machinery, why did you need to look at the machinery? A. Why? Q. Yes? A. To see that it was safe for one thing, to see how it was guarded, to see how they would actually operate it. We need to understand how that machinery is going to work to the best of our ability when sending someone out to operate it. Q. Did you make any inquiries in relation to the duties employees had to perform in relation to those machines? A. Yes. Sometimes they may just like them to - it depends on the machine, yes, you need to know what you are actually doing. Q. In looking at the machines and looking at the duties, did that assist you in assessing the type of skills you needed to match with employees for such work. A. Yes. Q. How was that? A Because it gives you an understanding of what they are doing and what the person is capable of prior to actually putting them into the site. Q. I think you mentioned one of the things you looked at was guarding. Did you ask any questions about guarding on the machines. A. Yes. Q. Do you recall, to the best of your ability, the words you may have said in relation to guarding? A. I would have asked how is it guarded. How do you stop them from putting any part of their body in. Q. To whom were such questions asked when you went to Hayman? A. That would have been Cyril. ... Q. Did you ask any questions in relation to training? A. As to whether or not they would - yes, when you are putting someone into a site, you need to ensure that they are conducting themselves - so on the site if there is any training to happen on any piece of machinery that they are actually going through the processes before they actually do operate that machinery, yes. Q. Did you ask any questions about any supervision, that supervision to be given to any DSC employee. A. They all must be supervised by the site supervisors. Q. Did you ask questions about that? A. Yes.

71 According to Ms Carydias, on the basis of what she says that she would have done in relation to her visits to the Hayman Industries site, she had no cause to question issues such as safety, training or supervision. In short, she believed all of those aspects were ones that she could be satisfied about in relation to the training, instruction and supervision given to DSC employees by Hayman Industries. Apart from the evidence of Ms Carydias as to what she would have done, there was no independent corroboration by way of any record keeping by Ms Carydias attesting as to her visits, the perusal or inspection by her of any induction or training manuals nor any assessment made by her by way of any superficial or formal risk analysis of any of the machinery including the Press being operated at Hayman Industries.

72 Overall, I am satisfied that Ms Carydias has no independent recollection of Mr Rowe's introduction to Hayman Industries or any training, instruction or supervision given to him or of any formal risk assessment undertaken in relation to the safe operation of the Press that he was required to operate. To the extent that she gives evidence as to what would have been the system that she says would have been followed, I am satisfied it is evidence of adherence to a system of work that, in discharging its obligations under the Occupational Health and Safety Act to ensure the health, safety and welfare of employees at work, was inadequate in every respect. In other words, the overwhelming impression is that there was a scant and superficial assessment as to matters such as training, supervision and risk analysis but nothing in any way commensurate both with the obligations arising under s15 of the Act nor with the written policy of DSC.

73 It has to be said that DSC did little to assist its management staff at branch level to comprehensively undertake the occupational health and safety obligations that its own policy demanded. In other words, Ms Carydias, like Ms Parkyns, both Branch Managers at Liverpool, had no formal occupational health and safety training during the period when they acted in the position of Branch Manager and certainly evidenced no ability to undertake any worthwhile assessment even based on first principles, as to the identifiable risks and hazards in relation to the safe operation of the Press as well as the other machinery being operated at Hayman Industries.

74 Mr Teahan, the General Manager of DSC at the relevant time, acknowledged that no formal training had been provided to the Branch Managers but that he provided what I would characterise as on-going education in those areas. The extent of it and the nature of it was never explained by Mr Teahan in his evidence. In any event, the real position seems to be that notwithstanding a written policy by DSC that has certain mandatory requirements as to what its Branch Managers must do in relation to occupational health and safety issues, there was no commitment by management in a real sense to ensure that that was done in a way that resulted in a comprehensive approach to those matters in order to ensure a workplace free of risks to safety. That is, adequate and proper training, instruction and supervision.

75 Ms Parkyns was the Branch Manager at Liverpool during the time that Mr Rowe was employed by DSC and ultimately sent to Hayman Industries to work. Ms Parkyns had no recollection of any dealings with Mr Rowe and despite the fact that she was of the view that he had been employed by DSC prior to her time, on the evidence of Mr Rowe and the employment application form completed by him, she would have been the Branch Manager at Liverpool at that time. Ms Parkyns certainly recalled visiting Hayman Industries as a form of induction at the time she took over as Branch Manager. Ms Parkyns was refreshingly candid in one respect in that she properly conceded that she had had no prior experience of the manufacturing industry that Hayman Industries represented and that her experience was in the retail industry. So, not surprisingly, when she undertook her initial site visit to Hayman Industries, according to her, she had 'millions of questions'. As she explained: A. I was interested in what they were making and how they were made and how it operated. What the guards did, yes, everything, how it worked, literally. Q. Did you ask him what work an employee had to do on the machine? A. Yes and I watched the employees on there to see what they were doing. Q. Did you ask questions regarding training? A. Yes. Q. What did you say about training to the best recollection? A. What sort of training they needed, whether trade certificates to operate certain machinery or hands on training. Q. What do you mean hands on training? A. Whether they would learn on site how to use the machinery or whether they needed some sort of certificate.

76 According to Ms Parkyns, Mr Tipping showed her around the Hayman Industries site and she did recollect, as part of asking her questions, that she was interested not only in how it worked but also 'the safety guard and everything'. She also recalls that Mr Tipping, in explaining the operation of the Press to her, told her that 'if the guard did not close fully, the machine stopped'. She says she did inquire as to the instructions that were given to employees to operate the machine but she could not remember what she was told, she did not ask him for any copies of any documents about induction or otherwise that went to the question of training or instruction. She does recall that in showing her how the Press operated, Mr Tipping did put his hand into the Press. She explained it as follows: A. ... Sorry, all I remember honestly is that the machine operated, he put something in there, pulled the guard down, used his foot, it was making light ... something for the overhead lights. That's all I remember. I remember he had to put his hand in because of something, to put in or pull it out, something. Q. Do you recall whether he had anything else in his hand when he did that? A. I don't know, I can't remember if he wore gloves or did not. Q. I wasn't talking about gloves? A. I can't remember that. Q. Did he tell you that was the way that he told employees to operate the machine? A. I don't remember if he specifically told them to operate it that way, no.

77 I have already stated I am satisfied that part of the instruction and training given to Mr Rowe as to the operation of the Press did permit him to put his hands in and/or near the die area in order to assist in the removal of the pressed pole cap. Ms Parkyns' evidence as to her recollection of Mr Tipping's demonstration only reinforces my conclusion that such an action was seen as acceptable by those employees charged with the task of training and instructing Mr Rowe. Further, it would seem that Ms Parkyns saw nothing wrong in the demonstration by Mr Tipping such as to raise any concerns in her mind. In my view, that was because Ms Parkyns, through no fault of her own, did not have sufficient knowledge or understanding about the operation of the Press to question Mr Tipping further in order to ensure that the instruction and training given was such as to ensure the safe operation of the Press and that, in operating the Press, Mr Rowe was able to do so free of risks to his safety.

78 At the time of the accident to Mr Rowe in June 2000 and as Branch Manager at Liverpool DSC, Ms Parkyns had not undertaken any formal training in relation to matters such as risk assessment, guarding or, it would seem, occupational health and safety training generally. As she said, when asked had she done any training as to how to identify risks: Not TAFE training but I did do training with the girls and walk around and speak to the supervisors and others of the companies.

79 Ms Parkyns also indicated that it was a matter of common sense that if one was going to place an employee anywhere, 'you need to know the requirements of their duties, whether trained on the job or had to have prior training or experience.'

80 On the evidence of Mr Tipping, the very strong inference is that no inquiries were made by DSC about those particular aspects of Mr Rowe's employment that were crucial to him operating the Press in a safe manner, particularly where instruction, training and supervision were concerned. Mr Tipping's evidence, in the context in which he was asked, is instructive as follows: Q. So that if anybody from Daly Smith had asked you about that particular Press, you would have told them that that Press is in safe and working condition. A. Yes. Q. And you would have told them that in fact that had been serviced by the manufacturer only four weeks ago? A. No. Q. Well, had you been asked, you would have told them that John Heine had been here and inspected the machine four weeks before 30 June? A. If they asked me I would have told them. Q. And equally, if anyone from Daly Smith had asked about that machine, and in respect to the gate or guard, you would have told them that if the guard is up the machine can't operate. A. If they had asked me, I would have told them. Q. And equally, you would have been happy to tell them that Mr Rowe had been working well prior to 30 June. A. Yes. Q. And you had no complaints about the way in which Mr Rowe was doing his work? A. No, not at all. Q. And you equally would have told them that the supervision, in your opinion, of Mr Rowe was adequate? A. Yes. Q. And you would have told them that he had been trained on the machine and you were satisfied that he was capable of working on that machine safely? A. Yes, if they had asked me I would have told them, yes. Q. This is because nothing had happened in relation to Mr Rowe working on that machine that had caused you any concern, so much so that you had to contact Daly Smith? A. No. Q. And they certainly were not on any notice that anything wrong could happen to Mr Rowe on that machine. A. They didn't ask anything.

81 I am satisfied that, as the employer of Mr Rowe, DSC failed to provide adequate instruction and training to him in relation to the safe operation of the Press in that they failed to ensure that the instruction and training that was made available to Mr Rowe by Hayman Industries was adequate in that he was properly instructed and trained as to that task. That instruction and training should have encompassed both the risks involved and the safety precautions that he should have undertaken while operating that Press including, particularly, not putting his hand or hands anywhere in or near the die area of the Press at any time, whether the guard was closed or open. It seems to me that that was an absolutely fundamental prerequisite to any instruction and training that Mr Rowe should have received in relation to the safe operation of the Press. I am more than satisfied that that was not done and that the only safeguard that Mr Rowe was offered was an absolute assurance that the machine would not stroke while the guard was open. That assurance was not only wrong but inadequate in ensuring Mr Rowe's safety.

82 I am also satisfied that there is a causal relationship between the failure to provide adequate instruction and training to Mr Rowe in relation to the safe operation of the Press and the consequential risk to Mr Rowe's safety that arose, exemplified by the accident that did occur with the loss of his four fingers. I am satisfied this failure is established.

(d) It failed to provide adequate supervision to its employees operating the Press.

83 I am satisfied that this failure is established. I come to that conclusion for much the same reasons as I have in relation to the provision or lack thereof of adequate instruction and training to Mr Rowe in relation to the safe operation of the Press.

84 I have already concluded that I am satisfied that any training and instruction that was provided to Mr Rowe was inadequate in that it failed to properly warn him as to the overall risks involved in the operation of the Press and, in doing so, permitted him, as part of that instruction and training, to place his hands, particularly his left hand, in and around the die area of the Press in order to remove the metal pole cap. I am satisfied that that was the way in which Mr Rowe was instructed. As a consequence, in my view, notwithstanding any number of times that Mr Rowe was observed by Mr Laycock or Mr Dennis operating the Press, it is clear that they both would have observed him carrying out his work on the Press using his hands. I am also satisfied that in purporting to supervise Mr Rowe, they permitted him to continue to operate the Press in that way. In so doing, their supervision was inadequate.

85 I am satisfied that they, at all times, supervised Mr Rowe consequent upon their instructions and training to him, with the underlying premise that, as long as the guard was up, then the Press would not stroke and therefore it was safe for Mr Rowe to place his hands in or near the die area of the Press. Mr Tipping acknowledged that as much in his evidence before me and I am satisfied that while Mr Dennis indicated that he gave warnings about what might happen to body parts placed in or near the die, he did so in the context of the guard down and the Press operating. As Mr Rowe himself said, the risk to safety involved in putting any part of one's body near the die when the guard was down and the Press operating was obvious. What is also obvious, in my view, was that given the manufacturer's clear statement as to the inherent dangerousness of this piece of machinery, no employee should be instructed, trained or supervised in relation to the operation of the Press by permitting them to place their hands anywhere into the die area of the Press, whether the guard is open or closed.

86 The role of DSC in relation to their obligation to ensure that there was adequate ongoing supervision of the task to be performed by Mr Rowe was, in my view, perfunctory. Simply enquiring about supervision without more is insufficient. The obligation to provide adequate supervision is not satisfied by merely observing an employee at work from time to time. It requires timely observation to ensure that the employee is working in a manner that is safe and free of risks to safety. To that extent, adequate supervision is part of the process of ensuring a safe system of work that commences with instruction and training. Once an employee has received proper training and instruction, it is then necessary to ensure that the instruction and training to ensure a safe system of work is maintained. That is done by supervision. In the case of unskilled workers such as Mr Rowe, ongoing supervision to ensure that the work is being performed safely is essential. I am satisfied that there was no system in place by DSC to ensure ongoing supervision in a way that ensured Mr Rowe was operating the Press safely. Mr Rowe stated that from time to time, for example, Mr Dennis would come to the back of the factory to ask Mr Rowe if everything was 'OK'. There seems no doubt, on Mr Rowe's evidence, the response was always in the affirmative. That does not constitute adequate supervision for the purposes of an employer's obligation under the Occupational Health and Safety Act.

87 As earlier indicated, the training and instruction given to Mr Rowe, purportedly to ensure the safe operation of the Press, was woefully inadequate. Given that, any ongoing supervision relying on inadequate training and instruction merely perpetuated an unsafe system of work. That system of work, by way of ongoing supervision, condoned and permitted Mr Rowe to put his hand in or near the die area by providing him with a short pair of pliers or tinsnips with which he would then use to snip off the metal edges of the pressed pole cap while at the same time removing it from the die area. Whether he chose to use the pliers to 'knock off' the metal cap from the die of the Press seems to be a procedure used more by way of accident than design. And even if it was by design, then it was still an unsafe system in the operation of that Press in that it envisaged the insertion of his hands in or near the die area of the Press.

88 I am satisfied that the defendant's role in ensuring the safe and ongoing supervision of Mr Rowe was inadequate. Any suggestion that it was incumbent on Mr Rowe to notify them if he felt that the system was not safe is simply transferring their absolute obligation in a way that the Act simply does not contemplate. It is not for Mr Rowe to be able to recognise the potential risks to safety. It is for the employer to ensure that Mr Rowe was instructed, trained and supervised in a way that ensured that potential risks to safety were recognised and were dealt with in ensuring the system of work in place negated those risks.

89 In finding this failure established, I am also satisfied as to the causal nexus between the failure and the risk to safety that arises as a direct result of that failure. (e) It failed to carry out an adequate risk assessment of the hazards of operating the Press .

90 I am satisfied that this failure is established. I come to that view for two reasons. The first is that I am satisfied that while employees of DSC did visit the Hayman Industries site and undoubtedly did visually observe the machines and did ask questions of a general nature about the machines, I am satisfied that there were no steps taken by those employees to formally risk assess the hazards of operating the Press. As well, there is no evidence of steps taken by DSC to request from Hayman Industries a copy of any formal risk assessment as to the hazards of this machine undertaken by Hayman Industries. There is no doubt that the operation of this Press was replete with hazards, not least of all the one highlighted by the manufacturers.

91 Second, DSC, in its occupational health and safety policy, recognised that there were clearly potential hazards in the operation of plant or equipment if it was incorrectly or carelessly operated. For incorrect or careless one can properly conclude unsafely. Indeed, as part of its occupational health and safety policy, DSC placed an obligation on itself, as an absolute requirement, to advise workers of potential hazards if equipment was incorrectly or carelessly operated. There is no way that DSC could properly carry through with that policy unless, in relation to machinery such as the Press, an adequate risk assessment of its hazards had been undertaken and, in turn, conveyed to Mr Rowe, amongst others. While Mr Teahan, as General Manager, had undertaken some short courses in risk assessment prior to the accident occurring to Mr Rowe in June 2000, he was in no way directly involved in Mr Rowe's placement. Certainly, as best as I understand it, he had nothing to do with directly placing him at Hayman Industries. The Branch Managers who gave evidence before me, Mr Carydias and Ms Parkyns, certainly had no formal risk assessment qualifications, either generally or in matters such as the Press which Mr Rowe was operating. Again, despite their own visual inspection and some general questions and understanding as to the way in which the Press operated, they were no better informed than Mr Rowe himself as to any proper understanding about its safe operation. According to both of them, they certainly understood that if body parts were to come into contact with the Press during its operation, significant harm could result. Additionally, at least as far as Ms Parkyns was concerned, she was advised it was only when the guard was closed that the Press would stroke.

92 Any direct ignorance or uncertainty on the part of either Ms Carydias, Ms Parkyns or any other Branch Manager of DSC in relation to risk assessment could have, indeed should have, been addressed in one of two ways. One is, they should have satisfied themselves that Hayman Industries had conducted a proper risk assessment in the safe operation of the Press. That certainly had not been done. Alternatively, they could rely upon DSC's own policy in this regard if they were unable to be satisfied as to their ability to do that task. Paragraph seven of DSC's policy says: If upon a Branch Manager conducting a site/equipment inspection and not being able to satisfy him/herself that the equipment is safe and that the system of work is safe, the Branch Manager is authorised to offer the client one (1) hour (for free and at DSC expense) of an occupational health and safety consultants time to do a specific inspection and recommendation.

93 Implicit in that policy is an acknowledgement, in my view, of the obligation inherent on an employer to ensure that the system of work to which their workers are exposed is one free of risks to health or safety. An integral part of complying with that absolute obligation would be to undertake a risk assessment of a particular undertaking. As was said by the Full Bench in Mainbrace Constructions Pty Limited v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 at 66: Although there is no specific requirement in s16(1) to carry out a risk assessment there is a strict duty on the employer to ensure that persons not in the employer's employment are not exposed to risks to health or safety. If one means of fulfilling this duty was to assess the risks to health or safety in the conduct of an undertaking then a risk assessment cannot be objectionable.

94 The same approach applies equally in relation to offences arising under s15(1) of the Act.

95 There is no doubt, in my view, if a proper and adequate risk assessment had been undertaken in relation to the safe operation of the Press, it would have highlighted the hazard that was self evident to all who observed the operation of the Press let alone somebody skilled in the issue of risk assessment. That is, if the risk assessor had asked himself or herself whether any action was required to ensure the safety of persons using the Press, the answer would inevitably have been yes. Inevitably, in my view, included as part of that assessment, there would have been an absolute requirement that the operator of the Press should not place his or her hands or any other body part into or near the die area of the Press at any time. As Mr Buckland advised in his expert report by way of preventability in relation to this accident: Furthermore, allowing for the fact that an unwanted stroke of such a Power Press could possibly be caused by a mechanical failure, the plaintiff could have also been provided with the tool e.g. long handled tongs, to remove the pole caps from the die, rather than doing so by hand. The plaintiff would not have then had to place his hand into the danger area between the dies and his said injury should not have occurred.

96 Having identified that hazard, steps would have been devised to deal with it. Those steps would have included those steps that were put in place after the accident. That is, the long handled magnetic tongs as well as the signs on and near the Press instructing employees not to insert their hands into the die area. All of those steps, once devised, would then be integrated into the instruction, training and ongoing supervision of any employee operating the Press.

97 In my view, it is abundantly self evident that a proper risk assessment carried out in relation to the safe operation of the Press would have highlighted the hazard arising if any part of the operator's hands or any other part of the operator's body was allowed to enter the area in or near the die. That risk assessment was never undertaken in any proper way by employees of Hayman Industries and further, employees of DSC did not, in my view, discharge their obligation to undertake such an assessment in relation to the safe operation of the Press either by requesting it be done by Hayman Industries or relying on their own policy if there was any uncertainty in their own minds as to the hazards that the operation of that Press encompassed.

98 I am satisfied not only that the failure is established but that the causal nexus as between the failure and the risk to safety identified is present. (f) It failed to ensure adequate guarding of the die area of the Press.

99 I am not satisfied that this failure has been established as against the defendant. There is no doubt that on the day of the accident, for reasons that have not been definitely determined, the Press stroked while the guard was open. There is still dispute as to whether or not the guard door was fully open or only partially open but that seems to me to be irrelevant to the real issue. That is, whether or not there was adequate guarding of the die area of the Press. In the first instance, it is not clear as to precisely what the prosecution relies upon as to the adequacy of the guarding. In this respect, I refer to the report of Mr Buckland, the consulting engineer, whose expert report in relation to the Press was before me. Mr Buckland also gave evidence in this matter. His report was not objected to. It is pertinent on this issue to detail relevant of his report as follows: The die area of a mechanical power press is normally regarded as a 'dangerous part' of the machine. The top and bottom sections of the metal forming dies are brought together rapidly and under great pressure (in this case, with a rated force of 125 tonnes) and crushing or amputation injuries could be likely to occur if a human hand was placed into the die area during the operation of the press.

Accordingly, it has been an accepted industrial requirement that guard fencing be provided around the die area of a power press. Because hand access to the die area may be necessary during normal usage, the guard fencing is usually able to be opened and it has then been required that the guard fencing be interlocked with the actuation mechanism of the press. (emphasis added)

The basic principle for safeguarding a power press is that the press must not be able to be operated unless the guard fencing is completely closed, so as to preclude hand access to 'trapping' points in the die area.

The press could be operated with the front guard partly open, indicating that the interlock between that panel and the actuation mechanism did not function properly. Also, the guard fencing apparently did not fully enclose the left hand side and right hand side of the die area. Hand access was then possible to trapping points in the die area of the press, both from the front and from the sides, making the condition of the press potentially dangerous.

In that regard, it is essential for safety that, not only must proper fencing and interlocking be provided on a power press, it must be checked regularly and be maintained in good order.

Although it appears that adequate fencing was not provided at the sides of the die area at the time of the accident, the Plaintiff is said to have placed his hand into the die area through the opened front fencing panel. In that case, although defective, the inadequate side fencing was not a contributing factor to the accident . (emphasis added)

100 What Mr Buckland's report identifies, and no issue was taken with it, was that while there may have been some degree of inadequacy in the absence of any side fencing to the Press, that factor in itself was not a contributing factor to the accident. More significantly, in my view, is that it is not clear to me precisely what the prosecution refers to on the basis as to what constitutes adequate guarding. If I was to rely on Mr Buckland's report, I would say that it was inadequate because of the absence of side guarding. If it be that the inadequacy relied upon by the prosecution is that, despite all belief to the contrary as far as the understood operation of the interlock between the fencing and the actual mechanism of the Press is concerned, that mechanism failed, then that seems to me to be the more likely inadequacy as far as the guard was concerned relevant to the offence before me. If that be the case, then I would say that that is a matter that more properly arises for consideration under s53 of the Act having regard to the defences available to the defendant. In other words, there is no doubt that the overall operation of the Press failed, or particularly, the interlock between the guard and the actuation mechanism of the Press failed and that appears to have been caused by a number of faults with the Press itself. In any event, it is my view that the prosecution have failed to establish this failure against the defendants. If I am wrong in that conclusion, then I say that s53 of the Act affords them a defence given the circumstances arising in relation to the basis on which it has best been determined that the guard failed to operate on the day in question.

101 In conclusion, I am satisfied that the offence as alleged has been proved with respect to particularised failures (c), (d) and (e). I now turn to consider those matters raised pertinent to the provisions of s53 of the Act.

102 It is well settled that the question of a s53 defence does not arise for consideration unless and until the prosecution establishes to the requisite standard that the offence as charged has been made out: See WorkCover Authority of NSW v Fletcher Constructions Australia Limited (2002) 123 IR 121 at 135.

103 The defendants raise certain matters going to a defence arising under s53 of the Act. Section 53 of the Act provides: It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of 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.

104 In raising certain defences, the defendants rely on both s53(a) and (b).

105 It has long been established that the raising of a defence under s53 of the Act places an onus on the defendant. That onus is a civil onus: see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 457.

106 A defence under s53(a) requires the defendant to meet the objective test as to whether it was reasonably practicable for the defendant to have complied with the Act. As was stated by Walton J VP in WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at 204: An objective determination must be made as to what measures were reasonably practicable in the circumstances of the case. This determination is not restricted to the state of knowledge of the defendant or to the measures, if any, which the defendant had contemplated.

107 In Cleary Bros, Walton J received the relevant authorities as to the proper meaning and application of the words 'reasonably practicable'. Amongst others, he considered the judgment of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 (particularly at 712) as well as the decision of the High Court in Slivak v Lurgi (Australia) Pty Ltd (2001) 75 ALJR 481. In summation, his Honour said at 206-207: It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority (NSW) (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd (at 259) and Austin Rover Ltd v Inspector of Factories (at 627) per Lord Goff and (at 635-636) per Lord Jauncey of Tullichettle. At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.

108 The principles expressed by Walton J in the above passage were supported and expressed to be compelling by the Full Bench in WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 at 467.

109 Contrary to the position taken by the defendants as to the import of the pleadings to which I have earlier referred in paras [43] to [45] above, the provision of training, instruction and supervision as well as the carrying out of risk assessment by the defendants was at all times able to be done in more than one way. One such way, and indeed the way in which, in the circumstances of this case, one would have expected, would be that the defendants would have taken steps to ensure that the training, instruction, supervision and risk assessment undertaken by Hayman Industries in relation to the operation of the Press was not only adequate but was in accordance with the obligations that both parties had in relation to providing a workplace free of risks to safety. In other words, it was perfectly appropriate for the defendants at all times to do as it said it did. That is, to rely on Hayman Industries for the provision of instruction, training and supervision and ultimately for risk assessment.

110 The general evidence of Ms Carydias as well as that of Ms Parkyns and Mr Smith, as the Managing Director, is that there was the expectation by the defendants that they would look to Hayman Industries for training, instruction and supervision. If that be the case, as would be appropriate, it behoved the corporate defendant to take all proper steps to ensure that the provision of that training, instruction and supervision by Hayman Industries was adequate in every respect in ensuring the safe operation of the Press. On the evidence before me, that simply was not the case. Not only was the training, instruction and supervision of Mr Rowe inadequate as far as any actions taken by Hayman Industries, but I am satisfied that the actions of the corporate defendant and its relevant employees was one that paid only lip service to its own policy as well as its obligations under the Act.

111 At all times it was more than reasonably practicable for the defendant to comply with its obligations to ensure adequate instruction, training and supervision of Mr Rowe. Whether it chose to do that by employing persons to do it or whether it did that by liaising with Hayman Industries and ensuring that the training, instruction and supervision that Hayman Industries provided was adequate, is a matter for the defendants. But given that the defendants chose to rely on Hayman Industries for that, then it was at all times reasonably practicable for them to have followed through with the appropriate procedures and processes to ensure that Hayman Industries lived up to and discharged its obligations on behalf of the defendant's employees and in particular, in the case before me, Mr Rowe.

112 In relation to ensuring an adequate risk assessment was undertaken in order to identify the hazards, the defendants were entitled, in the first instance, to rely on that being done by Hayman Industries. But it was the responsibility of the defendants to ensure that that risk assessment had been done. They were entitled, indeed obliged, to request that one be done and to have a copy of it. That much was necessary in order to ensure that they could properly advise and warn their employees, in this case Mr Rowe, as to the hazards of the Press. I am satisfied those steps were not done. Further, I am satisfied those steps were ones that were reasonably practicable for the defendants to have undertaken.

113 As a fall back position, in individual circumstances, it was always open to the defendant to undertake its own risk assessment of the Press if it chose to do so. It was a reasonably practicable step for them to undertake.

114 In his evidence, Mr Teahan acknowledged that the undertaking of a straight forward and simple risk assessment would be a matter that would take no more than some ten minutes or so. As he said in cross examination: Q. That wouldn't take you, that basic risk assessment and I want to emphasise that because you put it in that category, wouldn't take you very long to do, would it? A. No. Q. Be a fairly simple task of course, correct? A. Yes, I think 15, 20 minutes and you would be there.

115 In any event, if the defendant had abided by its own policy in the event that it was not satisfied with any risk assessment undertaken by Hayman Industries, it was open to them to have their own independent assessment undertaken. That much is clear when one has regard to paragraph seven of their policy which authorises the Branch Manager to offer the client one hour at DCS expense for an occupational health and safety consultant to do an inspection and recommendation, presumably of a risk assessment nature.

116 In my view, the defendants have failed to discharge the onus placed on them in relation to s53(a) as far as failures (c), (d) and (e) are concerned. Accordingly, any defence under s53(a) must fail. Likewise, in my view, in relation to s53(b). 117 In McMartin v Broken Hill Proprietary Co Ltd (1988) 100 IR 241 Grove J determined that in considering a defence under s53(b), the defendant must combine its proof that the facts giving rise to what would be an offence occurred due to causes over which it had no control and demonstrate that it was impracticable for it to make provision against the causative facts contained within the meaning of 'commission of the offence'.

118 In relation to failures (c), (d) and (e) as found established, I am satisfied that at all times the defendants had it within their control and ability to ensure that adequate training, instruction and supervision as well as a proper risk assessment were in place in relation to the safe operation of the Press relevant to Mr Rowe as their employee. There is no evidence before me that would establish that it was not possible or practicable for the defendants to make provision for such matters in conjunction with Hayman Industries or, alternatively, in relation to a risk assessment, utilise their own resources where that became necessary in accordance with DSC's own policy.

119 In relation to failure (f), I am satisfied that the defendants have established a defence under s53(a). If I am wrong in that assessment, then they have certainly done so in the alternative with respect to s53(b). The defendants contend that the failure of the guard and particularly the overall operation of the Press on the day in question was due to circumstances that did not render it reasonably practicable for them to have been aware of or, in the alternative, that the inadequacies and failure of the guard on the day in question was a catastrophic failure, the commission of which was due to causes over which the defendants had no control and, in all the circumstances, the happening of which it was impracticable for them to have made provision for. I have to say I agree and I believe that the defendants have raised sufficient evidentiary material to discharge the onus that is required of them.

120 There is evidence before me from Ms Parkyns, which was unchallenged, that she did confirm with Mr Tipping that the Press was being maintained and he confirmed that it was. The evidence of Mr Tipping as well as that of Mr Citroni on behalf of John Heine & Sons was that, in accordance with the contract as between Hayman Industries and John Heine & Sons, the Press had been regularly maintained. As I understand the evidence there was, prior to the accident, no maintenance report that suggested the Press was not in good working order. There is no doubt that, following the accident and a further inspection by Mr Citroni from John Heine & Sons, certain wear and tear features became apparent. As Mr Buckland states in his report: More relevantly, it appears that the interlocking between the front guard panel and the press actuation mechanism was not maintained in good and proper order. The interlock was faulty, with the consequence that the top die could descend if the operator depressed the actuation pedal, whilst the front guard panel was open sufficiently wide enough to allow hand access to the die area (confirmed by WorkCover test).

In the case of the accident, however, the Plaintiff is said not to have depressed the actuation pedal, when an unwanted second down-stroke of the press occurred after the guard had opened. The guard is said to have been in the closed position during the earlier first stroke of the press.

In the writer's opinion, this indicates that a further fault was also present in the press at that time.

It is probable that the faulty interlock on the front guard panel would have allowed the guard panel to open from the closed position, before the first press stroke had completed and/or the clutch had disengaged. If the clutch had been sluggish to disengage in those circumstances, eg., owing to weakened springs in the mechanism, excessive wear, or a lack of lubrication maintenance, another unwanted stroke of the press could typically occur.

Excessive wear or mal-adjustment of the band brake could also cause brake failure and allow the top die of the press to descend after the guard panel had opened.

As noted earlier in this report, the writer has not yet been informed of other faults found in the press during the investigations that followed the Plaintiff's accident. In all circumstances, however, the writer is of the view that one or more faults were present. Those faults probably resulted from a failure to perform proper inspection and maintenance procedures on the press and they contributed to the Plaintiff's said accident. (emphasis added)

121 As I understand the evidence, when coupled with the report from Mr Buckland, Hayman Industries had taken steps to ensure that the Press was being regularly maintained. If anything, Mr Buckland's report points to a failure on the part of those persons undertaking the inspection and maintenance procedures to perhaps not sufficiently identify the failures that ultimately created the somewhat catastrophic failure that occurred on 30 June 2000 in which Mr Rowe lost his fingers. What that points to, in my view, is that short of going behind the regular maintenance checks being undertaken for and on behalf of Hayman Industries, it does not seem to me that it was reasonably practicable for the defendants before me to have engaged their own maintenance person to undertake a second check of a maintenance procedure that, by all accounts, had already been undertaken and advised as being satisfactory. If I am wrong as to that conclusion then I say that on all the evidence before me, the failure of the Press which resulted in the failure of the guard to act as it was engineered to act was, in all the circumstances, due to a series of cumulative events over which the defendants before me had no control and which, in all the circumstances, it would have been impracticable for them to have made provision. In short, in my view, the real failures of the defendants here are the failures that I have already identified, going to instruction, training, supervision and risk assessment. In short, the inadequacy of the guarding to the extent that it failed to operate as it should have on the day in question, would have had no impact on the ultimate outcome as far as the injuries to Mr Rowe are concerned in that if Mr Rowe had been properly and adequately instructed, trained and supervised, which he would have been if a proper risk assessment had taken place, then he would not have had his hands anywhere near the die area when the guard failed in the unexpected circumstances that it did on the day in question. I am satisfied that in relation to failure (f), the defendant has discharged its onus as required, and that failure is not established as against the defendants.

122 There is no doubt in my mind, as far as Mr Smith is concerned, he is a person who, in accordance with the relevant provisions of s50, was and is both managing director of the corporate defendant and a person very much concerned in the management of it. Indeed, if anything, Mr Smith's evidence before me only confirms his significant and hands-on role over the way in which the company operates. The provisions of s50(1) of the Act deem a person who is a director of the corporation and each person concerned in the management of the corporation to be liable for those acts or omissions related to the offence of the corporation. In that sense, s50 is not providing a punishment for the personal defendant for an offence that was really committed by the corporation; it is providing punishment for an offence to which the person is deemed to be a party because of his or her complicity in it. See Hookham v The Queen (1994) 181 CLR 450 and McMartin v Newcastle Wallsend Coal Company and others (2004) NSWIRComm 202 at [825] and following, particularly [884] and [885]. Mr Smith was very much a hands-on Managing Director of the corporate defendant and, as he indicated on more than one occasion in his evidence, actively involved in putting in place the safety policy of the corporate defendant to which I have earlier referred. He was the person to whom his General Manager, Mr Teahan, was required to report to as far as any problems requiring his attention on a day to day basis.

123 There is no doubt, as the evidence unfolded before me, that there was significant animosity between Inspector Mansell, the authorised prosecutor in these proceedings, and Mr Smith. Mr Smith took great offence to Inspector Mansell seeking to interview him in relation to this matter and advising him, in seeking that interview, that he was making inquiries only in relation to the corporate defendant. In short, Inspector Mansell gave certain assurances to Mr Smith that in seeking to interview him, he was doing so with a view to prosecuting the corporate defendant rather than Mr Smith himself. It is abundantly clear, given the difficulty that Inspector Mansell had in securing that interview and the whole tenor and tone of the interview as it progressed, that there erupted between Inspector Mansell and Mr Smith what can only be described as naked hostility. That much was abundantly evident in both the demeanor and the behaviour of both Inspector Mansell and Mr Smith in their evidence before me.

124 The genesis of Mr Smith's antagonism clearly lay in the fact that, notwithstanding the assurances given to him by Inspector Mansell as to the basis on which he participated in the record of interview, Inspector Mansell, on behalf of WorkCover, then ultimately proceeded to issue a summons against Mr Smith as well as the corporate defendant. Understandably, Mr Smith felt that Inspector Mansell had gone back on his word and he perceived this prosecution of him particularly as 'malicious'. For his part, it must be said that I was not impressed by Inspector Mansell's seeming indifference, in giving his evidence, that he went back on what was an assurance given by him, as an Inspector of WorkCover, and subsequently proceeded to prosecute Mr Smith without any subsequent advice or warning given to him. A prosecutor's discretion in relation to the bringing of prosecutions is undoubtedly wide but that discretion should not be used without any consideration as to the rights of the individuals concerned. True it is, the record of interview conducted with Mr Smith, which was ultimately admitted before me, conveyed no information that was in any way damaging to Mr Smith or to the corporate defendant. But that is not the point. Let it be said now, in the strongest terms, that I do not condone, and nor should it be said that this Court should condone the behaviour of Inspector Mansell in this matter. It is simply unacceptable for inspectors of WorkCover to be given the authority to prosecute and then to use that authority in the way that Inspector Mansell did with no regard to Mr Smith's right to be advised and properly warned. I would not wish to encounter a repeat of such an action by Inspector Mansell in the future.

125 Having said that, it is necessary to consider those defences available to Mr Smith pursuant to the provisions of s50(1)(a) and (b). Before I do that, it is necessary to deal with the submission made by counsel for Mr Smith to the following effect: In relation to section 50 Mr Smith is entitled to the defences which are found within that section and secondly, he is also entitled to the defence found in section 53. A person who is a personal defendant has the added protection of the two-tiered line of defence.

126 As I understand that submission, it is contended that before I was to consider matters pertinent to defences arising under s50(1)(b) and (c) relevant to the natural person defendant, then the onus is on the prosecution to negative the defences available to the corporations under s53(a) and (b). In other words, there is a reverse onus resting with the prosecution pursuant to s53(a) and (b) as a condition precedent to the personal defendant being deemed to have contravened the Act and the defences under s50(1) arising. No authority was relied upon in support of such a proposition. In any event, I do not agree with it. See McMartin v Newcastle Wallsend Coal Company and others (2004) NSWIRComm 202 at [954]-[962].

127 Section 50(1) affords a defence to those persons deemed to have contravened the same provisions of s15(1) and 16(1) of the Act as the corporations, if he or she can satisfy the Court that: (b) He or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) He or she being in such position, used all due diligence to prevent a contravention by the corporation.

128 As a defence, the onus rests with the relevant person to establish the provisions of sub-sections (b) or (c) according to the civil standard. That would be what I would call the accepted and settled approach to the operation of s50(1)(b) and (c).

129 In relation to Mr Smith, I am abundantly satisfied that he was very much in a position to influence the conduct of the corporation in relation to the contraventions that I have established. Mr Smith was not an arms length managing director in the sense in that he paid no attention or affected no concern about the overall conduct of the business, particularly matters going to safety. As he indicated in his evidence before me, the corporate defendant and he, on its behalf, have been involved for many years in addressing their responsibilities in relation to occupational health and safety and it was he who was instrumental in putting in place the policy to underpin the corporate defendants approach to occupational health and safety. Accordingly, in my view, any defence under s50(1)(b) must fail.

130 It has been submitted by counsel on behalf of Mr Smith that, as the Managing Director of the corporate defendant, that he used all due diligence in order to ensure that the corporate defendant discharged its responsibilities in relation to occupational health and safety. In reliance on this submission, counsel for Mr Smith referred to the decision in R v Bata Industries Ltd (No 2) (1992) 7 CELR (NS) 245. That was a Canadian decision relating to the prosecution of a shoe manufacturer for allowing toxic waste to enter into the environment. As I understand the submissions put, relying on the basis of the reasoning in Bata Industries, in order to make out a defence of due diligence, Mr Smith must establish on the balance of probabilities: (1) he was familiar with the company's occupational health and safety obligations and relevant codes of practice and industry standards; (2) he had a system in place to manage occupational health and safety risks and had adequately supervised compliance with that system; (3) the system complied with industry standards and practice; (4) company officers reported back to him on the operation of the system and safety concerns were reported in a timely manner; (5) he reacted personally and immediately upon becoming aware of the system failure.

131 Even if that decision was binding upon me, I would say that Mr Smith had failed many of the tests espoused in that decision. In saying that, I read those obligations as cumulative. To start with, it was submitted that as Managing Director, Mr Smith had a system in place to manage occupational health and safety risks and that he adequately supervised compliance with that system. Mr Smith did not have such a system in place. He (or rather DSC) had a policy in place. Mr Smith had been directly responsible for that policy being developed. But what he did not do was exercise all due diligence to ensure that that policy became the basis for an entrenched systemic process within DSC designed to ensure the worksites to which the company's employees were sent were safe and free of risks to safety. The management staff at DSC, particularly at branch level, were ill-equipped to do the task that the company's occupational health and safety obligations demanded let alone the company's own policy.

132 On the evidence before me, Mr Smith took no proactive steps to 'adequately supervise compliance' with the company's policy let alone any system contingent on it. He certainly viewed Mr Teahan as having that responsibility but beyond asserting that belief, there is no evidence that Mr Smith took any steps that could be characterised as all due diligence in that he adequately supervised compliance with any system designed to ensure that the company's policy was being carried out in furtherance of its occupational health and safety obligations. As Mr Smith said in relation to Mr Teahan's role in relation to occupational health and safety: It is something I leave to him to supervise, the training of the occupational health side of our divisions, he reports to me on that basis.

133 As to whether he took any steps to assess or ensure compliance by DSC with occupational health and safety matters, Mr Smith stated: Q. Yes, and you are able to control the conduct of the company and you are able to give great attention to such directions as you consider appropriate for the defendant corporation? A. That is correct. Q. You did not make any enquiries of Mr Teahan as to the detail of the training that he delivered to branch managers in respect of risk assessment? A. No, I left that to him. Q. Similarly, I don't want to go through each heading, but you did not make any enquiries of Mr Teahan in respect of what training, if any, he delivered to branch managers in respect of assessing whether guarding of equipment was adequate? A. No. Q. Similarly, in assessing whether supervision was adequate? A. No.

134 I accept the import of the submissions of counsel for the prosecution that the words 'all due diligence' have a wider import than the words 'due diligence'. Certainly, in order to discharge his onus, Mr Smith must establish that, on balance, he did all that was required to ensure the putting in place of a system of work within DSC designed to identify and manage risks to safety in his employee's worksites. On that approach, I accept the submission on behalf of the prosecution that that is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safe standards established are in fact being adhered to and under ongoing review. Both in relation to his management employees and in relation to employees such as Mr Rowe, Mr Smith did not do that. As such, his defence as to all due diligence must fail.

135 Having regard to my findings and conclusions, I am satisfied that the corporate defendant failed to ensure the health, safety and welfare at work of its employees, in particular Steven George Rowe, in that it failed to ensure a safe system of work for the operation of a John Heine 208AG Series One Power Press contrary to s15(1) of the Act.

136 I find the offence proved with respect to failures (c), (d) and (e) as particularised.

137 I make the same findings in relation to the personal defendant, Mr Thomas Edwin Smith. Mr Smith's liability arises from the breach of the corporate defendant under s15(1) of the Act and pursuant to the provisions of s50(1) of the Act as a director of the corporate defendant and a person concerned in the management of DSC.

138 The matter will now be set down to hear and determine the issue of penalty and costs.

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