WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation - [2004] NSWIRComm 349 - NSWIRComm 2004 case summary — Zoe

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

[2004] NSWIRComm 349

Industrial Relations Commission (NSW)|2004-07-01|Before: Staunton J, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Staunton J, Mr J

Catchwords

07/06/2004
07/07/2004
07/08/2004
07/09/2004

Source

Original judgment source is linked above.

Catchwords

07/06/200407/07/200407/08/200407/09/200410/07/200410/08/2004 DATE OF JUDGMENT: 12/10/2004

Judgment (169 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2004] NSWIRComm 349 PROSECUTOR: WorkCover Authority of NSW (Inspector Mansell) PARTIES : DEFENDANTS: Daly Smith Corporation (Aust) Pty Limited Thomas Edwin Curtis Smith FILE NUMBER: IRC 3374 and 3376 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - corporate defendant being a labour hire company charged with breach of s15 of the Occupational Health and Safety Act 1983 - personal defendant charged pursuant to s15(1) and deeming provisions of s50(1) of the Act - pleas of not guilty - principles applicable generally including to labour hire companies - offences found proved - defences under s53(a) and (b) of the Act considered relevant to corporate defendant - onus not discharged except in relation to one particularised failure - offences arising with respect to natural person defendant pursuant to deeming provisions of s50(1) of the Act - defences under s50(1) of the Act relevant to natural person defendant - meaning of 'all due diligence' for the purposes of s50(1)(d) of the Act - offences found proved with respect to corporate defendant and natural person defendant - penalty and costs to be determined. LEGISLATION CITED : Occupational Health and Safety Act 1983 Cullen v State Rail Authority of NSW (1989) 31 IR 207 Drake Personnel t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Edwards v National Coal Board [1949] 1 KB 704 Haynes v C.I and D Manufacturing Pty Limited (1994) 60 IR 149 Hookham v The Queen (1994) 181 CLR 450 Italo Australia Construction Pty Limited v Parkes (1988) 24 IR 428 McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241 CASES CITED : McMartin v Newcastle Wallsend Coal Company and others (2004) NSWIRComm 202 Mainbrace Constructions Pty Limited v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 R v Bata Industries Ltd (No 2) (1992) 7 CELR (NS) 245 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Slivak v Lurgi (Australia) Pty Ltd (2001) 75 ALJR 481 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of NSW v Fletcher Constructions Australia Limited (2002) 123 IR 121 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of NSW (Inspector Legge) v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 HEARING DATES: 07/05/2004; 07/06/2004; 07/07/2004; 07/08/2004; 07/09/2004; 10/07/2004; 10/08/2004 DATE OF JUDGMENT: 12/10/2004

[29]

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.

[31]

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.

[81]

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.

[83]

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.

[90]

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.

[133]

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.

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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.

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

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment (169 paragraphs)

Parties

Cases Cited (16)

Cited By (7)