WorkCover Authority of New South Wales v Kevin Curran Pty Ltd t/as Tree Recyclers

PROSECUTOR: Mr M Cahill of counsel SOLICITOR: Mr A Morris WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr G Graham of counsel SOLICITOR: Mr R Barros RE Barros & Company

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MAIDMENT J DATE: 19 APRIL 2000

Matter No. IRC98/2627 WorkCover Authority of NSW v Kevin Curran Pty Ltd t/as Tree Recyclers.

Prosecution under s16(1) of the Occupational Health and Safety Act 1983.

Matter No. IRC98/2628 WorkCover Authority of NSW v Kevin Curran Pty Ltd t/as Tree Recyclers.

Prosecution under s18(2)(a) of the Occupational Health and Safety Act 1983. JUDGMENT

1 Kevin Curran Pty Ltd (the "company"), which is engaged in the mulching and screening of green waste, provided a TR Vegetation Grinder (the "tub grinder") and an employee, David Dick, for the purpose of mulching green waste at Summer Hill Waste Management Centre, Maryland, on behalf of Newcastle City Council. Walter Friend, an employee of Wally Friend Pty Ltd, worked in conjunction with Mr Dick during the mulching process.

2 On 12 July, 1996 Mr Dick, who had been operating an excavator for the purpose of placing waste in the tub grinder, walked to the far side of the tub grinder where he found Mr Friend who had been injured in the chest. Mr Dick called an ambulance. Mr Friend, who was conscious but was unable to talk, was conveyed to hospital. He died as a consequence of the injury.

3 A post mortem was performed by Dr Ferguson, a pathologist, on 15 July, 1996. His report states that the external examination revealed that Mr Friend's body had an abrasion 9.5 by 5.2cm with underlying bruising over an area 15.5 by 14.5cm over the upper sternum and a transverse fracture of the sternum between the 3rd and 4th ribs. Lesser injuries disclosed were an abrasion 1.4 by 0.5cm in the right temple, faint scratches over an area 2.8 by 6.5cm in the left side of the chin, an abrasion 3 by 3.2cm beneath the point of the chin, faint scratches up to 9cm in length in the left groin and an abrasion 1.7 by 0.6cm in the back of the left elbow.

4 Injuries disclosed by internal examination included rupture of the superior vena cava just above the right atrium. Dr Ferguson conclude that death was occasioned by injuries consistent with a severe blow to the front of the chest.

5 The company was charged with four offences under the Occupational Health & Safety Act 1983 (the "Act"), the charges were heard concurrently. Mr Cahill of counsel appeared for WCA, Mr G Graham of counsel for the company. At the close of the evidence two charges were dismissed on the basis that no prima facie case had been established. Those remaining are framed and particularised as follows: Summons in 98/2627 The defendant, being an employer, on the 12 July 1996 at the Summer Hill Waste Management Centre, Merrylands, New South Wales, DID FAIL to ensure that persons not in its employment and in particular Walter Friend were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health & Safety Act , 1983 in such case made and provided in that the defendant did fail to ensure that plant and in particular a TR900 Vegetation Grinder provided for use at its place of work was safe and free from risk in that the plant was inherently unsafe. The said plant ejected material at high speed when in operation. The Particulars of the charge are: 1. The defendant was at all material times an employer. The defendant did not employ Walter Friend. 2. On 12 July 1996 at the Summer Hill Waste Management Centre, Merrylands, New South Wales, the defendant supplied plant for use at work to Walter Friend. The plant supplied was a TR900 Vegetation Grinder (hereafter the tub grinder). 3. The said tub grinder supplied by the defendant was inherently unsafe. The said plant ejected material at high speed when operated. 4. As a result of the said failure Wally Friend sustained fatal chest injuries. Summons in 98/2628 On the 24 May 1996, at Cowpasture Road, Cecil Park, New South Wales, the defendant, being a person who supplied plant for use at work, DID FAIL to ensure that the plant and in particular a TR900 Vegetation Grinder was safe and without risk to health when properly used contrary to Section 18(2)(a) of the Occupational Health & Safety Act, 1983 in such case made and provided. The Particulars of the charge are: 1. The defendant was at all material times a supplier of plant for use at work. 2. On 24 May 1996, at premises located at Cowpasture Road, Cecil Park, New South Wales, the defendant supplied a TR900 Vegetation Grinder for use at work. 3. The said plant on the said day was inherently unsafe in that it ejected material at high speed when operated. 4. As a result of the said failures persons using the said plant and in particular Matthew Metus were put at risk.

6 Evidence was given in the prosecution case by: 7 Mr Anthony Cade who had been employed by Newcastle City Council as Waste Manager; Matthew Metus; David Dick; Inspector Darren Lane of WorkCover Authority of NSW ("WCA"); Dr Nicholas Ferguson, pathologist, Newcastle City Morgue; Robert Checkley, Senior Constable of Police stationed at Wallsend; and Richard Clarke, an engineer employed by WCA. 8 Dr Johnn Olsen, Director of Rehabilitation at the Martin Hospital, Bundaberg, Queensland gave evidence in the defendant's case. Dr Olsen holds degrees in both engineering and medicine, is a specialist in the field of occupational medicine and holds a PhD which was taken in the area of control and dynamics which is the study of systems and objects in terms of how they move and behave. Dr Olsen has a practice as a consultant physician in occupational medicine which involves investigation of the cause of accidents and injuries.

9 Additionally, the prosector tendered several statements by consent. A report of Dr Anthony Millar, a specialist physician and a fellow of the Australian College of Rehabilitation Medicine, was tendered on behalf of the company.

10 The facts are generally not controversial, I record the following findings:

11 The tub grinder was constructed by the company to its own specifications. Mr Metus, who described himself as having been self employed and subcontracted to the company on a permanent basis, is a tradesman boilermaker. He assisted in the construction of the tub grinder and had operated it during trials on various dates including 24 May, 1996.

12 The tub grinder, which was mounted on a semi trailer, was some 4m in diameter and 1.5m high. It consisted of a rotating tub and a hammer mill which were powered by an 800HP motor. It was designed to process up to 100 tonnes of green waste per hour.

13 The waste centre is located inside a 75ha fenced area within a land holding of some 385ha. The green waste cell is well away from normal public areas. Access is achieved by an internal access road which normally carries only council vehicles or heavier vehicles directed there by council staff. I understand it to be a dirt road. The green waste cell is adjacent to the southern boundary fence.

14 Green waste is stockpiled in the green waste cell. The tub grinder operation requires the movement of the tub grinder to the vicinity of the stockpile to be mulched, the waste being fed into the tub by an excavator. Resultant mulch is expelled from the tub grinder and stockpiled for removal. It is not uncommon for the green waste to be contaminated by a variety of materials including building materials.

15 The tub grinder had a propensity to occasionally propel objects to the left hand or off side of the semitrailer. This propensity, common to tub grinders, was well known and is greater at the beginning and end of a mulching cycle. The side to which such objects might be propelled has been referred to as the throw side.

16 At about 7.00am on 12 July 1996 Messrs Dick and Friend arrived separately, by utility and Nissan car respectively, at the depot, each vehicle being parked outside a safety barrier which was erected some distance from the work area.

17 Work was commenced with one or other of the two operating the excavator whilst the other was deployed as groundsman. The person acting as groundsman at any particular time was in charge of the operation and was required to monitor the process.

18 The excavator operator and the groundsman each had a portable remote control device which could be used to start and stop the rotation of the drum and/or the operation of the hammer mill. It was thus possible for one person to perform the mulching operation.

19 At about 11.00am, after the tub grinder had been moved two or three times to new areas of feedstock, Mr Dick was operating the excavator. As feedstock had become short Mr Dick determined that it was time for the tub grinder to be again moved. He stopped the rotation of the tub and alighted from the excavator in order to communicate with Mr Friend. As Mr Friend was not in sight Mr Dick walked to the passenger side of the semi trailer, he observed that Mr Friend was lying within 20m from the tub grinder, towards the back end and on the throw side.

20 Mr Dick found Mr Friend to be conscious but unable to talk, he loosened Mr Friend's shirt and belt and noticed a small red mark on Mr Friend's chest. No cut or blood was apparent. He did not notice any object which might have caused the injury.

21 The tub grinder was, at this stage, somewhere between 27 and 60m from the barrier beyond which the Nissan and the utility had been parked at about 7.00am, the evidence as to the distance being unclear. Mr Dick, to his surprise, noticed that both vehicles had been moved from where they had earlier been parked to a location about 20m from the tub grinder. The safety barrier had been moved allowing the ingress of the two vehicles. The bonnet of the Nissan was up, oil from its sump had formed a large pool on the earth and a sheet of corrugated iron had been placed over the oil, no equipment or tools were found in the vicinity. The utility had been parked to the side of and about 3m from the Nissan.

22 Mr Dick is unsure at what time he had last previously seen Mr Friend, he suggested that it may have been 30 to 45 minutes earlier, being the time he had commenced feeding the tub grinder at its final location on the day. He had not observed either the Nissan or the utility being moved nor had he observed the barrier being moved in order to permit their ingress.

23 Mr Dick called an ambulance and was preparing to perform CPR when it arrived. He assisted the ambulance officers with CPR which proved unsuccessful. Mr Friend was transported to hospital where he was found to be deceased. Mr Dick followed the ambulance in the utility.

24 The site was attended by council representatives, Senior Constable Checkley, Senior Constable Jones, two detectives from Wallsend and, a little later, Inspector Lane from WCA. The assumption was made that Mr Friend had been struck by an object which had been propelled from the tub grinder. Senior Constable Checkley, the only police officer to give evidence, said to the effect that the investigation was largely left to Inspector Lane.

25 As neither detective gave evidence in these proceedings I am unaware of their relevant activities (if any).

26 As Mr Dick had moved the utility in following the ambulance Inspector Lane was unaware that it had been moved, at some time prior to Mr Friend being found, to a point near the Nissan. Inspector Lane neither looked for, nor observed, tyre marks. No investigation into the movement of either vehicle has occurred. No investigations as to the possible movements of other vehicles in the vicinity were made.

27 Examination of the area disclosed the existence of a piece of wood, measuring about 75mm by 150mm, lying on the dirt some 8.6m from the front of the Nissan, a little further from where Mr Friend had been found and some 20-25m from the tub grinder. This was considered both by Inspector Lane and by Senior Constable Checkley as having probably caused the injuries to Mr Friend. A smaller piece of timber, about 200mm by 35mm was found 1.3m from the rear of the Nissan. It also was considered to have been a possible cause.

28 No close examination of either block of wood was made. Inspector Lane did not examine the wood in order to ascertain whether there were marks possibly caused by the tub grinder. Neither was removed from the site for the purpose of examination, neither was weighed. No marks in the earth were observed which would indicate that either piece of wood had been propelled to its resting place. So far as Inspector Lane knows the two pieces of wood are still lying on the ground at the waste centre.

29 No examination was made of the Nissan in order to ascertain whether or not it was mechanically sound nor, it would seem, in order to establish whether or not it had received replacement oil.

30 The shirt which Mr Friend had been wearing was not closely examined nor even kept for such purpose. In fact Inspector Lane, when giving evidence, had no idea whether or not Mr Friend had been wearing a shirt when found.

31 The evidence does not disclose whether or not the shirt had long sleeves nor is there any evidence to suggest that it was stained by sump oil or any other substance which may have come from under the Nissan. Nor does the evidence disclose the existence of any such substances on the body of Mr Friend.

32 No investigation was made as to the cause of the various lesser injuries which had been received by Mr Friend such as those to his chin, temple and groin.

33 It was assumed, at least by Senior Constable Checkley, that Mr Friend had been working on the Nissan. The sump oil and sheet of corrugated iron no doubt led to that assumption. The absence of tools or equipment, or evidence as to oil or other substances on either the clothes or body of Mr Friend, raises questions as to that assumption.

34 It was assumed that Mr Friend had been struck by an object thrown from the tub grinder, no other possibility was investigated. The report of Inspector Lane dated 4 October 1996 mentions the two pieces of wood earlier described. His photographs depict those two pieces of wood. No other objects are mentioned in his report or were specifically photographed.

35 The evidence of Dr Ferguson is to the effect that Mr Friend could have received his injuries at a location up to 100m from where he was found. However, as it was assumed that Mr Friend had been injured by an object propelled from the tub grinder, it appears that no examination was made other than of the ground between the tub grinder and the area proximate to the Nissan which was about 20m away.

36 At the close of the evidence Mr Cahill conceded that neither of the two suspect pieces of timber had caused the injuries to Mr Friend. He submitted however that the only reasonable hypothesis and rational inference is that Mr Friend had been killed by an object which had been expelled from the tub grinder, perhaps a piece of metal or stone.

37 There is ample evidence that the green waste stockpiles are often contaminated with various substances such as metal or concrete. Additionally the evidence is that such items, from time to time prior to the incident, had been expelled from the tub grinder.

38 In his evidence in these proceedings, almost 4 years after the event, Senior Constable Checkley suggested that although one or other of the two pieces of wood was suspected of having caused the fatality some other type of projectile may be the culprit. He said that, in the vicinity of the tub grinder, he had observed mainly timber waste but also glass, large amounts of plastic, pieces of steel, star pickets and household waste lying on the ground.

39 However in his contemporaneous statement Senior Constable Checkley had written: In the immediate vicinity where the deceased had been working on the vehicle a block of wood was located near the front end which may have struck the deceased. Other smaller pieces of timber were located but appeared too small to have inflicted the injury on the deceased.

40 As I understand it no other object was then identified by him as a likely cause of the chest injury. The evidence is that the non green waste materials which were in the vicinity of the tub grinder are of the type commonly found on waste tips and in this green waste area.

41 When asked in chief whether or not he had observed material which may have been thrown from the tub grinder Inspector Lane said: I had a look at the area between the vehicle and the tub driver (sic grinder) and there was various material there, off cuts of timber of various sizes.

42 During cross examination Inspector Lane said that there was so much material between the tub grinder and the Nissan that it was not possible to record everything. Photographs taken by him show what appears to be wood debris of the kind one might expect to find lying around a green waste depot. No substantial object, other than the two pieces of wood earlier referred to, was identified by him as being either observed by him or depicted in the photographs save for a pile of material (Ex.1 No.1) which Mr Dick had identified as having been left there at an earlier date by other persons (tr.54 l.50).

43 Inspector Lane did observe a length of steel pipe, about 4m by 50mm, inside the tub but did not give evidence of having observed any metal or stone amongst the debris on the throw side of the tub grinder.

44 Having been charged with offences under the Act the company sought advice from Dr Olsen. Understandably, that advice went to whether or not either of the two suspect pieces of wood might had caused the injuries which killed Mr Friend. In his report of 18 May 1999 Dr Olsen expressed the view that "the chest injuries were sustained by some other means than being struck by either of the two pieces of wood described".

45 Dr Olsen's report was reviewed by Mr Clarke with the assistance of Michael Cheng, an engineer also employed by WCA. They reached the view that Mr Friend could have been struck by an object ejected from the tub grinder. This view was based, inter alia, upon a conclusion different to that reached by Dr Olsen as to the possible trajectories of objects ejected from the tub grinder. They had measurements of the tub which had not earlier been made available to Dr Olsen. They postulated that objects can be propelled from the hammermill in a speed range from zero to 36m/sec (129 kmph) at a trajectory of between 34 and 90 degrees to the horizontal.

46 Mr Clarke estimated that the larger piece of wood weighed 154g, Dr Olsen had estimated 150g.

47 Dr Olsen reconsidered the possibilities accepting the mathematics of Messrs Clarke and Cheng and having been provided with the report of Dr Ferguson. He expressed the view that it is impossible that either piece of softwood killed the deceased person. He added the opinion that the lesser injuries cannot be explained away by a blow to the chest.

48 During cross examination he said that a 500g metal object travelling at 100kmph would be at the borderline of the force necessary to have inflicted the injuries sustained by Mr Friend. Plainly enough no such object was found by Inspector Lane during his investigation of the scene. Dr Olsen expressed the opinion that Mr Friend's injuries were possibly consistent with his having been struck by a very heavy steel bar and were not consistent with a blow from a piece of reinforcement rod.

49 The report of Dr Anthony Millar, a specialist physician and a fellow of the Australian College of Rehabilitation Medicine, who was not required by WCA for cross examination, said: These injuries would have required a considerable degree of force, something equivalent to a motor vehicle accident with a head-on collision where the driver was thrown forward on to the steering wheel.

50 Having then expressed the view that there would be insufficient energy in a piece of wood weighing 150g to cause the injury he stated: The blow on the chest would also not account for the abrasions to the temple, chin, groin and elbow.

51 WCA called no expert medical evidence in response to that from Drs Olsen and Millar whose evidence remains unrefuted.

52 This matter was not properly investigated. As it was simply assumed that it was an industrial accident the police left the investigation to WCA. The WCA investigation went little further than a search for an object of sufficient mass to have caused the injury which may have been thrown from the tub grinder. It failed even in that regard. No other possibility has been considered by the authorities.

53 Certainly it might reasonably be speculated that an object propelled from the tub grinder fatally wounded Mr Friend. Other possibilities exist.

54 The want of proper investigation may have visited unfairness upon the company and Mr Curran, its principal. It must be unsatisfactory from the point of view of Mr Friend's family and is contrary to the interests of the community. 55 It seems to me that consideration should be given to the appropriate respective roles of the police service and WCA in the investigation of such matters. 56 Mr Cahill submitted that the tub grinder was inherently dangerous as a consequence of its propensity to expel material to the throw side. This led him to contend that, whenever used, this machine was not safe and free from risk, thus he contended that the words "when properly used" in s.18(2) took the matter no further. He relied upon an unreported decision of Fisher P in Callaghan v Theiss Contractors , a s.18 case, [No 1377 of 1989, 20 December 1990] in which his Honour said (at p.8): I therefore consider that Section18(2)(a) which speaks of plant being safe and without risks to health when properly used still requires that the plant is to be "safe and without risks to health" which this compactor never was. It is only when the safe and risk free plant is not properly used that the proviso operates to assist the manufacturer.

57 Mr Graham relied upon the later decision of Fisher P in WCA v Acimall Aust P/L [1065 & 1066 of 1996, 27 February 1998] in which his Honour, having found that there were risks in the operation of docking saw, said in the context of another s.18 case: I consider that "when properly used" includes use after training in the use of the machine as it stands including training in the avoidance of dangers which have been adequately described and discussed.

58 It is my view that his Honour's later viewpoint, assuming the two to be at odds, correctly expresses the position. Most people would consider a shotgun to be inherently dangerous however that would not result, as I see it, in a person being automatically guilty of an offence under s.18(2) upon supplying a shotgun and cartridges for use on a farm. Countless types of machines are dangerous, the motor car is but one example, however with proper precautions they may be safely used. I do not consider the tub grinder when properly used, to have been other than safe and free from risk.

59 In retrospect the Court should have held that no prima facie case had been established in this matter. A misunderstanding by me of the particulars caused the error. It is plain that the prosecution did not prove the existence of any risk to the health or safety of Mr Metus on 24 May 1996. I should add that WCA proved that Mr Metus had built the tub grinder and was aware of its propensity to expel material on the throw side. There is no evidence that, on the day specified, he went anywhere near the throw side.

61 WCA has failed to prove, beyond reasonable doubt, that the fatal chest injuries sustained by Mr Friend resulted from the operation of the tub grinder. The evidence does not sustain a conclusion, beyond reasonable doubt, that Mr Friend was struck by an object expelled by the machine. Other rational and reasonable hypotheses consistent with the facts can be postulated.

63 In the absence of agreement I will hear the parties as to costs.

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