WorkCover Authority of New South Wales (Inspector Mason) v Northwest Meat Processors Pty Ltd

Industrial Relations Commission (NSW)|2009-07-01|Before: Staff J

CITATION: WorkCover Authority of New South Wales (Inspector Mason) v Northwest Meat Processors Pty Ltd [2009] NSWIRComm 35

PROSECUTOR Inspector Gary Mason PARTIES: DEFENDANT Northwest Meat Processors Pty Ltd

CATCHWORDS: Occupational Health & Safety - Prosecution under s 8(1) of the Occupational Health & Safety Act 2000 - Abattoir - Failure to properly guard machine - Employee injured - Lower left forearm severed - Foreseeability - Culpability - General and specific deterrence - Good industrial citizenship - Compassionate steps taken as to welfare, rehabilitation and continuing employment of injured worker - Plea of guilty - Offence proven - Penalty imposed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000

Australia Meat Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) (1998) 83 IR 343 Barber v Gundagai Shire Council (or alternatively Gundagai Council) [2002] NSWIRComm 243 Capral Aluminium v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Inspector Jelley v Dupond Industries Pty Ltd & Ors [2007] NSWIRComm 316 Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252 Inspector Robert Wilkie v YSF Pty Limited & anor [2009] NSWIRComm 7 Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 McLean v Tedman (1984) 155 CLR 306 CASES CITED: Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 Morrison v Powercoal Pty Ltd (2003) 30 IR 364 Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 R v Gorman (2002) 137 ACrimR 326 R v Thomson; R v Houlton (2000) 49 NSWLR 383 WorkCover Authority (NSW) (Inspector Batty) v Graincorp Operations Ltd [2002] NSWIRComm 49 WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Lancaster) v Burnshaw Constructions Pty Ltd (2003) 121 IR 119

PROSECUTOR Mr C Magee of counsel Solicitor: Ms H Williams WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr A Moses SC Solicitor: Mr S Berry Berry Buddle Wilkins

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR MASON) V NORTHWEST MEAT PROCESSORS PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

[2009] NSWIRComm 35 1 Northwest Meat Processors Pty Limited ("Northwest") is part of the Bindaree Beef Group of Companies ("Bindaree Beef") that operate an abattoir at Inverell in New South Wales. Northwest is the employer of persons in the offal by-products part of the operation. 2 On 2 May 2006, Mr John Mighell, an employee of Northwest was injured when his left arm was drawn up through a drain and into the path of the rotating metal screw flights of a shredder feed auger. The drain attached to the auger had become blocked and Mr Mighell was attempting to clear the blockage. Mr Mighell's lower left forearm was severed approximately 100 millimetres above the wrist. 3 Northwest was charged under s 8(1) of the Occupational Health & Safety Act 2000 ("the Act"). This section relevantly provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 The offence with which Northwest was charged was that on 2 May 2006 at Lot 83, Warialda Road, Inverell, it failed to ensure that employees, in particular, John Mighell, were not exposed to risks to their health and safety. The particulars to the amended application were; (a) The defendant failed to ensure the plant provided for use by employees, being the shredder feed auger, was adequately guarded against access to dangerous moving parts; or had other appropriate controls in place so as to prevent employees from coming into contact with dangerous moving parts. (b) The defendant failed to ensure that its system of work in relation to the operation of the shredder feed auger was adequately documented and enforced with respect of clearing out blockages. 5 The defendant pleaded guilty to the charge. For the reasons that now follow, I impose a penalty of $150,000 for this offence. Evidence

6 Mr C Magee of Counsel, who appeared for the prosecutor, tendered the following evidence in the sentencing proceedings. (a) a statement of agreed facts (b) 16 colour photographs taken by Inspector Mason on 2 and 10 May 2006 which showed: (i) the shredder feed auger with screw flights with views from the top and base of the auger (ii) the shredder feed auger showing access to the screw flights through the drain (iii) the shredder feed auger showing strainer plate when removed from the drain (iv) the shredder feed auger with the strainer plate locked in position on 10 May 2006 (v) the shredder feed auger with the locked out and tagged isolation switch on 10 May 2006 (c) drawing of the shredder feed auger (d) two improvement notices served on Northwest on 2 May 2006 (e) WorkCover certificate of prior convictions showing no prior convictions. 7 The agreed statement of facts, excluding formal parts [1] - [3] stated: 4. At all material times Northwest Meat Processors Pty Limited, trading as 'Bindaree Beef', employed person to undertake the work of processing of offal products at an Abattoir operated by the 'Bindaree Beef' Group of companies, situated at Lot 83 Warialda Road, Inverell NSW 2360 ('the Premises').

Other entities which were part of the 'Bindaree Beef' Group of companies operated a cattle yard, slaughter house, boning operations and packaging operations at the Premises. The Bindaree Beef Group of companies employs in excess of 500 people. 6. At all material times the defendant employed Mr John Mighell (Mr. Mighell) as a labourer at the Premises.

Mr Mighell commenced employment with the defendant on or about 19 August 2000 as a labourer and remains employed in similar employment duties as to those performed prior to the incident

Mr Mighell had performed work in a number of aspects of the products operation at the Premises during the course of his employment.

In or about April 2006, Mr Mighell was performing the task of 'Bible wash and Trim' in an area of the Premises called the 'Back Tripe/Gut Room'. 10. This task involved employees emptying the 'bible' section of the cattle's intestines of ingested material and then washing and cutting the material for further processing.

The uncleaned bibles were delivered via a stainless steel chute from the Gut Room. Mr Mighell's work involved carrying out the cleaning process and returning the bibles back to the Gut Room.

All the trimmings from the Bible and Gut Rooms were fed into a Shredder Feed Auger ("the Auger") where it was then transferred to the shredder for processing. The auger utilised a rotating screwed metal flight to transfer the trimmed product.

The auger was mounted on a 45º angle. A 100 mm Ø by 140 mm metal drain was attached to the lowest point of the auger. A free sliding metal strainer was fitted to the end of the drain.

During the course of the trimming process water drained into the auger and out of the drain.

From time to time, during a shift the drain of the auger would become blocked by cattle intestines, rocks, and other by-products.

When the drain was blocked, it caused water to back up into the auger preventing the flow of by-products to the shredder.

On 2 May 2006, Mr Mighell and Peter Luckett (Labourer) were working in the Bible Room. Their work was carried out standing on a platform and working over a Stainless Steel table.

The auger was situated directly in front of the stainless steel table that Mr. Mighell and Peter Luckett worked at.

During the course of their shift on the morning of 2 May 2006, the auger drain became blocked on a number of occasions. In order to clear the blockages Mr Mighell crawled under the auger and pulled out the sliding strainer from the drain. The purpose of this action was to allow the runners and grit that were blocking the drain to flow out to the Bible Room floor. 20. At approximately 12:20 pm on 2 May 2006, the drain attached to the auger again became blocked.

Mr. Mighell crawled under the auger to clear the blockage and pulled out the sliding strainer. He manually cleared some grit from the drain but it did not clear because cattle intestines (runners) were blocking the water flow.

Mr Mighell then wrapped his left hand around a cattle's intestine (runner) to pull it clear from the drain. It appears that the runner he was holding was also wrapped around the screw flights of the auger. As the screw flights rotated, his arm was drawn up through the drain and into the path of the rotating metal screw flights where his lower left forearm was severed approximately 100mm above the wrist.

The defendant failed to ensure that the auger was effectively guarded against access to the screw flights of the auger from the drain attached to the auger.

At the time of the incident, the auger had not been turned off. The electrical supply to the auger had not been isolated, locked out or tagged.

Due to the size and proximity of the metal drain (100 mm Ø by 140 mm) an employee could put (or have pulled) their hand and arm up the drain and into the auger, and in particular into the proximity of the rotating metal screw flights.

The only 'guard' preventing access to the auger via the drain was the free sliding metal strainer fitted to the end of the drain. This was able to be easily removed by an employee.

There was no means of 'locking' the metal strainer fitted to the end of the drain to prevent its removal whilst the auger was operating.

There was no interlocking device, such that would ensure that once the metal strainer was removed the auger was prevented from operating.

Prior to and at the date of the incident on 2 May 2006, the defendant had systems of work in place for the performance of the task of 'Bible wash and Trim'. This included "Work Instructions' contained in the Bindaree Beef Training Manual ('the Training Manual'). The Work Instruction relating to 'Bible wash and Trim' did not specifically address the issue of blockages occurring in the auger or the potential risk of employees limbs coming into contact with the moving parts of the auger.

The system of work utilised did not adequately or expressly require the auger to be turned off whilst blockages were attempted to be cleared, nor that the 'isolation', 'lock out' and 'tag' procedure be followed. 31. The defendant's 'OH&S Program Manual' included a 'Risk Control Summary' which addressed the 'Risk of Entrapment from Moving Parts'. This document required that only maintenance employees should carry out repairs on any machinery and that 'lock out/danger tag regulations' were to be followed.

The OH&S Program Manual also dealt generally with risk control for the operation of the Bible Room. It stated that if there are any problems with the operation of the equipment, the equipment was not to be operated and that supervisors and maintenance personnel are to be contacted. The manual did not deal specifically with the operation of the auger or the method of clearing out blockages.

The Manual did not specifically deal with the risk involved in clearing blockages in the shredder feed auger.

The defendant also had in place an 'Occupational Health & Safety Program' document, which dealt with 'Engineering OH&S Procedures', including 'Breakdowns' 'Lock out Procedures' and 'Danger Tag and out of service tag Regulations'. This document provided that no work was to be carried out on any machinery or moving equipment, mechanical or electrical, until a lockout procedure had been put in place.

However, this document did not specifically address the situation where the equipment was not in a 'breakdown' situation and required repair or maintenance but involved a regular part of the task, namely blockages of the drain.

The defendant did have a procedure in place for the isolation, locking out and tagging of dangerous plant prior to access for maintenance.

In particular the system provided that only Maintenance Staff and cleaners were authorised to implement the lockout procedure. Mr Mighell was not authorised to carry out lockout and tagging procedures on the auger.

The Inspector issued a number of improvement notices upon the defendant. These notices required the defendant to: (a) Improvement Notice No. 7-107323 -- Guard access to drain on Shredder Feed Auger dated 3 May 2006;

(b) Improvement Notice No 7-107335 -- Lock out procedures for Shredder Feed Auger dated 3 May 2006; 39. The defendant subsequently took a number of steps to comply with Improvement Notices and to address the risk. These included: (a) extending the length of the 100 mm drainpipe to the auger;

(b) placing a lock on the strainer plate, so that it is locked in position on the drain of the auger and requiring that only maintenance staff had the authority to remove the strainer plate.

The defendant does not have prior convictions under the Occupational Health and Safety legislation. 8 Mr A Moses of senior counsel, who appeared for the defendant, read an affidavit of Michael Bayes, the Group Human Resources Manager for Bindaree Beef sworn 17 February 2009. He was not required for cross-examination. 9 Mr Bayes commenced employment with Bindaree Beef in January 1999 as the Occupational Health and Safety Officer. He has held the position of Group Human Resources Manager since 2000. Prior to this time, he spent 24 years in a safety role within the Electricity Supply Industry. His qualifications included a diploma in Occupational Health and Safety (1987); a certificate for Workplace Training and Assessing WTA (2002); an accredited WorkCover Trainer (since 1999); and a WorkCover accredited Rehabilitation Co-ordinator (since 1996). 10 Mr Bayes outlined the business of Bindaree Beef stating that the Inverell plant has a capacity of approximately 1000 head of cattle per day and an annual turnover in excess of $300,000,000. Bindaree Beef is the largest family owned business of its kind and one of the largest meat processors in Australia. It currently employees nearly 550 persons at the Inverell plant of which Northwest employs 50 persons. Mr Bayes described Bindaree Beef's Community investment which includes a strong commitment to Indigenous Employment. Its policy objective is that if 10 per cent of the community are from an indigenous background that ratio should be reflected in its workforce. Indigenous employees fill a variety of roles throughout the organisation. Bindaree Beef is also heavily involved in local community's sponsoring events such as the Paradise Lagoons Camp Draft Rodeo and the Inverell Show. It also donates money to the local Salvation Army Station and supplies meat to local charities for fundraising events. 11 Bindaree Beef is ranked in the top 25 red meat processors in Australia and is a member of the NSW Business Chamber Limited. It has also met the requirements of the Coles Group Limited Supplier Management Program for beef prime cuts. In 2004 it won the Mintrac Meat Processing Company Trainer of the Year award. 12 Mr Bayes stated that Bindaree Beef has developed a business which places a large emphasis on the wellbeing of its workers, who it recognises work in a high-risk industry. In 2005 Bindaree Beef designed a titanium pullover for its workers which was featured in the Meat and Livestock Australia and Australian Meat Processors Corporation OH&S Innovation Awards 2006. 13 The pullover is totally enclosed affording maximum protection to boners and minimising the risk of knife injuries due to the nature and task of boners working in close proximity to each other whilst boning up the chain. Since the introduction of the pullover in September 2005 there has been a 57 per cent reduction in the amount of knife injuries. 14 Mr Bayes stated that he has taken occupational health and safety very seriously over the years. He has developed safety management systems for the business which have included a number of layers of systems which are based on continuous improvement. In addition to these safety management systems, there is a system of risk assessment and elimination in relation to each piece of machinery and task undertaken. Exhibited to his affidavit were copies of the following: (a) the safety management systems for the Group which apply to Northwest. These systems include identifying the person responsible for implementing certain elements of the occupational health and safety policy;

(b) OH&S officers, supervisors, human resource managers and fore persons/lending hands policy;

(c) details of an inspection regime to reduce the level of risks; a copy of the inspections timetable was exhibited to the affidavit. 15 Audits of the occupational health and safety system are conducted annually by Mr Bayes and the Plant Manager. The system also includes a hazard action log for the workers compensation insurer who conducts audits of the occupational health and safety system. 16 Bindaree Beef maintains an occupational health and safety committee which meets every two months. Minutes of the December 2008 meeting were exhibited to the affidavit. Injury investigations are also conducted following most incidents. A detailed investigation was conducted following the incident involving Mr Mighell and the report was provided to WorkCover to assist it in its investigations. 17 Mr Bayes stated that Bindaree Beef's engineering maintenance policy was that all work should be carried out in a safe manner. In respect of Bindaree Beef's lockout procedures he said no work was to be carried on any machinery or moving equipment, mechanical or electrical, until a lockout procedure had been put in place. The system also included a number of policy guidelines and procedures in respect of First Aid Emergency. Bindaree Beef's commitment to safety is reflected in its workers compensation claims costs which have consistently remained below industry averages. Exhibited to the affidavit was a letter from Vaughan and Monaghan Insurance and Financial Services dated 10 February 2009 which set out how Bindaree Beef's workers compensation costs compared to the industry standard. This has resulted in premium discounts. 18 Bindaree Beef's extensive induction program for new employees was also described by Mr Bayes. Mr Bayes said Mr Mighell commenced employment in May 1990. He secured his processing certificate in September 1995. Mr Mighell completed his Occupational Health and Safety induction training for construction work on the 17 March 2000. He underwent a comprehensive induction program on the 18 August 2000 which included Occupational Health and Safety and Safe Work Procedures. Exhibited to the affidavit were copies of his Induction Record. 19 Mr Bayes stated that the Bindaree Beef's Manual provides that if there is any problem with the operation of the equipment, it should not be operated and Supervisor/Maintenance personnel should be contacted. Workers are advised that they are not to effect any repairs themselves. Should they have any safety concerns, they are to turn off their machinery and wait for maintenance. Written instructions were also issued to all workers of Bindaree Beef about lockout and danger tagging procedures. A copy was exhibited to the affidavit. According to training records, on or about 6 May 2003, Mr Mighell underwent an "on the job" assessment in the area of the plant where he worked. He underwent further training for work on 28 June 2004, including the standard operation procedures and work instructions. Further training was undertaken by him on 1 September 2004. Mr Mighell commenced working in the area where the incident occurred, known as the "bible room", in or about June 2004. According to the defendant's training records, Mr T Newton completed an "on the job" assessment and training of Mr Mighell on 28 June 2004. A copy of the records were annexed to the affidavit. 20 Mr Bayes set out his understanding of the incident involving Mr Mighell, which was based on his own enquiries of employees and a reading of the prosecution brief. He said he was informed by Mr Rogers, a Supervisor, after the incident, that Mr Mighell had previously attempted to access the shredder feed auger without calling maintenance. He observed that Mr Mighell had to climb down from his work platform and then crawl on his hands and knees to access the shredder feed auger. Mr Bayes assisted in taking Mr Mighell to the onsite First Aid base station and travelled with him in the ambulance to the Inverell Base Hospital. He contacted his Minister of Religion and his girlfriend and arranged for them to attend the hospital for support whilst waiting for him to be airlifted to Royal North Shore Hospital in Sydney. 21 Bindaree Beef's Occupational Rehabilitation Program details were set out in the affidavit. Consistent with the objectives of the Rehabilitation Program, Bindaree Beef assigned Ms Rhonda Thompson as the Rehabilitation Co-ordinator for Mr Mighell. Ms Thompson's rehabilitation notes were exhibited to his affidavit. The notes indicated that Ms Thompson coordinated medical assistance on the day of the accident and organised a counselling session for all the affected workers. At Mr Mighell's request, Ms Thompson arranged and paid for his girlfriend to be flown to Sydney for the duration of his stay in hospital. A barbeque was funded by Bindaree Beef on 10 May 2006 as an opportunity for co-workers to show their support for Mr Mighell. It allowed him to talk at length about his ongoing treatment and rehabilitation. 22 Ms Thompson continued to visit Mr Mighell until he was ready to return to work on light duties which occurred on 15 June 2006 when he commenced working two hours per day, three days per week. Mr Mighell returned to permanently modified duties in the by-products section on 16 August 2006 and remains employed by Northwest. Liability in relation to Mr Mighell's workers compensation claim was admitted and payments made. 23 As a result of the incident Mr Bayes said that Bindaree Beef had undertaken a number of initiatives in respect of the shredder feed auger. These included extending the length of the drainpipe to the auger so that it is now impossible to make contact with the auger; placing a lock on the strainer plate, so that it is locked in a position on the drain of the auger; ensuring only maintenance staff have the authority and capability to remove the strainer plate; undertaking a further risk assessment of the work surrounding the shredder feed auger; retraining all staff in the "bible room" on procedures with respect to blockages, cleaning and maintenance and conducting an extensive review of the guarding on all machinery within the Inverell Plant including creating a register of all the guards. If any guards were found to be unsafe or not working properly, they were upgraded including with interlock systems where appropriate. 24 Mr Bayes said these measures were not implemented prior to the incident due to what was considered to be the inaccessible nature of the shredder feed auger and Bindaree Beef not having any knowledge of Mr Mighell having attempted to clear the blockage previously. 25 Mr Bayes said that Northwest co-operated with WorkCover during its investigation and stated that the management of Northwest were extremely saddened and distressed by the incident and the injuries sustained by Mr Mighell. He said the incident is something which Northwest feels responsible for and it has taken every step it can to prevent a recurrence. Northwest has used its best endeavours to rehabilitate Mr Mighell so that he could return to full time employment. 26 Mr Bayes also outlined the effect that a conviction could have on Bindaree Beef's tendering chances for Government and large corporate contracts. Relevant Principles

27 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the Act. Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: [I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion." [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows:

[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows:

The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: ... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated:

We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows:

[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]:

[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).

28 Both Counsel accepted that the primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offence. This involves examining the nature and quality of the offence, as set out in the Agreed Statement of Facts, and the evidence. Mr Moses acknowledged that the real issue was the failure by the defendant to ensure a trained employee did not ignore instructions and its system of work. The only effective means of doing this was to install the improved system, which occurred after the incident. 29 Mr Moses pointed to the particulars submitting that this was not a prosecution where it was alleged that the defendant had failed to ensure that there was a safe system of work or a failure to provide instruction and training. It is well established that unless the prosecutor is confined to proving the elements that fall within the particulars, a risk to safety may, on analysis, arise from factual circumstances that are not the subject of the charges, because of the many ways in which the breach of the provisions may occur: Australia Meat Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) (1998) 83 IR 343 at 349 - 350. To the extent that the prosecutor's submissions addressed a lack of a safe system of work, such submissions appear to extend beyond the reach of the particulars which were confined to a failure to ensure the system of work in relation to the operation of the shredder feed auger was adequately guarded and its operation adequately documented and enforced with respect to clearing blockages of the drain. 30 On the day of the accident Mr Mighell and Mr Rogers, a supervisor, were working in the area of the abattoir called the "Back Tripe/Gut Room". Mr Mighell's work involved the cleaning of bibles (cattle intestines) and returning the bibles back to the Gut Room. All the trimmings from the bibles were fed into the shredder feed auger. During the course of the trimming, process water drained into the auger and out of the drain. From time to time during a shift, the drain of the auger would become blocked by cattle intestines, rocks, and other by-products, causing water to back up into the auger preventing the flow of by-products to the shredder. It was an agreed fact that during the course of the shift on the morning of 2 May 2006, the auger drain became blocked on a number of occasions. In order to clear the blockages, Mr Mighell left his work station, crawled under the auger, and pulled out the sliding strainer plate from the drain which allowed what was blocking the drain to flow out onto the floor. On the occasion of the accident, the drain did not clear because cattle intestines were blocking the water flow. Mr Mighell wrapped his left hand around a cow's intestine to pull it clear from the drain. It appears that the cow's intestine that he was holding was also wrapped around the screw flights of the auger. As the screw flights rotated, his left arm was drawn up through the drain and into the path of the rotating metal screw flights, whereupon his lower left arm was severed. 31 The defendant conceded that on 2 May 2006 it failed to ensure that the plant provided for use by employees, being the shredder feed auger, was adequately guarded against access to dangerous moving parts, or had other appropriate controls in place so as to prevent employees from coming into contact with the dangerous moving parts. The defendant also conceded that it failed to ensure that its system of work in relation to the operation of the shredder feed auger was adequately documented and enforced with respect to clearing out blockages. It is these failures by the defendant that give rise to a risk in respect of the health and safety of Mr Mighell and other employees. 32 At the time of the accident, the defendant had in place an Occupational Health and Safety Policy Manual. It included a chapter titled "Danger Tag" and "Out of Service Tag Regulations" and provided that Danger Tags were to be used on all plant and equipment when it was being cleaned, prepared, maintained/serviced and checked or inspected. The defendant also had a training manual which contained work instructions for employees working in the Back Tripe/Gut Room, although the work instructions appeared to focus on the use of knives. In the Back Tripe/Gut Room, workers were directed to "inform the supervisor of problems occurring that may cause injury to other operatives". The working procedures made no specific reference to the clearing of blockages in the drain of the shredder feed auger. Although Mr Mighell underwent the defendant's comprehensive induction program on or about 18 August 2000, there was no evidence that Mr Mighell's attention had been directed to those parts of the Occupational Health and Safety Manual that set out the "Danger Tag" and "Out of Service Tag Regulations". 33 Mr Bayes' evidence was that all workers are advised that they are not to effect any repairs themselves. Should they have any safety concerns, they are to turn off the machinery and wait for maintenance. Although the defendant had, what on their face appeared to be well documented and comprehensive safety procedures, it is clear that there was a breakdown in the systems of work. Mr Mighell's supervisor, Mr Rogers, had knowledge of Mr Mighell's previous attempts to access the shredder feed auger without calling maintenance and did not bring this matter to the attention of management. 34 This is but another case where a serious accident has occurred through inadequate guarding and lockout procedures. The risk to the health and safety of employees if machines are not properly guarded is obvious. Mr Moses conceded that the existence of the risk was reasonably foreseeable, submitting however, that it was not obvious that Mr Mighell would have accessed the shredder feed auger. I respectfully agree with the observations of Walton J, Vice-President, in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Another (1999) 95 IR 383 at 449 where his Honour said: Whilst I accept that the existence of settled safety procedures and instructions is a factor which is relevant to the assessment of the seriousness of the offence (see Department of Mineral Resources of NSW (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (unreported, Walton J, Vice-President, IRC142 of 1998, 16 August 1999) at 33), that system must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks: University of Sydney at 21. In Inspector Hannah v Rice Growers Co-Operative Limited (unreported, Fisher CJ, CT88 of 1990, 20 November 1990), his Honour commented, in relation to an offence under s15 of the Act, that (at 7-8): "It was true that it may be difficult to anticipate the way in which even an obvious and avoidable risk may work itself out. Most serious accidents are not anticipated. This does not excuse any employer from a failure to employ a safe system of work incorporating obvious and desirable safety measures." 35 The defendant contended that the reason it had failed to appreciate the risk was because of the inaccessible nature of the shredder feed auger and not having any knowledge of Mr Mighell having attempted to clear the blockage previously in the manner which he did. It is well settled that an employer's obligation is to ensure the health and safety of its employees and contractors. This obligation extends to the hasty, careless, inadvertent, inattentive or unreasonable employee: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248; WorkCover Authority (NSW) (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722. 36 I would add that such duties are also owed to the enthusiastic and committed employee who is motivated by a desire to maintain the productivity of his employer's operation. The proactive nature of the duty was described in forceful terms by Hill J in WorkCover Authority (NSW) (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 where his Honour said: ...employers should be on the offensive to search for, detect and eliminate, so far as reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time at the workplace. 37 As I have observed, the defendant has extensive occupational health and safety procedures documented, however, employers must ensure that the procedures laid down in such manuals are regularly brought to the attention of employees and reinforced. I note in this respect the observations of the Full Bench in Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [16]. Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice-President in WorkCover Authority (NSW) (Inspector Glass) v Kellogg (Australia) Pty Ltd (1999) 101 IR 239 at 257 as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s 15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. In State Rail Authority (NSW) v Dawson (1900) 37 IR 110 at 121 and 125 the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s 15 (although in that matter it was found the failure was that of the foreperson and not the employer). I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p 44 of Redgrave's Health and Safety 1998, Third Edition) it was held in England under the equivalent of s 15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 at 181-182, Kirkby v A & MI Hanson Pty Ltd (1994) 55 IR 40 at 53 and McMartin v Broken Hill Proprietary Co Pty Ltd (1988) 100 IR 241 at 254)." 38 Following the incident, the defendant extended the length of the drainpipe by 100 millimetre so that it is now impossible to make human contact with the screw flights of the auger. As a further measure, a lock was placed on the strainer plate so that it is locked in a position on the drain of the auger and only maintenance staff have the authority and capability of removing the strainer plate. A further risk assessment of the work surrounding the shredder feed auger was carried out and employees in the Back Trip/Gut Room were retrained on the procedures with respect to blockages, cleaning and maintenance. In addition, the defendant conducted an extensive review of the guarding on all machinery within the Inverell Abattoir, including creating a register of all the guards. If any guards were found to be unsafe or not working properly, they were upgraded, including the fitting of interlock systems, where appropriate. It also documented its safety procedures in respect of the shredder feed auger. Such remedial steps were simple and inexpensive to implement. 39 Whilst the consequences of an accident will not, of itself, dictate of the seriousness of the offence, the occurrence of serious injury, as has occurred here, manifests the degree of seriousness of the risk to health and safety: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32] and the cases referred to therein. See also Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337. 40 It is necessary to assess the degree of culpability for the breach of the Act that can properly be attributed to the acts or omissions of the defendant in order to determine the gravity of the offence to which the defendant has pleaded guilty. The failure here was to have proper and adequate guarding of the shredder feed auger. The only guard preventing access to the auger via the drain was the free sliding metal strainer plate fitted to the end of the drain. This was able to be easily removed by Mr Mighell. There was no interlocking device such that once the metal strainer was removed the auger was prevented from operating, nor was there any means of locking out the metal strainer fitted to the end of the drain to prevent its removal whilst the auger was operating. 41 It will be a serious offence when there is a foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and foreseeable. It was foreseeable that access could be gained to the machine while it was operating. 42 The seriousness of the risk, its foreseeability and the ease of removing that risk, renders this offence, as was submitted by the prosecutor, to be in the middle of the range of seriousness. There is also the particular aggregating factor of the serious injury to Mr Mighell: s 21(2)(g) of the Crimes (Sentencing Procedure) Act 1999. 43 In addition to the factors relating to the offence, the Court is required, in fixing penalty, to consider the need to deter others from committing the same crime and to deter the defendant from re-offending. In Capral Aluminium v WorkCover Authority (NSW) (2000) 49 NSWLR 610 at [71] - [80], the Full Bench recognised that in the industrial context, it would be rare that a sentencing court need not impose a sentence that includes an element of general deterrence. I consider it is appropriate to draw attention once again to the need for employers operating dangerous machines to ensure that such machines are adequately guarded. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 44 In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following an incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment aimed at deterring the defendant from further offending against the Act and/or for the purposes of compelling the defendant's attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety. The defendant has an unblemished record in an extremely dangerous industry and has taken appropriate measures to avoid a recurrence of the offence. I include an element in the penalty for specific deterrence. 45 As I have recently observed, the Occupational Health and Safety Act and its predecessors were introduced to eliminate risks to health and safety including risks associated with accessing dangerous machines: Inspector Jelley v Dupond Industries Pty Ltd & Ors [2007] NSWIRComm 316 at [63]; Inspector Robert Wilkie v YSF Pty Limited & Anor [2009] NSWIRComm 7 at [47]. 46 Relevant subjective considerations include a plea of guilty. The plea was entered to an amended application for order which was filed in Court on 28 November 2008. In Inspector Lavercombe v Alto Automobiles Pty Ltd [2007] NSWIRComm 252, I set out the principles to be applied in determining the discount on sentence when assessing the utilitarian value of a plea to an amended application for order at [55] - [59]. I adopt those principles here and I propose to allow a discount of 25 per cent for the plea of guilty to the amended charge in accordance with the principles outlined in R v Thomson; R v Houlton (2000) 49 NSWLR 383 and R v Gorman (2002) 137 ACrimR 326. 47 I take into account that the defendant co-operated with the WorkCover Authority in its investigation of the incident, including providing its own report of the incident to the prosecutor, which was subsequently relied upon by the prosecutor and the defendant's good corporate citizenship. 48 I also take into account the remorse expressed by Mr Bayes and the financial assistance provided by the defendant in the local community. At the time of the incident, clearly the defendant had a commitment to the objects of the Act and a comprehensive occupational health and safety system which has been assessed and improved as better procedures were developed. An example is the titanium pullover. The system is underpinned by an impressive array of documented material. 49 I also take into account the size and nature of the defendant's workforce and the inherent risks involved in the work performed by the defendant's employees. Bindaree Beef employs nearly 550 persons at its Inverell plant and the defendant employs 50 persons at the plant. 50 The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken in respect of the injured worker. Their Honours observed at [17]: We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. 51 I also take into account the assistance provided to Mr Mighell after the accident and in respect of his return to work, together with the support given to his girlfriend, as earlier set out in the evidence of Mr Bayes. 52 I have agonised over the penalty that should be imposed for this occupational health and safety crime. This has led me to consider a number of earlier Full Bench judgments of this Court involving the failure to properly guard machines: WorkCover Authority of New South Wales (Inspector Lancaster) v Burnshaw Constructions Pty Ltd (2003) 121 IR 119; WorkCover Authority (NSW) (Inspector Batty) v Graincorp Operations Ltd [2002] NSWIRComm 49 and Barber v Gundagai Shire Council (or alternatively Gundagai Council) [2002] NSWIRComm 243 where the Full Bench stated: [17] ... The nature of the crush injury suffered by Mr Jones when his right forearm became trapped in the identified nip point between the metal lip of the bin lifter on the metal cradle and the rear of the hopper of the compaction unit are objectively serious on any view. We accept without issue the force of the joint submissions on the requirement for guarding such dangerous machinery expressed in paragraph 8 in the following terms: "The requirement for employers and other persons to identify and safely guard all dangerous parts of machinery used at work has been recognised for decades in decisions of the Commission and its predecessors, as well as in the Chief Industrial Magistrate's Court and Local Court." [18] Given that view, with which we concur, the requirement of public interest is manifestly evident in the matter before us. As has been expressed by this Court repeatedly in like and similar terms, the Occupational Health and Safety Act and the obligations arising there from requires an employer to look ahead and to seek out and foresee dangers even when those dangers have not crystallised to an incident or accident... 53 Whilst comparisons on a case by case basis do not assist the determination of penalty, the general principles stated in these cases are of some particular assistance, especially in respect of the objective seriousness of the offence and the importance of general deterrence. It is also often stated, with emphasis, that one important consideration is the available maximum penalty. In this case, given that the defendant has no prior convictions, the maximum penalty is $550,000. 54 I consider an appropriate penalty, taking into account all of the circumstances set out earlier in these reasons, is $150,000. I should observe that the penalty would have been greater, but for the matters raised by the defendant, particularly in respect to the assistance provided to Mr Mighell. 55 The prosecutor sought costs and a moiety of the fine which I propose to order. ORDERS The Court makes the following orders:

The offence is proven and a verdict of guilty is entered.

The defendant is convicted of the offence as charged.

The defendant is fined an amount of $150,000 with a moiety to the prosecutor.

The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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Cases Cited (36)