(c) that switching off the unloader drive was a more natural way of stopping the floor augers than was turning off the engine.
187 Taking the above factors into account, the defendant's general direction that before entering the grain bin the engine be turned off was inadequate, in that it failed to take account of the likelihood that, when cleaning out the grain bin during field operations such as those being undertaken on 8 December 2003, an employee such as Mr Langfield would be minded to isolate the discharge augers by simply turning off the unloader drive switch. In order to address that propensity and to ensure the augers were isolated before he entered the bin, the system of work should have included an instruction that the unloader tube be returned to the saddle.
188 Returning the unloader tube to it's saddle would have acted as a visible indicator, readily observable to the operator of the machine, that the discharge augers were isolated and would not operate. It is also an important adjunct to the instruction to turn off the engine in order to nullify the actions of an employee who, through inadvertence or haste, intended to turn off the unloader drive rather than the engine and failed to do so, as exemplified by Mr Langfield on the day of his accident.
189 I should add on this point that Mr Collins expressed his disagreement as to the need for this step as an additional safeguard. It is worthwhile, I believe, to set out the entirety of his opinion on this issue which was as follows:
I have been asked if, in my professional opinion, there were other safe work issues that could have prevented this accident from occurring. In particular if the issue of using the auger boom as an interlock switch would have increased the level of safety.
It would appear to me that almost any additional safe work activity could be said to reduce the risk however since the safe guards that were taken failed the question can more appropriately be stated as 'Does the additional safeguard add significantly to the reliability of the controls already provided?'
I understand from the transcripts that the auger boom has on it a process interlock so that when the boom is in the saddle position and not in a position to deliver grain to the external vehicle then the grain tank augers are isolated and stationary. I believe the suggestion here is that this can be used as an additional safeguard that will ensure that the augers are isolated.
In my opinion this simplistic assumption has a number of issues that I feel may reduce the reliability of the additional safeguard so that it has little impact on the safety of the process. These are:
7.1 The switch involved in the auger boom may not have been designed to a safety specification and would have a relatively low level of reliability since in its design specification the result of failure would only be wasted grain.
7.2 The operator would have to remember to move the boom back onto the saddle. If he remembered this he would probably have remembered to turn off the engine as required.
7.3 The manual makes no reference to this additional safeguard and therefore the farmer would have to consider his lack of skill in machinery design in implementing a different additional process.
190 It is difficult to know the basis for Mr Collins' above opinion given he provides no basis or reference point to ground the opinions he has expressed on this issue. I can only say that not only do I dismiss his opinion as being of no or negligible weight, it is an opinion with which I disagree and which is contrary to the evidence. To start with, Mr Collins assertion as expressed at 7.1 in para [189] above is pure speculation and without any evidentiary foundation. In cross examination, Mr Collins agreed it was.
191 Next, as counsel for the prosecutor contended, if the dominant design purpose was to save grain rather than to save limbs, having regard to the purpose and lengthy antecedents of the design of the machine, there would be a greater likelihood that the position of the unloading tube would be a reliable indicator as to the status of the unloading augers. I would agree.
192 Further, the evidence from the Operator's Manual (exhibit 15 at pp 27 and 134) as well as that of Mr Rendell was that it was only possible for the discharge augers to operate when the unloading tube was in the 'out' or extended position. None of that evidence was challenged.
193 The opinion expressed by Mr Collins at 7.2 in para [189] above is not sustained when the evidence as to how those aspects of the machine operate is considered.
194 First, the procedure of sending the unloader arm back to its saddle was accomplished with the operation of only one switch. It did not have any delays or multiple step processes involved in it like shutting down the engine. Second, checking where the unloading tube was before entering the grain bin was a task achieved by a simple act of visibly checking. Contrary to Mr Collins' opinion, it did not require the performance of any mechanical task. It would, on any view, have been a relatively straightforward instruction to have incorporated into a system of work for cleaning the grain bin in order to ensure the augers would not operate and, at the same time, address any propensity for an employee, in the operational circumstances of Mr Langfield, to turn off the unloader drive rather than the engine.
195 Finally, as to the opinion expressed by Mr Collins at 7.3 in para [189] above, I accept, as counsel for the prosecutor contended, that there are a number of difficulties with this observation. One is that the skill the farmer would be required to have would have been a skill in the operation of the machine rather than it's design. Second, the manual made no reference to cleaning the grain tank. Nor did it provide any method to do it. Third, the farmer did not need to be an expert in machinery design in order to design a safe system of work because the manual told him, twice [ex 15, pp 27, 134], that the unloading augers would not work if the unloading tube was in its saddle.
196 Given all the above, I am satisfied there was a clear and easy system of work that could have been implemented in order to ensure workplace safety in relation to the task of cleaning the grain bin or any task requiring entry into the bin. That was a system that involved:
(i) checking to see the unloading tube was in it's saddle;
(ii) not entering the grain bin if it was in the extended position; and
(iii) turning off the engine.
197 The above system of work, if implemented, would have ensured the augers in the grain bin were isolated and would address the real possibility of an employee failing to turn off the engine in field operations and, for reasons of expediency, choosing instead to isolate the discharge augers in the manner exemplified by Mr Langfield on the day of his accident.
198 Given the conclusions I have come to, I am of the view the defendant's system of work in relation to cleaning the grain bin, encompassing as it did an obligation to ensure the augers were not operating was, in all the circumstances, inadequate.
199 Further, I am satisfied there was a causal nexus between the defendant's failure to provide a safe system of work as particularised and the risk to Mr Langfield's safety exemplified by his accident at work on 8 December 2003. Accordingly, I find the offence proved.
Defences arising under s 28 of the Act