Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Gregory v Big River Timbers (Veneer) Pty Ltd [2013] NSWIRComm 85
• Hearing dates: 24 September 2013
• Decision date: 24 September 2013
• Jurisdiction: Industrial Court of NSW
• Before: Haylen J

Decision

(a) The defendant, Big River Timbers (Veneer) Pty Ltd is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000, as particularised in the amended application for order in matter No IRC 2388 of 2008 to which the defendant entered a plea of guilty;

(b) The defendant is fined the sum of $120,000 with half that sum be paid to the prosecutor by way of moiety;

(c) The defendant is to pay the costs of the prosecutor in a sum agreed between the parties and in the absence of agreement as assessed pursuant to provisions of the Legal Profession Act 2004.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT - s 8(1) - crush injury received in working at timber and plywood factory - injury results in partial amputation of employee's foot - early pleas of not guilty entered - delays experienced in light of "Kirk" decision in High Court and various challenges in the Court of Appeal - prosecution successful in amending particulars - defendant enters plea of guilty to amended application for order - serious breach established - risk foreseeable and obvious - general and specific deterrence considered - prior offences involve crush type injury - numerous subjective factors considered - long running operation in inherently dangerous industry - overall safety record considered - numerous steps taken to address risk identified - defendant undertakes costly modifications to plant and guarding - new log cutting system introduced at cost of $1.4 M - co-operation with WorkCover investigation - remorse and contrition demonstrated - relatively early plea entered - penalty imposed
• Legislation Cited: Occupational Health and Safety Act 2000
• Cases Cited: Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208; Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1; (2010); 239 CLR 531
• Category: Principal judgment
• Parties: Inspector Marie Gregory (Prosecutor); Big River Timbers (Veneer) Pty Ltd (Defendant)
• Representation: Mr Reitano of counsel (Prosecutor); Mr McGrath SC (Defendant); WorkCover Authority of NSW (Prosecutor); Herbert Geer Lawyers (Defendant)
• File Number(s): IRC 2388 of 2008

EX TEMPORE Judgment

1 Before the Court is a prosecution against Big River Timbers (Veneer) Pty Ltd alleging a breach of s 8 (1) of the Occupational Health and Safety Act 2000 ("the Act"). That prosecution arises from a workplace accident that occurred in February 2007 at the defendant's timber and plywood factory. It involved a long-term employee, Mr Peter Carey, having his foot caught in an unguarded nip point of a moving conveyor resulting in serious injury, ultimately the partial amputation of his foot.

2 Proceedings were commenced in December of 2008 and the history of the proceedings will be considered again shortly. However, after a notice of motion was dealt with by the Court concerning the particulars being pressed by the prosecutor, in early September 2013 there was filed in court an amended application for order. The defendant thereupon entered a plea of guilty to this amended application for order.

3 The amended application for order alleged a failure to ensure the health, safety and welfare of all employees at the defendant's factory contrary to

8 (1) of the Act. The risk of injury was particularised as coming into contact with an unguarded nip point of a moving conveyor. Further particulars provided alleged that the defendant failed to provide plant, in particular the LM saw unit and all related parts, that was safe and without risk to health when properly used. It was further particularised: that the defendant failed to provide safe designated walkways and crossing points and/or access to paths around the plant; that the defendant failed to conduct an adequate risk assessment in relation to the operation of the plant; and, that the defendant failed to have a safe system of work in relation to the operation of the plant, including when working within the vicinity of moving parts of the plant;, and, that the defendant failed to provide sufficient information, instruction, training and supervision in the operation of the plant. There were further detailed particulars provided in relation to each of these matters.

4 In submissions the prosecutor accepted that the gravamen of this offence was the risk of injury likely to an employee coming into contact with the unguarded nip and the various particulars mostly related to that risk in the variety of ways to which attention was drawn. It was pointed out that in relation to the safe work particular that the failure to restrict access to an electrical switchboard and the failure to maintain a regular maintenance schedule ran a little wider than the gravamen of the offence. I am satisfied they are contemplated by the risk identified in the opening paragraph of the particulars. The amended application for order will be annexure 1 to this judgment.

5 The evidence for the prosecutor was primarily contained within an agreed statement of facts. That document will be annexure 2 to this judgment. The agreed statement of facts contains a number of details and looks at the situation in the factory prior to the accident under various headings, then dealing with what happened at the time of the accident and the variety of steps taken by the defendant after the accident. In this exercise the agreed statement of facts deals with access doors and emergency stops and the light system, guarding, isolating, tagging and accessing the switchboard, safe designated walkways, maintenance, risk assessment, information, instruction and training and supervision.

6 The thrust of the agreed statement of facts encompassed the amended application for order but provides a much more detailed account under the various headings identified and needs no further elaboration.

7 The prosecutor also relied upon a tender bundle of documents that set out a code of practice for the sawmilling industry, a copy of Australian Standard AS1755 for conveyors and safety requirements, a Timber Trade Industrial Association machine guarding and conveyor audit, a copy of progress reports from the Timber Trade Industrial Association regarding the machine guarding and conveyor audit, a WorkCover New South Wales factual inspection report, two sets of photographs, and, a prior convictions report. The prior convictions report revealed that the defendant had prior convictions for breaches of s 8 (2) and s 10 (2) of the Act arising from a workplace accident in 2003. That accident involved essentially a crush injury.

8 The evidence for the defendant was provided by Mr James Bernard Bindon, managing director of the defendant, who swore an affidavit for the purposes of these proceedings. In that affidavit he set out his personal history and the history of the defendant, noting that the defendant is part of a group of companies with apparently over 100 years of operating history. The group of companies was 100% family owned by the founding Pidcock family. The history also set out how plywood production commenced in 1983, how the staff had grown from approximately 35 to a staff now of 150, making the group one of the biggest and largest private employers in Grafton and indeed perhaps in the Clarence Valley.

9 The affidavit set out in quite some detail what was described as the longstanding and demonstrated commitment to workplace safety that informed the operation of the group. That list dealt with procedures, inductions, occupational health and safety committees, supervisors, policies, training and manuals, hazard identification and also workers' compensation. That material showed the involvement of the company in actively promoting its safety system and the detail of that system.

10 Reference was made to Mr Carey, who has now been employed for over twenty-two years by the defendant. His considerable workplace training skills were outlined and the training received by him. The nature of the workplace accident that occurred in February 2007 was dealt with, including the speedy action taken by the defendant to close the operation, to counsel the employees and the assistance given to WorkCover even at that early stage. Details were provided of assistance and support provided to Mr Carey and his family during his hospitalisation and details provided of visits by management and fellow employees from the factory.

Mr Bindon spoke about the defendant taking a pro-active approach to Mr Carey's return to work program and how a computer was provided to him to assist in training him for work in other areas and how he was brought back to work and ultimately how he was able to continue working and how he continues work to this day for the defendant. Financial support was provided by the defendant in assisting Mr Carey and his family.

11 There was an amount of material provided as to steps taken by the defendant following this incident. One of the important steps was the engagement of the Timber Trade Industrial Association to conduct an independent audit of the defendant's safety systems: a major modification of the plant and guarding of the plant was undertaken after consultation with WorkCover, involving expenditure of approximately $1.4 M. The auditing process was followed up with the Timber Trade Industrial Association. It was a comprehensive report and will be considered again shortly.

12 It is sufficient to say that there were very many steps taken by the defendant following this accident to address the risk posed primarily by the operation of a large number of conveyors in the workplace and the need to have them properly guarded and to take associated steps to ensure that people were not put at risk by coming close to those nip points.

13 Mr Bindon spoke of co-operation with WorkCover and it was accepted by the prosecutor that there was co-operation in relation to this accident. There was evidence of the good corporate citizenship of the Big River Group including the defendant demonstrating a long history of supporting local organisations with a number of them being identified in the affidavit. Reference was also made to the defendant's and the Group's ongoing commitment to group safety and number of items were referred to.

14 In the course of his affidavit, Mr Bindon, noted that the Group had operated in the Grafton region for over a hundred years and this accident was described as the worst accident in the history of the Group's operation. The accident was viewed extremely seriously and with great sorrow and regret by both of the defendant and the share holders. It was pointed out that Mr Carey was a long term employee of the defendant and that many shareholders and Group directors knew him personally and were concerned and affected by the accident that had occurred.

15 Against that evidence the Court comes to consider an appropriate penalty. The starting point is the previous conviction occurring in 2003. That has the effect of increasing the maximum penalty available in these proceedings to $825,000. The statutory limit identified by the Parliament is a primary guiding light to the Court when it fixes a penalty.

16 It is usual for the Court to then consider the objective seriousness of the offence. It was accepted by the prosecutor that this accident, arising from the unguarded conveyor, was unlikely to result in a fatality but it nevertheless involved a partial amputation of an employee's foot. It was said in those circumstances this was an objectively serious offence. In terms, that categorisation was not contested by the defendant who additionally and frankly conceded that the risk associated with the unguarded machinery was foreseeable. Understandably, the prosecutor added that it was also obvious. The Court agrees with both those comments and is satisfied that this is an objectively serious offence.

17 The Court needs to then consider both general and specific deterrence. It has long been understood that general deterrence should form a significant part of any penalty imposed for a breach of Occupational Health and Safety provisions and so it will be in this particular case. In relation to specific deterrence, the defendant accepted that there was a role for specific deterrence in this case. It had accepted that the risk was foreseeable. Although it was noted from the evidence of Mr Bindon that the defendant no longer operates as a result of a company reorganisation, that was not relied upon by the defendant and it may well be that in the future such a reorganisation decision might be reversed. In this particular case, it is appropriate that specific deterrence while forming an important part of the final penalty, should have a reduced role to play.

18 The Court then comes to look at subjective factors. The Court inquired of the parties as to whether this could be properly regarded as an early plea having regard to its history. The matter was commenced in December 2008, a not guilty plea was entered in May 2009 and the matter was listed for trial.

The High Court judgment in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1; (2010); 239 CLR 531 had the effect of interrupting the course of a number of prosecutions while parties attempted to analyse the pleadings to see if they met with the requirements of the High Court. This was such a case. As it turns out, this prosecution was also delayed because of matters in the Court of Appeal that were required to be considered over a period of time.

19 Nevertheless, there were thirteen appearances in this case. There were eight requests regarding progress of the matter and the vacation of listing for directions. There was a notice of motion to strike out the prosecution in circumstances where there was decision of the Court of Appeal in Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 that was directly relevant to the proceedings. It was frankly accepted by the prosecutor, however, that against all of that background, once the amended application for order was tendered in Court, there was a plea of guilty entered by the defendant. In those circumstances it is appropriate that the defendant receive a discount of 20 per cent for the timing of the plea.

20 In relation to other subjective factors it has been pointed out in addresses for the defendant that it and the Group operates in an inherently dangerous industry. The evidence before the Court demonstrates the use of numerous conveyors and saws in the defendant's operation.

There is a large work force of approximately 150 people. Over a long period of time the defendant and also the Group has worked without coming into breach of safety laws but there are now two such breaches. On further consideration, the Court accepts that overall that history might be accepted as representing a good workplace health and safety record. The two offences however demonstrates there are gaps in the system and also demonstrates the need for continuing vigilance by employers to make sure that their safety methods are effective. The 2003 incident involved a crush injury. The 2007 accident involved a serious injury because of unguarded machinery. The report of the Timber Trades Association in its audit after the accident showed a number of gaps in the system. The safety record of the defendant is to be assessed in that light although its very long period of operation without coming into breach of safety rules is significant.

21 The evidence demonstrates contrition and remorse in that the defendant has acknowledged its responsibility for this accident and that conclusion is also supported by the evidence of the care and support offered to the entire workforce following this accident and also the support, financial and otherwise offered to Mr Carey and to his family. The defendant should also receive credit for the extensive modifications undertaken following this accident in addressing risks in its workplace. All of those matters are to be taken into account in mitigating the penalty to be imposed. Lastly, it should be mentioned in this context that the prosecutor accepts that there was co-operation with the WorkCover Authority and that is always regarded as an important issue by the Court in the sentencing process.

ORDERS

22 Having regard to those matters, the Court makes the following orders:

(a) The defendant, Big River Timbers (Veneer) Pty Ltd is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000, as particularised in the amended application for order in matter No IRC 2388 of 2008 to which the defendant entered a plea of guilty;

(b) The defendant is fined the sum of $120,000 with half that sum be paid to the prosecutor by way of moiety;

(c) The defendant is to pay the costs of the prosecutor in a sum agreed between the parties and in the absence of agreement as assessed pursuant to provisions of the Legal Profession Act 2004.

 

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ANNEXURE 1

Decision last updated: 26 September 2013