(Re Boles) WorkCover Authority of NSW (Inspector Pile) v Fletcher International Exports Pty Ltd [2014] NSWDC 181

District Court New South Wales

Medium Neutral Citation: (Re Boles) WorkCover Authority of NSW (Inspector Pile) v Fletcher International Exports Pty Ltd [2014] NSWDC 181 Hearing dates: 21/08/2014, 26/08/2014 Decision date: 26 August 2014 Before: Curtis J Decision: I find the defendant guilty as charged The defendant is fined $150,000 Legislation Cited: Work Health and Safety Act 2011 Category: Sentence Parties: (Re Aimen Boles) WorkCover Authority of New South Wales (Inspector Pile) (Prosecutor) Fletcher International Exports Pty Ltd (Defendant) Representation: B Neild appeared for the Prosecutor R Reitano appeared for the Defendant WorkCover Legal Group (Prosecutor) Leigh Virtue & Associates (Defendant) File Number(s): 2013/379548

Judgment 1On 21 June 2012 Mr Aimen Boles, an employee of the defendant Fletcher International Exports Pty Ltd, suffered injuries to his right hand when the hand became caught in a conveyor belt in the boning room at the defendant's abattoir works at Dubbo. 2The injuries occurred because a conveyor belt passing over a chute in which Mr Boles, a cleaner, was placing waste "aitch" bones collected by him from the floor had sagged over and above the chute, partially occluding the working space. As Mr Boles attempted to place a bone into the chute it fell onto space between the advancing and retreating parts of the conveyor belt. When Mr Boles attempted to retrieve the bone his hand was caught and jammed between the belt and some fixed part of the system. He was unable to stop the conveyor, because the emergency stop switch was located out of his reach. 3Fletcher International Exports Pty Ltd pleads guilty to the charge that, contrary to its duty under section 19(1) of the Work Health and Safety Act 2011 it failed to ensure so far as was reasonably practicable, the safety of Mr Boles in that it: failed to ensure that auxiliary tension rollers were engaged so as to prevent the sagging of the conveyor belt. failed to ensure that an emergency stop switch was in a position where it could be reached by Mr Boles. 4Mr Boles suffered serious injuries including a hairline fracture within his right wrist, and a deep laceration in which the ulna nerve was completely severed. Although he has regained normal function in the hand he is left with some loss of sensation and occasional aches and pains. Mr Boles was caught in the machine for about two minutes with the belt still running before a fellow worker heard his cries and turned it off. He says he has recurrent nightmares involving the event.

Prosecutor's Submissions

Objective Seriousness 5The serious injuries suffered by Mr Boles illustrate the gravity of the risk against which the defendant failed to guard.

Foreseeability 6The conveyor belt sagged because cleaners had not reengaged the auxiliary tension rollers after releasing them for the purpose of cleaning the belt. This failure, and the consequential sag of the belt over the chute was noticed by at least two employees and a supervisor, Mr Cracknell, in the boning room before the injury. 7In the light of the previous injury to Mr Lee only 12 months before, the defendant was on notice that some similar injury may occur. In this circumstance, the possibility that an injury may result from failure to provide appropriate stop switches was eminently foreseeable. 8The Australian Standard AS1755-2000 ("Conveyors Safety Requirements")- at 2.7.7 provided that: Emergency Stop Controls Emergency stop controls shall be provided as follows: (e) At every permanent working station. 9The Standard provided that an emergency stop control may be adequately provided for by installation of a pull wire. Clause 2.7.9.2 provided that the pull wire should be readily accessible from all areas of access to the conveyor, and generally not more than 1500 mm above the floor. 10The defendant, after Mr Lee's injury, should have acquainted itself with this requirement of the Standard.

Preventability 11It was always reasonably practicable to prevent the dangers arising from a sagging conveyor belt by the simple expedient, later adopted, of spot welding the tension rollers in a fixed position and repositioning the emergency stop pull wire.

Deterrence 12Mr Neild for the prosecutor repeats the submissions in Matter Number 2013/118935 (Re Jun Young Lee).

Defendant's Submissions 13Mr Reitano for the defendant repeats his submissions in the matter of Lee. In mitigation, he adds that before starting work Mr Boles had been instructed by Mr Cracknell to keep his hands clear of conveyor belts, repeating an instruction given to Mr Boles during his training.

Conclusions 14I do not believe that the instruction given by Mr Cracknell to Mr Boles reduces the culpability of the defendant. It is the duty of the defendant to guard against injuries to inadvertent or even disobedient employees attempting to conscientiously carry out their work. 15Again this is not a matter in which the defendant was indifferent to the safety of its workers. The significant causal failure of the defendant was a failure by Mr Cracknell to recognise the one-off risk created by the carelessness of the cleaners. In this respect there was no institutional failure to train and educate its workers, nor to devise and implement safe systems of working. 16Although the injuries to Mr Boles resulted primarily from this failure by Mr Cracknell, nevertheless the extent of those injuries was greater because of the failure to install the emergency stop switch in accordance with the Standard. 17The defendant's failure by its Occupational Health and Safety Managers to have regard to the Standard after the injuries to Mr Lee is less understandable than the inadvertence of Mr Cracknell. This particular failure reflects a certain slackness on the defendant's part that calls for a reminder constituted by a penalty for specific deterrence. 18The maximum penalty is $1,500,000. Such a penalty would only be appropriate in circumstances where the defendant with previous convictions consciously and indifferently courted a known risk, and the consequences were extremely grave, resulting in death or serious maiming. 19Taking into account the relative gravity of Mr Boles injury, and the nature of the defendant's failures the appropriate penalty is $200,000. The defendant is entitled to a reduction of 25% because of its early plea, and its co-operation with the prosecution.

Orders 20I find the defendant guilty as charged. The defendant is fined $150,000 with a moiety to the WorkCover Authority of New South Wales. The defendant is to pay the costs of the prosecutor as agreed or assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2014