Inspector Colin Wall v Hunter Douglas Ltd [2007] NSWIRComm 56

Industrial Court of New South Wales

CITATION: Inspector Colin Wall v Hunter Douglas Ltd [2007] NSWIRComm 56

PROSECUTOR: Inspector Colin Wall PARTIES: DEFENDANT: Hunter Douglas Ltd

FILE NUMBER(S): IRC 3315 of 2006

CORAM: Haylen J

Occupational Health and Safety Act 2000 - s 8(1) - guilty plea - accident while operating metal slitting machine - crush and laceration injuries involving finger amputations - machine operator not returned to normal duties nearly two years after accident - serious breach established - general and specific deterrence considered - significant subjective factors - three previous offences - two offences relate to inadequate guarding of machinery but occurred ten years previously - metal manufacturing business involving dangerous machinery and numerous operators - good industrial record - early plea - co-operation with WorkCover investigation - contrition - penalty imposed CATCHWORDS:

HEARING DATES: 13/03/07 EXTEMPORE JUDGMENT DATE: 13 March 2007

PROSECUTOR: Ms P McDonald of counsel SOLICITORS: Carroll & O'Dea LEGAL REPRESENTATIVES:

DEFENDANT: Mr A Gotting of counsel SOLICITORS: Corrs Chambers Westgarth

JUDGMENT: 18 INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Haylen J 13 March 2007

Matter No IRC 3315 of 2005 INSPECTOR COLIN WALL v HUNTER DOUGLAS LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2007] NSWIRComm 56

1 Hunter Douglas Limited has pleaded guilty to a breach of s 8 (1) of the Occupational Health and Safety Act 2000. The defendant, a significant operator in what might be called the metal manufacturing industry, uses many types of machinery in that industry, and in the course of its undertaking.

2 The present matter involves injuries sustained by a newly employed machine operator while operating a slitting machine. The particulars of the alleged offence were that at its Rydalmere premises, and in relation to an employee, Omprakash Ingleshwar, the defendant failed in the following ways: 1. To provide and maintain plant, namely, the Citydel slitting machine that was safe, and without risk to health when properly used, in that access was possible to the unguarded cutting head of the machine whilst it was in operation. 2. To provide and maintain a safe system of work for the rewinding of coils on the Citydel slitting machine.

3 The prosecution evidence before the Court was constituted by an Agreed Statement of Facts, a factual report prepared by a WorkCover inspector, a number of photographs, some diagrams of the piece of machinery involved in this incident, both before and after the incident involving the employee, Mr Ingleshwar, and showing the additions to the safety features of that machine and a list of prior convictions, to which I will return. 4 For the defence, there were two affidavits read with a number of annexures or exhibits. The first affidavit was sworn by Mr Dean Brooks, the national installations manager and the second affidavit was sworn by Ms Carolyn Bucca who was the national Safety Health & Environmental Manager. That material constituted the evidence in relation to the plea of guilty entered by the defendant. 5 In the Agreed Statement of Facts (annexed to this judgment), it was noted that Mr Ingleshwar commenced his employment with the defendant on 24 January 2005, and the accident involving Mr Ingleshwar occurred on 20 April 2005. At that time he was working at the site in a training role, and was assisting an experienced employee, Mr Paul Morgan, in operating this slitting machine. 6 A difficulty arose with the operation of the machine, and another operator, Mr Tran, offered assistance due to the metal jumping and becoming damaged as it was rewound. Mr Tran provided this assistance by walking inside the laser beam curtain area, whilst the slitting machine was off, and standing in a gap that was some 500 millimetres wide, between the slitting machine and the laser beam curtain.

7 Mr Tran, wearing gloves, placed a rag against the metal to stop it from jumping and then the slitting machine was restarted, and that meant effectively the laser beam had not been broken by Mr Tran. He was able to continue for some 20 minutes standing next to the machine, without breaking the beam and thereby disengaging the machine or shutting it down. 8 Eventually, after some 20 minutes of Mr Tran performing this task, Mr Ingleshwar took over. It appears that he did not use a glove, but continued to hold down the metal, using a rag in his hand. After a relatively short time performing this task, Mr Ingleshwar's hand was caught in the cutting head for approximately five seconds, which was sufficient time to allow his hand to be dragged along the metal for several metres before the slitting machine was stopped. 9 Mr Ingleshwar sustained crush injuries and lacerations to both hands, as well as amputation of his right thumb and the little finger on his left hand. As a result of these injuries, Mr Ingleshwar was incapacitated for work until at least 15 December 2005, at which time he was receiving physiotherapy and required a full time carer. It is agreed that, prior to this accident, there was no documented risk assessment for the slitting machine and there was no safe system of work for the rewinding of coils on the slitting machine. That was not necessarily, as it turned out on the evidence, a usual part of the machine's operation. 10 Prior to, and on the date of this incident, access was possible to the unguarded cutting head of the slitting machine whilst it was in operation, in circumstances where a person walked on the inside of the laser beam curtains while the slitting machine was turned off, and remained inside the gap between the slitting machine and the laser beam curtains when the slitting machine was reactivated.

Following the incident, the defendant company conducted a formal risk assessment in relation to the slitting machine. A number of safety measures were then implemented, including the installation of additional laser beams; installation of additional guarding; installation of an interlocking gate; installation of additional emergency buttons; the provision of additional training of employees; and the introduction of a revised documented safe operating procedure for the slitting machine. 11 It was accepted that the defendant had co-operated with the WorkCover Authority in relation to its investigation of the incident.

The factual report, the photographs and the diagrams have assisted the Court in understanding the nature of the work and the circumstances in which Mr Ingleshwar was injured on the date in question. 12 The affidavits for the defendant themselves were quite comprehensive, and referred to a number of documents which were exhibited before the Court. Mr Brooks was the national installations manager. He had been employed with the defendant since April 2001. He had a history of employment in the process improvements and quality systems of the defendant. He had additional functions between November 2004 and February 2005, including responsibility for improving the processes and systems within the team of employees who operated the Citydel slitter.

In February 2005 until early 2006, he was employed as the slitting team leader, and between April 2006 and October 2006, he was employed as the New South Wales installations manager. His employment history and qualifications appear in his affidavit and I do not repeat them. 13 At the time of the incident, Mr Brooks refers to the slitting team consisting of approximately ten to twelve employees. Part of his duties as the slitting team leader included developing and implementing procedures and processes to ensure the slitting machines and other slitting machines and the slitting team operated safely and efficiently. He had implemented a rotation system for the team so that the employees rotated between operating the machines and packaging.

Another part of his duties in this position was conducting components of the induction training of new employees in the slitting team, such as site inspection and/or safety induction, and amongst the things that were dealt with were safety requirements relating directly to job responsibilities and guarding - a point of central interest to this particular matter. 14 Mr Brooks stated that when he was conducting a safety induction for new employees in the slitting team as the slitting team leader, he would show new employees the guarding on the machine, explain the purpose and the improvements or features, including the painted yellow line on the floor running parallel to the entire length of the machine and including the fact that employees were not allowed to pass this line when the machine was running.

Anyone stepping beyond the line would be registered by the safety light curtain and this would automatically stop the slitting machine. Also emphasised was the fact the slitting machine had three fenced areas with electrical detectors, or locks on the rewind, unwind and rear of the slitting machine. If these detectors were opened while the slitting machine was operating, the machine automatically stopped. If they were opened the machine could not be started until the detectors were closed. There were also fixed fences and covers on various parts of the machine to prevent access to those parts of the machine. 15 In relation to Mr Ingleshwar, it was said he had previous experience with another employer for approximately two years as a slitting operator, but had only been employed for a number of months prior to this particular incident. The incident is described in some detail and I do not repeat what Mr Brooks says about that matter. He does say, at the time of the incident, from his experience as the team leader, and from discussions with machine operators, and also observing employees working on the machine, that the procedure for rewinding a coil on the slitting machine involved a number of steps, but did not involve standing in the small gap between the safety light curtain and the slitting machine, and did not involve standing in the vicinity of the yellow painted line running parallel to the entire length of the slitting machine. 16 In his affidavit he says at the time of the incident, the standard procedure for operating the machine had been included in a written procedure, but the rewinding of the coil had not been included in the written procedure, because it was not part of the ordinary function or purpose of the slitting machine. In any event, the standard procedure did not require at any time, operators to stand in the small gap between the safety light curtain and the slitting machine. Mr Brooks said he had never seen, or directed, any slitting machine operator to stand in the small gap between the safety light curtain and the slitting machine. 17 In relation to training, Mr Brooks was accredited to train small groups of employees. In late January 2005 he had arranged for Mr Ingleshwar to participate in the induction and training program. That was a programme that included job specific training, site tour and company overview. Mr Brooks conducted Mr Ingleshwar's training in relation to specific job responsibilities, authority limits and team processes. That involved bringing to Mr Ingleshwar's attention issues relating to safety requirements and guarding requirements. 18 In approximately February 2005, Mr Ingleshwar had been provided with a copy of the standard procedures manual for the slitting machine and that was a particular and identified document. Mr Brooks also spoke of the defendant company having a "buddy" system, whereby new machine operators were placed with experienced employees during shifts, so on the job training could be provided to new employees. Mr Morgan provided that function in relation to Mr Ingleshwar.

19 At the time of this incident, there was also a group team meeting which discussed, amongst other things, safety issues. Mr Ingleshwar attended these weekly team meetings. Mr Brooks observed Mr Ingleshwar in his progress in operating the slitting machine while he was working, and he did so on a daily basis. He discussed with Mr Ingleshwar his progress, and his working under the buddy system - a record of his progress was kept. 20 Following the incident, at the end of April 2005, the metals manager at a meeting indicated there was a need for, presumably, the machine operators to reread the standard operating procedures for the slitting machine, to ensure they were fully aware of occupational health and safety standards and reminded them they could not carry out work outside those normal procedures, unless there was a new practice approved by the metals manager or Mr Brooks.

Following the incident, there was a refresher safety training course provided - that was conducted over a period of some four hours. At the end of the training there was a written safety test, and the nature of that test was in evidence. Mr Brooks updated the standard slitting procedures manual for the slitting machine. He revised the standard manual, including a pre-start check list and assessment of the instrument. He provided a copy of the revised standard procedures manual to each employee of the slitting team. Those documents were in evidence and were available for the Court to consider. 21 Ms Bucca was employed as the National Safety Health and Environment Manager. In her affidavit she set out her employment history and qualifications. Her duties included providing technical support and guidance in order to eliminate or control occupational health and safety and environmental risks to employees; to develop and implement initiatives to develop and improve safe systems of work; and to facilitating behavioural and cultural change by ensuring employees and managers participated in occupational health and environmental initiatives. 22 There was an occupational health and safety co-ordinator employed by the company in January 2007.

Ms Bucca was able to give some details of the company's history, including its initial registration as a public company under another name in late 1955, the change of its name and registration as a public company in September 1984, and the fact the defendant was a publicly owned subsidiary of Hunter Douglas Holdings Limited. She made the point that the defendant had not, and does not, undertake any commercial activities, as the entire operational/commercial activities have been and are performed by Hunter Douglas Limited. The nature of the commercial activities at the Rydalmere site were described as the manufacture and supply of architectural, home improvement, window covering products and components; the manufacture and supply of textiles and the supply of coated and slit metals.

There was a similar commercial activity located in South Australia. As at the end of January this year, the defendant company employed over 370 people in Australia. Of that number, 296 were located at Rydalmere. At the time of the incident, the defendant employed 117 people as machine operators at the Rydalmere site. 23 It was pointed out that the production output for the Metals Manufacturing Centre (where this incident occurred) was not linked to any employee incentive or company bonus scheme. Some brief and important evidence was given as to the output of the centre, indicating a very large volume of production. 24 The defendant's occupational health and safety system was then described in some detail. I do not intend to repeat what is set out in that detail, but there was a formal occupational health and safety management system. It was regularly reviewed. There was an internal six month audit. There were occupational health and safety committee members conducting monthly inspection reports; there were monthly team leader/line manager area inspections, using a check list. There was a monthly review of accident, incident and hazard reports. There was a risk management review schedule. There were legal and practice updates on occupational health and safety from representative bodies, and publishers in the field. There were review processes undertaken by external providers.

It was said the defendant first implemented its health and safety induction program in November 2005 to supplement its induction program for new employees. A number of related documents were in evidence before the Court. The management of the site, including the managing director and divisional managers were involved in occupational health and safety initiatives, including the review of safety issues, attendance at occupational health and safety committee monthly meetings, risk assessments, safety walks and inspection programs. 25 As part of the occupational health and safety management system, safety information was communicated to employees through the safety strategic plans, through safety committee meetings, through safety alerts and notices when an important occupational health and safety issue was identified and by safety training and team meetings. 26 The specific measures taken prior to the incident were identified as the installation of a safety light curtain from the uncoiler to the pit entry of the machine; a safety light curtain from the pit exit to the rewinder; a pressure sensitive mat near the exit to the slitter head and a pressure sensitive mat near the entry to the rewind section of the plant. The slitting standard procedure manual was located at the slitting machine. 27 After the accident there were a number of conversations and discussions with the metals manager. The incident was reported promptly. The area was isolated and on the day after the accident, the WorkCover inspector attended the premises. The area remained isolated until such time as the inspector gave permission for it to reopen. Counselling services were made available. An accident report was completed and circulated to management for action. An announcement was made regarding occupational health and safety and it was discussed in team talks. Senior managers of the company have undergone specific safety training to reinforce the occupational health and safety obligations under the Act and the importance of the defendant's safety management system. 28 Following the investigation of the incident, a number of improvements were made. There was a risk assessment of the slitting machine and other similar machinery. That was undertaken by an external consultant. The safe operating procedure for the slitting machine was revised and improved, and a pre-start safety check list for the machinery was introduced. Additions were made to the machinery which I have already referred to.

It was said in relation to Mr Ingleshwar that he remains an employee of the defendant and currently undertakes quality inspection duties on a part-time basis. In the period commencing 26 weeks after the incident, the defendant until the present time, in addition to his applicable statutory workers compensation weekly wage rate, supplemented Mr Ingleshwar's income with an amount of over $400 a week, so that he has continued to receive his average pre-incident earnings. 29 On behalf of the defendant, Ms Bucca expressed the defendant's profound regret for what had occurred to Mr Ingleshwar, and expressed sincere regret for the incident, particularly expressing those sentiments to Mr Ingleshwar and his family. 30 In relation to the prior record of the defendant, there were three matters. There was a matter under the Factories Shops and Industries Act in 1985, which incurred a penalty of some $300. In 1994 and 1995 there were two breaches. The 1994 breach concerned a breach of the Factories Shops and Industries Act and the Chief Industrial Magistrate imposed a fine of $1500. In 1995 there was a breach of the 1983 Occupational Health and Safety Act, and s 15(1). As a result, the Chief Industrial Magistrate imposed a fine of $2,000.

The 1994 and 1995 offences involved failure to safely guard machinery and injuries occurred as a result of those offences. That is the record that raises the maximum penalty, to be considered in this case, to $825,000. 31 On behalf of the prosecutor, it was submitted that the risk to health and safety identified here was the risk of exposure to the moving parts of the slitting machine, being the cutting head, or the slitting head of the machine. The principle of foreseeability was a factor, and the defendant here did install some guarding, but it was submitted that it was clearly inadequate.

The space that was allowed, some 500 millimetres, was sufficient for Mr Tran and Mr Ingleshwar to be exposed to the cutting head. The work being undertaken by Mr Morgan, Mr Tran and Mr Ingleshwar was not the subject of any documented work procedure. There was a manual available. A submission was made as to lack of evidence about its actual location and availability. 32 The prosecutor submitted that the breach was a serious one, a view supported by the fact Mr Ingleshwar was not only facing a crush injury, but of course, the cutting head was left in place and the distance between the rollers increased to open the gap between the rollers and Mr Ingleshwar was exposed to the cutting blades. He sustained crush injuries and lacerations to both hands, as well as amputation of his right thumb and the little finger on his left hand. They were serious injuries which reflected the seriousness of the risk to health and safety. 33 There were simple remedial steps available. They were in fact taken by the defendant, including the installation of additional laser beams, additional guarding, additional training for employees and revised documentation. Reference was made to the previous record of the defendant, and the use to which that record might be put; the need for both general and specific deterrence and, the fact the defendant continues to operate in this field with a significant number of employees. It was recognised there were a number of subjective factors. There was a plea of guilty and that was entered at the first listing of the matter. There was co-operation with the WorkCover Authority. 34 In relation to the defendant, attention was drawn to the nature of the offence as charged. Although it was accepted one aspect of objective seriousness of the offence was the reasonable foreseeability of the risk that eventuated, that was put in the context of what had actually been implemented by the defendant. Its safety system involved safety induction, safety training, the buddy system, putting a new employee with an experienced operator, thus allowing on the job training, and a number of safety features on and around the machine, including the safety laser beams.

It was in that context that the defendant made the observation about foreseeability of this particular incident, and then, of course, the steps that were taken to address that risk after the incident involving Mr Ingleshwar. 35 It was submitted on this particular day the system of work was not followed by Mr Tran or Mr Ingleshwar. That rather highlights the fact that an essential part of an effective safety system is enforcement and ensuring it is adhered to. All the effort put into producing manuals, having external assistance and training employees about safety requirements would be of little use, unless that system is effectively enforced. 36 This particular case perhaps is an example of an otherwise conscientious employer failing at the, perhaps, final step to bring about an assurance of safety for its employees. The matters I have already referred to as the steps taken to address the detriment to safety were relied upon, as they were entitled to be. It represents evidence of quite prompt action taken by the defendant. In the first eight days after the accident, a number of very significant steps were taken, as has already been indicated, as well as a range of initiatives. 37 The defendant accepted general deterrence was proper to be taken into account, but significant steps were taken by the defendant after the incident, thus reducing the role of specific deterrence.

In relation to subjective factors, besides the early plea of guilty, there was co-operation with the WorkCover Authority and emphasis was also placed upon the safety record of this defendant, considering its long period of operation and the significant number of people employed as machine operators. There was evidence of its contrition, the defendant's own contrition, and perhaps that, in a particular way, was demonstrated by the way in which Mr Ingleshwar had been treated upon his injury.

It appears that for quite a lengthy period, he has not been able to resume what might otherwise be his normal duties, but his pay is being made up, and he has been continually in employment. It is against that background that the Court comes to consider the appropriate penalty. 38 In this case, there was a serious breach. The injuries suffered by Mr Ingleshwar of both crush and cutting injuries, and involving amputations, is evidence of the seriousness of the breach. It is appropriate, although it is relevant in other considerations, to mention that here, of course, the defendant is involved in an industry which requires the use of modern technology, and employment of a number of machine operators. It had in place a significant safety system. This is certainly not an example of a total disregard of occupational health and safety, but there was a defect and a significant defect in that system, which has now been addressed. 39 My attention was drawn in the submissions to comments I had made in other cases about how notorious hand injuries are in machine operation, and how the law over a very long period of time has identified those undertakings, and that class of employment as requiring protection. Regrettably, it continues to be the case.

In this particular case it is appropriate to describe the breach as being a serious breach of the Act. 40 In relation to general and specific deterrence, general deterrence must form a part of the consideration in arriving at an appropriate penalty. I am unable, on this occasion, to accept the defendant's submission that specific deterrence should play a lesser role, or a much reduced role.

There are a number of factors to be considered, and I think it should be acknowledged that this defendant over a long period of time has participated in an industry using potentially dangerous machinery, and employing quite large numbers of people to operate that machinery, yet there are only three recorded safety breaches. I think they are entitled to have that record recognised as a good safety record.

But this particular incident is a third conviction, and the second for not safely guarding machinery, although I accept the two previous breaches occurred over a decade ago. That has to be taken into account. Nevertheless, I think here, because of the defendant's continuation in this aspect of industry, specific deterrence should play an important role, and should not be reduced. 41 In relation to the subjective factors, I have dealt with the prior convictions. The record, as I have said, is a good record and does not indicate that the defendant has a propensity to breach safety laws, or to act in wanton disregard of occupational health and safety standards. That industry record stretches back to 1955. It is entitled to have some pride in the record. 42 I accept there was an early plea and that a discount of 25 percent should be available because of that early plea. It is important that the defendant co-operated with the WorkCover Authority, and its investigation, and also it has expressed its contrition, not only by the early plea, but by the counselling services made available, by the steps taken to care for Mr Ingleshwar, and to continue his employment on a part time basis, and to supplement his income. Those matters all serve as subjective factors to significantly mitigate the penalty. 43 Having regard to all of these matters, the Court makes the following orders: (1) The defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 and particularised in Matter IRC 3315 of 2006 to which the defendant has pleaded guilty. (2) The defendant is fined the sum of $85,000 with half of that sum to be paid to the prosecutor by way of moiety. (3) The defendant is to pay the costs of the prosecutor in the sum agreed or, in the absence of agreement, as ordered by the Court.

ANNEXURE AGREED STATEMENT OF FACTS

1. At all material times the Prosecutor was: An Inspector duly appointed under Part 5 Division 1 of the Occupational Health & Safety Act 2000 (NSW) ( the 2000 Act ) and empowered under Section 106 of the 2000 Act to institute proceedings under the 2000 Act. 2. At all material times Hunter Douglas Limited (ACN: 009 675 709) ( the Defendant ) was a company duly incorporated with a registered office located at 338 Victoria Road, RYDALMERE in the State of NSW. 3. At all material times the Defendant's undertakings involved slitting metal coils at 338 Victoria Road, Rydalmere the in the State of NSW ( the site ). 4. At all material times the site was the Defendant's place of work. 5. At all material times the Defendant was an employer in the State of NSW. 6. At all material times, Mr Omprakash Ingleshwar ( Mr Ingleshwar ) was employed by the Defendant. 7. Mr Ingleshwar commenced his employment with the defendant on 24 January 2005. 8. On 20 April 2005 ( the incident date ), Mr. Ingleshwar was working at the site in a training role, and was assisting Mr Paul Morgan (M r.Morgan ) (also employed by the Defendant) to operate a machine known as the Citydel Slitting Machine ( the Slitting Machine ). 9. The Slitting Machine was approximately 4.8 metres wide and approximately 16 metres in length (at either end of the machine was a spool). A component of the Slitting Machine was a cutting head which cut metal. The perimeter of the Slitting Machine was fitted with two horizontal laser beam light curtains that caused the Slitting Machine (including the cutting head) to stop operating when the light beam was interrupted. However if a person entered the area protected by the laser beam while the Slitting Machine was stopped, the Slitting Machine could be restarted while the person was in the protected area. 10. The Slitting Machine operations involved metal being fed from a large metal coil from a spool at one end of the Slitting Machine along the machine, through a cutting head (also known as a slitting head), then down into a pit that was approximately 8 metres in depth, back up out of the pit, and the metal was then coiled on to a spool at the other end. 11. The cutting head consisted of an upper cutting head roller and a lower cutting head roller ( the rollers ). The metal was fed through the rollers, one roller was located below and the other located above the metal, and the metal was slit or cut by a series of cutting blades. 12. At some time prior to 11.40am on the incident date, Mr. Ingleshwar and Mr. Morgan were slitting a 12 tonne metal coil on the Slitting Machine when the metal started to become crushed. 13. To overcome the crushing, the Slitting Machine was then set up by Mr. Ingleshwar and Mr. Morgan so as to rewind the metal back onto the original coil. The cutting head was left in place and the distance between the rollers was increased to open up the gap between the rollers, to allow the metal to pass through the cutting head without being cut or slit. The rewinding of the coil then commenced. 14. At approximately 11.40am, Mr Bill Tran ( Mr Tran ) (an operator of a smaller slitting machine who was also employed by the Defendant) offered his assistance in relation to the rewinding process, because the metal was jumping and becoming damaged as it rewound through the cutting head of the Slitting Machine. The metal was jumping because it was not being properly held in place by the rollers. 15. Mr. Morgan stopped the Slitting Machine, and Mr.Tran walked inside the laser beam curtains area whilst the Slitting Machine was off, and stood inside a 500mm gap between the Slitting Machine and the laser beam curtains. Mr. Tran, whilst wearing gloves, then placed a rag against the metal (using his hand) to stop the metal from jumping, and asked Mr. Morgan to restart the Slitting Machine. The laser beam curtain was not triggered or interrupted because the machine had been switched off before Mr. Tran moved inside the laser beam curtain area, and then restarted when he was standing next to the machine, inside the laser beam curtain area. Mr. Tran continued holding down the metal with a rag for approximately twenty (20) minutes. 16. At approximately 12.00pm, the Slitting Machine was stopped and Mr. Ingleshwar moved into the same gap where Mr. Tran had been standing. Mr. Tran showed Mr. Ingleshwar how to hold the metal down using the rag. Tran then went outside the laser beam curtains and Mr. Morgan reactivated the machine with Mr. Ingleshwar holding down the metal with a rag using his hand. 17. Approximately five (5) minutes later, Mr. Ingleshwar's hands became caught in the cutting head of the Slitting Machine. Prior to the Slitting Machine being shut-down, Mr Ingleshwar's hands were caught in the cutting head for approximately 5 seconds, which was sufficient time to allow his hands to be dragged along the metal for several metres before the Slitting Machine was stopped. It is not known whether the Slitting Machine was stopped by Mr. Morgan hitting the stop button or by the laser beam curtain being interrupted. 18. As a result of this incident, Mr. Ingleshwar sustained crush injuries and lacerations to both hands, as well as amputation of his right thumb and the little finger on his left hand. 19. As a result of these injuries, Mr. Ingleshwar was incapacitated for work until at least 15 December 2005, at which time he was receiving physiotherapy and required a full time carer. 20. Prior to and on the incident date, there was no documented risk assessment for the Slitting Machine. 21. Prior to and on the incident date, there was no safe system of work for the rewinding of coils on the Slitting Machine. 22. Prior to and on the incident date, access was possible to the unguarded cutting head of the Slitting Machine whilst it was in operation, in circumstances where a person walked on the inside of the laser beam curtains whilst the Slitting Machine was off and remained inside the gap between the Slitting Machine and the laser beam curtains when the Slitting Machine was re-activated. 23. After the incident the Defendant conducted a formal risk assessment in relation to the Slitting Machine and implemented the following safety measures:- (a) Installation of additional laser beams; (b) Installation of additional guarding; (c) Installation of an interlock gate; (d) Installation of additional E Stop (emergency) buttons; (e) Provision of additional training to employees; and (f) Introduction of a revised documented Safe Operating Procedure for the Slitting Machine. 24. The Defendant co-operated with WorkCover in relation to the investigation of this incident. 25. It is alleged that the Defendant, on 20 April 2005, being an employer at the site, did fail, contrary to section 8(1) of the 2000 Act, to ensure the health, safety and welfare at work of all of the employees of the Defendant, and in particular, Omprakash Ingleshwar, in that: (1) the Defendant failed to provide and maintain plant, namely a Citydel Slitting Machine, that was safe and without risks to health when properly used, in that access was possible to the unguarded cutting head of the machine whilst it was in operation; (2) the Defendant failed to provide and maintain a safe system of work for the rewinding of coils on the Citydel Slitting Machine.

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