Workcover Authority of New South Wales v Asplundh Tree Expert (Australia) Pty Ltd [2003] NSWIRComm 379 (3 November 2003)

Last Updated: 14 November 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales v Asplundh Tree Expert (Australia) Pty Ltd [2003] NSWIRComm 379

FILE NUMBER(S): IRC 3412

HEARING DATE(S): 03/11/2003

EX TEMPORE DATE: 03/11/2003

PARTIES:

WorkCover Authority of New South Wales (Inspector Henry)

Asplundh Tree Expert (Australia) Pty Ltd

JUDGMENT OF: Curtis AJ

LEGAL REPRESENTATIVES

Prosecutor: Mr G Phillips

Solicitors: Carroll and O'Dea

Defendant: Ms A F Backman of counsel

Solicitors: Baker and McKenzie

CASES CITED:

LEGISLATION CITED: Occupational Health and Safety Act 1983

JUDGMENT:

- 6 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Coram: Curtis AJ

3 November 2003

Matter No IRC3412 of 2003

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PAUL HENRY) v ASPLUNDH TREE EXPERT (AUSTRALIA) PTY LIMITED (ACN 055140424)

Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2003] NSWIRComm 379

1 The defendant Asplundh Tree Expert (Australia) Pty Ltd (Asplundh) pleads guilty to a charge that it contravened s15(1) of the Occupational Health and Safety Act 1983 on 28 June 2001 in that being an employer at Austral in the state of New South Wales it failed to ensure the health, safety and welfare at work of all its employees, and in particular Mr Richard Austin, in that it failed to ensure that the plant being used by Mr Austin, namely a stump grinder, was safe and without risks to health, because it did not possess a dead man’s handle, and further that it failed to provide adequate information, instructions, training and supervision to Mr Austin in the use of the machine and failed to provide and maintain a safe system of work for the grinding of stumps.

2 On 28 June 2001 Mr Richard Austin was instructed by his foreman to operate the stump grinder on a property at Austral.

3 Mr Austin had completed ninety-five percent of the grinding of the stump when Mr Jones, under whose direction he was working, noticed the grinding wheel was starting to eat into a mowing strip which divided the property from council property. Mr Austin withdrew the stump grinder from the stump and, without stopping the engine which drove the cutting head, tilted the machine backwards so it may rest upon a metal bar attached to the back of the machine. The stump grinder continued at full throttle with the cutting head elevated and exposed.

4 After Mr Austin walked in front of the machine to take a closer look, either the stump grinder moved or Mr Austin inadvertently moved against the cutting head in consequence of which he suffered massive soft tissue injuries to his left leg, including the severing of his femoral artery.

5 The accident had several causes, one of which was the inattention of Mr Austin, and another a unique feature of the stump grinding machine.

6 The stump grinder was manufactured to the specification of Kennards Hire Pty Ltd following the general plan of a similar machine produced in America. It consisted of a rotary steel cutting head on a short jib which was driven by a petrol motor. The machine when not in use rested upon the two wheels, which bore its weight, and the cutting head in front of those wheels, the centre of gravity being towards the cutting head. In consequence, it would not normally, reasonably or foreseeably, be left unattended with the motor running because the cutting head would rotate upon the ground.

7 Some time after 1990 when the machines first came into use, clients of Kennards experienced several engine failures. It was found that the oil sump drained when the machine was tilted back beyond a certain distance in order to elevate the cutting head to cut high stumps. To solve this problem Kennards modified the machines by fixing a horizontal metal bar at the rear of the machine to prevent elevation beyond that angle at which the sump would drain.

8 This angle was also coincidentally beyond that at which the centre of gravity passed from the cutting head to the rear of the machine. The machine in consequence could be rested on the limiting bar at its rear with the cutting head elevated some distance above the ground.

9 In normal circumstances the guard over the uppermost 200 degrees of the cutting head of the machine was adequate. It was the affixing of the limiting bar at the rear of the machine which created an unusual danger.

10 Mr Neville Pritchard, a manager employed by Asplundh, when he instructed Mr Austin in the use of the stump grinder some months before the accident, did not foresee the circumstances in which the latent design defect would cause the danger to Mr Austin.

11 Relevantly though, Mr Jones, the foreman of Mr Austin, was present throughout the use of the stump grinder on the day in question. It was Mr Jones who noticed that the grinding wheel was starting to eat into the mowing strip. He was present when Mr Austin withdrew the stump grinder and rested it on the rear bar with the cutting head exposed and the engine on full throttle. While the persons concerned with the design of the machine may not have foreseen that this was a possibility, before Mr Austin suffered his injury it must have been blindingly obvious to Mr Jones, the man in charge of the work, that there was a terrible danger then present.

12 The defendant failed to provide and maintain a safe system of work. The system of work adopted by Mr Austin in the presence of, and under instruction from, Mr Jones was patently unsafe. The defendant failed to properly instruct Mr Austin in the use of the stump grinder. A sufficient instruction in the present case would have been that Mr Jones say to Mr Austin after he rested the machine on the bar "hit the kill switch" or words to that effect. Because of these failings in simply responding to obvious peril, the gravity of the offence in the present case sounds heavily in the assessment of penalty. The injuries to Mr Austin were quite terrible and it was fortunate that he did not die. The dangers were obvious and the means of obviation were simple and without cost.

Specific Deterrence

13 It has been put that the issue of specific deterrence ought not enter into the exercise of my discretion because the defendant no longer carries out stump grinding and contracts this work out. In these circumstances it is said there is little utility in penalising the defendant because the risk of re-offending is now non-existent. I do not accept that submission. It is in the nature of the defendant's business that its work is inherently dangerous. Not only stump grinders but chainsaws and wood chippers are used.

14 Notwithstanding the fact that the defendant devised and instituted and maintained extensive safety procedures, it is necessary that a culture of safety be further injected in the enterprise so that foremen do not stand idly by in the face of obvious dangers. I believe there is need for specific deterrence.

Subjective Factors

15 Subjective factors in this particular case have a powerful voice. The defendant was established in Australia in 1992. At the time of the accident it employed 250 persons and currently employs 165. Its work I accept is inherently dangerous and it has no prior convictions. The defendant maintains a carefully documented approach to safety which includes the publication of handbooks, training procedures, auditing procedures, safety meetings and incident investigation.

16 That the defendant had in place extensive safety training in all aspects of its employees' positions is evidenced by the fact that Mr Austin had obtained thirty-five separate certificates and had been trained extensively on the hazards that he may come across in his work. So powerful do I believe the document to be that I include the recitation of his training courses as schedule one to this judgment.

17 The courses included courses in the operation of wood chippers and chainsaws and there is in evidence a document confirming the fact that Mr Austin was tested upon his knowledge of the dangers of chainsaws. There is also evidence that, before his injury, he was instructed by Mr Pritchard upon the safe use of a stump grinder. There is little more the defendant could have done other than ensuring that Mr Jones, the foreman in charge of the activity, had himself been properly trained in reaction to obvious dangers.

18

Conclusion

19 The gravity of the offence, and the need for general and specific deterrence, taking into account the subjective factors, places these offences in the order of one-fifth of a most extreme case.

20 An appropriate penalty before discount is $100,000. I discount that by twenty-five percent because of the plea of guilty, and the defendant is convicted and fined $75,000 with a moiety to WorkCover.

21 I order the defendant pay the prosecutor's costs agreed in the sum of $7,000.

22 Ms Backman for Asplundh, accepting my invitation, asks for further reasons as to the influence of subjective factors upon this sentencing process. I should make it plain that it is in the light of the factors subjective to the defendant that I view this offence in the order of one-fifth of a most extreme case. Without that evidence and viewed objectively, given the gravity and obvious nature of the danger, the simplicity of its obviation and the terrible injuries suffered by Mr Austin, my assessment would be very much higher.

SCHEDULE ONE

Level of Training/Achievement

Date

Training Provider / Institution

National Horticulture Competency Standards:

Apply Chemicals

Fell Trees

Operate chainsaws

Certificates not dated

Australian National Training Authority

Statement of Attainment in Tree Care

October 1994

Northern Sydney TAFE

Electricity Safety Training

1 September 1995

Prospect Electricity

Technical Training re Electricity (Workers Safety) Regulation

22 July 1996

Integral Energy

Certificate of Crane and Plant Electrical Safety

24 July 1996

Integral Energy

Certificate in Works Management (Maintenance and Construction)

30 September 1996

Arbortrim Training and Consultancy

Wood-Chipper operation course

30 September 1996

Arbortrim

Worksite Traffic Management

30 September 1996

Arbortrim

Safe Chainsaw Operation

3 October 1996

Arbortrim

Electrical Safety Rules Refresher Course

16 May 1997

Integral Energy

Electrical Safety Refresher Rules

2 July 1997

Integral Energy

Crane and Plant Electrical Safety Refresher Training

10 August 1997

Integral Energy

Electrical Technical Training

19 August 1997

Integral Energy

Electricity Transmission and Distribution Training

7 August 1998

Integral Energy

Chipper Safety Training (Quiz)

11 January 1999

Asplundh

Contract Tree Trimmer Certification

17 March 1999

Integral Energy

Crane and Plant Electricity Safety

6 August 1999

Electricity Association of New South Wales

Electricity Training

20 August 1999

Integral Energy

Vegetation Management

22 March 2000

North Power

Electricity Training

11 August 2000

Integral Energy

1E Electrical Safety Guidelines

10 October 2000

Integral Energy

Asplundh Foreman's Manual Quiz

2000

2001

Asplundh

OHS Induction for Construction Work

30 March 2001

WorkCover NSW

Crane and Plant Electrical Safety

Certification valid until 11.8.01

NSW Electricity Commission

Electrical Theory

2001

TAFE

Statutory Requirements

2001

TAFE

Power Systems – Operation

2001

TAFE

Safe Working Procedures-1

2001

TAFE

Close Approach Vegetation Management Safe Work Procedures using insulated tools

Certification valid until February 02

Australian National Training Authority

Worksite Traffic Control

Certification valid until 9.12.02

RTA

Electrical Theory

2002

TAFE

Crane and Plant Refresher Electrical Safety

2002

TAFE

Power Systems

2002

TAFE

Safe Working Procedures

2002

TAFE

CPR Workplace Assessment

2002

TAFE

LAST UPDATED: 11/11/2003