Brooker v Foreman Pty Ltd [2006] ICQ 50 (2006) 183 QGIG 641

[Extract from Queensland Government Industrial Gazette, dated 29 September, 2006, Vol. 183, No. 9, pages 641-643] INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Daryl John Brooker AND Foreman Pty Ltd (C/2006/46) PRESIDENT HALL 14 September 2006 DECISION The respondent, a corporation under the Corporations Law, was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995. The obligation said to be breached was the obligation at s. 28(1) to ensure that the respondent's workers were not exposed to risk to their health and safety arising out of the conduct of the respondent's business or undertaking. A circumstance of aggravation was alleged, viz. grievous bodily harm to Matthew Sean Clough. There was a plea of guilty. The Industrial Magistrate declined to record a conviction. There is no appeal about that. Neither is any complaint made about the Industrial Magistrate's Order that the respondent should pay $1,936.30 by way of investigation costs. What is put in issue on the appeal is the quantum of the fine imposed by the Industrial Magistrate. The fine imposed was $20,000. The maximum fine available to the Industrial Magistrate was $375,000; see s. 24 of the Workplace Health and Safety Act 1995, s. 181B of the Penalties and Sentences Act 1992. Regrettably, it must be recognised that the sentencing process seriously miscarried. In the nature of things, evidence was not led. The Industrial Magistrate relied on statements seriously made from the bar table. Amongst other things, the solicitor for the respondent, on instructions, informed the Industrial Magistrate that an Improvement Notice under the Workplace Health and Safety Act 1995 had been issued about the machine which was the source of the injury to Mr Clough, and that a Workplace Health and Safety Inspector had subsequently examined the machine and pronounced himself satisfied with the changes which had been made. It was and is correct that an Improvement Notice was issued about the item of machinery in question. However, it was not subsequently re-examined by an inspector from the Department of Workplace Health and Safety. An inspector was informed over the telephone by a person with authority to speak on behalf of the respondent that the Improvement Notice had been attended to. In reliance upon that conversation, no further step was taken to ensure compliance with the Improvement Notice. I note that by the respondent's written submissions, I am invited to act upon the basis that there had in fact been compliance with the Notice. There is a difficulty with that. The respondent seeks to distinguish the decision of this Court in Marfleet v Lindsay Meyers Pty Ltd (2006) 183 QGIG 240 on the basis that in that case a safe machine had been rendered unsafe by the removal of a guard. On the hypothesis that the Improvement Notice had been complied with, that must have occurred in this case. The suspicion is that what really occurred will never been known. But the respondent either has to address a case in which the Improvement Notice was not complied with (as it should have been) or an alternative case in which the Improvement Notice was complied with (as it should have been) but somebody subsequently disabled the safety device. That is a very difficult case to argue. There is a further difficulty. By way of elaboration upon the injuries suffered by Mr Clough, the appellant provided the Industrial Magistrate with a statement by a principal medical officer employed by Workplace Health and Safety Queensland. It was the wrong statement. It related to another gentleman who had suffered injuries to his foot when it come into contact with an auger. Mr Clough suffered injuries to his hand. And they were quite serious injuries. By his written submission at first instance, the inspector who had made the complaint summarised the injuries as follows: "CLOUGH sustained amputation injuries to his index and middle fingers of his right hand; CLOUGH was transported to the Toowoomba Base Hospital, Toowoomba and transferred to the Princess Alexandria Hospital, Brisbane for medical/surgical treatment. CLOUGH underwent an initial 10 hour operation on the 23rd and 24th May 2005, involving:  amputation of the right index finger;  open reduction and internal fixation of the proximal phalanx with a four-hole metal plate;  repair of the flexor digitorum superficialis tendon;  repair of the flexor digitorum profundus tendon;  arterial graft to both digital arteries;  repair of the two dorsal veins;  repair of the digital nerves;  repair of the extensor tendons. CLOUGH underwent a second operation on 27 May 2005 involving:  amputation of the right middle finger;  removal of the nail and nail bed of the right ring finger. -- 1 of 3 -- 2 A medical report was prepared by Dr Ki Douglas dated 18 November 2005 in relation to CLOUGH'S injuries; In Dr Douglas's report, she states she was of the opinion, that having regard to the initial hospital reports, that CLOUGH'S injury of amputated right index and middle fingers is classified as grievous bodily harm. In Dr Douglas's report, she states CLOUGH has permanent injury to health affecting hand function.". Presumably, no one will even know whether the Industrial Magistrate was distracted from that (accurate) summary by the annexure to it of the incorrect medical report. The facts of the matter are summarised in the appellant's written submissions as follows: "13. For the purposes of this appeal it is submitted the following is relevant: (a) Mr Clough commenced employment with the Respondent on the 19 May 2005; (b) Mr Clough had been assisting another worker in the use of a 'Weining P22N' multi-planer to plane lengths of timber as a part of his ordinary work functions and duties on the day of the incident; (c) The plant was owned by the Respondent; (d) Mr Clough's duties consisted of feeding in lengths of timber in to the planer; (e) During the course of undertaking this task the plant [sic] had become jammed; (f) Mr Clough reached with his right hand in to the planer in an attempt to clear the jam; (g) Mr Clough inadvertently contacted an outside unguarded rotating blade on the planer during this clearing process resulting in laceration and finger amputation injuries to his right hand; (h) The rotating planer blade was an unguarded hazard when it caused the injury to Mr Clough; (i) Prior to the incident, the Respondent had verbally instructed Mr Clough; i. not to touch any part of the internal workings of the machine and if a piece of timber became jammed the instruction [sic] were to 'hit it with a hammer' to clear the jam; ii. in the days prior to 23 May Clough had attempted to place his hand into the area around the cutting blades of the plane about four times with (the Respondent) directing him not to do this. Also relevant (j) An Improvement Notice was issued on 29 August 2003 in relation to this item of plant; (k) This notice related to issues of lack of guarding (refer points 35-37).". It is appropriate to emphasise that the employment commenced on 19 May 2005 (a Thursday) and the injury occurred on 23 May 2005 (the following Monday). Mr Clough's age is unknown. One should also add that the machine was second hand and had not been safety assessed. The objective gravity of the offence is plain. As a matter of first impression I should add that a fine of $20,000 was manifestly inadequate. In any event, when one goes to the decision of the Industrial Magistrate, the error, largely induced by the misapprehension as to the transactions involved with the Improvement Notice, is plain. To begin with, the Industrial Magistrate places reliance upon the proposition that inspectors from Workplace Health and Safety Queensland had satisfied themselves that the Improvement Notice had been complied with. That error has been dealt with. But it led to a further error. The Industrial Magistrate treated as a mitigating factor the steps taken by the respondent after the injury to Mr Clough to render the machine safe. There is certainly many cases in which such conduct has been treated as a mitigating factor. But here what had been done should have been done in response to the Improvement Notice and should have been accompanied by steps to ensure that it might not be undone. Further, if the respondent had taken the proactive steps required of it to observe the Workplace Health and Safety Act 1995, the safety device would have been installed before the Improvement Notice was issued. I can well understand why an Industrial Magistrate led to believe that discharge of the statutory obligations had been achieved by compliance with the Improvement Notice would give credit to an employer who had subsequently gone the further yard. But once the error about the Improvement Notice is exposed, it becomes apparent that mitigation was being found in delayed compliance with the Act. The Industrial Magistrate also erred in giving much weight to the absence of prior conviction. The written statement handed up by Mr Kickbusch, who appeared as complainant at first instance, contains part of an interview with the respondent's foreman indicating that in the period between issue of the Improvement Notice and 23 May 2005, there had been another incident in which a person working upon the machine had been injured. Neither at first instance nor on the appeal has the matter been explored. I do not assume that the foreman's assertion is correct. I certainly do no assume that in the circumstances of the case there had been an offence. But faced with the unexplained assertion and knowing of the failure to assess the machine on acquisition, it seems to me that the Industrial Magistrate should not have given such weight to the absence of prior conviction. In all the circumstances, the decision of the Industrial Magistrate should be set aside. -- 2 of 3 -- 3 On the appeal there is common ground that the correct sentence is somewhere within the range of $30,000 to $40,000 nominated by Mr Kickbusch at first instance. I agree with that view. The case developed at first instance in reliance upon Newman v Aldo's Fine Foods Pty Ltd (2002) 169 QGIG 151, seems to me not to have been made out. It is certainly true that the trading accounts handed up at first instance show that the respondent made a very small profit in the financial year which concluded June 2005 and is highly likely to sustain a loss in the financial year which concluded in June 2006. But the facts in Newman v Aldo's Fine Foods Pty Ltd, ibid, went much further. There the shareholders and directors were identified. Their financial circumstances were opened. It was apparent the defendant was a very small "mum and dad" business with small turnover and small profits. Here, the turnover runs into millions. Whilst one has to recognise that corporations with large turnovers may fail if there is no or only marginal profit, one would really have to know more about the respondent's financial affairs, and in particular have some assurance that transactions were not in reality transactions within a corporate group before one might legitimately discount what can only be a monetary penalty on the ground of impecuniosity. Both Mr Byrne QC who appears for the appellant and the solicitor who appears for the respondent, viz. Mr Russell, submit that on a proper analysis of such facts as are available, the penalty should be set at about the middle of the range. Having regard to the early plea of guilty, the cooperation with the investigators, and the unsatisfactory sentencing process, that seems to me to be correct. The respondent seeks 12 months time to pay. The application is not opposed. I order that the respondent pay a fine of $35,000. I order that the respondent pay $1,936.30 by way of investigation costs. I allow 12 months to pay. In default, levy on distress will apply. Dated 14 September 2006. D.R. HALL, President. Released: 14 September 2006 Appearances: Mr M. Byrne QC directly instructed for the appellant. Mr P. Russell of Clewett, Corser & Drummond for the respondent. Government Printer, Queensland The State of Queensland 2006. -- 3 of 3 --