Finn v Devan Management Pty Ltd [2004] ICQ 69 (2004) 177 QGIG 746

746 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 December, 2004 . ########################################################################################################################## # INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate John Benedict Finn AND Devan Management Pty Ltd (No. C63 of 2004) PRESIDENT HALL 29 November 2004 DECISION Formal parts omitted, the charge brought against Devan Management Pty Ltd was that being a person on whom a workplace heath and safety obligation was imposed by s. 28(1) of the Workplace Health and Safety Act 1995 it failed to discharge the obligation contrary to s. 24 of the Act. The following particulars were supplied: “Worker: Mark Andrew Cockburn Workplace: Price Farms, Bootooloo Road, Via Bowen The risk is the risk of injury or death to Mark Andrew Cockburn. The source of the risk emanates from the use of plant, namely a tractor and associated attachments.”. A circumstance of aggravation was alleged, viz, the death of Mark Andrew Cockburn. The Industrial Magistrate found the essential facts to be as follows: “On 13 th September, 2002 at Prices Farm, Bootooloo Road, two employees namely Mark Andrew Cockburn (the deceased) and Cameron Ingram were performing work in the same paddock. It was a windy day but the level of wind velocity was not unusual for the Bowen area. Mr. Cockburn was using an implement described as a ‘plastic picker upperer’ to roll up plastic that had been laid in rows in a paddock for farming purposes. He was operating the tractor and plastic picker upperer alone without any assistance. The plastic picker upperer consisted of two cylindrical cone drums situated behind and connected to the tractor which were rotated under hydraulic power in order to collect and roll up the plastic that had been laid in the paddock. The cones were operated off the power source of the tractor i.e. the speed of the revolving cones could be adjusted by increasing or decreasing the engine revs. For that purpose there was a hand throttle and a foot throttle on the tractor. The hand throttle could be manually set in a position to maintain the same engine revs even when the operator was not on the tractor. When the plastic was being picked up by the implement it was quite common for the plastic to break. When that happened, operators had been instructed to stop the tractor, turn the motor off to stop the cones revolving, dismount from the tractor, tie the plastic onto the cones and then get back into the tractor, restart it and continue with picking up operation. Mr. Ingram was operating a tractor in the same paddock collecting irrigation tubing. On a number of occasions he observed Mr. Cockburn to be behind the picker upperer manually feeding the plastic onto the cones whilst the cones were still in operation. However, as he was involved in performing his own duties, he did not observe Mr. Cockburn for a twenty minute period. Mr Ingram then approached to where Mr. Cockburn was working and observed that the cones were operating at high revolutions but he could not see Mr. Cockburn. The tractor was stationary in a position at an angle to rows of plastic. He then made a closer inspection and observed that Mr. Cockburn was entrapped amongst the plastic that had been collected on the cones. He then stopped the tractor and sought assistance for Mr. Cockburn. As a result of the injuries sustained Mr. Cockburn died at the scene of the accident.”. -- 1 of 2 -- 10 December, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 747 By a carefully crafted and thoughtful decision of sixteen pages the Industrial Magistrate reached the conclusion that the complaint should be dismissed. Regrettably, the Industrial Magistrate fell into error. Devon Management Pty Ltd was Mr Cockburn’s employer. By s. 28(1) an employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work. By s. 22(1) workplace health and safety is ensured when persons are free from, inter alia, death caused by any workplace or workplace activities. Proof of the death of Mr Cockburn proved the offence. Additionally, as it was entitled to do, the complainant relied upon s. 26 (3) to prove the offence in another way. The Workplace Health and Safety – Risk Management – Advisory Standard 2000 was put in evidence. It is the effect of s. 26(3) that the obligation cast upon Devon Management Pty Ltd by s. 28(1) might be discharged only by adopting and following the way stated by the Advisory Standard for managing exposure to risk, or by adopting and following another way that gave the same level of protection against the risk. If heed had been taken of clause 5.3 of the Advisory Standard before relying upon verbal instruction and a warning sign affixed to the tractor, Devon Management Pty Ltd would have turned its corporate mind to question whether physical devices were available to protect the driver from the hazard posed by the use of the “plastic picker upperer” to roll up the plastic and protect the driver from the risk of being dragged into the picker upperer by the plastic. There is no reason to doubt that if Mr Price, the director who gave evidence, had turned his mind to that question prior to the incident rather than after the incident, he would have made the same discovery which he made all too late. It is sufficient to reproduce the evidence which appears at PP 123 to 124 in the Transcript below: “And – yes. Now, since the accident, so that we can be clear about the picker upper, has there been anything else done to your plant in order to – that affects the picker upper of affects implements that are being towed by tractors? Have you installed anything else?-- Yes, we have. Can you describe what that is?-- It’s a – I got the idea in my own mind about the – about this from the lawnmower story. There must be a way of stopping this bloody thing moving. Right. Now, you’re talking about the tractor here, are you?-- Yeah, that – that’s where I got the idea from. Yes?-- And from the lawnmower, laying in bed one night, and I went – went with my mechanic, Rusty Mayhew and his foreman and I said, ‘look, there must be some way we can do something with this’ and we sat down for a couple of hours and we worked out this electric over hydraulic gadget and to make the hydraulics work there’s a pedal installed now, so as soon as the foot – driver’s food comes off the pedal, it stops all the hydraulics. Okay. Now, when you’re dealing with the picker upper, it’s hydraulically driven?-- Yes. So, for example, now if you pulled your foot off this pedal you’ve installed, the hydraulics to the picker upper would cease?-- Yes. And it would cease operating? So in order to operate it, the foot has to be depressed on the pedal?-- That’s right. But we haven’t – we haven’t operated it in the field. All right. So it’s something that’s been devised-------?-- Yes. --------and yet to be tested?-- --------it was fitted and – around Christmas time or thereabouts. All right. And so it’s yet to be field tested?-- Yeah, but I have full confidence in the thing.”. Assuming that the company had adopted and followed “another way” of managing exposure to risk, and there is much to be said for the Appellant’s submission that it had all been left “to the boys” to decide their work processes, that “other way” did not give the same level of protection against the risk as the Advisory Standard because it did not lead to identification and adoption of the physical barrier to injury. For much the same reasons, the defence at s. 37(1)(b) could not be made out. An employer who has not turned his mind to the question whether other controls are available before adopting administrative controls has neither exercised proper diligence to prevent the contravention nor taken reasonable precautions to prevent the contravention. I allow the appeal and set aside the order of Mr Muirhead, Acting Industrial Magistrate, made on 30 August 2004. I order the Respondent Company be convicted of the offence as charged. The parties, both of whom were represented by Senior Counsel, are agreed that rather than remit the function of sentencing to the Industrial Magistrate, this Court should address the issue for itself. My Associate will contact the parties to make the necessary arrangements. Appearance by telephone will suffice. I reserve all questions of costs. Dated 29 November 2004. D. R. HALL, President. Appearances: Released: 29 November 2004 Mr M. Byrne, QC and with him Ms J. Cameron instructed by the division of Workplace Health and Safety for the Appellant. Mr S. Durward, SC Instructed by Ruddy Tomlins Baxter for the Respondent. -- 2 of 2 --