Bird v Rotech Industries Pty [2003] ICQ 54 (2003) 174 QGIG 1011

21 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1011 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Robert Charles Bird AND Rotech Industries Pty (No. C50 of 2003) PRESIDENT HALL 11 November 2003 DECISION The respondent was charged with a breach of s. 24 of the Workplace Health and Safety Act 1995. The obligation said to have been breached was that imposed by s. 28(1). There was a circumstance of aggravation. Grievous bodily harm was caused to Brett Adrian Hastie. For present purposes, I am content to adopt the outline of facts and circumstances at paras 9 and 10 of the appellant’s written outline of submissions, viz.: “9. At the time of the incident, Brett Adrian Hastie was employed as a welding supervisor by the Respondent. He was injured while using an industrial floor grinder with a linishing belt attachment at one end and a wire brush wheel attachment at the other end. He was attempting to remove burrs from the end of a steel tube using the rotating wire brush. The grinder also had a rest attached to it which was used to make the job easier for the operator. Brett Hastie was using the rest on this occasion and was wearing gloves. While doing this job his left hand was dragged into the rotating wire brush and he suffered injuries. 10. Three fingers on his left hand were lacerated. He had to be operated on a number of times. He was given the option of having his ring finger amputated and he chose to have this done because if it was fused, it would have remained in a semi bent position and this would have made it more dangerous when working with tools and machinery. He also suffered damage to his little finger which had been operated on and which at the time of the trial was unable to be straightened out fully. As a result of his injuries he had 6-9 months off work.”. The respondent pleaded not guilty to the charge. After a two day trial it was found guilty of the offence and fined $20,000 together with Court costs of $61.25 and investigation costs of $8,000. (The figure of $8,000 for investigation costs was fixed by agreement). No conviction was recorded. This is an appeal against the quantum of the fine. It is, I think, common ground that the principles be applied in determining whether to allow an appeal against a fine imposed by an Industrial Magistrate under the Workplace Health and Safety Act 1995 are those developed in House v. The King (1936) 55 CLR 499 at 504 to 505, Lovell v. Lovell (1950) 81 CLR 513 at 519 and 534, Coal and Shale Employees’ Federation v. Commonwealth (1953) 94 CLR 621 at 627, Harris v. The Queen (1954) 90 CLR 652 at 655 to 666, Edwards v. Noble (1971) 125 CLR 296 at 304, Flint v. Lovell [1935] 1 KB 354 at 360, Miller v. Jennings (1954) 92 CLR 190 at 197 and Devries v. Australian National Railways Commission (1995) 61 FCR 351 at 356 to 357. In those circumstances, I do not propose to review the authorities before coming to their application to the facts of the case. -- 1 of 2 -- 1012 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 November, 2003 The first submission is that the Industrial Magistrate erred in treating as mitigating factors the circumstance that – (a) the respondent had at all times tried to comply with the provisions of the Workplace Health and Safety Act 1995; (b) the respondent had simply failed to identify the particular hazard; and (c) others with a “trained eye” did not identify the hazard. It is submitted that the Penalties and Sentences Act 1992 provides a discrete statutory sentencing regime applicable in the State of Queensland and that the matters to which the Industrial Magistrate referred as mitigating factors are not matters treated as mitigating factors under s. 9 of the Act. In fairness, it seems to me that the Industrial Magistrate was merely giving His Worship’s view of the blameworthiness of the offence. Infelicitous though the reference to “mitigating factors” might be, that was the language used by the Prosecutor in putting to the Industrial Magistrate that the matters referred to above should be taken into account. Blameworthiness is always a relevant factor. Whilst the duties imposed by the Workplace Health and Safety Act 1995 are non-delegable and substantially absolute, at the level of penalty there is no reason at all why regard should not be had to whether a defendant was let down by others and to the endeavours made by a defendant to comply with the Act, provided that such weight is not given to those matters as to undermine the non-delegable absolute duties imposed. Here, it was understandable that the Industrial Magistrate would be impressed by the efforts made by the respondent to comply with the Act and the use which the respondent had made of experts. There was much evidence in the matter. The respondent had mounted a defence based largely on the involvement of an appropriately qualified expert in occupational workplace health and safety who had audited the respondent’s premises and the floor grinder prior to the incident. Additionally, other hazards had been identified both by the expert and by the respondent. This is not a case like Lutheran Church of Australia v. Newman (2002) 170 QGIG 247 where the hazard was obvious. There was evidence of workplace health and safety meetings at regular intervals and that the respondent took workplace health and safety very seriously. Certainly the respondent failed to identify the hazard. Indeed, the hazard did not occur to the respondent. But the respondent did have the machine checked by an expert. Both the respondent and the expert focussed (inadequately) on whether there was a hazard. Put shortly, on the evidence the respondent was trying. It was open to the Industrial Magistrate to take a benign view of the blameworthiness of the offence. It is then contended that the quantum of the fine itself demonstrates that the discretion has in some way miscarried, compare Newman v. Andgra Pty Ltd (2002) 171 QGIG 883 at 884. The quantum of the fine is certainly low compared with the maximum fine, which in consequence of the joint operation of s. 24 of the Workplace Health and Safety Act 1995 and s. 181B of the Penalties and Sentences Act 1992, was $300,000 at all material times. The quantum is, however, consistent with the decisions of this Court cited to the Industrial Magistrate. Neilands v. O’Neil (2001) 168 QGIG 134 was much relied upon. However, whether the injury in that case was similar, it was much worse. The worker lost three fingers and was left with a permanent residual disability and permanent disfigurement. The case also differs from the present case in that it concerned a defendant which did not have corporate status, and in that it involved very blameworthy conduct indeed in that a piece of equipment which was safe had been made unsafe by the removal of a safety guard. At first instance the prosecutor contended that a penalty for a corporate vendor might be mathematically extrapolated from the range of $6,000 to $8,000 suggested in Neilands v. O’Neil, ibid, at 135. Put aside the respondent’s criticism of the approach as unduly robust, an Industrial Magistrate accepting the invitation would have treated $30,000 to $40,000 as the range for conduct much more blameworthy than established here. Lang v. Amalgamated Food and Poultry Pty Ltd (2001) 167 QGIG 245 was also relied upon. Certainly, the injury was less severe. It was a case of bodily harm. In consequence the maximum fine was $187,500. But the case involved a supervisor standing idly by while a youth by-passed the “established” safe system of work and exposed himself to danger. It was a much worse breach than this. On the appeal the appellant relied also on Newman v. Andgra Pty Ltd (2002) 171 QGIG 883, Batley v. S. Lowe and Sons (Tully) Pty Ltd (2003) 174 QGIG 179 and Garaty v. Friendly Sofa Designs Pty Ltd (2003) 173 QGIG 1027. The case first mentioned and the case second mentioned are distinguishable on the ground of gravity/blameworthiness of the breach. Garaty v. Friendly Sofa Designs Pty Ltd, ibid, requires fuller comment. The critical passage (at 1028) is: “At the hearing before the Industrial Magistrate the appellant suggested a range of $20,000 to $25,000. In light of the decision in Newman v. Andgra Pty Ltd (2002) 171 QGIG 883 where a fine of $20,000 was imposed, I would in ordinary circumstances consider that range to be a little low. However, one must consider the respondent’s slender means and the risk of oppression. Additionally, the respondent lacks familiarity with the Queensland legal system. To go beyond the appellant’s range may appear to the respondent as double jeopardy. It seems to me that the only fair course is to adhere to that range. I allow the appeal. I set aside the fine of $8,000 imposed by the Industrial Magistrate. In lieu thereof I impose a fine of $25,000. I confirm the orders of the Industrial Magistrate awarding costs of $62.10 and $1,314 investigation costs.”. Given the nature of the breach, a serious hand injury in the first week of employment suffered by an inadequately inducted and supervised left-handed employee using an automatic saw designed for safe use by a right-handed operator, I adhere to the view that the range $20,000 to $25,000 was a little low. However, having regard to Newman v. Andgra Pty Ltd op. cit. I am rather inclined to the view that $20,000 to $25,000 is the appropriate range here. There are but limited mitigating factors. The respondent was a first offender who had cooperated with investigation officers and had overcome the hazard. However, the plea of not guilty necessarily denied the respondent the opportunity to rely upon a timely plea of guilty as a mitigating factor. (The plea in no way aggravates the seriousness of the matter). Had the facts on the appeal been the facts before the Industrial Magistrate, whose decision preceded the decision in Garaty v. Friendly Sofa Designs Pty Ltd (2003) 173 QGIG 1027), I should have been inclined to revisit the quantum of the fine. But the facts are not the same. By consent, there is affidavit evidence about the income, assets and viability of the respondent. The respondent’s prospects are not as bleak as the prospects of the respondent in Newman v. Aldo’s Fine Foods Pty Ltd (2002) 169 QGIG 151, but it is a struggling venture which will have difficulty with the $20,000 fine. Additionally, the respondent, which made an ex gratia payment to the injured worker, faces a massive increase in its workcover premiums. Like the order to pay investigation costs taken into account by the Industrial Magistrate, regard is to be had to these factors, see Penalties and Sentences Act 1992, s. 48(1). In my view, in all the circumstances a fine in excess of $20,000 would be excessive. I dismiss the appeal. I reserve all questions as to costs. Dated 11 November 2003. D.R. HALL, President. Released: 11 November 2003 Appearances: Mr M. Griffin SC, with him Ms V. McKenzie, instructed by Workplace Health and Safety, for the appellant. Mr T. Martin SC, instructed by Suthers Lawyers, for the respondent. -- 2 of 2 --