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January 2020

Company and sole director plead guilty to exposing a worker to a risk of death

Company and sole director plead guilty to exposing a worker to a risk of death

SafeWork NSW v Macquarie Milling Co Pty Limited; SafeWork NSW v Samuels (2019)

Facts

Macquarie Milling Co Pty Ltd (MMC) was a company involved in producing stock feed for farm animals. One of MMC’s employees was a mill labourer who operated a chaff cutting machine. The mill labourer sustained significant injuries after his arm was pulled into an unguarded rotating shaft when he attempted to clear a portion of blocked hay from the machinery.

The worker suffered injuries to his ligaments, tendons and nerves, and he required three surgeries.

Judgment

MMC entered a guilty plea for failing to comply with its work health and safety duty, and thereby exposing the worker to a risk of death or serious injury. Samuels, as the sole director, also entered a guilty plea for failing to exercise his due diligence to ensure MMC complied with its duty.

The Court found the level of culpability of MMC to be mid-range for the following reasons:

  • the risk of a worker being dragged into the unguarded rotating shaft was obvious, identifiable and foreseeable – MMC had previously been prosecuted and received many improvement and prohibition notices in response to its machinery, and the risk was also identified in the relevant Code of Practice and Standard;
  • simple remedial steps were available, such as guarding the rotating shaft or preventing operators from accessing the shaft while it was operating;
  • MMC failed to have any documented safe work method statements or safe operating procedures for clearing blockages on the chaff cutting machine, or requiring the machine to be switched off before a blockage was cleared;
  • there was no assessment of the competency of the workers in operating the chaff cutting machine; and
  • there were no steps taken to prevent the practice of workers bypassing the doors and kill-switch to access the chaff cutting machine via a ladder.

The Court found the level of culpability of Samuels to be in the lower half of the mid-range, having regard to the fact that Samuels had failed to:

  • exercise due diligence to ensure MMC undertook a risk assessment to identify the high risk involved with the removal of blockages in chaff cutting machines;
  • exercise due diligence to ensure safe work method statements or safe operating procedures were developed; and
  • gain an understanding of the hazards and risks arising from the missing guard covering the machine, and the fact that workers were accessing the machine via a ladder.

Lessons

This decision is an example of the need for employers to regularly undertake risk assessments on site and address any safety concerns as and when they arise. In this case, MMC and Samuels argued that their liability was mitigated by the employee’s use of the makeshift ladder.

However, the Court found that the use of the ladder in fact increased the objective seriousness in circumstances where MMC and Samuels should have noticed the risk and taken strong action against it. The Court recognised that “it is human nature to take short cuts” and thus, the duties of the employer to ensure workplace safety operate regardless of whether workers take sufficient care for their own safety.

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