SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman (2018)

Facts

A recent NSW case has highlighted the significant penalties that will be imposed by a court if a business modifies equipment to purposely remove in-built safety features.

In this case, H&F Mechanical Pty Ltd, Hoffman and Hoffman (Company) was fined $160,000 and the two owners were each fined $32,000 personally, as a result of the removal of a twohand operating system for a split timber cutting machine.

The Company provided mechanical services and labour contracting to local industry. Its labourer, Mr Coster, began employment in 2014 and worked daily on a machine known as the ‘Rex’. The Rex was a self-contained wood-processing unit designed to be towed onto site to saw and split timber into firewood. At the splitting area, a hydraulic ram exerting 26 tonnes of force would cause a blade to split the timber.

The blade and hydraulic ram were operated by a person pushing down on two separate handles, a system commonly referred to as ‘hold-to-run’. The operator would need two hands to push the handles down and pull them back up. This system eliminated the possibility of the operator placing limbs under the splitting blade while the Rex was in
operation.

A conscious decision was made by the owners of the business to ignore the warning in the operator’s manual that no one should tamper with or modify any part of the machine. The left-hand handle was removed and re-welded closer to the right handle. Prior to that, the handles were far enough apart that it required two hands to operate.

With the addition of a rope, and then later a stick, between the two handles, it was possible to operate the two-handed system with just one hand, creating the potential for a worker to come into contact with the splitting blade while operating the machine.

The Rex remained in this unsafe state for nearly 3 months and, although Mr Coster did not suffer any injury while using the machine, he was constantly at risk of injury as a result of the modifications.

Judgment

In sentencing the Company and the two owners, the Court took into account a number of aggravating features, including:

• the fact that the owners were aware of the modification and it was intentionally done to overcome the safety feature;
• the Company ignored the warning in the operator’s manual as well as the Australian Standard;
• there was a foreseeable risk of a serious injury;
• the worker was exposed to risk of injury over a long period;
• the risk could have been easily controlled, as it was later, by correctly installing the handle in its original location; and
• the timber industry is notoriously dangerous and this conduct made it more so.

These factors meant that the breach was a mid-range offence. It did not matter that an injury hadn’t been sustained.

Even with a 20% discount applied for a guilty plea, the fines imposed were still significant with $160,000 for the Company and $32,000 for each owner. The prosecutor’s costs of $30,000 were also ordered to be paid by the defendants.

Lessons

There is no excuse to remove or tamper with in-built safety features, in circumstances where it results in a significant and ongoing risk of serious injury. The Court, in this case, was at pains to state that any conduct that intentionally seeks to undermine safety features of a machine will result in high penalties being imposed.

Importantly, even if no injury results, where there has been a period where a worker could have sustained serious injuries as a result of such conduct, the Court will take a dim view and look to impose significant monetary penalties.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.