3 September, 2016
On 1 August 2016, Judge Scotting reinforced that accepting early responsibility and demonstrating genuine remorse will significantly discount the penalty of a guilty plea, in the case of SafeWork NSW v Freedom Foods Pty Ltd [2016] NSWDC 153.
The incident
On 28 July 2014 Mark Torbuck was employed as a Main Extrusion Line Operator at Freedom Foods Pty Ltd (Freedom Foods) and worked on the Flake Roller Machine (the machine).
In attempting to clear a blockage, Mr Torbuck opened the rollers of the machine, undid the clips securing the in-feed chute and removed the chute. The machine was still operating while Mr Torbuck balanced on top of it and the mobile work platform. With one hand on the platform and the other clearing the blockage, Mr Torbuck slipped and his hand fell into the rollers subsequently removing the skin, tissue and tendons on his right hand (requiring amputation of four fingers) as well as torn ligaments in his arm and shoulder.
The guilty plea
Prior to the incident, Mr Torbuck had undergone on-the-job training with an experienced buddy. Induction training and re-training was provided and employees were instructed not to remove guards from machines whilst in operation.
However, Mr Torkbuck had not been given in-depth instruction in operating the machine or seen the Standard Operating Procedure and operator's manual. He had not been assessed as competent to work on the machine and was never instructed on how to clear a blockage or in isolation procedures. There were no systems in place to prevent unauthorised removal of the in-feed chute.
The machine had also been modified by replacing the bolts with hand-operated spring load clips and no risk assessment was conducted prior to making these modifications. There was no Safe Work Method Statement for unblocking the machine.
In the circumstances, Freedom Foods entered an early guilty plea.
Sentencing
Judge Scotting commented that any systems in place at the time of the incident were behavioural controls only. He found the system ultimately failed because Mr Torbuck was not trained on the machine and the supervisor was absent. Furthermore, despite Mr Torbuck acting contrary to instructions, the risk could have been eliminated by higher order engineering controls such as an interlock device preventing access to moving parts.
That being said, Judge Scotting acknowledged Freedom Foods:
- took immediate and significant post-incident steps to improve safety systems and training across the business;
- demonstrated a prior commitment to workplace health and safety; and
- accepted responsibility for the breach of its duty and provided extensive support to Mr Torbuck and his family over the two-year period from when the incident occurred.
Freedom Foods was ultimately convicted and fined AUD 100,000, which was subsequently reduced by 25% on account of an early plea.
Implications
Freedom Foods highlights the need to ensure that in circumstances where there has been a clear breach of duty, immediate steps must be taken to mitigate the potential for a significant fine and costs. This may include:
- conducting a gap analysis of the system in place against legislative requirements and taking appropriate action to close out any identified gaps;
- ensuring the injured worker is provided with appropriate assistance, which is not only legally beneficial but moral good practice; and
- seeking legal advice immediately after an incident, which is the best approach to ensure mitigation strategies are put in place at the earliest opportunity.
For further information, please contact:
Michael Tooma, Partner, Clyde & Co
michael.tooma@clydeco.com
