Recent case in NSW puts spotlight on rising WHS fines: Lessons for employers - Kingston Reid

Recent case in NSW puts spotlight on rising WHS fines: Lessons for employers

The recent case of SafeWork NSW v A1 Arbor Tree Services Pty Ltd and Anor [2023] NSWDC 256, in which a worker suffered fatal injuries after being drawn into a woodchipper, has led to the imposition of the highest fine ever given under the Work Health and Safety Act 2011 (WHS Act) in New South Wales. This case serves as a reminder to PCBUs of the importance of implementing and maintaining safety systems and procedures, and highlights the increasing trend of courts imposing larger penalties for contraventions of the WHS Act.

Background

A PCBU, which specialised in tree pruning and removal, was engaged by a high school to remove three trees and prune another.

The injured worker was engaged by the PCBU in mid-2019 as a trainee groundsman. The injured worker had only worked five to seven days for the PCBU prior to the incident.

On 7 September 2019, the Manager assigned tasks to the workers, and then began cutting branches himself while the injured worker and another colleague were responsible for hand-feeding the branches into a woodchipper.

While hand-feeding branches into the woodchipper, the Manager directed the injured worker’s colleague to undertake another task, leaving the injured worker unsupervised with the woodchipper.

Upon the colleague coming back from his task, it was noticed that the injured worker was missing. It was assumed by the workers that the injured worker had gone to the bathroom. The colleague continued chipping the trees. Approximately 20-30 minutes later, it became evident that the injured worker had become entangled in the woodchipper and suffered fatal injuries.

The PCBU was charged by SafeWork NSW and pleaded guilty to recklessly failing to comply with its health and safety duty and exposing an individual to the risk of death.

The Manager was also charged by SafeWork NSW and pleaded guilty to failing to take reasonable care, as a worker, that his acts or omission did not adversely affect the health and safety of other persons, and exposing others to the risk of death or serious injury.

Safety Failures

The Court found that there were numerous critical safety failures which contributed to the incident, being:

  1. There was a complete absence of safe systems in place, with no proper supervision;
  2. The hazards and risks associated with hand-feeding branches into the woodchipper was well-known in the forestry and arborist industry;
  3. Both the PCBU and the Manager underwent an equipment familiarisation program conducted by the importer of the woodchipper, during which they received relevant documents on the safe operation of the woodchipper;
  4. The woodchipper’s design and operating manual explicitly warned against hand feeding;
  5. The woodchipper involved in the incident was a ‘whole tree chipper’ meaning it was designed to be fed by an auxiliary loader, not by hand;
  6. The PCBU did not assess the competency of any of its workers to safely operate the woodchipper. The injured worker was a trainee and had not undergone any formal training or assessment in relation to his competency to undertake work in operating the woodchipper;
  7. The primary safety device, the feed control bar, was not fitted as required by the manufacturer to the woodchipper;
  8. The PCBU’s continued use of the woodchipper without an operational feed control bar, despite being repeatedly warned by the importer of the woodchipper, demonstrated recklessness and disregard for worker’s safety; and
  9. The PCBU’s and Manager’s lack of genuine remorse and focus on their own problems did not meet the requirements for leniency.

The Court found that both the PCBU and Manager had engaged in conduct that was “arrogant and irresponsible“, which “…requires the maximum fine be imposed. The defendants were repeatedly warned that the woodchipper was needing of repairs on at least five occasions. The repairs would have been simple and could have been done easily by [the importer of the woodchipper]. Despite such warnings, [the PCBU] blatantly and recklessly allowed the damaged machine to be repeatedly used, until the subject incident occurred”.

The PCBU was found guilty and initially fined $3,000,000.00 (being the maximum fine at the time of the incident). However, this amount was reduced to $2,025,000.00. The reduction was a result of a 25% discount for pleading guilty early and an additional 10% discount based on their ability to pay.

The Manager was convicted and initially fined $150,000.00, but his fine was also reduced to a total of $101,250.00. This reduction was also due to a 25% discount for pleading guilty early and an additional 10% discount based on his capacity to pay.

Key takeaways

This case highlights four important areas for PCBUs to review and consider.

First, it is important for PCBUs to review and update their existing safety protocols to ensure they align with current industry standards and best practices.

Second, PCBUs should take proactive measures to develop and implement robust Standard Operating Procedures that are tailored to the specific machinery and equipment used in the workplace.

Third, Supervision plays a vital role in maintaining a safe work environment. PCBUs should ensure that competent supervisors are assigned to oversee operations.

Fourth, PCBUs should assess the competency of their workers in operating machinery. Competency assessments help identify any gaps in knowledge or skills of workers.

Our team at Kingston Reid is available to proactively advise organisations on meeting their obligations under the WHS Act, including providing bespoke training and workshops to management and workers on a range of regulatory issues. Please reach out if you require any assistance.

 

John Makris
Partner
+61 2 9169 8407
[email protected]
George Stent
Lawyer
+61 2 9169 8421
[email protected]