While the incident occurred outside of Western Australia, the primary duty provision that the offender breached mirrors that contained in s19 of the Work Health and Safety Act 2020 (WA). The case should serve as a timely reminder for WA businesses with control of dangerous plant around the importance of installing adequate physical guarding, establishing sufficient safe work procedures, and effectively communicating these procedures to the workforce.
On 12 November 2020, the eighteen-year-old victim went to work at Nippy’s fruit processing plant as an Inline Quality Control Officer. During her shift, she had approached a conveyor belt to remove fruit which was blocking the line, and to clear up fruit which had fallen from the conveyor. While carrying out this task her hair became caught in the unguarded machinery. Her entire scalp was ripped from her head. Despite the best efforts of first respondents and medical teams, attempts to reattach her scalp were only partially successful.
In sentencing, Deputy President Eaton accepted that the impact on the victim was significant, stating, “in an instant, her young and hopeful life flipped into shock, trauma, ongoing pain and disfigurement”.
Her Honour went on to highlight the offending conduct was more serious given the risk of serious harm from unguarded machinery was not only foreseeable, but was actually foreseen in a 2013 risk assessment.
The control measures that the defendant should have implemented in all of the circumstances were:
- Installing physical guarding on the “sprockets and drive train” of the conveyor so as to remove or minimize the extent to which any part of a worker’s body could become entangled (which was a measure implemented after the incident at a cost of $500); and/or
- Restricting worker access to the underside of the elevator conveyor through the use of a fence and/or gate which could only be accessed by workers such as maintenance workers.
The Court found there were further failures by the PCBU in relation to:
- Risk Assessment and Response: while a general plan risk assessment undertaken in September 2013 had identified the hazard of unguarded machinery, there were inadequate control measures in place to eliminate or reduce the risk to workers from this known hazard;
- Signage: which could have warned workers of any potential risk, restricted access to the machine, or notified that entry was not permitted to the area while the machine was operating.
- Communication and duties: there was a lack of communication and training given to young workers around safe procedures for isolating plant and for clearing obstructions from the plant.
In arriving at the total fine, Her Honour took into account a 40% discount for a plea of guilty at the earliest opportunity, as well as the significant mitigating steps the company had taken following the incident.
The foreseeability of workers being exposed to serious injury due to the well-known hazards associated with unguarded machinery is clear (as was outlined in last year’s WASC decision of Resource Recovery Solutions Pty Ltd v Ayton [No 2] [2022] WASC 142). Businesses will need to ensure they are continually monitoring, assessing, and implementing appropriate control measures to either eliminate or reduce any risks to workers so far as is practicable.
