Big fine for removing safety gear, even though no injury occurred

By Michael Selinger on February 8th, 2018
  1. Policies & Procedures
  2. Safe Operating Procedures

 

A recent NSW court case has highlighted the significant penalties businesses and owners face if they deliberately modify equipment to remove in-built safety features. In the case of SafeWork NSW v H&F Mechanical Pty Ltd, Hoffman and Hoffman (2018), the company was fined $160,000 and both owners personally fined $32,000 each as a result of the removal of a two hand operating system for a split timber cutting machine.

The facts of the case

The company provided mechanical services and labour contracting to local industry. One of their workers, 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 for firewood. At the splitting area a hydraulic ram exerting 26 tonnes of force would cause a splitting 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 in operation.

A conscious decision was made by the business-owners to ignore the warning in the operator manual that no-one should tamper with or modify any part of the machine. Instead, 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.

Now there was the potential for a worker to come into contact with the splitting blade while operating the machine with one hand. The Rex remained in this unsafe state for nearly three 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.

The Court’s 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 done intentionally by their engineer 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 returning the handle to 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 no injury had 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 for employers

There is no excuse for removing or tampering with in-built safety features, in circumstances where it results in a significant and ongoing risk of serious injury. In this case, the Court 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 occurs, where there has been a period where a worker could have sustained serious injuries as a result of such conduct, courts will take a dim view and look to impose significant monetary penalties.

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Michael Selinger
Editor–in–Chief
Health & Safety Handbook

Among the 70-plus chapters of the Health & Safety Handbook, two chapters in particular, Plant Safety Management and Safe Operating Procedures, contain valuable information about how to keep your workers safe and why it’s important not to mess with the safety features of potentially dangerous equipment.

The chapters also provide checklists and step-by-step instructions on how to check that workers are not at risk before starting the equipment.

Don’t take unnecessary risks at your business. Subscribe to the Handbook today on an obligation-free trial and see for yourself how the expert input from health and safety lawyers at Holding Redlich can make your job just that much easier.

 





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