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District Court 24 March 2017

SafeWork NSW v Thermal Electric Elements Pty Ltd

[2017] NSWDC 62

Other
WORK HEALTH AND SAFTY CRIME WORK EXPERIENCE PLACEMENT CNC BRAKE PRESS CRUSH ZONE HAND CAUGHT IN CRUSH ZONE

Citation: SafeWork NSW v Thermal Electric Elements Pty Ltd [2017] NSWDC 62
Court: District Court of New South Wales
Date: 24 March 2017
Judge: Kearns DCJ

Background

Thermal Electric Elements Pty Ltd, a manufacturer of electric heating elements based at Toormina on the NSW mid-north coast, took on a 17-year-old Year 11 student for one week of mandatory work experience in August 2014. Within three days, the student was operating a CNC brake press largely unsupervised. A CNC brake press is a hydraulically powered machine that bends sheet metal using a descending knife blade that closes onto a fixed die, creating a powerful crush zone in the process.

On 6 August 2014, the student inadvertently depressed the foot pedal that drove the knife downward while his left hand was still in the crush zone. His index and middle fingertips were crushed and amputated. The injury was permanent.

SafeWork NSW prosecuted the company under the Work Health and Safety Act 2011. The company pleaded guilty to failing to comply with its primary duty of care under s 19(1), an offence under s 32 of that Act.

  • Whether the defendant's conduct constituted a failure to comply with its primary duty of care under s 19(1) of the Work Health and Safety Act 2011, contrary to s 32.
  • The appropriate penalty, including the weight to be given to the various aggravating and mitigating factors.
  • The extent of the discount to be applied for the early guilty plea.

Decision

The court accepted the guilty plea and proceeded to sentence. Three separate mechanical failures directly contributed to the incident. First, the machine's EasyGuard light curtain controller was set to "SLOW" mode rather than the default "OFF" mode, which meant the machine continued to operate even when the light curtain detected an obstruction. Second, the "mute point" (the point in the knife's descent at which the light curtain is intentionally disabled) had been manually set at 15mm rather than the manufacturer-specified 6mm, making it physically possible for the student to insert his fingers into the crush zone. Third, the foot pedal was not fixed to the floor, allowing it to be accidentally depressed while the operator was reaching into the machine.

Beyond the mechanical failures, the court found a broader and serious failure in how the defendant managed the work placement. The induction covered only general administrative matters and did not address machinery operation. The training on the brake press consisted of a brief demonstration and roughly 30 to 40 minutes of assisted operation. The student then worked largely alone on the machine for the remaining days. The defendant had no current risk assessment for the press and had provided no meaningful instruction on the specific hazards of the crush zone, the light curtain settings, or correct foot pedal positioning.

In assessing the objective seriousness of the offence, Kearns DCJ found that the risk of injury was foreseeable and the measures needed to eliminate or reduce it were readily available. The correct machine settings were prescribed in the operation manual, and adequate supervision of a work experience student was an obvious precaution. His Honour also noted the particular vulnerability of a 17-year-old student in a mandatory work placement context, which heightened the defendant's responsibilities.

The court fixed a base penalty of $375,000 and applied a one-third discount for the early guilty plea, arriving at a final fine of $250,000.

Orders Made

  • The defendant is convicted and fined $250,000, with a moiety (half of the fine) payable to the prosecutor.
  • The defendant is to pay the prosecutor's costs as agreed or assessed.

Key Takeaways

  • The District Court confirmed that where a host employer takes on a young work experience student and deploys that student on industrial machinery, the primary duty of care under s 19(1) of the Work Health and Safety Act 2011 extends to ensuring adequate induction, training, supervision, and the correct mechanical configuration of that machinery.
  • A combination of incorrect safety settings and a general failure of supervision, even without any single dominant cause, can together satisfy the elements of a serious WHS offence under s 32, attracting a substantial financial penalty.
  • The vulnerability of the person exposed to the risk (here, a 17-year-old on mandatory work placement with no industrial background) is a relevant aggravating factor in sentencing.
  • Readily available measures to eliminate a risk, such as following a manufacturer's default settings and providing meaningful supervision, weigh heavily against a defendant when those measures were not taken.
  • An early guilty plea attracted a one-third discount from the base penalty of $375,000, reducing the final fine to $250,000, consistent with the approach to sentencing discounts under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1) and 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Attorney General of NSW v Tho Services Limited (In Liquidation) [2016] NSWCCA 221