Large fine sticks to Duct after failure to follow expert recommendation

In the recent decision of SafeWork NSW v Duct Australia Pty Ltd [2018] NSWDC 231, Duct Australia was convicted and fined for failing to adopt the safety recommendations of a tool expert.

The NSW District Court heard an expert recommend to Duct Australia that they should affix the light curtain of a metal press machine at a clearance of no greater than 10mm.

This recommendation was intended to ensure employees could not insert their hands without tripping the curtain’s sensors and deactivating the machine.

Duct Australia chose not to follow this instruction for operational reasons. Subsequently, an employee, who was not trained in the adjustment of the light curtain, had four fingers on his left hand crushed which then had to be amputated.

Duct Australia was charged with breaching sections 19 and 32 of the Work Health and Safety Act 2011 (NSW) (the Act) for its failure to:

• develop a safe procedure for the operation of the press, incorporating the necessary adjustment of the light curtain; and
• ensure employees were trained and assessed as competent in those procedures.

The Court stated that the breaches of the Act were “more serious when regard is had to the recommendations made by the expert when installing the machine” which Duct Australia ignored.

This was not a case where the employee was negligent and Duct Australia could have taken steps to avoid the injury, which would have caused very little inconvenience and costs to the business.

Duct Australia was fined $112,500 after reduction for their guilty plea.

Lessons for businesses

1. Review your policies, procedures and safe work methods on a regular basis and schedule regular risk assessments, particularly if you operate in a high-risk environment.
2. It is not enough to simply engage consultants and experts, or to undertake a risk assessment and then put it on the shelf. Safety recommendations should be implemented in the absence of compelling reasons not to so do.
3. It is crucial to train all employees in safe working methods and update their training and work methods where new recommendations become relevant.

Our Employment, Safety and Migration team have extensive experience advising clients in relation to occupational health and safety and reducing the risk of potential claims. Please contact us if you would like further information or advice.

This article was written by Barney Adams, Associate – Employment, Safety and Migration.