Dooling’s job was to observe the waste shredder from a platform, make sure it was running well and that nothing was jamming it up.
If the waste shredder jammed up, the instruction was to switch all the switches off and then hit the panic button on the operator’s platform so that nothing worked.
It is not known why Dooling entered the waste shredder while it was still operating on the day of the incident. Co-workers had previously observed him entering the waste shredder only after it had been shut down and nothing was moving, as was the procedure.
The defence submitted that administrative controls, such as company rules and safety training and existing safety measures were sufficient to protect workers from the risk of death or serious injury in foreseeable circumstances.
Judge Cathcart wrote that it was not in dispute that the business was a PCBU (person conducting a business or undertaking) which held a duty under Section 36 of the HSWA to “ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU”.
What was in dispute was whether this duty was breached by failing to ensure “so far as is reasonably practicable” that the health and safety of workers while at work in operating the waste shredder was not put at risk and, assuming a breach was found, whether that failure exposed any of such workers to a risk of death or serious injury.
“WorkSafe alleged the defendant failed to ensure that the waste shredder essentially was guarded with a ‘perimeter guard with interlocked access’,” Judge Cathcart wrote.
A perimeter guard with interlocked access means an access point tied to the machine’s operation, one that would automatically shut down the entire waste shredder if it were opened.
The likely cost of installing the engineering solution of a perimeter guard with interlock access was around $10,000 to $20,000 plus GST.
It was an undisputed fact that a sliding mesh gate in place at the time of the incident did not cover the entire width of the operator’s platform and railing, nor was it intended to do so. It was primarily intended to prevent exposing a worker to flying objects coming out of the shredder while running.
Judge Cathcart found that the company owner, Trevor Jukes, had considered the option of an interlock system to minimise the risk to workers and had undertaken some inquiries about it over the years, but rejected it as impracticable.
“Mr Jukes was therefore generally aware of the possibility of this engineering solution but essentially made a judgment call as to whether it was practicable.”
Judge Cathcart wrote that the undisputed evidence demonstrated there were several ways in which the workers, including Dooling, interacted with the waste shredder operation as a whole, including the conveyor and hopper.
“The overall likelihood therefore of a careless, foolish even irrational worker disobeying instructions, getting too close to the waste shredder during his interactions when he had not turned the machine off and somehow getting entangled in or slipping/falling into the hopper, was real. In short, the prospect was a real risk. And plainly materially greater than a rare risk.
“I accepted WorkSafe’s proposition that the defendant knew, and at the very least ought to have known, of the risk/hazard concerned as I have defined it.”
Judge Cathcart wrote that the fact that a worker may contribute to their own misfortune did not necessarily absolve an employer under the HSWA in some circumstances.
“Even irrational or unthinking employee behaviour that disobeys the employer’s instructions may in some scenarios not absolve the employer from criminal liability.”
Judge Warren Cathcart released his 43-page reserved judgment to the Gisborne Herald last week. Photo / Gisborne Herald
Judge Cathcart wrote that, in his view, guarding the waste shredder with a perimeter guard with interlocked access was “an available and suitable way” to minimise the hazard/risk.
“In sum, I was sure that it was reasonably practicable for the defendant to have ensured the waste shredder was guarded with a perimeter guard with interlocked access. And by failing to take that step, the defendant thereby breached its foundational duty under the HSWA.
“In simple terms, installation of a perimeter guard with interlocked access would have materially reduced the chances that a disobedient worker would be exposed to a risk of injury or death in his interaction with the waste shredder operation because the machine would be likely shut down first.”
He concluded that the charge was proved.
The Gisborne Herald reported in December that the sentencing was set for May 5.