Details of successful prosecution against E223927

Incident description

The defendant company held duties under s.19 of the Work Health and Safety Act 2011 being a person conducting a business or undertaking.

In 2008, the defendant purchased an Italian made 'Comadis' automated tube manufacturing and filling machine, for the purpose of making plastic tubes filled with herbs for retail sale. It immediately modified a clear heavy duty Perspex guard door (intended to prevent access to the working parts and in addition opening the door automatically shut the machine down) to fit a vacuum hose into it to remove plastic tube clippings. The modification left a large gap that workers could put their arms through and into the machine. There was a second identical machine that had also been modified but the hole was not as big and did not present a risk.

On 2 February 2016, a 22 year old worker put her arm through the modified hole to clear plastic trimmings. Two of her fingers (middle and index) on her dominant right hand were amputated by the guillotine trimming blade. In hindsight, the worker realised she should not have accessed the machine in this fashion; however she would not have been able to but for the manner of the modification. The machine was made safe, very quickly and cost effectively, on the day of the incident by the addition of a further piece of Perspex added to the door to eliminate the risk (20 minutes work and about $10.00 in value which was done whilst the WHSQ Inspector was present).

Court result

The defendant pleaded guilty on 6 July 2017 in the Maroochydore Magistrates Court to breaching s.32 of the Work Health and Safety Act 2011, for having failed to meet its work health and safety duties and was sentenced.

Magistrate Rodney Madsen fined the defendant $35 000 and ordered professional and court costs totaling $1089.40. No conviction was recorded.

In reaching a decision, the Magistrate stated the defendant should have recognised something was wrong with the modified guard door. Even given employee foolishness, the worker should not have been able to access the machine, to her detriment, and the consequences were unfortunate. This matter should remind employers, that regardless of employee experience and regardless that the machine had operated for years without incident, ongoing risk assessments are essential and good systems, equipment and risk assessments should be properly maintained, monitored, adjusted, renewed or modified as circumstances dictate. His Honour noted how easily it was fixed and made safe and said if the machine had not been poorly modified this would not have happened. In deciding penalty, Magistrate Madsen took into account the defendant had not been prosecuted previously for any work health and safety breach, co-operated with the investigation and entered an early plea of guilty.

Considerations for prevention

(commentary under this heading is not part of the court's decision)

When working in the manufacturing industry where there is exposure to risks from amputation due to insufficient guarding on plant, duty holders should apply a risk management approach to ensure the selection of suitable control measures.

Risk management involves identifying the hazards, evaluating the consequences and likelihood of harm that may result from the hazard, deciding and implementing control measures to prevent or minimise the level of the risk from the hazard and monitoring the effectiveness of the control measures to ensure they remain working correctly.

When deciding and implementing control measures associated with the risk of serious injury or death, obligation holders should consider:

• Work Health and Safety Act 2011
• Work Health and Safety Regulation 2011
• Managing risks of plant in the workplace code of practice 2021 (PDF, 1.57 MB)
• How to manage work health and safety risks code of practice 2021 (PDF, 0.65 MB)

Details