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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Mair v Regina Ltd (DC, 04/03/94)

OSH Tracker

Defendant:
Regina
After a defended hearing on 22 February in the Dunedin District Court, Regina Limited was subsequently convicted and fined $3000 with total costs of $445 for failing to take all practicable steps to ensure the safety of employees at work. The prosecution was brought following various OSH inspections of the company's Oamaru factory. The health and safety inspector alleged that an extruder machine used in chewing gum and bubblegum manufacture was in his opinion unguarded, and that after pointing out the hazard to management the company failed to place a guard on the machine to prevent the possibility of workers placing their arms or hand in contact with dangerous rollers inside the machine. In his reserved decision issued on 4 March, Judge Everitt noted the inspector's experience of similar machines to the extruder in question, involving feed and screw rollers, causing injury when a worker dropped something such as a pair of spectacles or a watch into the machine and bent down with their arm and hand into the area to retrieve the item dropped. Distance guarding was required to prevent operators reaching into the dangerous parts of the machine. In the case of this particular machine the provision of a step for the operator to stand on was held to make reaching the danger area easier. The defendent company reported that a 'chute' guard had been fitted to the machine after discussions with OSH but this had made certain processes difficult to carry out. The guard was removed in order to complete a bubble gum contract but was inadvertently not refitted on completion of the work. As an expert witness the company called a mechanical engineer whose view was that the machine was an inherently safe one operating in a well-regulated en- vironment and that there was no actual or potential hazard to operators. Judge Everitt was satisfied that it would be an extremely unusual and obviously dangerous step for operators to reach down to the machine rollers and that the operators had been made aware of this danger. but found that the machine was not safe within the meaning of the HSE Act because it exposed the operator in certain circurmstaces to injury. 'In the context of this prosecution it is not conducive to meeting the requirements of the Act to adopt an attitude as evidenced by [defendant witnesses] that potential hazards could only arise if someone acted irrationally and were determined on self-destruction. Once a perceived hazard has been pointed out, the obligation on the employer is to take all practicable steps to eliminate such hazard.' Judge Everitt noted that the prosecution 'was not brought without giving the defendant plenty of time in which to eliminate the hazard.' 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
None
Penalty Amount:
$3000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 25

Judgment Text

RESERVED DECISION OF DISTRICT COURT JUDGE T H EVERITT 
Judge T H Everitt
This is a prosecution brought by A C Mair, a health and safety inspector appointed under the Health and Safety and Employment Act 1992, (the Act) against Regina Limited as defendant. There is one information which alleges a breach of s 50 of the Act referring to the duties specified in s 6 of the Act namely that on 13 May 1993 at Oamaru the defendant failed to comply with the provisions of s 6 of the Act in that as an employer it did not take all practical steps to ensure the safety of employees while at work in that plant, namely a Togum extruder machine, was not guarded. Mr Bates appeared as counsel for the informant and Miss Penno as counsel for the defendant. It was agreed the defendant was an incorporated limited liability company. 
The prosecution called two witness, Mr Mair, the health and safety inspector, and Mr Low, a mechanical engineer employed by the Department of Health and Safety. The defendant called four witnesses, Mr Craig, the managing director of Regina Limited, Mr Veitch, the operations manager of the company, Mrs Smedley, an operator of the equipment which was subject of the prosecution, and Mr Wood, a mechanical engineer. The various witnesses produced a number of exhibits consisting of photographs of the machine in question, plans and sketches and specification advice booklet. 
The information was laid on 11 August 1993 as a result of the inspector, Mr Mair, discovering during various inspections at the Regina Factory at Oamaru, that the Togum extruder machine was in his opinion unguarded. This prosecution does not involve an event causing injury to any worker but essentially alleges that the machine created a hazard and that after the hazard was pointed out to management of the defendant company, the defendant company failed to take all practical steps to ensure the safety of employees working on the machine, in that the company failed to place a guard on the machine to prevent the possibility of workers placing their arms or hand in contact with dangerous rollers inside the machine. 
The main question for my determination is whether the prosecution have proved beyond reasonable doubt that the defendant company failed to take all practical steps to ensure the safety of its workers using the Togum Extruder machine in failing to provide a guard for the machine. Pursuant to s 53 of the Actthe offence is deemed to be an offence of strict liability in that intention is not required to be proved by the prosecution. However the Court, if evidence is called by the defendant, is required to determine whether the defendant has established on the balance of probabilities that it was totally without fault. 
The defendant company is a manufacturer of confectionery operating from a processing plant in Oamaru. It employs a reasonable number of employees to make amongst other things chewing gum and bubble gum and for that purpose installed in the bubble gum making department a machine known as the Togum Extruder machine. This Togum Extruder machine has the appearance of a large rectangular box about the height of a human. In the top of this box there is a hole having a width of 410 mm x 355 mm, into which loaves of gum product are placed by the machine operator. The depth of this hole is approximately 550 mm and at the bottom of the hole, which is known as the feed opening, there are four rollers. Four rollers are placed in two rows of two rollers. The first row is known as the feed rollers and below the feed rollers are two rows of feed screw rollers. The feed rollers contra rotate as do the screw feed rollers. The feed rollers have small ridges running lengthways. The purpose of which is to grasp the gum product forcing it down between the two rollers which are separated by a gap of 50 mm. The feed screw rollers are simple archimedes screws having flights raised on the surface of the rollers, the purpose of which is to gather the gum produce which has been forced below the feed rollers and to carry the gum product horizontally into extruder dies. These feed screws force the gum material through the dies forming two continuous ropes of gum material, each rope having an approximate diameter of 40 mm but depending on the size of the dies used. These continuous ropes of material formed are led away outside the extruding machine onto another machine for further processing. 
The Togum extruder machine is operated by one employee who has handily placed to her or him loaves of gum product similar in size to a loaf of bread and weighing two or three kilograms. The operator picks up one of the loaves of gum material and places it into the top of the feed opening down against the feed rollers. The loaf of gum product is then forced by the feed rollers down to the feed screws. As the first loaf of gum product is passing into the feed screws and filling up the flights, a second loaf is then placed inside the feed opening with some accuracy, to ensure a continuous flow of product through the rollers and hence through the extruder dies. This is a critical process requiring concentration and good hand/eye co-ordination. The rate of flow of material through the extruder is such that the operator is working continuously feeding approximately 50 loaves per hour, or one loaf of material every one and a half minutes into the feed rollers. 
Mr Mair, the inspector, was of the opinion that the Togum extruder machine presented a hazard to employees working on the machine because there was the possibility of an operator being drawn into the in feed rollers and screw rollers and hence suffering injury. In his experience as an inspector, he knew of similar machines which involved feed and screw rollers causing injury when a worker dropped something into the machine in the area of the rollers, such as a pair of spectacles or a watch, and bent down with their arm and hand into the area to retrieve the item dropped. Mr Mair was of the opinion that an operator could reach into the area of the rollers on the Togum extruder machine and could suffer injury to the hand or arm as a result. Consequently, Mr Mair required the Togum extruder machine to be guarded using the principle of distance guarding. This principle prevents operators reaching into the dangerous parts of the machine, making it impossible to touch the moving parts and hence suffer injury. A booklet, exhibit 3, was produced in evidence called “The Ergonomics of Machine Guarding” and the Court's attention was particularly drawn to figure 3 on page 3 of the booklet which was a chart showing the distance in millimetres that guards of various heights should be from dangerous parts (transmission machinery) of various heights to conform to these principles of average human reach. 
Mr Mair noted in his inspection that the likelihood of an operator reaching into the dangerous parts of the machine was increased by the provision of a foot stool or step which effectively reduced the distance guard according to the principles Mr Mair explained. Mr Mair confirmed that he had no difficulty in reaching into the machine and touching the rollers, the dangerous parts. 
In his view his experience taught him that people do unusual things, such as placing their hands into dangerous machinery, and consequently suffer serious injury. He agreed that unless an operator did something unusual there was no real possibility of an operator getting their hand caught in the dangerous rollers of the machine. 
The prosecution called an expert witness, Mr Lowe, who by consent read his report dated 18 February 1994. He was accepted as an expert witness as was the defendant's witness Mr Wood. Mr Lowe identified three areas of trapping hazards involving the rollers of the machine. The most significant being created by the screw rollers below the feed rollers. This hazard in his view could cause amputation of a persons finger. The second hazard in his opinion was created by the two rotating feed rollers which could grip a persons hand and draw it down into the machine. In addition he found a third hazard in his view which consisted of a trapping point created by the ribs on the rotating feed roller and the fixed part of the lid on the hopper. In his opinion, after taking various measurements, he stated that the machine without guarding would permit a person to reach into the danger area. The provision of a step for the operator to stand on made this situation worse because the operator could lean further into the feed hopper and reach the danger area easily. 
Mr Lowe outlined a number of processes which could effectively guard the machine and prevent an operator from reaching into the danger area. Mr Lowe produced a series of photographs annexed to his report which illustrated the danger points namely point A, the shearing point, which could amputate a finger, point B, where a person's hand could be drawn into the machine between the feed rollers and point C, where a person's finger could be trapped by the feed roller. 
Mr Lowe confirmed that the company had now taken steps to guard the machine by placing a grill over the feed opening and a chute which stood above the grill effectively guarding the dangerous parts of the machine by making it impossible for the operator's arm or hand to reach into the dangerous parts of the machine. It was his view that this device installed by the company prevented the possibility of harm to the operators and was a practical step. 
The defendant company called evidence from Mr Craig, the managing director, who outlined the history of the company and stated that health and safety was a high priority in the company's policy. Mr Craig personally inspected the Togum machine before purchase believing that it complied with all safety requirements of the manufacturers and indeed with the Australian safety standards. The machine in question is regarded as being “state of the art” at the leading edge of technology. 
Mr Craig had attempted to reach the rollers by leaning into the machine with his arm and confirmed that he could touch the top of the feed rollers and it was considerably easier to touch the rollers when standing on the step which had been provided. 
The defendant called Mr Veitch, the operations manager, who is responsible for looking after safety and well-being of all staff. He established systems to comply with all regulations currently in force to comply with the safety systems. He produced a set of photographs of the machine and particularly drew to the Court's attention the safety features of the machine namely the red stop button which is situated approximately at chest height of the operator, this being operated by a slight touch and automatically stops the machine. 
Mr Veitch described the process of feeding the loaves of gum product into the extruder and emphasised to the Court that it was not a simple process but required some skill and considerable training on the part of the operator to ensure a continuous flow. He outlined the clothing worn by the operators and stated in his experience there had been no accidents with the machine to his knowledge and no one had dropped anything into it needing to be retrieved. Mr Veitch said that he had tried to put his arm into the machine many times, he being 1.68 metres tall. He was able to touch the top rollers but not the bottom screw rollers unless he put himself into a very difficult position being above the feed opening and he demonstrated in the witness box leaning right down into the notional machine. If such an unusual manoeuvre took place he could touch both sets of rollers. 
Mr Veitch outlined the procedures that the company had taken after discussions on many occasions with Mr Mair. Notwithstanding Mr Mair's requirements, Mr Veitch personally felt that the machine in question never endangered any employee and he did not believe it needed extra guarding. However, in order to meet Mr Mair's requirements, the company tried to place an additional guard on the machine but it was difficult to satisfactorily feed the machine and it made certain processes difficult to carry out. He pointed in particular to a special contract which required a small gum product to be made and it was necessary to remove the guard which has subsequently been referred to in evidence as the chute. He stated that the staff were not happy with the chute but merely tolerated the chute; it caused them considerable inconvenience, strain and neck pain. The contract that I have mentioned to produce a small bubble gum product was completed in February or March 1993 and Mr Veitch said he did not re-install the chute guard back again on the machine. It was due to an oversight on his part. Mr Veitch believed that the steps that the company had taken were voluntary and not mandatory. He was surprised to receive a summons, he fully expected Mr Mair to warn him of a final deadline, for having the machine guarded. 
Mr Veitch, however, did concede that there could be a potential reach danger by a person putting their hand into the rollers of the extruder. This would, however, require an extreme effort on the part of the operator. Mr Veitch did not agree, however, that the feed rollers were dangerous because the rollers revolve very slowly and a person could easily remove their hand without getting caught. He could not agree that a person's finger could be trapped as suggested by Mr Lowe at point C. He did agree that if a person managed to get their finger by the screw rollers point A, injury would be likely by shearing. Mr Veitch agreed that all machines have a potential to be unsafe and the company could only protect operators to a certain extent and there comes a point where it is impossible or impractical to use a machine with 100% guarding. He did agree that if an operator could reach the dangerous moving parts then it was not satisfactory and that the company had a duty to prevent operators from being able to touch moving parts. 
Mr Veitch said it was not a question of cost. The company was so concerned about safety that if required would have spent $10,000.00 on guarding the machine. The present chute, which has been installed, cost approximately $500.00 to $800.00. 
Mr Veitch agreed that the company were prepared to investigate a side - feed guard as illustrated by diagram A on page 8 of Mr Lowe's report. 
The defendant company called an operator of the machine, a Mrs Smedley, who was a leading hand in the bubble gum department and frequently operated the machine, sometimes all day, on her shift. She described the operation of the machine from her perspective and confirmed that she had been able to put her hand into the feed opening and easily reach and touch the rollers when no guard chute was present. She was aware of course that this was an experiment and would normally never touch the rollers, she being aware of instructions not to put hands down the feed opening. 
Her experiments disclose that when no guard was present on the feed opening and no step was used to stand on. she could only just touch the rollers with the tips of her fingers. However, when no guard chute was present and using the step to stand on, she could easily reach the rollers inside. 
When the guard chute was present she could not touch the rollers at all whether she used the step or not. She confirmed that she had used the machine at times with the step and without the guard chute in place. 
Mrs Smedley described how difficult it was to operate the machine by lifting the loaves of gum product up into the top of the chute, this causing strain, back pain and neck pain. The workers experienced tiredness with all the lifting. Mrs Smedley said she was 5 feet 3 inches tall but there were a couple of other operators who were taller than her. 
Mrs Smedley thought that the side feed guard, as illustrated diagram A of Mr Lowe's report, could be workable and it might solve the difficulties experienced in lifting up the loaves of gum product to a high level to put into the top of the chute. She saw no difficulty in using this type of guard. 
The final witness called by the defendant company was a Mr Wood, an experienced mechanical engineer. As with Mr Lowe his qualifications were taken as read and as with Mr Lowe his curriculum vitae and details of experience were accepted. 
Mr Wood was retained to inspect the Togum extruder machine and report for the purposes of these proceedings by the defendant company. He described in detail the operation of the feed rollers and screw rollers and gave the Court the full dimensions of the machine and the rollers and produced helpful diagrams (exhibits C, D, E and F). 
He particularly examined the machine in view of the prosecution intention that in feeding the Togum extractor the operator was placed at risk of injury which could be overcome by effective guarding of the feed opening. 
Mr Wood was of the opinion that there were two factors bearing upon this contention which needed to be examined as potential risks. These factors were (a) feed rollers and (b) the feed screws. 
His analysis in his evidence lead to his opinion that the Togum extractor was an inherently safe machine operating in a well-regulated environment. He did not accept that there was a risk of an operator's hand being gripped by the feed rollers and drawn into the machine. In his view there was no actual or potential hazard to the safety of operators feeding the extruder. In short he maintained prosecution had failed to establish that the extruder as originally installed and commissioned presented a hazard to the operators. 
Mr Wood maintained in his experience it would be virtually impossible for a person's hand to become gripped by the feed rollers and drawn into the interior of the machine and onto the feed screw. He maintained there was no possibility whatsoever of a person's finger becoming trapped at point C, as maintained by Mr Lowe. Mr Wood demonstrated in his view the impossibility of this happening. He also strongly maintained that there was no danger of a person's hand being pulled into the machine at point B, on the photograph in Mr Lowe's report. He did however concede that if, however unlikely, if a person's hand got down as far as the feed screw, a person's finger or fingers could be trapped between the flights on the rollers and the extreme edge of the feed tube. Mr Wood said that for a person's hand to get that far into the machine they would have to have a suicidal determination. Mr Wood backed up this opinion by describing the action or actions of the contra feed rollers which he believed would tend to reject a person's hand rather than draw it into the machine, particularly bearing in mind that the rollers were covered with a pliable gum product. He could not conceive any circumstances where a person's hand would be gripped by the feed rollers. 
Furthermore Mr Wood maintained that to place the operator's hand into the dangerous moving part of the machine, the operator would need to get into such a position that the automatic stop button would be activated by the operator's body. 
Mr Wood maintained that under normal, usual operating procedures there was no danger from a person's hand being drawn into the machine, and this would only arise if the person went to extreme and took irrational steps and tried to get their arm into the machine between the rollers. In his view there was no measurable, rational degree of risk of harm with the machine. 
Mr Wood gave useful evidence of the difficulty of reaching into the rollers of the machine, referring to the upper quartrile of size human dimensions. This upper quartrile was for both male and female and when comparing the various measurements with the measurements on the machine, and particularly the height from the step and the operator's platform, he was of the view that for all reasonable and practicable purposes the machine presented no danger. 
Mr Wood was reluctant to agree that it was possible for an operator to place their hand into the dangerous parts of the machine because he could not conceive of a situation where the operator would align their body and shoulder to the extent necessary at the feed opening to be able to get their hand into the moving parts. 
Mr Mair, the informant, in his evidence described visiting the defendant's factory on numerous occasions, namely 5 August 1992, 26 August 1992, 21 September 1992, 30 October 1992, and 10 December 1992. Notwithstanding his earlier requirements, Mr Mair reminded the company through Mr Veitch of the legal obligations to guard the machine. On that date the distance guard had been removed as Mr Veitch deemed it not practicable in view of problems being experienced when feeding product. Mr Mair visited the factory again on 13 May and noted that the machine was still unguarded. He issued a further improvement notice on 17 May 1993. On 16 June 1993 a further visit to the factory revealed that the machine had not been made safe and the staff were still exposed to the hazard outlined by Mr Mair. 
I have mentioned the detail of these visits to put in context the steps which Mr Mair took to try and persuade the company to take action to safeguard the machine. 
I note from Mr Veitch's evidence that the company did attempt at one stage to place a grill with a feed tube over the feed opening but this still permitted an operator to put their hand down the feed tube and was deemed unsatisfactory by Mr Mair. I also note the company manufactured a chute which effectively acts as a guard on top of the feed opening. I also note that the company removed this guard from time to time and as late as May 1993 it had not been replaced. 
The evidence satisfies me that it is quite possible for an operator to reach into the feed opening on the Togum extruder machine and place their hand in the vicinity of the feed rollers. I am also satisfied that by taking some unusual steps to ignore the danger an operator could reach into and touch the feed screws. Almost all witnesses who attempted to touch the rollers found it possible to do so, some with varying degrees of difficulty. I found the evidence of Mrs Smedley convincing, that she could easily touch the rollers if she stood on the step, and I note she is not particularly tall. 
I am satisfied that for an operator to carry out such an action when the machine is working would be extremely unusual and obviously dangerous. I am satisfied the staff who operated the machine were fully trained and made aware of the dangers of the machine. I am also satisfied on the evidence that there is no requirement or need for any operator to place their arm inside the machine in the vicinity of the rollers. Consequently I am satisfied that the rollers, both the feed rollers and the feed screws, are only hazardous when an operator acts contrary to instructions and takes unusual steps. It is not part of the operation of the machine to put a hand anywhere near the rollers. 
I am not prepared to go as far as Mr Wood went in his evidence in describing such actions as actions requiring suicidal determination. I accept the evidence of Mr Mair that in similar types of machines it has been known from experience that operators will reach into a machine to retrieve items such as personal effects which by accident fall into the machine, namely spectacles and watches and the like. 
I am equally satisfied that the provision of the grille and feed chute manufactured by the defendant company effectively prevents an operator from reaching into the dangerous parts of the machine and renders the machine safe. Mr Low was clearly of this opinion and so was Mr Wood, although he did not see the need for such a guard chute. 
The prosecution maintain that the circumstances permitting an operator to place their hand and arm inside the machine and touch the rollers is a hazard within the meaning of the Act. “Hazard” is defined. “Any activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation, or substance (whether arising or caused within or outside a place of work), that is, an actual or potential cause or source of harm; and ‘hazardous’ has a corresponding meaning:. ‘Harm’ is defined as meaning, ‘Illness, injury, or both;’, and ‘to harm’, ‘harmed’ and ‘unharmed’ have corresponding meanings:”
The Act further defines the meaning of “safe” as: 
“(a)
In relation to a person, means not exposed to any hazards; and 
(b)
In every other case, means free from hazards; - and unsafe and safety have corresponding meanings:. ”
I am satisfied on the evidence that the Togum extruder machine does present a hazard to workers in the bubble gum department who are required as part of their employment to operate the machine. The feed rollers and screw rollers present in my view clearly a source of injury and the machine is not safe within the meaning of the Act because it exposes the operator in certain circumstances to injury. 
The Act further defines the expression “All practicable steps” as meaning: 
“In relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to - 
(a)
The nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
The current state of knowledge about harm of that nature; and 
(d)
The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each; and 
(e)
The availability and cost of each of those means: ”
The prosecution maintain that it was reasonably practicable to place a guard in the feed opening and this guard would have prevented injury by preventing an operator from placing their arm into the moving parts of the machine. The chute affected the reach distance to such an extent that there was no possibility of an operator's hand coming anywhere near the rollers. I am satisfied that the provision of such a chute that is now installed on the machine was a practicable step within the meaning of the Act. 
The feed chute guard that is present on the machine now may not of course be the ideal solution and Mr Wood has pointed to the chute creating operational difficulties for the operators. They are required to lift reasonably heavy loads of gum product above their shoulders and into the top of the chute. Mr Wood is of the opinion that this operation is hazardous, causing pain and strain and the possibility of the operator falling from the machine on to the ground. I am satisfied, however, that whilst the difficulties of this kind may have been created by the provision of a chute, further refinements would eliminate these additional difficulties. I am satisfied that the placement of the gum product prior to being fed into the machine needs to be looked at. Mr Low has made valuable suggestions, and in particular the side feed chute would eliminate most, if not all, of the difficulties raised by Mr Wood. Mr Wood did not agree with this conclusion, however, but I am satisfied on the evidence of the operator of the machine, Mrs Smedley, that a side feed chute is entirely practicable. 
It must be borne in mind that it is not for the informant to design guards for the defendant company. The obligation is placed by the Act on the defendant company to take all practicable steps. I am satisfied that the informant department, however, is co-operative and rendered all possible assistance and advice to the company. 
It is the obligation of the prosecution in this case to prove beyond reasonable doubt the actus reas of the offence alleged in section 6 of the Act. I am satisfied that on the evidence before me provided by the defendant company it has not discharged the onus cast upon it on the balance of probabilities to show that it was totally without fault. 
Mr Wood particularly asked the Court to consider the irrational conduct which would be required by an operator before an operator could become injured by the moving parts of the machine. This raises an issue as to whether there is an obligation on an employer pursuant to the Act to take all practicable steps to ensure the safety of employees who act irrationally, unwittingly, unthinkingly, or intentionally. 
I am satisfied that the hazards of the Togum extruder machine were pointed out by Mr Mair early on in 1992 during his inspection. I am satisfied that the company were made aware that in certain circumstances, however irrational, unwitting, intentional or unthinking, a person's hand could become injured in the moving parts of the machine. I am satisfied that the defendant company through Mr Veitch was reluctant to accept this possibility and did not treat it with the seriousness that it deserved. The evidence of Mr Mair satisfies me that on occasions in the past with similar machines operators have dropped some extraneous item by accident into the machine and attempted to retrieve it and have suffered injury by the moving parts of the machine. This is an example in my view of an unthinking or unwitting act on the part of an operator. Human experience teaches that in unusual circumstances injury happens because someone was thoughtless or acted irrationally, knowing full well the danger that was presented to them. 

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