On 1 August 2016, Judge Scotting reinforced that accepting early
responsibility and demonstrating genuine remorse will significantly
discount the penalty of a guilty plea, in the case of SafeWork NSW
v Freedom Foods Pty Ltd  NSWDC 153.
On 28 July 2014 Mark Torbuck was employed as a Main Extrusion
Line Operator at Freedom Foods Pty Ltd (Freedom
Foods) and worked on the Flake Roller Machine (the
In attempting to clear a blockage, Mr Torbuck opened the rollers
of the machine, undid the clips securing the in-feed chute and
removed the chute. The machine was still operating while Mr Torbuck
balanced on top of it and the mobile work platform. With one hand
on the platform and the other clearing the blockage, Mr Torbuck
slipped and his hand fell into the rollers subsequently removing
the skin, tissue and tendons on his right hand (requiring
amputation of four fingers) as well as torn ligaments in his arm
The guilty plea
Prior to the incident, Mr Torbuck had undergone on-the-job
training with an experienced buddy. Induction training and
re-training was provided and employees were instructed not to
remove guards from machines whilst in operation.
However, Mr Torkbuck had not been given in-depth instruction in
operating the machine or seen the Standard Operating Procedure and
operator's manual. He had not been assessed as competent to
work on the machine and was never instructed on how to clear a
blockage or in isolation procedures. There were no systems in place
to prevent unauthorised removal of the in-feed chute.
The machine had also been modified by replacing the bolts with
hand-operated spring load clips and no risk assessment was
conducted prior to making these modifications. There was no Safe
Work Method Statement for unblocking the machine.
In the circumstances, Freedom Foods entered an early guilty
Judge Scotting commented that any systems in place at the time
of the incident were behavioural controls only. He found the system
ultimately failed because Mr Torbuck was not trained on the machine
and the supervisor was absent. Furthermore, despite Mr Torbuck
acting contrary to instructions, the risk could have been
eliminated by higher order engineering controls such as an
interlock device preventing access to moving parts.
That being said, Judge Scotting acknowledged Freedom Foods:
took immediate and significant
post-incident steps to improve safety systems and training across
demonstrated a prior commitment to
workplace health and safety; and
accepted responsibility for the
breach of its duty and provided extensive support to Mr Torbuck and
his family over the two-year period from when the incident
Freedom Foods was ultimately convicted and fined AUD 100,000,
which was subsequently reduced by 25% on account of an early
Freedom Foods highlights the need to ensure that in
circumstances where there has been a clear breach of duty,
immediate steps must be taken to mitigate the potential for a
significant fine and costs. This may include:
conducting a gap analysis of the
system in place against legislative requirements and taking
appropriate action to close out any identified gaps;
ensuring the injured worker is
provided with appropriate assistance, which is not only legally
beneficial but moral good practice; and
seeking legal advice immediately
after an incident, which is the best approach to ensure mitigation
strategies are put in place at the earliest opportunity.
Solicitors should think carefully before disclosing sensitive information to experts in a letter of instruction.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).