Australia: Farrell v Nippy's Waikerie Producers Pty Ltd [2023] SAET 56 case summary

On 12 November 2020 an 18-year-old employee, Alexandra Trandafil, went to work as usual at the orange packing shed at the Waikerie facility of the South Australian drink manufacturing company.

During her shift she had entered an area of a machine that washes, grades and sorts oranges as they moved along a lengthy conveyor belt and series of rollers in the factory.

She was tasked with entering a section of the conveyor belt to clear a blockage and retrieve fruit that had fallen from the belt. The belt was not turned off while this work was performed. As she was clearing the blockage, her hair became caught in the unguarded machinery and her entire scalp was ripped from her head.

Despite the best efforts of first responders and medical teams at the Royal Adelaide Hospital, attempts to reattach her scalp were only partially successful.

Subsequently it was found that the company had failed to provide and maintain a safe work environment. This article describes the Farrell v Nippy's Waikerie Producers Pty Ltd [2023] SAET 56 case and focuses on the importance of workplace safety.

In the hearing at the South Australian Employment Tribunal, Deputy President Eaton highlighted the significance of the offending conduct, as "no-one intended for her to be so appallingly damaged. But the risk was not only foreseeable, it had actually been foreseen" [4].

Her Honour goes on to recognise the significant and permanent harm that was caused:

At paragraph 15, it was highlighted that Ms Trandafil's injury could have been prevented with simple measures of either a guard over the head height drive chain and motor of the elevator conveyor (an action which only cost $500 to implement following the incident) or restricted access while the conveyor was operating.

Her Honour noted other failures and control measures which could have been in place to prevent the injury, including:

• Risk Assessment and Response: On 9 September 2013, just over 7 years prior to the incident, a risk assessment was conducted recommending mesh guards to prevent access to particular risk areas, and guards on the unguarded drives, sprockets, and rollers. These recommendations were not applied to the plant where Ms Trandafil was injured [paragraphs 16-17].
• Signage: Signs placed at or near the entry to the area where the incident occurred could have warned of any potential risk, to restrict access or to notify that entry was not permitted if the machinery was operating [paragraph 20].
• Communication and duties: Any training and/or procedures could have been put in place in respect of the particular health and safety risks of that area or the duties undertaken. At paragraph 28, Her Honour noted that there should be training in not only how to work safely, but how to work with a safety consciousness that will equip employees to identify risks and dangers which might arise during their work and give them the confidence to raise any concerns with their supervisors.

Ultimately, Nippy's Waikerie Producers were fined $120,000 for a Category 2 offence contrary to section 32 of the Work Health and Safety Act 2012 (SA). In sentencing, Her Honour considered a 40% discount for an early plea of guilty as well as the mitigating steps the company took following the incident. This fine is in addition to the compensation which Ms Trandafil was entitled to.

Notably, while the incident occurred in South Australia, the division that was breached by the company mirrors section 32 of the Work Health and Safety Act 2011 (NSW).

This case is one of many that highlights the need for companies to ensure that they are continually monitoring and implementing appropriate control measures to minimise the risk of injury for employees as far as practicable.

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