Background
On the 29 February 2012 Mr Tse, was carrying out work at private premises at Epping. By origin he comes from China and he advertised on the web seeking Chinese workers. The workers he was seeking seemed to be students. He employed Mr Yuan a university studnet.
Part of the work involved cutting out the stumps of trees using a stump grinder on a slopping ground. However,the operating instructions for the machine make it plain this machine should be used only on level ground not on slopes. To deal with this Mr Tse instructed Mr Yuan to put bricks under the wheels. Mr Tse then started to operate the machine.
The Incident
Without warning and to Mr Tse’s surprise Mr Yuan went out into the front of the machine, walking quite close to it and got caught by the machine with the sad result that his leg was dragged into the machine and despite Mr Tse turning off the machine the rotating blade kept moving for 10-15 seconds resulting in Mr Yuan leg getting mangled and requiring hospitalisation.
Duty of Care
Mr Tse did not believe anybody would be so silly as to walk out in front of a moving machine and into the path of a blade, however the Judge said “that this does not absolve him from liability under this Act. His duty was to ensure this man was not put at risk while this work was being carried out. What that meant him doing in real terms was very simple. He had a duty to explain to him the dangers of the machine even if they appeared to be perfectly obvious to him what they were. He then had a duty to tell him that when he the defendant was operating the machine Mr Yuan should not walk forward of him at all”.
The Verdict
Mr Tse was found guilty under the WHS Act S19 (Category 2 Offence) which attracts a maximum penalty of $300,000.
Due to Mr Tse circumstances the judge imposed a penalty of $500 plus costs and concluded with this statement “You have got to understand if you are running a business and you are using dangerous equipment the law imposes duties upon you even though you think any sensible person would not commit an injury to himself you cannot assume people are sensible. Some people are plain stupid. I am not criticising the man who was injured, I am not saying he is plain stupid but some people are and you still have a duty towards them.”
Source: NSW District Court Workcover v Max Tse [2014] NSWDC 229
