Seriousness of the Contravention
30 A contravention of s 16 of the OHS Act occurs when an employer exposes its employees to risk. This is clear in the text of s 16(1)-(2) of the OHS Act. It is not an element of the offence that the exposure to risk results in any injury. Thus, the gravity of the consequence does not itself inform the seriousness of the offence or the amount of the penalty: Trooper Lawrence at [120]. The seriousness of the contravention ought to be considered objectively: Trooper Lawrence at [120]; Workcover Authority of New South Wales v Profab Industries Pty Ltd (2000) 49 NSWLR 700 (Profab Industries) at 714.
31 Similarly, it was observed in DPP v Amcor Packaging Pty Ltd (2005) 11 VR 557 at 565:
[I]t is the avoidance of those consequences which, when considering the objective seriousness of the offence, constitutes the raison d'Être for the establishment of the legislated regime in the first place. To a substantial extent the seriousness of a breach must be assessed by reference to those potential consequences and the measure of evidenced disregard concerning the safety of employees in the circumstances.
32 In this matter, I consider the factors relevant to the determination of the seriousness of the contravention are:
(1) the level of training provided to Mr Shore and Mr Collins;
(2) the foreseeability of the risk;
(3) the potential harm; and
(4) the Respondent's management of those risks.
33 At the time of the accident, Mr Shore and Mr Collins had been full-time employees of the Respondent for three years. At the time of their commencement, they worked in the Solvent Distillation Plant at the Workplace and were provided with an "on the job" induction that included safety training and instruction regarding the need to use, fit and wear protective personal equipment when working.
34 From February 2009 and June 2011, Mr Shore attended and passed six training modules which appear to have been delivered through one or two day sessions by or on behalf of the Respondent:
(1) "Manual Handling" in 2 February 2009;
(2) "Safety leadership" in 20 October 2010;
(3) "Chemical management, hazardous goods and MSDS" on 9 February 2011;
(4) "Job safety and environmental analysis" on 11 February 2011;
(5) "Emergency awareness" on 11 February 2011; and
(6) "Risk management" on 3 June 2011.
35 Similarly, Mr Collins attended and passed the following training modules which appear to have been delivered through one or two day sessions by or on behalf of the Respondent:
(1) "Reporting injuries" on 9 February 2011;
(2) "Spills management" on 9 February 2011;
(3) "Chemical management, hazardous goods and MSDS" on 11 February 2011;
(4) "Emergency awareness" on 11 February 2011; and
(5) "Risk management" on 3 June 2011.
36 In or about July 2010, Mr Shore commenced working in the area known as the Liquid Treatment Plant at the Workplace. In the period July 2010 and December 2010, Mr Shore received "on the job" training in respect of the Work and the handling of SS. That training and instruction:
(1) was conducted by the Leading Hand of the Liquid Treatment Plant at the Workplace, Mr Peter Williams, on the first occasion when SS was added to the Centrate Tank;
(2) involved Mr Williams:
(i) explaining to Mr Shore why SS was added to the Centrate Tank, namely to precipitate heavy metals from treated cyanide;
(ii) explaining to Mr Shore that the amount of SS to be added was indicated by metal scan results provided by the laboratory at the Workplace;
(iii) showing Mr Shore how to perform the Work by opening and pouring a bag of SS into the Centrate Tank (in the same manner that Mr Shore did on the day of the accident); and
(iv) supervising Mr Shore adding the bags of SS to the Centrate Tank on a number of occasions in the period July to December 2010.
37 Further, Mr Williams also instructed Mr Shore to consider the wind conditions when pouring the SS into the Centrate Tank. If it was too windy, then either the job would not be completed that day or Mr Shore would go to the other side of the Centrate Tank so that the wind would be coming from the back over the shoulder. The amount of dust generated when the bags of SS were emptied depended on the wind direction and how full the Centrate Tank was at that time.
38 In relation to the Work, Mr Williams also conducted the "on the job" training to Mr Collins.
39 Whenever the Work was performed in the period July to December 2010, it was Mr Shore's job to add the SS bags to the Centrate Tank as part of his normal duties. The Work was not the subject of a documented safe work instruction or the subject of any specific documented training, instructions or safety assessment. It does not appear that the training modules that Mr Shore and Mr Collins attended covered the safe handling of SS, or the full extent of the issues of inhaling it, the Work, or acknowledged risks from inhaling hazardous substances.
40 It is clear through the instruction provided by Mr Williams there were obvious risks in the method of carrying out the Work. However, Mr Shore had not received any instructions about wearing personal protective equipment while performing the Work beyond wearing thick rubber gloves over the latex gloves and high-vis chemical resistant coveralls over his long sleeved shirt and long sleeved pants. Each time Mr Shore did the work, he would make a decision as to whether to wear his full face mask. At all times, both a full face mask and a Self-Contained Breathing Apparatus were available for Mr Shore at the Workplace. In my view, it was inappropriate to leave decisions about personal protective equipment to employees doing the Work, without adequate training on the substance they were working with or the risk of harm that arose from that substance.
41 On the day of the accident, Mr Shore was not wearing a full face mask when carrying out the Work and there was a soft breeze coming from his back over his shoulder. The consideration of and adjustment in accordance with the wind conditions illustrates awareness of the risk of exposure to SS but such knowledge only came from the "on the job" training provided by Mr Williams.
42 In my view, the risk of being exposed to SS while it was being poured into the Centrate Tank was foreseeable. It was clear from the instructions of Mr Williams that such risks were obvious, such as the consideration of wind conditions when carrying out the Work.
43 Further, the Material Safety Data Sheet (MSDS) for SS held by the Respondent warned of significant risks to health including that it may be fatal if it was swallowed, inhaled or absorbed through skin. It stated that a self-contained breathing apparatus and acid resistant chemical splash suit should be worn.
44 The Respondent relies on a report annexed to the affidavit of Dr George Crank sworn 16 October 2014. There is no dispute about Dr Crank's expertise. He completed a PhD in Organic Chemistry from the Monash University in 1964 and had worked in the field of toxicology and organic chemistry since 1961. He is currently an Independent Consultant in Chemistry & Toxicology at the University of New South Wales. He has industry, teaching, research and consulting experience in those fields. Insofar as his opinion is wholly or substantially based on his specialised knowledge acquired during the course of his training, study or experience, I consider it to be admissible pursuant to s 79 of the Evidence Act 1995 (Cth) (the Evidence Act). His expert report covered his opinion on the toxicological properties of SS and the health risks to Mr Shore and Mr Collins due to their exposure to it on the day of the incident.
45 Dr Crank put forward the following views:
(1) Mr Shore was likely to have inhaled some of the SS when he was pouring it into the tank;
(2) the effects of relatively limited outdoor exposure to SS dust are respiratory irritation, sore throat, coughing and temporary dizziness;
(3) the type of exposure suffered only lasted a short time;
(4) the degree of exposure would not have caused severe damage to Mr Shore's health or cause him to develop long-term symptoms;
(5) in relation to Mr Collins, he was likely to be too far away to be affected by the dust; and
(6) by the time Mr Collins came to the aid of Mr Shore, the SS dust would have settled or dispersed.
46 The Applicant relied on the report annexed to the affidavit of Dr John William Edwards sworn 20 October 2014. There is no dispute about Dr Edward's expertise. He completed a PhD in Toxicology from the University of Adelaide in 1990 and had worked in that field since 1984. He is currently Associate Professor of Environmental Health at Flinders University of South Australia and the principal of Edwards Toxicology Consulting. He conducted and supervised research investigating exposures and health effects associated with occupational and environmental chemicals. Insofar as his opinion is wholly or substantially based on his specialised knowledge acquired during the course of his training, study or experience, I consider it to be admissible pursuant to s 79 of the Evidence Act.
47 From his expert report annexed to his affidavit of 20 October 2014, Dr Edward put forward the following views:
(1) SS dusts are very strong irritants through skin and eye contact;
(2) the extent of inflammatory tissue damage depends on duration of contact;
(3) inhalation of SS dusts will produce irritation to respiratory tracts;
(4) the symptoms suffered by Mr Shore were highly likely to be a result of inhalation of SS dust;
(5) during the actions of opening and adding the contents of bags of SS, Mr Shore was overcome by a combination of SS dust and hydrogen sulphide gas, causing acute chemical irritation, shortness of breath and difficulty breathing;
(6) the Work required the use of a full face respirator with appropriate filters;
(7) workplace training appears to have been scant and there is very little oversight of the work performed and safety procedures required;
(8) any unconscious collapse associated with chemical exposures is highly significant.
48 On 27 October 2014, the Respondent filed a Notice of Objection to certain aspects of the affidavit evidence of Dr Edwards. There were also objections to some parts of the affidavit evidence of Ms Straga, but I will deal with that later. Several of the objections were resolved prior to hearing and were not relied on by the Applicant. On 31 October 2014, the Respondent also made an interlocutory application seeking to be heard on the admissibility of the evidence filed by the Applicant and to adjourn the penalty hearing to another date.
49 By the time of the hearing on 31 October 2014, the main objections to his evidence were:
(1) the fact that his report made reference to a purported exposure to dangerous substances, hydrogen sulphide and hydrogen cyanide, which were not particularised in the pleadings or the ASF; and
(2) critical comments of work practices purportedly carried out at the Respondent's site at Wingfield, South Australia.
50 As to the former, I do not think it is necessary to specifically accept his views about the chemical composition of the dangerous substances to which Mr Shore was exposed. There was some debate in the experts' reports about that. There was no specific agreement about that in the ASF and it was not appropriate, on the basis of the tendered documents only, to resolve that issue. There was no dispute that Mr Shore was exposed to some chemical dust from the Work, associated with SS, and that he collapsed. There was some dispute about the potential gravity of the consequences to which he might have been exposed. In fact, in this instance, he was fortunate that he had no longer term consequences of his exposure. As I indicated at the time, I do not intend to assess penalty on the worse of the scenarios discussed by the two experts, namely that in the particular circumstances the chemical exposure extended to exposure to hydrogen sulphide.
51 As to the latter, in the course of submissions, the Applicant ultimately did not press reliance on that part of his report. It was not appropriate, in my view, that I should rely on it with the then statement of his qualifications which may not have extended to an assessment of the Respondent's general work safety practices. As to that matter, I have not relied on his report.
52 Following those rulings, and in the light of the comments made, the Respondent had the option to, but did not pursue any application to have the penalty hearing adjourned to another date.
53 Both Dr Crank and Dr Edwards recognise that SS is a hazardous substance which is fatal in large doses. The Respondent accepts that the risk of the type of injury that Mr Shore suffered, that is, a "relatively limited outdoor exposure to SS dust" which resulted in respiratory irritation, sore throat, coughing and temporary dizziness, was foreseeable. However, the Respondent contends that the foreseeable risk did not extent to serious harm or death. It was submitted that whilst the Dangerous Material Shipping Document accompanying the SS warned of significant risks to health, this warning was aimed at transport operators who were generally inexperienced and untrained at handling significant quantities of dangerous goods. That would have required a significant amount of SS. I accept that in this case, at least Mr Shore and Mr Collins undertook training modules that appeared to cover the risks of handling hazardous substances.
54 The handling of 25 kg bags of SS is significant. Mr Shore had to cut the bags open while they were resting on his shoulder, intending to pour the contents into the Centrate Tank. The risk of exposure to SS is a significant one. It appears to me that the possibility of SS dust exposure was only one of the risks. That is what occurred. There may also have been the risk of the SS bag, or part of its contents dislodging and falling away from the tank towards the person loading it onto the tank.
55 The Respondent pointed out that the training provided to Mr Shore and Mr Collins included safety training and the need to use, fit and wear personal protective equipment. They both attended and passed training modules associated with their duties. However, the Respondent also acknowledged the point that the "on the job" training involved did not specifically require the usage of a full face mask when performing the Work.
56 I also consider it significant that there was no Safe Work Instruction or Risk Assessment specific to the Work. There is a general consensus between Dr Crank and Dr Edwards that the seriousness of the harm is directly proportionate to the level of exposure to SS dust. Dr Crank took the view that because the exposure only lasted a short time, Mr Shore could not have inhaled a very hazardous amount of dust there was unlikely to be long term adverse effects. This was further reinforced by the swiftness of Mr Shore's recovery. However, in my view, it is significant that Mr Shore collapsed. As he was performing the Work alone and out of sight of other colleagues, it was some ten minutes after he collapsed that he was noticed by Mr Collins. Not only was Mr Shore handling SS without mandatory protective equipment, but it was also an obvious risk to not have a supervisory system when the Work, which had obvious risk associated with it, was performed to ensure any incident would be attended to promptly.
57 The Applicant advanced the submission that the manual handling risk from lifting and holding at shoulder height 25 kg bags of SS whilst on an unsecured base was also foreseeable. The Respondent's training in manual handling awareness notes that hazards including lifting and holding, and identifies potential injuries including back injuries, hernias, muscle strain, crush injuries and cuts. The Applicant also relies on the National Code of Practice for Manual Handling, published in 2005 and annexed to Ms Straga's affidavit which identified risks of back injury increasing with objects above the 16-20 kg range. The Hazardous Manual Tasks Code of Practice, annexed to the affidavit of Michael John Cole sworn 25 October, a solicitor of the Respondent's legal representative in these proceedings, also noted that musculoskeletal disorders from manual handling hazards are the most common workplace injuries in Australia.
58 The Applicant contends that the precautions available to the Respondent in managing these manual handling risks were not onerous. The most obvious risk was the unsecured base, which could be rectified by providing an elevated work platform or conveyor/floveyor to move the SS into the Centrate Tank. The Respondent was aware of the existence of these mechanical aids, as evident in the Respondent's materials for its own manual handling training module.
59 As I have indicated, in my view, exposure to SS dust while emptying the bags was not the only foreseeable risk. There was also a risk of the worker falling along with an opened bag of SS. Such a circumstance might result in a significant exposure of SS directly on or around the worker who had fallen or anyone who attends upon that person.
60 For those reasons, the Respondent's contravention falls on the serious end of the spectrum, even though in this instance the adverse consequences ultimately were not long lasting.
61 The Respondent was well aware of the risks associated with SS but did not take steps to obviate that risk in relation to the Work task beyond the "on the job" training provided by Mr Williams. In my view, it is not sufficient to have personal protective equipment available in such circumstances.
62 As the Applicant said, there were precautions that could have been employed to reduce or remove the risks associated with SS handling. They were straightforward. They include providing specific training and instruction when handling SS when performing the Work, or, requiring the use of appropriate personal protective equipment, especially the use of a full face respirator, using a buddy system, and adopting an alternative means of emptying the SS bags into the Centrate Tank.
63 It is relevant that the Respondent ceased to undertake the Work in the same manner immediately after the accident. In the day following the accident, a new Standard Operating Procedure for the second stage of the treatment was introduced which removed the risks to which Mr Shore and Mr Collins were exposed to by removing the usage of SS. There was no indication that there were significant costs or business disruption from the change in procedure. That conduct, which is laudatory also highlights the ease with which the risks could have been addressed.
64 The Respondent relied on the affidavit of Luke Chapman, National Health Safety and Environment Manager of the Industrials Division for the Respondent, affirmed 17 October 2014. The affidavit highlights the Respondent's strong commitment to safety and safety governance, evident by the implementation of the Health and Safety Policy requiring employees to cease work where there is a safety threat. I give that material some weight, as it shows the commitment of the Respondent to the safety of its employees. It unfortunately did not lead to specific appropriate training for Mr Shore and Mr Collins, and not making the use of protective equipment mandatory when handling hazardous substances in performing the Work.
65 The Respondent pointed out that it regarded the first stage of the treatment process as having significant risk to health and safety, thus requiring Safe Work Instructions. It had introduced them. When the treatment process progresses to its second stage, it said the risks to health and safety was much lower with respect to exposure to SS dust. It is not clear that the Respondent did not consider that there was no foreseeable risk of injury in performing the Work (as the second stage has been defined for this judgment), or that in the context of the much more significant and dangerous risks in other parts of the process at the Workplace, it did not appreciate the risks associated with the Work. The fact that other significant risks were managed properly does not detract from the fact that the particular risk in this matter was not adequately addressed. It does not affect the foreseeability of the risk with respect to exposure to SS dust. I do not find that the Respondent deliberately failed to address the risk, but clearly (as now acknowledged by the Respondent) it was a risk that the Respondent ought to have identified and addressed.
66 The Respondent should be credited with promptly ceasing the usage of SS in the treatment process, thereby eliminating the risk altogether. It is obviously a conscientious employer in relation to safety issues. The corrective action taken by the Respondent afterwards, such as preparing a Standard Operating Procedure and Risk Assessment forms specific to the risk involved in the accident and issuing a "Zero Harm Alert" to all other sites reminding employees and contractors of the risks associated with chemical inhalation also evidences that. However, it accepts by its plea that it ought to have been aware of and managed those obvious risks, either by considering alternative methods or implement a process to protect the employee from the risks, such as wearing protective equipment covering the face. It should not require an accident to occur for the Respondent to respond.
67 As noted previously in these reasons, the Respondent is a large operator with 256 sites and over 4000 employees. Work carried out at the Workplace includes the treatment of hazardous waste. Dealing with hazardous substances is not an unusual aspect of the Respondent's commercial activities. The health and safety risks of the Work were clear and obvious. The first stage of the treatment process was heavily documented and Mr Shore was required to wear appropriate personal protective equipment, including a full face mask and an appropriate suit. This is to be contrasted with the second stage of the treatment process, the Work, where there was no documentation. There was only "on the job" training provided by Mr Williams. That is indicative of the Respondent's poor risk assessment practices in relation to the Work. It exposed Mr Shore and potentially others to a significant risk of harm.