Inspector Anita Puntillo v Foti International Fireworks Pty Limited

Industrial Relations Commission (NSW)|2004-09-24|Before: Kavanagh J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Anita Puntillo v Foti International Fireworks Pty Limited [2004] NSWIRComm 279 Prosecutor: PARTIES : Inspector Anita Puntillo Defendant: Foti International Fireworks Pty Limited FILE NUMBER: IRC7368 of 2003 CORAM: Kavanagh J CATCHWORDS : Occupational health and safety - s8(2) prosecution - plea of guilty - objective seriousness of the offence - obvious and foreseeable risks to safety - inherently dangerous industry - general and specific deterrence - plea of guilty entered at earliest available opportunity - remediation measures undertaken by the defendant - subjective features taken into consideration in the imposition of penalty - penalty imposed - moiety to prosecutor LEGISLATION CITED : Occupational Health and Safety Act 2000 WorkCover Authority v Howard and Sons Fireworks Spectaculars (No2) [2001] NSWIRComm 116 CASES CITED : WorkCover Authority of NSW (Inspector Sequeira) v Foti's International Fireworks (Displays) Pty Limited [2003] NSWIRComm471 WorkCover Authority of NSW (Insp Dubois) v Warman International Limited (1999) 87 IR 30 R v Thomson, R v Houlton (1999-2000) 49 NSWLR 383, (2000) 115 A Crim R 104 HEARING DATES: 07/14/2004 DATE OF JUDGMENT: 09/24/2004

Prosecutor: Ms A.F. Backman of counsel Solicitors: Mr G. Diggins WorkCover Authority of NSW

LEGAL REPRESENTATIVES: Defendant: Mr M.J. Perry of counsel Solicitors: Mr S.G. Wilson Mulally Mylott

JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: KAVANAGH J Date : Fri 24 September 2004 IRC7368 of 2003 INSPECTOR ANITA PUNTILLO v FOTI INTERNATIONAL FIREWORKS PTY LTD Prosecution under s8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2004] NSWIRComm 279 1 This prosecution is brought by Inspector Anita Puntillo of the WorkCover Authority of NSW against Foti International Fireworks Pty Limited. The prosecution is issued under s8(2) of the Occupational Health and Safety Act 2000 (the OHS Act). It is alleged the defendant breached s8(2) of the OHS Act in that it failed to: Ensure that Bomin Lee, Arlene Pinada, Rebecca Ruth Higgins, and others not in the defendant's employment, were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work. 2 The particulars of the charge are: (a) At all material times the defendant was an employer. (b) At all material times the defendant employed Shane Hodges and Anthony Morris to set up and fire the display fireworks at Prince Alfred Park, Parramatta ("the site"). (c) At all material times Bomin Lee, Arlene Pinada , Rebecca Ruth Higgins and others were spectators at the site from the commencement of the firing of the display fireworks. (d) At all material times the defendant's undertaking was the setting up and staging of an outdoor fireworks display at the site. (e) The defendant failed to provide adequate protective measures to prevent any discharge of any of the said display fireworks into the adjacent crowd at the site. (f) As a result of the said failure Bomin Lee, Arlene Pinada and Rebecca Ruth Higgins and others were placed at risk of injury and suffered actual injuries. Other spectators were placed at risk of injury.

3 Section 8(2) of the OHS Act reads as follows: 8 Duties of employers

(1) Employees . . . (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 4 Ms A.F. Backman of counsel appeared for the prosecutor. Mr M.J. Perry of counsel appeared for the defendant. An amended Agreed Statement of Facts was relied upon. The prosecutor tendered a number of photographs of the site and two medical reports, one dated 10 June 2003 from Dr Jolly and the other dated 13 June 2002 from Dr Rea. A plan of the relevant area of the incident was also relied upon. Mr Perry relied upon the affidavit of Vincenzo Antonio Foti sworn 13 July 2004 and two statements by Mr Shane Hodges dated 17 April 2002 and 18 November 2003. A defendant document, namely, an "Outdoor Fireworks Pre-Display Risk Assessment" Form, prepared for the relevant fireworks display was also tendered. 5 The amended Agreed Statement of Facts relevantly reads as follows: 3. At all material times the Defendant was an employer operating a business involved in arranging and conducting display fireworks events. 4. In June 2001 Parramatta City Council engaged the Public Event Group ("PEG") to organise the coming New Year's Eve celebrations to be conducted at Prince Alfred Park, Parramatta ("the site"). PEG in turn engaged the Defendant to stage a fireworks display at the site to commence at about 9.00pm 5. Prior to 31 December 2001 Vincenzo Foti, who was at the time a director of the Defendant, conducted an inspection of the site where the fireworks display was to take place. 6. The Defendant employed Shane Hodges ("Hodges") and Anthony Morris ("Morris") to set up and fire the display fireworks at the site on 31 December 2001. 7. Hodges received a Cue List setting out the fireworks that were to form part of the display from Anthony Foti. Hodges also received a form entitled "Outdoor Fireworks Pre-Display Risk Assessment" which he filled in both before and after the accident. In addition, Hodges had a permit issued pursuant to the Dangerous Goods Act 1975 which authorised him to receive, and use for display, ground fireworks, theatrical effects and pyrotechnics. 8. Fireworks items such as roman candles and multi-shot cakes are examples of ground display fireworks. Such fireworks function primarily on the ground and may project stars, novelty and other effects above the ground. 9. Certain conditions relating to ground display fireworks are required to be observed under the Dangerous Goods Act 1975 and the Dangerous Goods (General) Regulation 1999. These conditions include setting a minimum crowd separation distance of 30 metres from the point of ignition for ground display fireworks. Other conditions include the requirement that the supervisor (the person holding the display) must have adequate training and experience in the use of fireworks. In addition to the supervisor, there must be an assistant who is constantly on duty during the discharging of the fireworks. 10. On 31 December 2001 Hodges was designated by the Defendant to be the operator (the person holding the display) and Morris was assigned to be Hodges' assistant. Hodges and Morris set up the pyrotechnic items, detailed on the Cue List, and the hardware in accordance with the standard procedures implemented by the Defendant and in accordance with the minimum distance clearances required by the Dangerous Goods Legislation. In relation to the roman candles Hodges secured five (5) roman candles to a timber rack. Numbers one, three and five roman candles were secured with 50mm wide adhesive tape. Numbers two and four were tied with electrical cable because the tape roll was too wide to go between the other roman candles. The timber rack holding the roman candles was tied with metal wire onto a steel stake which was then driven into the ground. 11. Prior to the display being fired, Hodges checked the wind speed and direction and gave directives to the client organisers as to barricading with barrier tape and monitoring of crowd movement. After setting up mortar racks, Hodges re-assessed the location and moved the racks back a few metres in order to achieve more safety clearance. 12. At sometime between about 9.05pm and about 9.30pm on 31 December 2001 at the site, Bomin Lee, Arlene Pinada and Rebecca Ruth Higgins were members of the public watching the fireworks display being conducted by the Defendant when a pyrotechnic item known as a roman candle dislodged and fell from a timber rack to which it had earlier been secured by an electrical cable tie. The roman candle then fired shots horizontally into the crowd of spectators. At the same time as the roman candle was firing shots horizontally, it fired a shot into another pyrotechnic item which was located approximately three (3) metres distance away. This other pyrotechnic item was a 100-shot multi-shot cake titled "Happiness Rhythm" ("the cake"). The shot from the roman candle ignited one corner of the cake which in turn ignited the fuse wire causing it to split into five (5) parts. The cake then fired multi-shots into the crowd of spectators who were positioned in the north-western and north-eastern quadrants of Prince Alfred Park. 13. Bomin Lee, a 12-year-old boy, who was watching the fireworks at the site, was hit by a firework in his right arm and back causing him serious burns. 14. Ms Higgins, another spectator, saw a number of fireworks flying horizontally towards her. She heard people screaming and saw them attempting to find cover from the fireworks. She felt cinders falling onto her skin and felt a stinging sensation on her right arm. 15. Ms Pinada saw fireworks rolling on the ground then felt something hit her in the stomach. 16. Senior Constable Glen Campbell who was on duty at the site during the fireworks display observed a number of fireworks firing directly into the crowd of spectators. One hit a tree and then hit the officer in the area of his stomach. 17. The fireworks also fired into a number of cars in Market Street, adjacent to the site, causing damage. 18. On 31 December 2001, Inspector Terry Fouques of the WorkCover Authority of New South Wales inspected the site at about 10.48pm and made a number of observations including the following: a. A public park known as Prince Alfred Park is bounded by Victoria Rd on the northern side, Marsden St on the western side, Market St on the southern side and Church St on the eastern side. b. Located in the centre of the southern park area was a series of fireworks clusters set up in a total sequence of 38 individual items, each of the 38 were wired to a central 12volt firing control panel. c. Within the groups of fireworks was a cluster of small imported Chinese "candles" comprising 10 rows of 10 tubes approximately 30mm in diameter secured together by 2 steel tie wires around the perimeter of the cluster, at the time of the inspection one row of the ten had broken away from the cluster, the other nine rows were still contained within the steel tie wires. The steel tie wires were still intact and not broken. d. Within the groups of fireworks was a cluster of 4 larger "candles" approximately 50mm in diameter and approximately 400mm in length, these candles were secured to a timber frame by means of cable ties and tape. The timber frame was secured to the ground by means of a metal stake driven into the ground. e. There was a crater in the ground adjacent to the base of the "candles". The crater was approximately 12mm to 15mm deep and approximately 150mm to 200mm in diameter. f. At the time of the inspection a single "candle" of the same dimensions was found some distance away from the cluster of 4 candles identified above. The "candle" casing was intact, however broken tape similar to the tape used to secure the "candles" to the timber frame was observed on the casing. g. A similar cluster of 5 "candles" was observed in an unfired condition set up in a similar manner as described in sub-paragraph d above. 19. At no stage prior to the accident did the defendant implement or give instructions to Hodges or anyone else to implement the placing of protective barricades in order to minimise or eliminate the risk to safety occasioned by the malfunction of a ground display firework or fireworks. 20. Since the accident the defendant has developed an Occupational Health and Safety System Manual which includes a section FIP-013 entitled "Safety Management Plan Land-Based Fireworks Display". At page FIP-013-1, the Plan identifies a risk namely "malfunctioning of pyrotechnic item" and the prevention measures in relation to the risk as "...place protective barricades around ground items". 21. Since the accident the defendant places protective barricades, usually consisting of lengths of plywood, around all four sides of ground display items. The lengths of plywood are then secured by posts and tie-wire to prevent an item or items falling over and firing towards a crowd.

6 In an assessment of the objective seriousness of this offence it is relevant to note the pleadings allege the defendant failed to provide adequate protective measures to prevent any discharge of the fireworks into the crowd from which three particular persons suffered injury. Other spectators were at risk of injury. 7 The amended Agreed Statement of Facts reveal a firework known as a Roman Candle dislodged from its rack with some force - its casing was found 36 metres from the firing site. On its journey almost as a "comet" it either struck or caused, by its radiating embers, a "cake" (a designed collection) of other fireworks to explode. The activity was described thus: When the single candle misfired it fired shots into the crowd as well as into "the cake" which contained a firework of 100 shots. The shot that hit the cake set in motion the multi shots it contained which exploded into the north western and north eastern areas of the park, striking the four named spectators.

8 The evidence revealed Mr Foti, the company director, attended the site prior to the fireworks display being conducted in Prince Alfred Park, Parramatta, on New Year's Eve. While at the site he conducted a risk assessment. However, a risk assessment document was tendered, which document was, in my view, unsatisfactory. It was not completed by Mr Foti at the site before the event but by the employee, Mr Hodges, who was later at the site to conduct the display. Many parts of the form headed "Outdoor Fireworks Pre-Display Risk Assessment" were not completed. While I can accept it may be incumbent upon the employee on the day of the display to assess, for example, "wind velocity", given he is setting up fireworks I cannot accept the employee on site is responsible for the entire documentary record of the risk assessment when Mr Foti conducted it.

9 Further, the evidence revealed once the crowd started arriving, Mr Hodges, the employee, was concerned enough at the size of the crowd to require the barriers to be set back and the crowd moved further away from the fireworks than the required minimum standard 30 metres. The employee Mr Hodges appears, given the circumstances of a large and pressing crowd, to have conducted himself in a very responsible and safety conscious manner.

10 The defendant submits it complied with the fireworks standard. Mr Foti, I accept, is clearly integral to this industry and has significant influence. The standards are clearly a minimum safety standard. The defendant submits the court should perceive the Roman Candle incident as "a rogue candle".

11 As to the court's assessment of the objective seriousness of the offence, the defendant submitted there were existing procedures in place directed to safety at the site, both in terms of the systems in place and in the operation of those systems as follows: The pre-display site inspection by Mr Foti; the "Outdoor Fireworks Pre-display Risk Assessment" which Mr Hodges filled in both before and after the accident; the appropriate certification of Mr Hodges to conduct the display; the experience of Mr Hodges as the powder man; the observation of the legislative requirements and the Australian Standard in relation to crowd separation distances; the proactive act in that respect by Mr Hodges moving the crowd back; and the conduct of all necessary safety checks and risk assessments. 12 In a consideration of the objective seriousness of the offence a further element to be considered is whether there was a foreseeable risk to safety in the circumstances. There will be an element of foreseeability to the risk if appropriate measures could have been taken and were available.

13 As part of a confluence of events, the unforeseeability or relative unforeseeability of the malfunction is a relevant consideration, the defendant submits, to the larger question as to whether there was a reasonable foreseeable risk of injury having regard to the whole of the circumstances. The degree of foreseeability is relevant to my consideration and I find in all the circumstances surrounding the display there was an element of foreseeability to the offence in that barricades could easily have been placed around the fireworks set up on the ground.

14 The gravity or otherwise of the potential risk to safety flowing from a breach of the OHS Act is relevant as a measure of the gravity of the offence and the culpability of a defendant. Bomin Lee, a 12 year old boy at the time of the offence, sustained serious burns to his right arm after being hit by one of the exploding fireworks. Other spectators also received injuries. In addition a number of parked cars in the vicinity were damaged by the discharging fireworks. The breach by the defendant in the circumstances (working with ground display fireworks at a public event without adequate barricading) I find had the potential to lead to serious consequences - one such consequence became a reality.

15 It is conceded by the defendant this is an industry fraught with risk. In WorkCover Authority v Howard and Sons Fireworks Spectaculars (No 2) [2001] NSWIRComm 116 (29 May 2001), Boland J considered the fireworks displays as "inherently dangerous" at [13]: It falls first to determine the nature and quality of the offence: Lawrenson Diecasting . The industry of conducting fireworks displays seems to me to be inherently dangerous and calls for particular care to be exercised by corporations and individuals engaged in such an industry. The potential for serious injury and even death from the use of fireworks is evidenced by the array of safety requirements in the legislation and subordinate rules that apply to the use and storage of fireworks.

Comments with similar effect were made by Staunton J in WorkCover Authority of NSW (Inspector Sequeira) v Foti's International Fireworks (Displays) Pty Limited [2003] NSWIRComm471 (12 December 2003) at [22]: The defendant continues to operate in the firework display industry. It could not be said that such an undertaking is not fraught with risks to safety or, to put it another way, it is an industry that, on any proper consideration, is an inherently dangerous industry. . . .

16 Given the safety features in place at the time of the display, the prior risk assessment conducted and the responsible behaviour of Mr Hodges on the night, I find in the circumstances this was a serious offence but in the middle range.

17 In fixing an appropriate penalty in the present case, there is a need for a consideration of the element of general deterrence in the circumstances as determined by Hungerford J in John Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 (at 388). There is a particular need for general deterrence in this industry. The court is cognisant of the fact the OHS Act has as its object the safety of the general public and particularly of employees at work. The goal is threefold: the prevention of, the deterrence of, or the punishment for, a breach to the health and safety requirements of this State. I believe penalty, in the circumstances, must take into account an element of general deterrence.

18 As to specific deterrence there was available a simple and straightforward step to remedy the defect reflected in the breach. It was open to the defendant at any time prior to the accident to place protective barricades around the sides of ground display fireworks. The defendant following the incident has implemented such a measure.

19 While both aspects of deterrence are matters which are given weight, I accept also the defendant had a pre-existing regard to workplace safety and did attempt to have safety features in place on this occasion. The OHS Act, however, requires a pro-active approach to safety on the part of an employer particularly in an industry which may be dangerous or perhaps inherently unsafe (Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 210). The terms of s8(2) impose an obligation on an employer which is not confined to precautionary acts only when there are warnings or signals of danger or where experience indicates a risk to safety has arisen and requires remedy. The obligation under s8(2) places upon an employer a proactive responsibility and not a reactive responsibility. Employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare.

20 The defendant raises the issue of consistency in sentencing under the OHS Act, submitting like must be compared to like while acknowledging each case is different on its facts. The observation in Capral Aluminium Limited v WorkCover of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610; (2000) 99 IR 29 (at 66) is relied upon in submission that the principle of consistency is relevant as it is a reflection of the notion of equal justice (Spigelman CJ in R v Henry (1999) 46 NSWLR 346 (at 353) and Mason J in R v Lowe (1994) 154 CLR 606 at 610-611).

21 In the context of consistency and the application of the notion of equal justice, the defendant submits regard should be had for the decision of Boland J in WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars (No. 2) (2001) NSWIRComm 116.

22 I have regard also to the early plea of guilty in the matter. Reliance is placed on the view I expressed in WorkCover Authority of New South Wales (Inspector Dubois) v Warman International Limited (1999) 87 IR 30 (at 35): . . . I believe it is proper that the appropriate advice was obtained prior to the entering of a plea and I find, notwithstanding the timeframe between the filing of the summons ... and the entering of a plea ... the plea of guilty was entered as early as possible and as such should be given consideration in mitigation.

The plea of guilty in this matter was entered shortly after receiving counsel's advice. I find a plea was entered at the earliest opportunity and find therefore this is a proper case to apply the full discount of 25 per cent as determined by R v Thomson; R v Houlton (1999-2000) 49 NSWLR 383; (2000) 115 A Crim R 104 in recognition of the utilitarian value of the plea.

23 In mitigation, consideration is given to Mr Foti's expression of contrition.

24 The defendant company has no prior convictions. However, it was brought to the court's attention that two associated companies have had convictions entered against them. One particular matter related to a fireworks explosion causing a serious injury. However, that fireworks explosion was inside a factory environment rather than in a public display area. I accept the two companies concerned were separate corporate identities. In bringing to the attention of the court the associated entities and their industrial record, including prior convictions for breaches under the OHS Act, and in explaining the reasons for the incorporation of the new company, I accept there has been no intention to avoid corporate responsibility under the OHS Act by any pre-existing entity.

25 In the circumstances, I accept the maximum penalty of the defendant before me is that legislated for a first offence under the OHS Act which, at the time of the offence, was $550,000.

26 There has been no submission as to the financial status of the corporation or any suggestion as to impecuniosity. The turnover of this new company is approximately $800,000 per annum.

27 I take into account the gravity of the offence and the above relevant subjective features of the offence and the discount allowed for the utilitarian value of each plea. I accept the company co-operated with the WorkCover Authority in its investigation of the breach as charged under s8(2) of the Occupational Health and Safety Act 2000. I have considered the submissions before me as to the notion of consistency and equal justice. 28 I find the defendant guilty of a breach of s8(2) of the OHS Act.

29 The defendant is fined in the sum of $80,000. There will be a moiety to the WorkCover Authority applied to the penalty. 30 There shall be an order for the prosecutor as to costs. There has been no agreement between the parties as to the quantification of those costs. I will hear the parties on this issue in the event no agreement can be reached.

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Judgment (32 paragraphs)

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Cases Cited (8)