(ii) the defendant was an employer at the time of the alleged breach;
(iii) there was a risk to the health, safety or welfare of the defendant's employees;
(iv) there was a causal nexus between the defendant's alleged breach and the risk to the employees' health, safety or welfare; and
(v) the risk was to the employees.
11 In respect of the s 8(2) charge, the legal elements of the charge are as follows:
(i) the defendant was an employer at the time of the alleged breach;
(ii) there was a risk to the health, safety or welfare of persons other than the employees of the employer;
(iii) there was a causal nexus between the defendant's alleged breach and the risk to the employees not employed by the defendant and the risks to the health, safety or welfare; and
(iv) the risk was to persons other than the employees of the employer arising out of the conduct of the employer's undertaking while they were at the employer's place of work.
12 In establishing the offence charged against the defendant relevant to the matters which I have to determine, counsel for the prosecutor tendered the following:
(i) the prosecutor's statement of facts in each of the matters; and
(ii) the prosecutor's brief served on the defendant.
13 The evidentiary material disclosed that Penrose Pine operated a sawmill. Included on the site was a shavings storage bin which was used to store the shavings of timber products. The defendant is an engineering firm that conducted maintenance at Penrose Pine. It had a long term (in excess of 10 years) ongoing commercial relationship with Penrose Pine performing various construction and maintenance tasks at the site.
14 Mr Benjamin Pendergast, a qualified boilermaker, had been employed by the defendant since August 2002. He was the defendant's supervisor at the site and aged 22 years. Mr Jarrad Thornton had been employed since February 2007 by the defendant. He was a second year apprentice boilermaker and aged 17 years.
15 On 22 March 2007, the defendant had at least four jobs in progress at the site. One of the jobs involved extending a platform/walkway and handrails on the shavings bin. This job required preparatory work for a wider project of installing a second access door to a filtration unit on top of the shavings bin. Each of these jobs required the performance of tasks that included welding and the operation of angle grinders.
16 Mr Pendergast and Mr Thornton spent about one and a half hours cleaning sawdust from the top of the shavings bin before commencing to operate an electrical powered angle grinder to remove the existing handrail. After cleaning sawdust from the top of the shavings bin, they descended from the bin and had a discussion with Mr Greg Blackburn, a self employed occupational health and safety consultant engaged by the defendant to conduct safety audits of its employees at the site and other locations.
17 Mr Blackburn observed that the employees were wearing safety harnesses and noted the need to ensure that the work area was wet in order to prevent fires and to have a fire extinguisher with them. During his discussions with Mr Pendergast and Mr Thornton, Mr Blackburn became aware that no safe work method statement ("SWMS") existed for the work being undertaken by them on the shavings bin and that no documented risk assessment had been performed.
18 Mr Blackburn did not inform Mr Pendergast that the work on the shavings bin should not proceed until a SWMS was implemented. He indicated that he would go back to his office to prepare one. After leaving the site, Mr Blackburn did not return to his office but proceeded to conduct an inspection at another location. Mr Blackburn prepared a SWMS on 24 April 2007 in response to an improvement notice issued by the WorkCover Authority of New South Wales ("WorkCover") on the defendant. He was also aware that the defendant did not have a hot-work permit system as he had previously been asked to implement one but had not done so. Mr Blackburn did not identify any issues of major concern to him at the site on 22 March 2007.
19 Mr Pendergast and Mr Thornton continued work on the shavings bin. Mr Pendergast operated an electrically-powered angle grinder to remove the existing handrail. Metal was cut and welded at ground level and transported to the top of the shavings bin. Subsequently, Mr Pendergast operated an electric arc welder (with an output of 140 amps) on the top of the shavings bin for approximately one hour performing welding tasks associated with the work being undertaken. It was at about this time that Mr Pengergast and Mr Thornton smelt smoke. Mr Pendergast used a water fire extinguisher, spraying initially underneath gaps in the roof of the shavings bin and then along the roof as the smoke increased. Mr Pendergast asked Mr Thornton to descend for the purpose of seeking assistance from Mr Stanley Battersby, who was employed by Penrose Pine as a leading hand. He had supervisory responsibilities for the entire site and had worked for Penrose Pine for about 18 years. Mr Pendergast also asked Mr Thornton to have Mr Battersby open the door to the shavings bin so that they could investigate the fire.
20 Mr Battersby attended the shavings bin and climbed to the lower platform where he operated the hydraulic controls to open one of the shavings bin's doors. When the shavings bin door opened, a fireball engulfed the shavings bin. Mr Pendergast, who had begun to descend with welding equipment from the top of the shavings bin, was on the upper platform. He was surrounded by flames. He jumped from the upper platform to the ground, a distance of approximately nine metres, and received fatal head and chest injuries. Mr Battersby received burn injuries as a result of the fire and was unable to return to normal duties for a period of three months.
21 The factual background is taken from records of interview of Messrs Thornton, Blackburn and Battersby with WorkCover.
22 Immediately before the fire, the shavings bin contained a large quantity of radiata pine shavings. Inspector Charles stated that radiata pine shavings are a well-known fire hazard in a timber mill and hot-work involves electrical welding, cutting and grinding. These processes produce hot particles, sparks and hot surfaces and are a common cause of ignition for industrial fires and explosions. Inspector Charles obtained expert opinion during the course of his investigation which indicated that hot sparks or molten metal from the grinding and welding work were the likely cause of the initial fire within the shavings bin. The material ignited may have been within the shavings bin, or, alternatively, may have been on the roof of the shavings bin and have subsequently fallen and ignited other material within the shavings bin.
23 Further, expert evidence indicated that the conditions within the shavings bin were conducive to the rapid spread of fire across the surface layer of the shavings. This was due to the turbulence caused by the operating extraction fan and the low bolt density of the shavings resulting in an enhanced availability of oxygen to sustain combustion.
24 The opening of the shavings bin doors by Mr Battersby allowed shavings to fall to the ground, in the process greatly increasing the degree of mixing between burning shavings, unburnt shavings and oxygen in the air. It was these conditions which resulted in an eruption of flame in the fireball that engulfed Mr Pendergast. Whilst the work was being carried out, a screw auger powered by an electric motor located on the upper platform was not in use and therefore can be eliminated as a cause of the fire.
25 The evidentiary material further discloses that Penrose Pine had never been shown any risk assessment or SWMS by the defendant in respect of work being conducted by it at the site on 22 March 2007. No documented risk assessment/job safety analysis was conducted for the work on the shavings bin. Neither Mr Pendergast or Mr Thornton undertook a risk assessment before commencing work on the shavings bin. Mr Battersby did not review with Mr Pendergast or any other personnel of the defendant, the safety aspects of the work to be performed at the site on 22 March 2007. The defendant did not have a hot-work safety procedure document.
26 Mr Battersby was aware that the defendant's personnel were working at the site and also what work Mr Pendergast would be performing. However, he was unaware that hot-work was being carried out on the shavings bin and had not been informed that such work was going to be conducted. Mr Pendergast and Mr Thornton were not provided with any documented risk assessment or SWMS. No "toolbox" meeting was held in relation to the work on the shavings bin.
27 Mr Thornton was unaware of any hot-work procedure for the conduct of work on the shavings bin. The defendant had not instructed Mr Pendergast to perform hot-work on the shavings bin unless it had been emptied. Mr Pendergast received no training in hot-work safety procedures from the defendant. Penrose Pine had not issued any written direction that work was not to take place on the shavings bin while the moulder and its extraction system were in operation.
28 Mr Reitano relied upon Australian Standard 1674.1 - 1997 Safety in welding and allied processes. This Standard specifies precautions to be taken during hot-work to prevent the possibility of fire or explosion which may result in harm to persons or property. The Standard identifies sawmills and woodworking plants as hazardous areas in which, among other things, combustible dust or other flammable or explosive substances may be present.
29 "Section 2 General Precautions" of the Standard states:
Off Cuts and Electrode Stubs Before any hot work commences, arrangements shall be made to prevent any work off-cuts, hot metal, slag or electrode stubs from lodging in places where there is any possibility of starting a fire.
Timber Where any hot work is to be carried out adjacent to or above timber, the timber shall be protected, by wetting or other suitable means, from the direct heat of any flame or arc and from sparks, slag and hot metal particles.
30 "Section 3 Fire Protection" of the Standard states:
NOTE: Fires can be caused in locations remote from the actual working area by sparks or hot slag from hot-work operations or by transfer through metal walls or bulkheads.
31 Appendix A to AS 1674.1 - 1997 entitled "Guidelines for Hot Work" states:
Hot-Work Area The area within radius of 15m from the point where the hot work is to be undertaken, including the space above and below that area, should be made safe by various techniques, preparation and testing, to ensure that any risk of fire or explosion resulting from the hot work is eliminated.
32 AS 1674.1 - 1997 prescribes the implementation of a permit system controlling the conduct of hot work.
33 Appendix B to AS 1674.1 - 1997 produces a precedent permit which requires various multiple sign-offs. One such sign-off is to be from the person in charge of the location where the hot work is to be performed.
34 Appendix B to AS 1674.1 - 1997 requires responses to the following questions:
...
6.2 Have combustible materials been removed from the work area or made safe ?
...
6.14 Has product movement been stopped in the area of hot work ?
35 The defendant did not have any such system in place.
36 Clause 62 of the Occupational Health and Safety Regulation 2001 ("the Regulation") provides:
(1) An employer must ensure that risks associated with fire or explosion at a place of work are controlled by:
...
(b) eliminating potential ignition sources, including naked flame, hot work and electrical equipment, and sources of static electricity, including friction, welding and slipping belts, from proximity to flammable substances, combustible dusts or waste materials, and
...
(d) removing waste materials and accumulated dust on a regular basis, and
...
(f) any other measures necessary to control the risks.
...
37 Clause 209 and cl 227 of the Regulation together operate to define the work performed by Mr Pendergast and Mr Thornton on the shavings bin as "high risk" so as to require that the defendant prepare a SWMS before the commencement of such work.
38 Included in the prosecutor's brief was a response by Mr Michael Turner, a director of the defendant, to a s 62 notice served on the defendant by WorkCover. This letter was dated 26 July 2007. It relevantly stated "We can provide you with more information about our safety policy and our regular safety meetings and other SWMS and tool box talks etc, of which Ben [Pendergast] and our other employees have been involved in. Please advise if you would like more information." Among the documents provided with this letter was a document dated 26 July 2007 which relevantly provided the following information:
(i) a formal written risk assessment was not completed on the [sic] 22nd March 2007 at Penrose Pine Products;
(ii) a formal written hot work risk assessment was not completed at Penrose Pine Products on the [sic] 22nd March 2007;
(iii) a written hot work permit and/checklist was not completed on the [sic] 22nd March 2007 at Penrose Pine Products;
(iv) a verbal risk assessment was conducted in discussions between Ben [Pendergast] and Greg Blackburn prior commencement of works on the shavings bin at Penrose Pine Products: Please refer to site report;
(v) an assessment of hot works risks were discussed between Greg Blackburn and Ben [Pendergast] prior to the hot work conducted on the shavings bin on the [sic] 22nd March 2007: Please refer to site report.
39 In his record of interview, Mr Blackburn contends that there was a written risk assessment. What Mr Blackburn described as the site report was a letter forwarded to Mr Turner dated 22 March 2007. Relevantly, what I will describe as the site report stated:
As requested by you I attended two work sites where your employees were working this morning.
The purpose of these visits was to follow up previous Occupational Health and Safety training given at regular toolbox meetings. The visit format decided upon was to observe your employees performing their duties in order to establish correct safety precautions and procedures were being followed, then to speak with those employees to discuss the observations made.
The first site I visited was located at Penrose NSW, on the site of a forest product processing facility. Wollondilly Mobile Engineering was tasked with making an opening in the end of a building, modifying some internal steelwork, and the erection of a handrail around the perimeter of a large sawdust hopper.
I arrived on site at 8:00am and went to the office of the site owner and advised them of the purpose of my visit and asked direction to where the WME personnel were working. I also sought advice about any specific requirement of me whilst on site. I was issued with a safety vest and shown the 2 areas the WME staff were working.
Whilst being shown where the WME staff were working I commented to the accompanying site owner's employee that I could see 2 of the WME employees working at near the top of the sawdust hopper, and that it was comforting to see they were both wearing appropriate harnesses, and that as they moved around they correctly relocated their harness anchor point. We further discussed the difficulties inherent in working in a harness. We observed the two men working in this way for several minutes. They appeared to be preparing their work area by cleaning excess sawdust from the area. These two workers on the hopper were Jarrod [sic] and Ben.
I then moved to another area to observe Paul and Tom performing their duties in a nearby large shed. Paul was preparing and performing some welding on a beam located about two metres above the ground. Tom was handing Paul various tools as Paul required them. Paul was working from the bottom two rungs of an aluminium step ladder. Paul was wearing appropriate PPE to perform his tasks.
...
The above conversation took place in view of Ben and Jarrod [sic] who could see us talking. They came down from the tower to speak to me. I explained to Ben what the purpose of my visit was, and enquired about what tasks he was doing on the hopper. Ben explained that he and Jarrad had been cleaning debris (shavings and sawdust) from the area in which they were going to continue working.
Ben explained to me that he intended to source a water filled fire extinguisher from Penrose Pine Products so that he could wet down the area in which he would be working in order to exclude any fire hazard. We discussed the fact that this hazard existed and that previous clean up work had taken place to eliminate this hazard, and that the intended wet down of the area would be sufficient to ensure no fire risk existed.
Ben and I further discussed the safe work method statement for the job. I told Ben that Penrose Pine Product office staff could not find their copy of this document, and asked if he had a copy with him. Ben replied that he had not sighted or signed the document. Ben was unsure if this document had been prepared as WME did a lot of maintenance for PPP. I told Ben that as I was visiting the WME office later that morning, and that I would ensure that a safe work method statement would be prepared for this work in accordance with the discussion I had with the 4 WME employees that morning.
I departed the site at 8:53 am and headed towards Picton and the John Holland/Allied Mills site where I arrived at 10:00am.
...
40 I find on the basis of what is set out above that discussions between Mr Blackburn and Mr Pendergast and Mr Thornton constituted a verbal risk assessment identifying a risk or hazard, that being, the need to carry out cleanup work. However the discussions overlooked other serious risks or hazards, for example, the obvious risk of carrying out welding work with the shavings storage bin being half full of sawdust shavings. Furthermore, there was no examination of the work area, of the particular risks associated with carrying out the work and no discussion of any controls which should have been in place, apart from the wetting down of the immediate area where they were working.
41 Such matters as emptying the shavings bin prior to the commencement of the hot work, thereby removing its contents as a source of potential fuel for a fire, was an obvious step. The hot work on the shavings bin could have been scheduled to be performed when the moulder and its extraction system were not in operation, thus removing the oxygen - enhancing turbulence created by the extractor fan. Cutting work could have been performed using a hacksaw rather than an angle grinder and the new handrails could have been attached by bolts or other fastenings, rather than being welded in place, thus eliminating hot work as a potential source of ignition. Upon the identification in a risk assessment of the risk of a fire, an emergency evacuation plan that provided for evacuation rather than opening the shavings bin doors, should have been implemented.
42 Included in the material relied upon by the prosecutor, was an expert report from TestSafe Australia, prepared by Mr David Pearson, Manager Fire & Explosives and Personal Protective Equipment Branch, and Mr Daniel Massey, Fire & Explosion Scientist TestSafe Australia. The report speculated that the incident may have been avoided if:
1) Accepted industry practice for conducting Hot Work in the presence of flammable materials was followed. This may have involved conducting Hot Work and fabrication at ground level away from flammable materials.
2) The Hot Work was conducted at a time when the milling operations were not running and the Bin could have been emptied of shavings.
3) It may have been possible to fabricate and attach the new walkway using bolts or similar fastenings rather than by welding. Any cutting could have been made with a hacksaw rather than an angle grinder.
43 The expert's report eliminated the following as the likely cause of the ignition in the shavings bin:
(i) vehicles and plant powered by internal combustion engines;