Inspector Colin Wall v Orica Australia Pty Limited [2009] NSWIRComm 146 | Case summary

1 The defendant Orica Australia Pty Limited has pleaded guilty to one charge under s 8(1) of the Occupational Health and Safety Act 2000. The particulars of the charge set out in the amended application for order allege: (a) The defendant failed to ensure that there was a safe system of work to prevent its employees from entering and using one of the disused buildings on the premises, described as building H ("building H"). (b) The defendant failed to provide information, instruction, training and supervision to its employees to ensure that employees did not enter and use building H on the premises. 2 At the time of the offence Orica leased premises at 7 Sefton Road Thornleigh for the purpose of manufacturing fragrances and food flavourings through its related company, Bronson & Jacobs Pty Limited. 3 The leased premises consisted of a number of buildings, specifically buildings A, B, C, D and E which constituted Orica's workplace. Four other buildings, nominated as F, G, H and I, which were also on the premises, were not part of the lease. Buildings A to I inclusive were owned by PKA Developments Pty Ltd. Buildings F, G, H, and I were no longer in use. Orica was the only resident at the premises. 4 Building H was a disused boiler room. It was located some 12 metres from Orica's workplace and was not fenced off or otherwise separated from the workplace. At the commencement of the lease, KH Foods Limited, the original lessor, had warranted to Orica that all the buildings on the premises were suitable and that Orica could conduct its business effectively. 5 In about February 2005 Albert Kinsey was inducted into Orica's workplace. He was employed by Orica as a factory operator. The induction did not include a direction that employees were not to enter the disused buildings on the premises which included building H. 6 At about 10:10am on 2 May 2006 Mr Kinsey while on his morning tea break entered the second storey of building H via a door at the top of an external staircase. The door was not locked and access was otherwise unimpeded. The floor of the second storey was constructed of timber floorboards. In the centre of the floor was a hole measuring approximately 800mm x 800mm. The hole had been covered with a non-timber fibro material. Mr Kinsey stepped onto the fibro which gave way beneath his weight. He fell through the hole approximately 4 metres to the ground floor below which was constructed of concrete. He suffered serious injuries to his lower back, including a broken vertebra and bruising. 7 Prior to the incident, in about January 2005 Orica had conducted an audit of the premises after which it arranged for a sign with the words "Do not enter" to be affixed to the doors of building H. In about October 2005 Orica conducted a second audit after which it placed safety barrier tape across the entrance to the steps leading up to the door on the second storey of building H. Orica took the view that it was not in a position to take any further steps to ensure the safe condition of the interior of building H because it was not entitled to access the building or undertake any works in relation to it. It also had no management or control of the building. 8 At the time of the incident the warning sign was not attached to the door of building H and the safety barrier tape had fallen into disrepair. 9 In submissions the prosecutor contended that the Court would find that the breach of s 8(1) of the 2000 Act in the circumstances disclosed a serious offence. A significant failing on the part of Orica, according to the prosecutor, was that it had not put in place a safe system of work to prevent its employees from entering and using building H. This failing occurred in circumstances where Orica was the sole occupier of the premises and building H was only 12 metres from Orica's amenities room. 10 In my view the failure to have in place a safe system of work arose from a combination of factors. Entry to building H at the time of the offence was unrestricted. The building was close to Orica's workplace. No effective barriers were in place to discourage or prevent access. The tape which had constituted a safety barrier had fallen into disrepair and the warning sign was not attached to the door. Orica's employees were not given instructions not to enter the building. The door to the first floor of building H could not be locked and could not be kept closed at all times. 11 Old disused buildings such as building H are highly likely to contain hazards which may expose persons to risks to their health and safety. Orica appeared to have some appreciation of this. It had earlier conducted two audits of the premises which resulted in the safety measures, earlier referred to, in the form of barrier tape and signage, having been imposed with regard to building H. Unfortunately the safety measures were not maintained and at the time of the incident were no longer present. 12 These factors illustrate the seriousness of the risk to safety. Those same factors illustrate that it was reasonably foreseeable that a worker would enter building H and be exposed to any hazards or dangers inside. There was, as it transpired, a very serious hazard inside building H in the form of the hole on the first floor which had been concealed by a fibro material which was incapable of holding Mr Kinsey's weight. 13 The consequences of Orica's breach of the Act, which was the failure to prevent access to building H, carried with it a risk of significant injury. Mr Kinsey fell more than 4 metres to the concrete floor below and sustained serious injuries. The consequences of entry to the building were serious and could have been more serious. 14 A further factor which adds to the objective seriousness of the offence was that the risk to safety could have been eliminated, or at least substantially minimised, by the implementation of simple, obvious and relatively inexpensive steps. These steps could have included the placing of adequate barriers and signage around the building as well as adequate instruction to the workers not to enter the building. The fact that Orica did not own the building, and otherwise did not have authorised access to the building would not have precluded it from taking these rudimentary measures and to have ensured that they were in place at the time of the offence. 15 There are a number of countervailing factors however which call for consideration. The injured worker was neither instructed, authorised, nor otherwise permitted to enter building H. He did so on his own initiative and without regard to his own personal safety. While the statutory obligations under the health and safety legislation extend to the requirement on the part of a defendant to ensure the safety of the reckless, careless, inattentive and even disobedient worker, the actions of a worker who places himself or herself in a situation of danger because of some error or careless act on his or her part may impact on the degree of culpability of the person or entity with responsibility for the safety of that worker: Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 145; WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2005) 137 IR 462 at [40] [41]. 16 Orica did not lease building H, it did not otherwise use the building, it had no authorised access to the building and the injured worker did not enter it for a work-related purpose. According to the agreed statement of facts, at the commencement of the lease, the owner of the premises (at that time KH Foods Limited) had warranted to Orica that all buildings on the premises were suitable to enable it to effectively conduct its business. This assurance would not have excused Orica from otherwise discharging its statutory obligations to ensure the safety of the worker. Nor does the fact that Orica was not the owner of building H suggest that it did not have a degree of control over safety matters with regard to the building. It did in fact exercise some control by conducting audits and erecting the barrier tape and the signage around the building. It could have, no doubt, approached the owner to take steps to prevent entry to the building, for example, by providing locks to the doors and other means of entry. Nevertheless, I consider, when all the factors are taken into account, that Orica should be accorded a reduction of penalty by reason of the conduct of the injured worker. 17 Another factor which serves to mitigate the objective seriousness of the offence is the extensive system of safety which Orica had installed at its various worksites prior to the offence. Orica is a large corporation employing more than 14,000 people on 700 worksites worldwide. It is the world's leading supplier of commercial explosives as well as the largest chemical supply company in Australia and New Zealand. It has developed over the years a comprehensive and carefully planned safety management system. It has a commitment to eliminating all injuries, illnesses, and environmental incidents from the workplace. A centrepiece of its safety policies is the Orica safety health and environment (SH&E) system. The system, according to Ian Gilmour, Orica's corporate safety, health and environment and manufacturing manager, is based on pro-active measures such as risk-identification, assessment, training and induction, supervision and ongoing review. 18 Mr Kinsey, the injured person, commenced casual employment with the Orica Group at its Sefton Road Thornleigh worksite on 23 February 2005. It was a condition of his employment that he sign the SH&E Charter. The Charter outlines Orica's safety goals to eliminate injuries in the workplace. Mr Kinsey's contract contained a clause requiring compliance with the requirements of SH&E. It states, under the heading, "Safety, Health and Environment": Our Safety vision is "No Injuries to Anyone Ever". All employees are required to play their part in the prevention of injuries and illnesses and are accountable for their performance in this regard. Accepting this responsibility is a condition of your employment and you will be required to sign our SH&E Charter at the commencement of your employment. A copy of the SH&E Charter is enclosed, your manager should make a time to discuss this with you and sign this off after your commencement. 19 The SH&E policy emphasises risk management, training, induction, communication and consultation, "Tool Box" talks, risk assessment programmes and individual responsibility for ensuring safety and raising safety concerns. Orica's Model Procedure for Site SH&E Committees requires that all its worksites have a SH&E Committee. The site Committees include representatives from management and elected representatives from each workgroup on site, which make up 50 per cent of the Committee members. Orica consults with its employees and contractors during the establishment of SH&E objectives and targets, regarding changes to workplaces and operations and to resolve SH&E issues. When Orica commenced operations at the Sefton Road Thornleigh site in January 2005 it began implementing the SH&E system there. 20 It is my view that general deterrence has a particular significance in the circumstances of this case. Employers and other persons or entities who operate at a worksite over which, or over parts of which, they may lack direct, or have only limited, control are not excused from the obligation to take all reasonable and available steps to ensure that the worksite is safe for persons working there, or otherwise present there. There are any number of measures that may be taken by employers engaged on such worksites to ensure that the site is safe. Where for example workplace risks have been identified and an employer has no immediate authority or control to address a particular risk, the owner of the site should be approached for permission to implement appropriate safeguards, or requests should be made to the owner to take steps to address the risk. Failure to take simple and obvious measures that are readily available may result in severe penalties under the legislation. 21 Orica left the work-site about one month after the incident. Orica, in the short interim period, took appropriate measures to avoid a recurrence of the risk. It placed new signage at the front of building H and at the entrance to steps leading up to the first floor, in order to prevent access to the building's interior. Orica also placed safety barrier tape at the foot of the stairs to building H as a further preventative measure, and conducted a toolbox talk with all its employees at the site during which they were instructed not to enter the building. Orica also conducted its own investigation into the incident. These matters obviate to some extent the necessity to invoke the principle of specific deterrence. Nevertheless it remains relevant by reason of the fact that Orica continues to operate in the manufacturing industry on a large scale. A component of the overall penalty therefore will take into account the need to specifically deter Orica from re-offending under the 2000 Act. 22 The prosecutor conceded that Orica entered a plea of guilty to the amended charge at an early stage of the proceedings. I therefore assess an appropriate discount of penalty at 25 per cent. As a separate consideration from the utilitarian value of the plea, Orica is also entitled to leniency in recognition of the remorse shown by the plea. 23 Orica also has prior convictions under the Occupational Health and Safety Act 1983. These prior convictions disentitle it to leniency otherwise afforded to defendants who are not adversely recorded. 24 Orica also expressed its sincere regret for, "the incident" and accepted responsibility for its occurrence. It co-operated with WorkCover during the course of its investigation into the incident and implemented a number of safety measures in prompt response to the incident. These measures have been earlier referred to and it is unnecessary to repeat them here. Orica also expends at least $50 million per annum on developing workplace safety. Orica has also displayed good corporate citizenship by reason of the awards it has received in recognition of its business leadership. Orica also provided assistance to Mr Kinsey by paying all his medical expenses after the incident. Mr Kinsey also received immediate assistance from his co-workers at the time of the incident. His co-workers entered building H on the ground level and alerted emergency services to attend the site and render assistance. 25 These factors will be taken into account in Orica's favour in mitigation of penalty. Penalty

Inspector Colin Wall v Orica Australia Pty Limited

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (2)

Cited By (4)