Inspector Cooper v Visy Pulp and Paper Pty Ltd

Judgment 1Visy Pulp and Paper Pty Ltd (Visy) pleaded guilty to an amended charge under s 8(2) of the Occupational Health and Safety Act 2000 (the OHS Act). The amended charge alleges that on 5 July 2008 at Tumut, Visy, being an employer, "failed to (ensure) ... that persons not in its employment and in particular Xavier Francis Nugent (Mr Nugent), were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at (its) place of work". 2Particulars of the risk and of the contraventions constituting the offence are set out in the amended charge as follows: The particulars of the risk are that: a. The health and safety of persons not in the employment of the defendant was put at risk of injury from falls of approximately 12-14 metres through an open void in 'Work Deck 5', being one of the working decks of the mid level lower/hanging scaffold in the digester vessel at the premises ("the digester"). The particulars of the acts or omissions in failing to eliminate the risk are that: b. The defendant failed to provide and maintain a safe system of work for maintenance and upgrade work of the digester in that prior to the issuing of any work permits for work to commence in the digester utilising the scaffolding it failed to: i) require its scaffold subcontractor, being the holder of a work permit return the work permit on the completion of the scaffolding and declare that the scaffolding work was completed, all personnel and materials had been removed and the plant and equipment was safe to return to service; ii) require its scaffolding contractor to provide a documented system of inspection such as a scaffolding handover certificate, certifying that the scaffold was complete and safe for use; (iii) undertake an inspection of the digester and the scaffolding erected in the digester to ensure that a 'scaftag' had been affixed to scaffolding certifying that the scaffold was complete and safe for use; (iv) inspect the scaffolding to determine that the scaffold was complete and safe for use; (v) prevent non employees from commencing work utilising scaffolding inside the digester, where the scaffolding was not complete and was not safe and without risks to health. 3Visy's registered office was in Victoria at the time of the offence. It operates a pulp and paper mill at Tumut where it produces kraft pulp and paper products for use in cardboard manufacture. Approximately 1.4 million tonnes of paper product are produced annually by Visy. Of that quantity the mill at Tumut produces 640,000 tonnes. About 219 employees of Visy work at the mill in Tumut, along with some 112 contractors. The Tumut mill has been in operation since 2001. 4Many of the Agreed Facts relied upon in the present proceedings are identical to proceedings earlier determined in this Court in Inspector Cooper v Allied Industrial Engineering Limited [Company No. 624453] [2011] NSWIRComm 131 at [4]-[17] (AIE). For ease of reference those paragraphs in AIE which reflect facts identical to the present facts are extracted below and relied upon as constituting part of the Agreed Facts in these proceedings: [4] The offence occurred at a pulp and paper mill in Tumut operated by Visy Pulp and Paper Pty Limited (Visy). In 2008, phased expansion works were being undertaken at the mill. Plant being operated there included a digester vessel which was owned by Visy. The digester is a large silo-type structure used for processing raw woodchip, pulp and paper waste at the premises. It is approximately 60 metres high and 5.5 metres in diameter with an external curved metal framework and stairs and landings located at regular intervals from the ground to the top. Access hatches approximately 600 millimetres in diameter allowed access to the internal parts of the digester. [5] In 2008, Visy planned to undertake an annual "shutdown" of operations at the mill in order to attend to essential maintenance and inspection work. The shutdown was planned to occur over a period of two to three weeks in April and May 2008. During the shutdown, maintenance and upgrading of the digester was to take place. This, in turn, required the removal of some internal metal screens and their replacement with a new type of screen. In order to undertake this task a purpose built scaffold was to be erected inside the digester to facilitate access to its different levels. [6] Visy contracted DME Engineering Services Pty Limited (DME), a specialist engineering company, to undertake maintenance and engineering work on an ongoing basis at the mill, including the maintenance and upgrading of the digester during the planned 2008 shutdown. AIE was engaged by DME to co-ordinate the planning and scheduling of upgrading work on the digester during the shutdown and in particular, to undertake the upgrade work replacing the screens located inside the digester. Jason Hughes (Mr Hughes) was a director of AIE and held the title of Engineering Manager. He was the senior site representative of AIE on the premises, and had the role of co-ordinating the work being undertaken in relation to the replacement of the screens inside the digester. He was under the direction and control of DME, as well as the direction and control of those Visy managers and engineers responsible for the maintenance and upgrade work planned for the digester at that time. [7] Bell Scaffolding Pty Ltd (Bell) had designed, manufactured, erected and dismantled the purpose-built scaffolding for internal use in the digester. Visy, on an earlier occasion, had purchased the scaffolding system from Bell and retained it for annual use. [8] On 28 February 2008, Bell provided a quotation to Visy for the erection, modification and dismantling of the scaffolding for use internally in the digester for the duration of the proposed 2008 shutdown. The scaffolding system consisted of a modular system of manufactured steel planks and supporting brackets, which incorporated a series of curved working platforms. The curved planks were custom-fitted to the circumference walls of the digester. Peter Bellden (Mr Bellden) was a director and senior company representative of Bell. The particular configuration of the scaffolding had been designed by him and erected by Bell according to his instructions. [9] AIE had attended a number of meetings with Visy, DME and Bell in relation to the upgrading and maintenance programme for the digester in 2008. At these meetings, drawings provided by Bell for the installation of the scaffolding in the digester were discussed and AIE provided input into the configuration. AIE were also involved in correspondence with Bell regarding the modification of the plans for the scaffolding to be installed in the digester. AIE had no role in the design, manufacture, erection or dismantling of the scaffolding at any time. AIE and Mr Hughes had no experience or expertise in the design, manufacture, erection or the dismantling of the scaffolding. [10] As part of it's role, DME provided a range of services, including engineering, planning and support, provision of a supervisor and skilled trades people, and labour, consumables, vehicle and other logistics. DME engaged a number of sub-contractors in relation to the maintenance and upgrading of the digester. It performed its role in relation to the maintenance and upgrading of the digester in consultation with Visy, Bell and AIE. [11] Delter Services Pty Limited (Delter) was engaged by DME to provide skilled and unskilled labour for the work at the site during the shutdown. Delter undertook commercial plumbing work and specialised in servicing industrial clients such as Visy. Delter was a small family company with Peter Nugent as the director and general manager. Xavier Francis Nugent (Mr Nugent) was employed by Delter as a trade's assistant. He had been working for Delter for approximately five months part-time and two weeks full-time at the date of the offence. He had limited experience in commercial plumbing and construction work, although he had undertaken a confined spaces induction training course which had been provided by Visy prior to commencing work at the premises. He did not have any accredited confined spaces training or experience. The maintenance and upgrading work in the digester involved work in a confined space. [12] To facilitate the shutdown Visy had a system of work which required the issuing of work permits before work commenced. The permits were individually numbered and set out specific conditions for the work and timeframes for its completion. Before these work permits were issued Visy required other documents to be provided which related to the specific work activity. Those documents included job safety and environment analysis documents (JSEA) and where necessary other permits such as confined space entry permits. Under Visy's system the work permits were not to be issued until an authorised Visy operator was satisfied that all of the operational and documentary requirements had been met. Once the work performed under the work permit was completed, the work permit was to be returned to the authorised officer. [13] The 2008 shutdown was delayed and rescheduled to take place during July 2008. In relation to the digester, the first step in the maintenance and upgrading work involved the shutting down of its operations. In order to facilitate access to the work inside the digester, the purpose-built scaffold designed by Bell was erected inside the digester by Bell employees (the scaffolders). The scaffold design allowed for four sections of scaffolding. Each section had a deck for access from an access hole in the digester, as well as a number of decks, including Work Decks. For present purposes, the mid-level lower/hanging platform scaffold section is relevant. This section of scaffolding was constructed beneath the same support needles as for the mid-level upper scaffolding. The erection of the mid-level scaffolding inside the digester did not commence until 4 July 2008. It was erected in two phases, first, the upper middle scaffold, followed by the lower/hanging platform suspended beneath the support needles. As each stage of scaffolding was completed, Visy permitted work to be carried out inside the digester for the completed stage. [14] The installation of the scaffolding in preparation for the 2008 shutdown was different from previous scaffolding installations in the digester. This was the first time a hanging scaffold was required to be installed below the support needles in the mid-level section. Construction of the mid-level lower/hanging scaffold required scaffolding tubes to be dropped below and the tube supports being secured. The tubing had to be installed slightly offset due to the fact that the mid-level upper scaffold frames were already erected above the tubes. Girder clamps were used to secure the tubing and supporting structure. The slight offset in the scaffold resulted in one end of Work Deck 5, one of the working decks of the mid-level lower/hanging scaffold, being hard up against the inner wall of the digester. As a consequence, the opposite side was further away from the digester wall than the usual 100 millimetre gap. Mr Bellden had instructed his scaffolders to erect the scaffolding in the manner they did because of the need to allow for the offset. This, in turn, affected the ability of the scaffolders to carry out the erection in order to properly fit out Work Deck 5 with the curved board sections, as one of the corner openings was larger than 90 degrees. As the custom designed curved boards would not fit, Bell employees decided to utilise a straight timber scaffold plank, or lapping board, in lieu of the curved board. The scaffold plank or lapping board was lashed into position across the resulting void, however, the ends of the lapping board butted up against the inner wall of the digester and left a curved void where the lapping board met the curved inner wall of the digester. The maximum gap was measured at 430 millimetres, tapering at either end to the point of contact of the ends of the board with the wall. [15] Part of Visy's system of work in relation to the scaffolding required the scaffolding contractors to utilise a scaffold tag system whereby a "scaftag" would be posted on a completed scaffold as a means of indicating that that scaffold was safe to use. If the scaffold was incomplete, there was a requirement that a red "Scaffold incomplete - do not use" tag be attached to the scaffold, or red-and-white barricading tape applied over areas where access was not permitted. On 4 July 2008, no one from Bell, including Christopher Wragg (Mr Wragg), the foreman in charge of constructing the scaffolding, had placed a scaftag at the entrance to the digester where the mid-level lower/hanging scaffold was accessed, or on the mid-level lower/hanging scaffolding to certify that the scaffolding was complete and safe for use. Nor on that day, had Mr Wragg, or anyone else from Bell, placed an "Incomplete scaffold" tag or signage at the entrance to the digester where the mid-level lower/hanging scaffold was accessed, or on the mid-level lower/hanging scaffolding to indicate that the scaffolding at that level was not complete. In addition, neither Mr Wragg, nor anyone from Bell, placed any red-and-white barricading tape at the entrance to the digester where the mid-level lower/hanging scaffold was accessed or on the mid-level lower/hanging scaffolding to indicate that the scaffolding at that level was not complete and that the scaffolding in that area was not safe to use. Moreover, neither Mr Wragg, nor anyone from Bell, informed Visy, DME or AIE representatives, or any of the other contractors doing maintenance work on the digester that the scaffold in that section was incomplete. ... [16] On 5 July 2008, Mr Nugent and his brother, Peter Nugent, were undertaking work associated with the maintenance and upgrade of the digester. This included working from Work Deck 5 of the lower/hanging scaffolding deck. At that time, much of the internal surface of the digester, including the scaffolding, was covered in a black liquor residue. Visibility inside the digester was poor due to the surface coating and lack of natural light. The light source was from portable flask lighting, such as lead or flood lighting. Although it appeared that all workers working inside the digester had been inducted to Visy's system, in particular in relation to that aspect of the system involving scaftags, Peter Nugent did not check to see if a scaftag had been attached to the scaffolding on Work Deck 5. Peter Nugent noticed the lapping board on a section of the deck and checked to see if it was secure. He also observed the gap of 430 millimetres between the lapping board and the inner surface of the digester, but failed to take any action because he did not believe that the gap was sufficiently wide for someone to fall through, although he thought a foot or leg may have been able to slip through. [17] Approximately 15 minutes after commencing work inside the digester Peter Nugent heard Mr Nugent call out. He then heard something falling to the area below him. Peter Nugent realised that Mr Nugent was no longer working in the area in which he was last seen and realised that his brother had fallen. Mr Nugent had fallen through the 430 millimetre gap between the lapping board on the Work Deck of the scaffolding on the inner wall of the digester. He fell approximately 12 to 14 metres onto another scaffolding platform below. As he fell he collided with other scaffold components. As a result of the fall, Mr Nugent sustained head trauma with subsequent short-term memory loss, as well as facial lacerations, soft tissue injuries to his left hand and shoulder and a fractured right radius requiring the insertion of two metal plates and a bone graft. Mr Nugent also experienced psychological injury as a result of the incident and had difficulty sleeping. He returned to work on suitable duties on 15 October 2008, but had restrictions on driving and working on level ground. He suffered another work-related injury while at another site in the employ of Delter and was placed back on restricted duties due to depression and stress until 14 January 2009, after which he made a full recovery. Due to a down-turn in the industry he commenced a traineeship in another field. 5On 5 July 2008, prior to Mr Nugent's accident, Work Permit A22970 had not been returned to Visy by Bell. In accordance with Visy's system in relation to Work Permits (as detailed in the above extract) the return of a work permit (by an authorised operator) signified that the work to be performed under the work permit had been completed. Work Permit A22970 had been issued on 3 July 2008 by Visy to Bell's safety manager, Rick Nelson (Mr Nelson), for the erection of the internal scaffolding. The work commenced on that day but was not completed at the time of the accident. Notwithstanding the fact that Work Permit A22970 was not returned, Visy issued a second work permit, A22977, which permitted the work of removing and replacing the upper and lower cook screens in the digester to commence. This latter work permit was transferred to an AIE supervisor on the evening of 4 July 2008. The work to be completed under that latter work permit was ongoing on 5 July 2008. On the morning of 5 July 2008, Visy issued another work permit, A22984, to AIE, which permitted work to be undertaken inside the digester for the outlet devices and lower screens. This third work permit permitted work in relation to the removal of screens inside the digester and involved workers from Delter Services Pty Limited, including Peter Nugent and his brother, Mr Nugent, who were required to utilise the mid-level lower/hanging scaffolding, the area in which Work Deck 5 was located. Again, Work Permit A22984 had been issued despite the fact that A22970 (for the erection of the scaffolding inside the digester) had not been returned to Visy by Bell. Nor had Visy received any written verification that the scaffolding was complete and safe for use before A22984 was issued. Moreover, Visy had not inspected the digester, or the scaffolding, to ensure that scaftags had been affixed to the scaffolding, certifying that it was complete for each level and safe for use for those persons designated to work in accordance with the requirements of A22984. Peter Nugent and Mr Nugent were two of the workers who signed the "Work Party Sign On Sheet" attached to Work Permit A22984. 6Notwithstanding these matters, which revealed several instances of non-compliance by Visy with its system in relation to work permits, as well as the use of scaftags, Mr Nelson, Bell's safety manager, according to the Agreed Facts, said that on the afternoon of 5 July 2008 (the exact time is unknown) Mr Wragg had informed him that the scaffolding was complete. Mr Wragg, Bell's foreman, according to the Agreed Facts, stated on 5 July 2008 that the mid-level lower/hanging scaffold platform in the digester was unfinished and access had been closed off to Work Deck 5 from the levels above. 7This contradiction between two Agreed Facts, according to Visy, should be resolved in its favour, that is, Mr Nelson's version should be preferred. Visy relied on a number of authorities in support of its contention. In one of them, Reg. v. O'Neill [1979] 2 NSWLR 582 at 588, Moffitt ACJ remarked that where a different version of the primary facts advanced by the accused was received into evidence and the Court was invited by the accused's counsel to deal with sentence on the basis of the accused's version, the Court ought not ordinarily reject that version without inviting the accused to support it by sworn evidence. Such a course was not proposed by the defendant in these proceedings. 8In another authority to which the Court's attention was directed, R v Isaacs (1997) 41 NSWLR 374 at 378, the Full Court referred to a well-known sentencing principle, namely, that findings of facts made against a defendant in the sentencing process must be arrived at beyond reasonable doubt. The Full Court also referred to the practical effect of the principle, which may be that because the sentencing judge is obliged to resolve any reasonable doubt in favour of the accused, the judge will be obliged to sentence upon a view of the facts, which is most favourable to the offender. In The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, Gleeson CJ, Gaudron, Hayne and Callinan JJ, referred to the onus and standard of proof in relation to fact finding on sentence. The majority held that where facts are relied upon by the prosecution, adverse to a defendant, those facts must be proved beyond reasonable doubt. Where the defendant relies upon circumstances which the sentencing judge proposes to take into account in his or her favour, those circumstances must be proved by the defendant on the balance of probabilities: at [26], [27] (adopting, with regard to the standard of proof, the majority in R v Storey [1998] 1 VR 359 at 369). 9In the present proceedings, the Court has before it two directly inconsistent accounts of what was purportedly said by Mr Wragg on 5 July 2008 concerning the state of completeness or otherwise of the scaffolding erected by Bell inside the digester. Neither party sought to call further evidence in relation to the matter. It is not clear from the material available at what time Mr Nelson was informed by Mr Wragg that the scaffolding was complete, that is, before or after the accident. This provides no basis, for example, for a finding that Mr Nelson advised Visy that the scaffolding was complete at some time prior to the accident. Work Permit A22970 was returned by Mr Nelson to Visy at 5pm on 5 July 2008, that is, after the accident, at which point, according to the Agreed Facts, Mr Nelson informed a Visy representative that the scaffolding was complete. What is known, however, is that at the time of the accident, the scaffolding was not complete. Visy seeks to rely on Mr Nelson's version. The onus is on Visy to prove that version of the facts on the balance of probabilities. The state of the evidence is such, however, that it suggests an equal contest between two competing versions. Visy also seeks to rely on an Agreed Fact in the present proceedings, that Mr Hughes had been informed by Mr Bellden that the internal scaffolding was complete. There is nothing in the Agreed Facts to suggest that he passed this information onto Visy. The unsatisfactory state of this evidence precludes the Court from making a finding based on the balance of probabilities that Mr Nelson's version is to be preferred. (Nor would it enable the Court to make a finding in favour of Mr Wragg's version.)