The Defendant's Evidence
8 Mr B D Hodgkinson SC, who appeared for the defendant with Mr I C Latham of counsel, read an affidavit of Mr Anthony George Altomonte, the Managing Director of the Alto Group of Companies, which includes the defendant, of which he is a director. Mr Altomonte was not required for cross-examination.
9 Mr Altomonte summarised the history of the Alto Group, which commenced operations in 1956, observing that the defendant was incorporated on 11 July 1996, with the intention of being the franchisee for the Land Rover dealership at Artarmon. In June 2004, the defendant completed the purchase of New Rowley Motors from Inchcape Motors Australia Ltd. An associated company, Altomonte Holdings Pty Ltd purchased the dealership site at 393 Pacific Highway, Artarmon, and the New Rowley Motors Jaguar business operating from the site was taken over and the name changed to Alto Jaguar Artarmon. At the same time, an assignment of a lease of premises at 2/65 Whiting Street, Artarmon (the premises where the incident occurred), was completed. At about the same, time the Service Department of Alto Land Rover moved into the Whiting Street premises. As at 30 June 2007, the defendant employed 57 employees with the Alto Group, employing a total of 444 employees across its various businesses.
10 Part of the settlement of the purchase of New Rowley Motors, was the entry into a sublease by the defendant of the premises at 2/65 Whiting Street, Artarmon. As part of the due diligence process, the defendant undertook enquiries, inspections and investigations in relation to the Whiting Street premises, which included that:
(a) the premises had a current fire safety certificate;
(b) the hoists in the workshop were under current test;
(c) the fire extinguishers were current and charged;
(d) a fire evacuation procedure was in place at the premises;
(e) electrical leads had been tested and tagged;
(f) accident registers were available and had been reviewed;
(g) first aid equipment was available at the site.
Copies of test certificates and relevant documentation in respect of these enquiries were annexed to the affidavit.
11 The premises had been completed in early 2003 and were described as a modern, well equipped automotive service facility and all of the health and safety features that would be expected to be in such a facility were present.
12 After the completion of the purchase, an inspection of the workshop was carried out by the Service Manager of Alto Land Rover. The Alto Automobiles Safety Committee which was in existence at Alto Land Rover Artarmon, carried out a site inspection and a site safety audit during June 2004. At the conclusion of these inspections the new Jaguar and Land Rover workshop opened at the Whiting Street premises on 28 June 2004.
13 Mr Altomonte stated that a fuel decanting procedure had been developed at the Alto Land Rover service department to deal with the problem that arose from time to time where the wrong type of fuel was added to a vehicle's petrol tank. Typically, this would see the addition of petrol into a diesel tank. This required the contaminated fuel to be drained from the tank and flushed from the system, the system repaired and the car refuelled with the correct fuel.
14 The safe procedure which had been devised for this process was that the affected vehicle would be raised on a four post hoist, and the fuel then drained directly from the fuel tank into a sealed oil robot. The oil robot is a metal tank of approximately 40 litres capacity with an opening at the top to which a funnel is affixed. Fuel is drained directly from the vehicle into the sealed oil robot. The oil robot, which is built onto a trolley with wheels, is then wheeled to a waste fuel tank in the service department, and the fuel pumped from the robot into the waste fuel tank. Fuel contractors are engaged to periodically empty the waste fuel tank into fuel tankers and to then take the fuel away for recycling or disposal. In the previous workshop, fuel decanting was done in a bay next to the wash bay, which was towards the front of the workshop and was well ventilated. Fuel decanting jobs were allocated by the workshop foreman to an experienced technician who would arrange for an apprentice to assist in the task under the technician's supervision.
15 On 5 July 2004, a white Land Rover Discovery was towed into the workshop with fuel contamination. As there was no four post hoist available, Mr Sora, an experienced technician, decided, contrary to the safe working procedure in place, to decant the fuel from the vehicle's petrol tank whilst it was on the ground. To do this, he placed a black recycling tub of approximately 40 litres capacity on the ground under the fuel tank and drained fuel into the tank until it was about half full. He then requested two apprentices, Michael Humphreys and Angus Booth, to carry the half full tubs to the wash bay, and to pour fuel from the tubs into the oil robots so that it could then be transferred from the oil robots into the waste fuel tank. Mr Sora believed that by carrying out the transfer of the fuel in the wash bay, any spillage would be properly dealt with and would not create any slip hazard on the workshop floor. Apparently, some fuel was spilled during this procedure which, it seems likely, subsequently caught fire leading to an explosion in the wash bay injuring Mr Humphreys. Immediately after the explosion, Mr G Forder, who was trained in first aid, came to the assistance of Mr Humphreys, minimising the effects of his injuries until an ambulance arrived.
16 Shortly thereafter, Mr Altomonte received a phone call advising him that there had been an explosion. He immediately contacted Mr Ralph Fitzgerald, the Group Corporate Counsel and they both went to the site. Upon arriving at the site, arrangements were made for employees to be transferred to the Land Rover sales building at 387 Pacific Highway, Artarmon. The WorkCover Authority of New South Wales was contacted and arrangements were made for a psychologist to attend the site to counsel employees. Arrangements were also made for the psychologist to be available for individual counselling sessions with any member of the workshop in the future weeks and months. A number of employees took up this opportunity.
17 Once these arrangements were in place, Mr Fitzgerald and Mr Altomonte went to the Royal North Shore Hospital to check on Mr Humphreys' condition. Mr Humphreys' parents, who live in the Hunter Valley, were contacted. A doctor reported the extent of Mr Humphreys' injuries to them and praised the efforts of the employees who rendered immediate and effective first aid, observing that these actions had probably saved Mr Humphreys' life. Mr Fitzgerald remained at the Hospital awaiting the arrival of Mr Humphreys' parents whilst Mr Altomonte returned to the site to oversee what was happening there. Assistance in the form of accommodation and anything else that Mr Humphreys' parents required was offered to them by Mr Fitzgerald. This offer was confirmed in writing by Mr Altomonte in the form of a personal note expressing his personal sorrow. A copy of the letter was annexed to the affidavit. As Mr Humphreys' parents had recently separated, arrangements were made for separate accommodation and the costs were met by the defendant for as long as it was necessary for them to remain in Sydney.
18 Mr Altomonte described the steps taken by the defendant to investigate the incident, which confirmed that there were an adequate number of fire extinguishers and fire blankets in the premises, together with two first aid kits and a fire alarm that connected directly to the NSW Fire Brigade. Employees confirmed that they were aware of the location of the fire fighting equipment and had been instructed how to use it. A high pressure cleaner in the wash bay was approximately six years old. Invoices annexed to the affidavit demonstrated that it had been regularly serviced and was in good operational condition.
19 Following the incident, Mr Altomonte met with Mr Fitzgerald, Mr Geoff Hardiman, who was the after sales manager for the Alto Land Rover Volvo and Jaguar businesses, and Mr Scott Parker, the workshop manager at the site where it was reported that the procedure used to decant fuel that was adopted prior to the incident, was not part of the safe procedure that had been developed for this process. It appeared that because a four post hoist was not available to elevate the vehicle to enable fuel to be drained directly into an oil robot, the open top black plastic containers were used. Mr Altomonte was advised that the WorkCover Authority had issued a prohibition notice against this practice and had confiscated the black plastic tub from the workshop.
20 Instructions were given by Mr Altomonte to review the current procedure for the decanting of fuels and to ensure that a safe procedure was prepared for use in all of the Alto Group workshops. Those present at the meeting were instructed to liaise with the WorkCover Authority in the preparation of a written procedure. It was subsequently reported that the WorkCover Authority did not have any procedure in place for fuel decanting and was not aware of any procedure.
21 A procedure was then developed that could not only be implemented throughout the Alto Group but was able to be used in other mechanical workshops in New South Wales to prevent this type of incident from occurring in the future. A new procedure involving the use of a ceramic pump and a new type of oil robot was designed and commissioned to be constructed, consisting of a 200 litres drum mounted on a trolley. Attached to the top of the drum was a ceramic fuel pump containing a long flexible hose, which was specially designed and made to feed into a car's fuel nozzle that was able to work through the anti-siphoning systems currently found in motor vehicles. The fuel pump was designed with a two-way switch so that it could pump fuel out of the car into the robot and then be reversed to pump fuel out of the robot, thus removing the need for any intermediate transfer of fuel other than through the oil robot. Anti-static mats were provided with the system to ensure there was no prospect of a static spark being created. Safety overalls, gloves and breathing apparatuses were also provided to technicians so that they were protected in case of any accidental spillage.
22 The system allows fuel to be decanted safely from a vehicle whilst on the ground, removing the need to have a hoist available. Fuel decanting bays were also identified in each workshop, in well ventilated areas, and clear from ignition sources to further reduce any hazard in the process. Mr Altomonte stated that the defendant spent in excess of $40,000 in acquiring new equipment for each of the Alto Group workshops. Each new decanting kit cost $3,467. The defendant made available to the WorkCover Authority copies of the final procedure, and a video of the training demonstration, to enable the WorkCover Authority to utilise the procedure more widely than in the Alto Group, as the defendant discovered during its investigation that there was no standard procedure available in New South Wales for the safe decanting of fuel.
23 In addition, Mr Fitzgerald wrote to the Executive Director of the Motor Trades Association of Australia, drawing its attention to the problem and providing an opportunity for a system to be devised nationally, preventing the wrong type of fuel being added to a tank in the first place, which would remove most of the cases where a tank of fuel would need to be drained from a car in a mechanical workshop. Copies of relevant correspondence were attached to the affidavit. The petroleum industry was not prepared to address the matter in the manner suggested due to the cost of retro-fitting nearly one million diesel vehicles in Australia. This confirmed the need for the new decanting system to be implemented across the industry.
24 A further measure taken in response to the incident was to redesign the wash bay area to remove any potential ignition source from inside the bay. This entailed changing the design so that the vacuum cleaner, a high pressure hose, part washing machine, separator pump and power outlets were all located outside the wash bay enclosure. The machinery that operates this equipment is installed outside the wash bay so that it is isolated from any potentially flammable substance that may get into the wash bay. Mr Altomonte stated that he believed that this was the first time such measures had been taken in designing a wash bay in New South Wales.
25 Mr Altomonte described the occupational health and safety policies and procedures throughout the Alto Group workplaces and stated it to be one of his highest priorities as Managing Director. It was a priority championed by his father, Mr George Altomonte, the Chairman and founder of the group. He spoke of his father's determination to ensure unsafe equipment was not used in the workplace and gave an example of his father rendering inoperable an unsafe grain auger that he discovered, contrary to his instructions, had remained on a property despite a new auger being purchased.
26 In 1999, the Alto Group established an Occupational Health and Safety Steering Committee consisting of the Corporate Counsel, the Payroll Manager, and selected safety representatives to oversee the implementation of occupational health and safety systems, policies and procedures throughout the Group. At the same time, safety committees were also established at each of the Alto Group worksites. These committees were set up in accordance with the consultation guidelines produced by the WorkCover Authority.
27 The Steering Committee produced a number of health and safety policies which were circulated to staff at the worksites and throughout the various safety committees which included the following:
1. The Alto Group Occupational Health and Safety Policy.
2. Return to Work Policy.
3. An Accident/Incident Investigation Policy.
4. Contractor Safety Management Policy.
5. Health Identification and Risk Management Policy.
6. A Group Induction Manual for New Employees.