Inspector Madeline Christensen v Cymetar No 2 Pty Ltd

Industrial Relations Commission (NSW)|2007-02-27|Before: Kavanagh J, Mr P

CITATION: Inspector Madeline Christensen v Cymetar No 2 Pty Ltd [2007] NSWIRComm 31

Prosecutor: Inspector Madeline Christensen PARTIES: Defendant: Cymetar No 2 Pty Ltd

CATCHWORDS: OHS Act - plea of guilty - contribution by third parties to the risk - failures of defendant as particularised - deterrrence and element of foreseeability - subjective features - penalty

LEGISLATION CITED: Occupational Health and Safety Act 2000 Crimes (Sentencing Procedure) Act 1999

Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 CASES CITED: Tyler v State Electricity (1993) 47 IR 1 Winchester v Regina (1992) 58 A Crim R 345 WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163

Prosecutor: Mr P.M. Skinner of counsel Solicitors: Mr M. Selinger Carroll & O'Dea LEGAL REPRESENTATIVES:

Defendant: Mr M.P. Cahill of counsel Solicitors: Mr M. Sullivan Lander & Rogers Lawyers

INSPECTOR MADELINE CHRISTENSEN v CYMETAR NO. 2 PTY LTD

Prosecution under s8(1) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Inspector Madeline Christensen of the WorkCover Authority of New South Wales against Cymetar No. 2 Pty Ltd, (the defendant) under s8(1) of the Occupational Health and Safety Act 2000 (the Act), by way of an amended Application for Order. 2 It is alleged the defendant on 21 December 2003 contravened s8(1) of the Act in that it failed: to ensure the health, safety and welfare at work of all of the employees of the Defendant, in particular, Craig Anderson. 3 It is alleged the defendant, in particular: (a) failed to undertake a proper risk assessment of the ammonia refrigeration system at the site; (a) failed to ensure that employees, including Craig Anderson, did not undertake any repair work on the ammonia refrigeration system that gave rise to a risk of release of ammonia gas; (a) failed to provide and maintain proper emergency procedures at the site regarding a possible ammonia gas release from the ammonia refrigeration system and failed to properly instruct and train employees in such procedures; As a result of these failures, Craig Anderson was exposed to the risk of injury from ammonia gas escaping from the ammonia refrigeration system at the site, and suffered serious injury when such ammonia gas escaped. 4 The defendant pleads guilty to the charge. 5 Mr P.M. Skinner of counsel appeared for the prosecution and Mr M.P. Cahill of counsel appeared for the defendant. The prosecution relied upon an agreed statement of facts, photographs, factual inspection report, the prior conviction record of the company, death certificate, associated medical records and a victim impact statement. 6 The defendant tendered a relevant metal cap. Also relied upon was an affidavit of Mr Brian Andrews, General Manager, P & M Quality Smallgoods Pty Limited, which operates Cymetar No 2 Pty Limited, an abattoir site. A number of relevant documents were attached to Mr Andrews' affidavit including documents in relation to the investigation of the incident; the upgrading of the Cymetar abattoir; relevant equipment and occupational health and safety policies, pre-existing and post, the incident. Also tendered was an affidavit of Mr Bradley John Hunt, Operations Manager of P & M Quality Smallgoods Pty Limited, who opined as to the role of a company identified as Gordon Bros which company had entered into a working relationship with the defendant as outlined below. 7 The Agreed Statement of Facts relevantly reads: 4. At all material times, P & M Quality Smallgoods Pty Limited (ACN 002 781 142)(" P&M ") was a company incorporated in New South Wales with its registered address at Level 2, 580 George Street, Sydney New South Wales. At all material times, P&M owned and operated an abattoir located at Muffett Street, Scone in the State of New South Wales (" the Site "). At all material times, Cymetar was a member of the P&M Quality Smallgoods Group of companies and was a related company to P&M in that it shared common Directors with P&M. 5. At all material times, Cymetar employed Craig Anderson (" Anderson ") to work at the Site. Anderson was employed as a Leading Hand Electrician whose duties included maintaining electrical apparatus and refrigeration equipment at the Site. Anderson had been employed with Cymetar from approximately 17 January 2000. 6. At all material times, Dirluck (No.2) Pty Ltd (ACN 101 812 613) ( "Dirluck" ) was the trustee of a trust known as Homebush Unit Trust (" HUT ") being a trust created on 30 August 1996. At all material times, Dirluck was a member of the P&M Quality Smallgoods Group of companies. 7. At all material times, Dirluck employed Wayne Thompson (" Thompson ") to work at the site as a Maintenance Manager. Thompson had been employed by HUT since approximately 14 January 2000 with his overall duties being to oversee the maintenance of plant and equipment at the Site. Thompson was Anderson's supervisor. 8. P&M purchased the abattoir in January 2000. 9. When P&M purchased the abattoir in January 2000, the refrigeration system had three separate parts using ammonia, freon and glycol, respectively, as the refrigerant. Ammonia was used to refrigerate and freeze small stock. Freon was used to refrigerate and freeze beef and cattle product. Glycol was used to refrigerate the working areas, such as the boning rooms. 10. Cymetar retained a company known as Gordon Brothers Industries Pty Limited (ACN 005 888 175) (" Gordon Brothers ") to service the refrigeration plant, including the provision of quarterly site inspection visits, servicing of the refrigeration plant and a 24-hour callout service in relation to the ammonia refrigeration system. 11. Prior to the incident date, the Defendant had failed to undertake a proper risk assessment of the ammonia refrigeration system at the site. 12. On the incident date, both Thompson and Anderson went to the Site in response to an alarm from the refrigeration system. This was part of their usual duties to respond to such alarms. Anderson arrived before Thompson. Anderson advised Thompson that there was a problem with Compressor 6 and that he had started Compressor 5 as this was a backup for Compressor 6. 13. Prior to the incident date, Thompson and Anderson carried out the day to day operation and monitoring of the refrigeration system. Thompson and Anderson also carried out some maintenance work related to both the ammonia and the glycol systems. But work on the ammonia system was limited to electrical faults regarding matters such as fans not working and other routine maintenance such as bleeding oil from receivers, changing coils and routine monitoring. Thompson and Anderson were not to carry out any maintenance work on the actual "closed" ammonia refrigeration system. For all work involving the actual "closed" ammonia refrigeration system and for all other non-routine matters, a qualified refrigeration technician at Gordon Brothers was to be contacted. 14. On the incident date, Anderson called Gordon Brothers and spoke to a Refrigeration Technician, David Moses (" Moses ") concerning the fault in the system. Moses identified the fault with Compressor 6 as being a " high discharge temperature failure ". Moses advised Anderson to double check the wiring terminations in the control panel (" the PLC ") which was outside of the refrigeration system, and also to check the electrical terminations at the top of the relevant temperature probe. The temperature probe consisted of an external top unit or housing that contained the electrical terminations referred to above, together with a sensor that was attached to the electrical terminations inside the housing and then protruded out of the base of the housing. 15. The temperature probe (" the Probe ") was a device used to monitor the temperature of the ammonia gas in the pipes of the "closed" ammonia refrigeration system at the Site. The Probe screwed into a housing/socket (" the Well ") and could be removed by unscrewing it from the Well. The Well itself was screwed into the pipe containing ammonia in the refrigeration system. 16. The Probe and the Well were designed so that the Probe could be screwed out of the Well, leaving the pipe containing the ammonia sealed. This enabled the Probe to be replaced without having to isolate and then pump the ammonia out of the relevant pipe. 17. After the incident, it was established that the screw portions that enabled the Probe to be screwed into the Well and the Well to be screwed into the pipe were threaded in the same direction. As a consequence, when attempting to unscrew the Probe from the Well, there was a risk that the Well could be unscrewed from the pipe if the nut located at the top of the thread on the Well was not properly restrained. 18. On the incident date, Anderson spoke by telephone with David Moses, a qualified technician employed by Gordon Brothers, about the fault readings he found when he arrived at the Plant. 19. When interviewed after the event, Moses stated that he told Anderson to check the wiring terminations at the PLC [that is the external control panel] and at the Probe. Moses confirmed that he told Anderson to remove the cap from the housing at the top of the Probe and to examine the electrical connections inside the housing. 20. When interviewed after the event, Anderson stated that he could not recall much about the event. Anderson stated that he could remember "… taking the cap [off the Probe] and that's all" . Anderson stated that "… the only thing that would make me think to go there would be I would have been advised by someone to go there, otherwise I wouldn't have gone near it". Anderson also stated that he had not been required to remove a temperature probe from the refrigeration system before. 21. Anderson and Thompson discussed the advice from Moses. 22. Anderson went to check the connections inside the terminal cover of the Probe. Anderson was wearing a T-shirt and shorts and running shoes. He was not wearing any personal protective equipment such as breathing apparatus or an eye mask. 23. During this time, the Probe and the Well were removed from the pipe and ammonia gas escaped. 24. There was no sign or identification on the pipeline to indicate that it contained ammonia. But, when interviewed after the event, Anderson stated that he knew the pipe contained ammonia. 25. Further, because the pipeline had not been isolated at the time and therefore ammonia had not been pumped out of the section of the pipeline into which the Well was screwed, when the Probe and Well were unscrewed from the pipe, ammonia escaped from the system. 26. At the time Anderson was checking the Probe, Thompson, his supervisor, was in the control room and he was not aware of Anderson's location or what he was doing. 27. As a result of the ammonia escape, Anderson was overcome by the fumes and collapsed. 28. Thompson initially tried to rescue Anderson by himself. Thompson was wearing a T-shirt and shorts and running shoes. He was not wearing any personal protective equipment such as breathing apparatus or an eye mask. Thompson was overcome by the effects of ammonia and could not remove Anderson from the contaminated area on his own. 29. Thompson was able to leave the area temporarily, obtain assistance from two other workers at the Site, and then return to assist to remove Anderson from the contaminated area. 30. As a result of their exposure to ammonia, both Anderson and Thompson suffered serious injuries. Anderson's injuries included burns to his face, neck, arms, underarms and damage to his lungs and eyes requiring hospitalisation and loss of memory. Thompson received burns to his throat, lungs and eyes requiring hospitalisation and a tracheotomy. Anderson died on 22 August 2006. The immediate cause of his death included respiratory failure. 31. A subsequent investigation by Gordon Brothers after the incident established that the original cause of the alarm was a faulty fuse in the PLC, and not with the Probe. The PLC was located outside the refrigeration system. 32. When interviewed after the incident, Moses stated that the procedure to be adopted for the removal of the Probe was as follows: "Isolate the compressor electrically. Disconnect the electrical terminations on the temperature probe. Prevent the thermometer pocket from turning in socket and remove the temperature probe from the thermometer pocket." Moses also stated that it was not necessary to isolate the ammonia prior to removing the Probe "because the temperature pocket is in place to prevent the escape of the refrigerant". He stated that it was possible to remove the temperature probe and the thermometer pocket together and that to ensure that the thermometer pocket did not come out of the socket, you would use a spanner on the pocket to prevent it from turning. 33. Neither Anderson nor Thompson was trained in this procedure. 34. Thompson and Anderson had only been trained in electronically isolating the refrigeration system from the control room and had never previously performed a pump out procedure of the ammonia refrigeration system. 35. On the incident date, Cymetar did not have in place any system for an emergency response to an ammonia leak from the refrigeration plant. 36. After the accident, the Defendant undertook an investigation into the cause of the accident. Part of that report concluded that the Well was unsafe and should be welded so as not to allow the Well to be accidentally unscrewed from the pipe whilst the Probe was being unscrewed from the Well. 37. After the accident, the Prosecutor issued a number of Improvement Notices to the P&M Quality Smallgoods Group of companies, including the Defendant. Also after the accident, the P&M Quality Smallgoods Group of companies took the following steps: (a) Placed appropriate signage on the ammonia pipe to indicate its contents; (b) Undertook a risk assessment in association with Gordon Brothers as to the hazards of storage, handling and use of ammonia at the site; (c) Undertook to put in place an emergency procedure for an ammonia leak at the site and supervisors went through the procedure with employees; (d) Produced a procedure for monitoring of Ammonia at the site; (e) Put in place a system of performing risk assessments before work was performed on the refrigeration system (f) Included emergency procedures and evacuation procedures in induction for employees; (g) Prepared an induction for contractors at the site; (h) Installed emergency evacuation alarms; (i) Replaced Ammonia detectors; (j) A HAZOP study report was obtained which identified further work to be undertaken on the refrigeration system to minimize the risk of exposure of injury to persons working on the refrigeration system. Relevant Principles 8 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

9 Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]). 10 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying: [57] The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 11 Proper regard is to be had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace, is a relevant consideration. Of relevance particularly is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia: . . . (2) Aggravating factors . . . (d) the offender has a record of previous convictions, … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, . . . (3) Mitigating factors . . . (e) the offender does not have any record (or an significant record) of previous convictions, ... (g) the offender is unlikely to re-offend, … (k) a plea of guilty by the offender (as provided by section 22) (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23) . . .

Consideration 12 In a consideration as to penalty, the court assesses the objective seriousness of the offence or, as has been said, "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" . . . 13 It is necessary, in order to address the objective seriousness of this offence, to comment upon the relationship between a number of parties operating at the Cymetar site on the date of the incident. P&M purchased the site in January 2000. They retained a company called ProAnd Associates to provide advice with respect to a proposed programme of staged upgrades to the abattoir including, relevantly, a staged upgrade to the refrigeration plant on the site. ProAnd oversaw the tender process, contracts, development and progress of the upgrading of the site. It then oversaw the commissioning of the staged new plant and any upgrade rectification programme. 14 At one stage in the upgrade a contract was let to Gordon Bros Industries Pty Limited (GBI) with respect to design, construction, installation and upgrade of the relevant refrigeration system at the site. GBI offered to P&M Holding 24 hour service on site; 24 hour cover for spare parts and extensive engineering support. GBI also undertook to train P&M Holding employees. This training was given to Mr Thompson, the deceased employee's supervisor, and Mr Anderson, the deceased employee. The training was provided by GBI's technicians one of whom was relevantly, Mr Moses. The training of the relevant employees occurred during the period when the refrigeration plant was being upgraded and commissioned by GBI. 15 Evidence revealed the defendant, after commissioning of the plant, was in the process of putting into place a risk assessment and a risk management programme for the refrigeration area of the plant. However, the defendant had not undertaken the risk assessment at the site at the time of the offence. Hence when the alarm went off on 21 December 2003, the two employees, both inappropriately clothed in shorts and t-shirts, entered the refrigeration plant area in response to the alarm. They then identified from the alarm box that there was an electrical fault. They could not trace the fault. Mr Anderson then called GBI and spoke to the relevant refrigeration technician, Mr David Moses. 16 Mr Moses advised Mr Anderson to double check the wiring terminations in the control panel and check the electrical terminations at the top of the temperature probe which was screwed into a housing socket known as "the well". It could be unscrewed from the well. The well itself was screwed into a pipe which contained ammonia for the refrigeration system. Mr Moses told Mr Anderson to take the cap from the housing at the top of the probe and examine the electrical connections inside the housing. However, Mr Anderson in his attempt to pull out the temperature probe pulled out the well (or "pocket" into which the probe screwed). Evidence revealed the probe and well were both threaded in the same direction. Ammonia gas escaped from the pipe when the well came out with the probe. 17 Mr Anderson was immediately exposed to the gas and Mr Thompson suffered exposure when he tried to rescue Mr Anderson. The exposure to the gas caused a serious lung injury and burns to Mr Anderson. Mr Thompson was also seriously injured. 18 It was revealed Mr Moses knew of the fault in the threading as both the probe and the well were threaded in the same direction, yet he did not warn Mr Anderson of this complication. Once the task required maintenance of the refrigeration plant it was Mr Moses' duty to attend the site. 19 The defendant, while pleading guilty, submits the court should take into account that Mr Moses (from GBI) was in breach of the agreement between GBI and the defendant, which agreement required a GBI technician to attend at the site on the alarm call. Further, the defendant submits it did not contemplate any of its employees performing any work of any kind whether by way of maintenance or repair on the ammonia refrigeration system. The work which the defendant's maintenance employees were trained to perform was restricted to the repair of any faults at the refrigeration plant and such routine maintenance jobs as cleaning oil from the refrigeration system or attending to external electrical faults. The defendant asserts Mr Thompson and Mr Anderson knew of these restrictions. Both, however, took an instruction from Mr Moses and performed a task not within their defined job description. Further, Mr Moses, employed by GBI did not comply with his employment obligation to service and maintain the refrigeration plant. 20 The defendant asserts it had in place a specific system of work co-ordinated with GBI which, if properly adhered to, would have obviated the subject risk. The defendant was not aware of the departure from good design principles by GBI allowing the installation of machinery where a temperature probe and well were threaded in the same direction. The existence of the similar threads created a risk in extracting the probe from the well, as the well could be dislodged opening the pipe, allowing ammonia gas to escape. 21 Further, the defendant submitted in engaging the services of the independent specialist engineering company (ProAnd) it had taken the required steps to ensure it hired in GBI competent and recommended specialists to perform maintenance work on its site. The defendant further submitted that such careful steps in hiring specialist workers should mitigate the objective seriousness of the offence, saying: . . . its criminality should be mitigated given the particular behaviour of GBI in directing an employee to carry out work which on the agreed facts they knew was outside the employees scope and in directing them to carry out work they have admitted they knew (it) could release the common thread on top of the well. 22 The circumstances of the breach reveal this is a critical example of a company contracting out the maintenance of its plant to a specialist organisation. However, an employer cannot contract out its obligations, and therein its responsibility for a safe workplace, under the Occupational Health and Safety Act. This defendant failed to conduct a proper risk assessment of the relevant task. A risk assessment should have indicated the presence of ammonia gas and the need to ensure emergency procedures were in place. Such procedures would have ensured proper clothes, masks, etc were worn by its employees. It failed to ensure its employees did not attempt to undertake the particular repair work on the refrigeration system recognising it as a task outside their job specification. Further it failed to provide proper emergency procedures at its worksite to ensure no employee would be exposed to an ammonia gas release. 23 I accept, in accordance with modern industrial practice, it may be a sensible industrial decision for an employer to contract out the maintenance of its highly technical plant to specialists. Such contracting out however must ensure the rigorous instruction and training of its employees on site as to their job specifications and also to ensure there is on its worksite full compliance by the sub-contractor with its obligations. There had been no risk assessment of the maintenance tasks nor a rigorous training programme of the employees by the defendant. The obligation under the Act was on the employer to properly identify risks, to design safe work procedures, identify job specifications, to then train its employees in the performance of those systems. Only then will an employee be empowered to say "no" to a third party on his worksite who gives an instruction to perform a task outside his identified safe working environment. 24 In this circumstance, the risk to safety became reality. The words of Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5), I find apposite: The gravity of the damage or injury actually resulting from the breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risks flowing from the breach and its foreseeability are clearly relevant.

And as Wright J, President said in WorkCover Authority of New South Wales (Insp Page) v Walco Hoist Rentals Pty Limited & Anor (No 2) 99 IR 163 (at 22): ... The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; WorkCover Authority (NSW) (Inspector Hannah) v Wonar Pty Ltd (at 9); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131; Albury City Council (at 408-409); Lawrenson Diecasting Pty Ltd (at 476); WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383.

The death of Mr Anderson and the injuries to Mr Thompson demonstrably identify the gravity of the risk in requiring these employees to perform a task outside their defined duties. In performing the task Mr Anderson was exposed to an ammonia gas leak suffering from incapacitating conditions arising from the injury which, after almost three years, caused his death. The failure to risk assess the task and provide proper emergency procedures on site added to the risk to safety and is reflected in the injury to Mr Thompson. The risk in such a circumstance reflected in a serious breach.

25 A level of deterrence must be factored into the consideration as to penalty. Such principles were cited by the Full Bench of the Commission in Court Session with approval in Capral Aluminium Limited v WorkCover Authority of NSW (Insp Mayo-Ramsay) (2000) 49 NSWLR 610 [at 74] where it was said: . . . the . . . Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm 39 at 40-43) we would expect such cases to be very rare . . . 26 In the particular circumstance, I find both specific and general deterrence are to be factored into the assessment. The defendant continues to operate the abattoir so specific deterrence is relevant. As to general deterrence, once more it must be reiterated employers are responsible for occupational health and safety standards on their work site and in contracting out some tasks (such as in this matter the maintenance of its refrigeration plant) the employer retains its obligation under the Occupational Health and Safety Act to ensure that all its work tasks are risk assessed, that its employees have properly defined goals, that they are properly trained and instructed in the safe performance of those tasks. A proper identification by the employer of risks is required for each work task and there must be a clear definition of the employees' duties. Each employee will then be empowered to refuse to perform a task for which they are not trained. Even in a multi disciplinary workforce this empowerment is necessary to ensure safe working. 27 The defendant asserts, given the involvement of ProAnd International and GBI in the circumstances of the incident and in the knowledge that no prosecutions have been entered against either of the parties, on the authority of Nesmat Pty Limited v WorkCover Authority of NSW (1998) 87 IR 312 (at 322-323) the failure to so prosecute can give rise to a "justifiable sense of grievance" which the defendant expresses in this case and asks the court to take such a matter into account. In support of that argument, it submits that the culpability of GBI through the behaviour of Mr Moses was significant and the court must consider the question of "parity." 28 I accept once contacted Mr Moses should have come out to the site and not ordered Mr Anderson to remove the probe. However, the charge for which the defendant is brought before the Court and to which it pleads guilty is "the offence". Hungerford J in WorkCover Authority of New South Wales (Inspector Carmody) v Consolidated Constructions Pty Ltd (2001) 109 IR 316 re-iterated [at 43]:

. . . the penalty is fixed for the offence found to have been proven. It is, therefore, to the offence itself to which attention is to be directed and not . . . the occurrence of the accident and the contribution of other persons for what occurred.

While the occurrence of the incident and the contribution of other identities for what occurred can be factors to assist the court in determining the culpability of the defendant as charged, this court is, as was Hungerford J, assisted by the words of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 (at 257): Whilst . . . it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in . . . CI&D Engineering . . . . The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that (the) failure gave rise to a risk to health, safety or welfare.

In WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 (at 439-440), Walton J, Vice-President: . . . the liability of the employer be established by an examination as to whether there is a causal nexus between the breach of statutory duty and the detriment occasioned to the employee and not, as appears to be at least implicit in the defendants submission, by attention being given to the relationship between the conduct of the defendants and the actual accident or hazard . . .

See also Drake v WorkCover Authority of NSW (1999) 90 IR 432 (at 448, 452); State Rail Authority of NSW v Dawson (1990) 37 IR 110 (at 121); Haynes v CI&D Manufacturing Pty Ltd (1995) 60 IR 149 (at 157, 159) and CSR Ltd t/as CSR Wood Panels v WorkCover Authority of NSW (unreported, Bauer J, Matter No. CT1176 of 1994, 10 August 1995).

The court does not accept the issue of "parity" arises but in its consideration as to penalty it acknowledges there was a contribution made by the actions of GBI to the risk to safety on 21 December 2003. 29 The Court is persuaded however, this was a serious breach of the Act reflected in the defendant's failure to risk assess the task and its failure to properly define the task and to train its employees and its failure to have emergency procedures in place. 30 While the foreseeability of the risk is an element to be assessed, I do not accept in the particular circumstance that the defendant could possibly have foreseen the behaviour of GBI on the relevant date nor is there evidence the defendant knew of the thread design error in its machinery. However without risk assessing the task and expressly without putting into place emergency procedures there was a small element of foreseeability to the risk to safety identified in the breach, namely, the failure to provide its employee with a safe system of work. 31 The defendant is entitled to the benefit of subjective factors that tend to mitigate the objective seriousness of the offence. In Alcatel Australia Limited v WorkCover Authority (Inspector Clyant) (1996) 70 IR 99 (at 106), the Full Bench (Hungerford, Marks and Schmidt JJ) observed: We accept that there are good policy reasons for the encouragement of early pleas of guilty and the giving of assistance to the WorkCover Authority in its investigation of suspected breaches of the OH&S Act . ... 32 A plea of guilty may attract a greater degree of leniency in penalty. In Winchester v Regina (1992) 58 A Crim R 345, Hunt CJ at CL held (at 350): A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will be determined upon many different factors. The plea may in some cases be an indication of contrition or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the person has pleaded guilty.

I accept the defendant entered an early plea to the charge, it co-operated with WorkCover Authority and expressed contrition for the breach. I accept it has further expressed, through its officers, remorse. The defendant presents with a record of good industrial citizenship. 33 In accordance with the principles of R v Thomson; R v Houlton (2000) 49 NSWLR 383, I accept there is a utilitarian value to the defendant's early plea. The defendant argues that there is no limit to the discount that the court may grant with respect to the utilitarian value of the plea arising from the consideration of the High Court in Markarian v R (2005) 215 ALR 213. I allow in the circumstances a 25 per cent discount for the utilitarian value of the plea. 34 Since the subject incident, the defendant and other companies associated with the P&M Group have undertaken steps to address the risks identified as a consequence of the subject incident. Those steps include: 1. . . . (a) the placing of signage on all ammonia bearing pipes within the refrigeration plant to indicate their contents; (b) a risk assessment, in association with GBI, as to the hazards of storage, handling and use of ammonia at the Site. (c) putting in place an emergency procedure with respect to the risk of ammonia leaks at the Site; (d) putting in place a procedure for the monitoring of the Site's ammonia leak detection system; (e) putting in place a system of performing risk assessments before work is to be performed on the refrigeration system; (f) an emergency procedure and the inclusion of those evacuation procedures in inductions for employees; (g) preparation of a new induction programme for contractors at the Site; and (h) installat ion of emergency evacuation alarms at the Site.

The defendant also retained services of an independent contractor to perform a HAZOP study at the site and the defendant has carried out work, subject to one exception, on the closed ammonia refrigeration system in accordance with the HAZOP report. 35 The defendant contends it was an active participant in the rehabilitation of the employee. From the evidence Mr Anderson suffered a lung injury. In December 2003 he was hospitalised and from then at every opportunity he tried with difficulty to attend a rehabilitation programme. However he passed away on 17 August 2006. The deceased was a 42 year old man. The injuries he sustained on inhalation of ammonia fumes at work left him with severe respiratory problems and depression. At one stage in the hearing, the defendant asserted, in objecting to the tender of a Victim Impact Statement, that such a statement was only admissible if the harm suffered was a "direct" result of the offence. The Victim Impact Statement was admitted under s28(3) of the Crimes (Sentencing Procedures) Act 1999 and states: If the primary victim has died as a direct consequence of the offence the court must receive a victim impact statement given by a family victim and acknowledge its receipt and may make any comment on it that the court considers appropriate.

I rejected the proposition the death was not a direct result of the offence and refused to go past the stated content of the Death Certificate as follows: (I) (a) Respiratory failure, 12 hours (b) Bronchiectasis, 33 months (II) Ammonia explosion, 33 months.

The Death Certificate in my view therefore states the cause of death as respiratory failure and bronchiectasis as a result of the ammonia explosion 33 months before. I have no doubt as to the deleterious effect the death of such a young man had upon his family circumstance. 36 The defendant presents no financial evidence to persuade that he should be given any financial relief, except to acknowledge he is operating a small operation within the abattoir industry. However, the defendant makes a considerable contribution, through its enterprise, to employment in New South Wales. 37 Taking into account the subjective features of the offence but giving weight to the objective features of the circumstances revealed I note the maximum penalty for a first offender is $550,000. 38 I find the defendant guilty. 39 The defendant is to be fined in the sum of $150,000. 40 The defendant shall pay the prosecutor's costs as agreed or assessed with leave to approach.

Orders 41 The Court makes the following orders: 1. In Matter No IRC6436 of 2005, I find the defendant guilty of the offence as charged.

The defendant is fined in the sum of $150,000 with a moiety to WorkCover Authority of New South Wales.

There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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Judgment (28 paragraphs)

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Cases Cited (18)