69 The first defendant is charged under both s 15(1) and s 16(1) of the Act. A defendant will be found to have contravened s 15(1) of the OHS Act if it is proven beyond reasonable doubt that the defendant, at the time of the alleged offence, was an employer; if there was a failure to ensure health, safety and welfare; and, if the failure was in respect of the defendant's employees at work.
70 A causal nexus must also be established between the defendant's acts or omissions and the resulting detriment to the employees' health, safety and welfare. The detriment need not be physical injury or death; it is only necessary to prove to the requisite standard that the employees were placed in a situation of risk by the defendant's acts or omissions in failing to ensure safety, etc: State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121; Haynes v C I & D Manufacturing Pty Limited; Callaghan v CI & D Industries Pty Ltd (1995) 60 IR 149 at 157; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449. In other words, the employer may have contravened s 15(1) if, by some act or omission, the employer has created a situation of potential danger to the health, safety and welfare of the employer's employees at work.
71 A similar position exists in respect of s 16(1) of the OHS Act. A defendant will be found to have contravened s 16(1) if it is proven beyond reasonable doubt that the defendant, at the time of the alleged offence, was an employer; if there was a failure to ensure that persons not in the employer's employment were not exposed to risks to their health or safety; and, if the risks arose from the conduct of the employer's undertaking while the persons were at the employer's place of work. A causal nexus must be established between the employer's failure to ensure health or safety and the exposure to risk.
72 Taking firstly, the s 15(1) charge; the first defendant was an employer as at 6 December 1999 and employed the deceased employees Messrs Anderson, Ronald Brooker and Terry as well as Messrs Jordan, Jason Brooker, McKewen, Zambrowski, Little, Hipwell and Price. So much is established by records of interview with Mr Hislop and those employees who survived the explosion. It is also beyond doubt that the deceased persons were at work on 6 December 1999, that being the first defendant's Rutherford plant.
73 It was alleged in the application for order that the first defendant failed in 16 respects to ensure the health and safety of the aforementioned employees. The Court finds that the charge has been made out. As the prosecutor submitted, the design of the first defendant's plant, including the product transportation system, the seed storage silo, the meat bin and the meal bins took little account of risks associated with dust explosion and/or fires that might occur in association with the transportation and/or storage of seed meal. For example:
(a) the design did not include venting and/or dust explosion hatches;
(b) the design did not include any form of spark arresters in the hammer mill, or any form of spark or fire detection system in the conveying line from the hammer mill to the meal bins;
(c) the electrical fittings within the mill at the site were specified and installed on the basis that canola and sunflower milling activity was to take place, but the electrical fittings as specified and installed were not appropriate for cotton-seed milling activity - dust associated with the processing of cotton-seed being highly combustible (see AS 2430.2-1986);
(d) the existence of horizontal flat surfaces on the interior of the walls of the "receival section" of the expeller building permitted the build-up of combustible dust, in particular cotton-seed meal dust - leading to an increased risk of dust explosions and/or fires;
(e) the fire fighting plant and equipment at the site was extremely limited and did not include any form of fixed fire fighting system in and/or around the meal bins; and
(f) The design of the meal bins did not make provision for monitoring the temperature of seed meal whilst stored in the bins.
74 Further as the prosecutor submitted:
(1) The Defendant had no written work procedures and provided no training to its employees with respect to the management of seed meal that had heated whilst stored in meal bins. In particular, the Defendant had no procedures of any kind with respect to the management of seed meal once it had started to smoulder or partially combust inside a meal bin.
(2) The Defendant provided no written work procedures or any training regarding the actions to be taken by staff members in the event of a fire in the seed crushing mill, the product transportation system and/or the meal storage bins.
(3) The Defendant provided no training on what to do in the case of an emergency arising.
(4) The Defendant did not supply its employees with adequate information, instruction or training about the chemical characteristics of the substances associated with the seed crushing process. In particular, the Defendant did not provide its employees with information, instruction or training about the capacity of seed meal, both with and without spent bleaching earth being added to the meal, to heat spontaneously, smoulder and/or its capacity when heated to give off pyrolytic vapours and gases.
(5) The Defendant did not have in place any systems, documents or plans designed to supply members of the NSW Fire Brigades with adequate information about the properties of cotton-seed meal, spent bleaching earth and other products stored on its site - including their capacity to spontaneously combust, smoulder and give off pyrolytic vapours and gases when subjected to heat.
(6) The Defendant did not provide its employees with any instruction or training in relation to fire fighting, either generally or in relation to fires in the meal bins.
(7) The Defendant did not provide its employees with any instruction or training in relation to the possibility of a dust explosion in the expeller plant, the product transportation system, the silos or meal bins.
(8) As at 6 December, 1999 a practice had developed amongst the Defendant's employees at the site of banging the sides of meal bins to attempt to determine if the meal bins were empty. The banging of the sides of meal bins gave rise to a risk of the creation or excitation of clouds of combustible dusts within the meal bins.
(9) The Defendant failed to put in place sufficiently rigorous housekeeping rules and practices, such that there were present in and about the product transportation system, particularly the elevator boot, and in other parts of the plant, particularly the receival bay, significant build up of combustible dust. The presence of the build up of dust in and about various parts of the plant increased the risk of dust explosions and/or the communication of fire through the expeller plant and its associated buildings, silos and meal bins.
(10) The Defendant also failed to provide its employees with any training with respect to the use of personal protective equipment, in particular, personal protective equipment to be utilised in the event of a fire or dust explosion. Similarly, the Defendant did not provide or maintain any personal protective equipment, such as fire retardant suits and breathing apparatus, for its employees to use in the course of fighting a fire at the site or while assisting Fire Brigade officers in fighting such a fire.
75 As to the causal connection between the first defendant's failures and the risk of an explosion associated with the build up of partially combusted pyrolytic gases and seed dust, it is beyond doubt the connection existed. Messrs Anderson, Brooker and Terry did not know how to deal with the overheating in the cottonseed meal that was taking place inside bin D. It is apparent they had no idea that by removing the hatch from the bottom of the bin cool, oxygen-rich air would be allowed to enter bin D, where it would mix with explosive gases trapped within the bin in the presence in the source of ignition, such as a remnant of the hot "charcoalised"/"carbonised" meal and that the resulting explosion would be exacerbated by the combustion of "seed dusts" in the connecting duct work.
76 This lack of understanding and knowledge may be directly attributed to the first defendant's failure to have in place:
· A documented safety policy;