Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales - [2006] NSWIRComm 356 - NSWIRComm 1999 case summary — Zoe

NSWNSWIRComm

Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales

[2006] NSWIRComm 356

Industrial Relations Commission (NSW)|1999-12-06|Before: Boland J, Peterson J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-12-06

Before

Boland J, Peterson J

Source

Original judgment source is linked above.

Judgment (125 paragraphs)

[1]

For the reasons given above, unloading the meal significantly increased the risk of an explosion (Supplementary Report: Caines Fire & Explosion on 6/12/99, TestSafe Australia, 25 August 2006, at 23-24). 125 What, of course, proved to be a fatal error was the removal of the inspection hatch at the base of bin D. This action appears to have been the immediate cause of the explosion. When the plate was removed, there was an influx of fresh air that caused the sources of ignition within the bin to flare up. At the same time, the fresh air mixed turbulently with the more buoyant, fuel-rich gaseous air within the bin causing the gas/air concentration to be lowered to within flammable range. The explosion was ignited when this flammable mixture came into contact with smouldering meal within the bin, which had become more exposed as a result of the unloading of the bin via the auger system: see Mr Pearson's Report, "An investigation of a Fire and Explosion in a Cottonseed Meal Silo at Caines Pty Ltd, Rutherford, NSW, 6 December 1999", TestSafe Australia, 21 August 2000, at 30-31, 38, 39; and Inspector Pentony's Report, "Post Incident Analysis: Explosion & Fire at Caines Pty Ltd, Rutherford NSW", 6 April 2000, at 9.

[2]

126 The defendant was aware of the potential for ignition of gases caused by an inrush of air and of the importance of ensuring against the risk of an explosion that might be caused by an inrush or air when unloading bin D. However, extraordinarily, SO Evans said he was not aware of the hazard associated with introducing oxygen into the headspace of a silo with spontaneously combusted material inside.

[79]

191 The defendant went on in its submission to contend that the evidence only demonstrated that there was a lack of knowledge about how to use the Guide. The example given by the prosecutor it was noted, was that FF Bear only had limited training in the use of the Guide. The defendant noted the further allegation by the prosecutor to the effect that the officers failed to consult the guide for the purposes of developing a strategy for use at the Caines' site on the morning of 6 December 1999. The defendant submitted (references omitted): Remembering that the particular of the charge is that the NSW Fire Brigades failed to provide adequate instruction and training, inter alia, with respect to the use of the Dangerous Goods - Initial Response Guide book, and indeed (sic) such submissions [officers failed to consult the guide], are irrelevant to the charge as here particularised. Against the background that Station Officer Evans was provided with the MSDS for the product on 6th December 1999 (viz: being non-combustible) and he having made inquiries (electronically) regarding cottonmeal and cottonseed meal, no issue arises for the purposes of this particular of the charge as to why Station Officer Evans did not have regard to the contents of the Emergency Response Guide book. More particularly Station Officer Evans, based upon the information with which he was provided at Caines on 6th December 1999, had not been informed that a dangerous good was involved. In all events the relevant guide book was available to operational firefighters at the Caines site on 6th December 1999 and, in those circumstances, this particular charge is not made out. All officers knew the guide book was available and were trained in its use. 192 It is unnecessary for me to describe in any detail how the Emergency Response Guide worked except to say I am satisfied that any person trained in its use would have been warned, had they consulted the Guide, that the matter in bin D, an organic solid, which was known or suspected to be spontaneously combusting, was classified as a dangerous good. According to the Guide the fire and explosion hazards associated with spontaneously combustible matter: · May ignite on contact with air, moist air or water · May react vigorously or explosively on contact with water · May produce flammable, poisonous and/or corrosive gases on contact with air, moist air or water · May re-ignite after fire is extinguished · Fire will produce irritating, poisonous and/or corrosive gases · Containers may explode when heated. · Runoff may create multiple fire or explosion hazard · May decompose explosively (D) when heated or involved in a fire. · May be kept in a protective medium. 193 The section of the Guide relating to evacuation stated: When any large container (including rail and road tankers) is involved in a fire, consider initial evacuation for 800m in all directions.

[95]

206 As the prosecutor submitted, there was no evidence that at any time prior to 14 September 2001 (when the defendant developed and promulgated a protocol entitled "Use of non-operational personnel at emergency incidents"), there was anything other than an unwritten custom or practice about the use of non-Fire Brigade personnel. There was no evidence that, as at 6 December 1999, the defendant had any document delineating the circumstances in which non-Fire Brigades personnel should and should not be used in fire prevention and/or fire suppression activities. And there was no evidence that the defendant was not in a position to provide the type of directions or guidelines set out in this protocol prior to the subject incident. 207 I accept the following submission put by the prosecutor: If the Defendant had a safe work method, such as the protocol published in September 2001, regarding the use of non-Fire Brigades personnel as at 6 December 1999, it is more likely that both Captain Jenkins and SO Evans would have taken steps to define "a combat zone" or danger area [ie the area in which fire prevention/fire suppression activities were taking place and areas of danger emanating there from]. The evidence indicates that neither SO Evans nor Captain Jenkins took steps to define a "fireground", "combat zone" or danger area from which non-operational staff were excluded. If a protocol of the type referred to above had been in effect, it is likely that SO Evans and Captain Jenkins would have more carefully controlled access to the crushing mill areas with a view to excluding non-operational staff from the crushing mill area, including the Mill itself, the receival bay and the area around the base of the storage bins. Further, it is more likely that Captain Jenkins and SO Evans would have issued clear directions to Mr Anderson that Caines' employees were not to be allowed within the vicinity of Bin D unless accompanied by a firefighter and kept under close supervision… … a safe work method statement regarding the use of non-Fire Brigade personnel would have made it more likely that those Caines' employees who were permitted access to the crushing mill in the vicinity of Bin D were appropriately attired in personal protective equipment. This would have significantly reduced the risk to the safety not only of Messrs Anderson, Brooker and Terry but others who were in the crushing mill at the time of the explosion, namely, Robert Jordan, Mark Price, Steven Hipwell and Richard Zambrowski. The fact that Deputy Captain Neil Morriss was able to survive the explosion with no physical injuries despite being engulfed by the fireball, demonstrates the importance of a safe work method statement that is designed to ensure that all personnel on the fireground are appropriately attired. 208 As I earlier found, each of the named Caines' employees were exposed to risk from the time the augering commenced because of their location within the plant vis a vis the reach of the explosion and being without proper personal protective equipment. In my opinion, the failure to provide a safe work method statement was causally connected to the risk to which Caines' employees were exposed.

[106]

VOLUME 1 Witness Statements, ROIs & 1 ALEXANDER, Robert - NSWFB Statement 2 ALEXANDER, Robert - Statement 3 ALEXANDER, Robert Gregory - Inquest Transcript 4 ALEXANDER, Robert - 20 photos taken by 5 ALEXANDER, Robert - 14 photographs 6 ALEXANDER, Robert - Definition of terms 7 ARMSTRONG, Gary - NSWFB Statement 8 ARMSTRONG, Gary - WorkCover ROI 9 ARMSTRONG, Gary - Inquest Transcript 10 BEAR, Scott Anthony - NSWFB Statement 11 BEAR, Scott - WorkCover ROI 12 BEAR, Scott Anthony - Inquest Transcript 13 BROOKER, Jason - Handwritten statement 14 BROOKER, Jason Phillip - Police Statement 15 BROOKER, Jason Phillip - WorkCover Statement 16 BROOKER, Jason Phillip - Inquest Transcript 17 BROOKER, Jason Phillip - Inquest Transcript 18 CHAMMINGS, David - Statement 19 CHAMMINGS, David Vern - Inquest Transcript 20 EVANS, Garry James - NSWFB Statement 21 EVANS, Garry James - WorkCover ROI 22 EVANS, Gary- Summary of training 23 EVANS, Gary James - Inquest Transcript 24 EVANS, Gary James - Inquest Transcript 25 FATCHES, Douglas Bruce - NSWFB Statement 26 FATCHES, Doug - WorkCover ROI 27 FATCHES, Douglas Bruce - Inquest Transcript 28 FATCHES, Douglas Bruce - Inquest Transcript VOLUME 2 29 GIBBONS, Douglas - WorkCover Statement 30 GIBBONS, Douglas Edward - Inquest Transcript 31 HALL, Daniel Thomas - Police Statement 32 HALL, Dan - WorkCover ROI 33 HALL, Daniel Thomas - Police Statement 34 HALL, Daniel Thomas - Inquest Transcript 35 HALL, Daniel Thomas - Inquest Transcript 36 HALL, Daniel Thomas - Inquest Transcript 37 HIPWELL, Stephen - Handwritten 38 HIPWELL, Steven John - Police Statement 39 HIPWELL, Steven John - WorkCover Statement 40 HIPWELL, Steven John - Inquest Transcript 41 HISLOP, Graham - WorkCover ROI 42 HISLOP, Graham - WorkCover ROI 43 HISLOP, Graham Douglas - Inquest Transcript 44 HISLOP, Graham Douglas - Inquest Transcript 45 HISLOP, Graham - Sketch diagram 46 JARMAIN, Trevor - Police Statement 47 JARRETT, Ronald Wilfred - NSWFB Statement 48 JARRETT, Ronald Wilfred - Inquest Transcript 49 JEFFREY, Ronald - Statement 50 JEFFREY, Ronald - Inquest Transcript VOLUME 3 51 JENKINS, Ronald - Report of Fire 52 JENKINS, Ronald James - W/C ROI 53 JENKINS, Ronald James - Inquest Transcript 54 JENKINS, Ronald James - Inquest Transcript 55 JORDAN, Robert - Handwritten statement 56 JORDAN, Robert - Police Statement 57 JORDAN, Robert Gerard - WorkCover Statement 58 JORDAN, Robert Gerard - Police Statement 59 JORDAN, Robert Gerard - Inquest Transcript 60 JORDAN, Robert Gerard - Inquest Transcript 61 JORDAN, Robert Gerard - Inquest Transcript 62 LITTLE, Nigel - Handwritten statement 63 LITTLE, Nigel - Police Statement 64 LITTLE, Nigel - WorkCover Statement 65 LITTLE, Nigel Charles - Inquest Transcript 66 MAYO-RAMSAY, Rosalie - WorkCover Statement 67 McCALL, Gregory James - NSWFB Statement 68 McCALL, Greg - WorkCover ROI 69 McCALL, Gregory James - Inquest Transcript 70 McCALL, Gregory James - Inquest Transcript 71 McKEWEN, Jason - Handwritten statement 72 McKEWEN, Jason Scott - Police Statement 73 McKEWEN, Jason Scott - WorkCover Statement 74 McKEWEN, Jason Scott - Inquest Transcript 75 MORRIS, Walter Albert - NSWFB Statement 76 MORRIS, Walter - WorkCover ROI 77 MORRIS, Walter - Inquest Transcript VOLUME 4 78 MORRISS, Neil Raymond - NSWFB Statement 79 MORRISS, Neil - WorkCover ROI 80 MORRISS, Neil Raymond - NSWFB Statement 81 MORRISS, Neil Raymond - Inquest Transcript 82 MORRISS, Neil Raymond - Inquest Transcript 83 MULLINS, Gregory Philip - NSWFB 84 MULLINS, Gregory Phillip - Inquest Transcript 85 PILTON, David Colin - NSWFB Statement 86 PILTON, David Colin- Inquest Transcript 87 PILTON, Michael John - NSWFB Statement 88 PILTON, Michael - WorkCover ROI 89 PILTON, Michael John - Inquest Transcript 90 PRICE, Mark - Handwritten statement 91 PRICE, Mark Raymond - Police Statement 92 PRICE, Mark Raymond - WorkCover Statement 93 PRICE, Mark Raymond - Inquest Transcript 94 RAYMOND, Neil Joseph - Police Statement 95 SCHOFIELD, Darren - NSWFB Statement 96 SCHOFIELD, Darren - WorkCover ROI 97 SCHOFIELD, Darren - Inquest Transcript VOLUME 5 98 WALKER, Robert Bruce - NSWFB Statement 99 WALKER, Robert - WorkCover ROI 100 WALKER, Robert Bruce - Inquest Transcript 101 WALKER, Robert Bruce - Inquest Transcript 102 ZAMBROWSKI, John - Handwritten 103 ZAMBROWSKI, John Peter - Police Statement 104 ZAMBROWSKI, John Peter - WorkCover Statement 105 ZAMBROWSKI, John Peter - Inquest Transcript 106 ZAMBROWSKI, Richard Jeffrey - Police Statement 107 ZAMBROWSKI, Richard Jeffrey - WorkCover Statement 108 ZAMBROWSKI, Richard Jeffrey - Inquest Transcript Transcript 12/04/2000 22/08/2000 30/04/2002 taken by 19/03/2000 22/06/2000 08/10/2001 16/03/2000 22/06/2000 11/10/2001 in Det HOGBIN's Police Notebook F 216853 06/12/1999 09/12/1999 22/02/2000 17/09/2001 09/04/2002 17/09/2001 10/04/2002 22/12/1999 05/07/2000 22/07/2000 29/08/2002 30/08/2002 17/03/2000 23/06/2000 05/10/2001 08/10/2001 22/08/2001 11/04/2002 10/01/2000 18/02/2000 21/09/2000 21/09/2001 24/09/2001 25/09/2001 statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 09/12/1999 22/02/2000 19/09/2001 14/06/2000 14/06/2000 02/09/2002 03/09/2002 04/04/2000 16/03/2000 08/10/2001 05/10/2001 don't have 10/10/2001 at Lot 10 Garners Road, Rutherford, 06/12/1999 08/05/2000 10/05/2000 08/04/2002 09/04/2002 in Det HOGBIN's Police Notebook F 216853 06/12/1999 10/12/1999 17/02/2000 27/04/2000 25/09/2001 26/09/2001 06/09/2002 in Det HOGBIN's Police Notebook F 216853 06/12/1999 10/12/1999 17/02/2000 18/09/2001 03/08/2000 16/03/2000 22/06/2000 03/10/2001 04/10/2001 in Det HOGBIN's Police Notebook F 216853 06/12/1999 10/12/1999 17/02/2000 17/09/2001 17/03/2000 23/06/2000 09/10/2001 17/03/2000 22/06/2000 together with 2 photographs 22/08/2000 08/10/2001 09/10/2001 Statement annexing: summary of qualifications and experience; Manual of Firemanship, Part 6C, Ch 45, Section 6, "Fires in grains, hops and their derivatives"; Special Incidents SOG (No. 8.2) Fire Fighting Techniques for Silo Fires; Guidelines Support Document (No 8.2), Silo Fires; NSWFB Safety Bulletin 2001/11 - Fires in Silos; Transfer of Control after Incidents; Use of non-operational personnel at emergency incidents" 12/09/2001 04/09/2002 19/03/2000 04/10/2001 16/03/2000 23/06/2000 04/10/2001 in Det HOGBIN's Police Notebook F 216853 06/12/1999 09/12/1999 17/02/2000 17/09/2001 17/01/2000 17/03/2000 23/06/2000 05/10/2001 16/03/2000 22/06/2000 04/10/2001 05/10/2001 statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 09/12/1999 18/02/2000 18/09/2001 10/12/1999 17/02/2000 19/09/2001

[107]

1 PEARSON, Robert David - Final Draft of Investigation Report 15/08/2000 2 PEARSON, Robert David, "An Investigation of a Fire and Explosion in a Cottonseed Meal Silo at Caines Pty Lt, Rutherford, NSW, 6 December 1999", TestSafe Australia 21/08/2000 3 PEARSON, David, "Supplementary Report: Caines Fire & Explosion on 06/12/99", TestSafe Australia 25/08/2006 4 PEARSON, Robert David - Inquest Transcript 01/05/2002 5 PEARSON, Robert David - Inquest Transcript 02/05/2002 6 PENTONY, Ian, "Post Incident Analysis - Explosion & Fire at Caines Pty Ltd Rutherford NSW" 06/04/2000 7 PENTONY, Ian - Qualifications 1 8 PENTONY, Ian James - Inquest Transcript 02/05/2002

[108]

1 Photographs taken by Inspector Mayo-Ramsay & Accompanying Index 06/12/1999 Photographs taken by Detective Sergeant Raymond (84 photographs) 2 Photograph number 70 marked "B" and photographs of hoses from MFI "A" (Ex 27) marked "A" 3 Photographs of Caines Pty Ltd plant after modifications 4 Plan - Rutherford Plant Site 5 Various Caines Pty Ltd Site Plans & Drawings 6 Plan drawing of Bin D 7 Site Plan 8 Sketch plans prepared by Caines Pty Ltd employees - Steven Hipwell, Nigel Little, Richard Zambrowski, Jason McKewen, Mark Price, Robert Jordan, John Zambrowski and Jason Brooker. 9 b) Site plan as marked by Greg McCALL VOLUME 8 c) 10 COPS Event E 13680802 06/12/1999 11 Report of Death to Coroner - R ANDERSON 03/03/2000 12 Autopsy Report - R ANDERSON 30/03/2000 13 Report of Death to Coroner - R K BROOKER 18/12/1999 14 Autopsy Report - R K BROOKER 24/01/2000 15 Report of Death to Coroner - G R TERRY 08/12/1999 16 Autopsy Report - G R TERRY 03/02/2000 17 Material Safety Data Sheet for "Tonsil" range acid bleached bentonite products" 07/1997 18 d) Transcript of meeting at Caines site attended by Mick JOHNSON, Rosalie MAYO-RAMSAY, Neil RAYMOND, Tania [McMCASTER] 19 Material Safety Data Sheets on hand at Caines Pty Ltd 20 Caines Pty Ltd "Housekeeping Inspection Meal & Seed Handling Section - Daily Report Sheet" 21/03/2000 21 Caines Pty Ltd Expeller Cake Results 02/12/1999 Moisture and oil readings 06/12/1999 22 WorkCover Authority, Report of analysis of samples supplied by R Mayo-Ramsay on 25/01/2000 28/01/2000 23 Caines Pty Ltd Safety Management Plan 05/11/1999 NSWFB, Basic Hazardous Materials 24 Caines Pty Ltd Riken GH-202F Gas Leak Checker - Operating Instructions 25 Sunrise & Sunset Results 06/12/1999 26 Caines Spent Bleaching Earth Chemwatch Material Safety Data Sheet 04/12/2000 27 Loss Control Guide - Fire and Other Risks (Excluding Motor) 03/1994 28 Zurich Policyholder Property Loss Control Report 13/05/1997 29 Underwriter's File commencing with Zurich Property Underwriting Risk Assessment Report 13/05/1997 30 Zurich Risk Assessment file 17/04/1997 31 Zurich Policyholder Loss Control Report 18/11/1998 Zurich Survey Report 08/03/1996 32 Email from Bob Wallington to Robert Hayes 23/11/1999 Caines Risk Engineering File No 2 30/11/1998 33 Zurich Risk Engineer Professional Profile: Andrew Webb VOLUME 9 34 WorkCover Authority, Code of Practice: Safety Aspects in the design, manufacture and installation of on-farm silos and field bins 02/08/1992 35 e) Caines Cottonseed Meal Chemwatch Material Safety Data Sheet 23/11/2000 36 Australian Standard 2430.2 - 1986 "Classification of Hazardous Areas: Part 2- Combustible Dusts" 37 Extract from BIA-Report, "Combustion and explosion characteristics of dusts" 38 Extracts from Bailey's Industrial Oil and Fat Products, Vol 1, 4th ed, p 148 39 "Cottonseed and its Products" 40 "The Investigation of Grain Elevator Explosions" 1980 41 "Preventing Fatalities Due to Fires and Explosions in Oxygen-Limiting Silos" July 1986 42 National Grain and Feed Association, Emergency Pre-Planning & Firefighting Manual March 1987 43 Prather, T G, "Silo Fires: Prevention and Control Conventional and Sealed Silos" October1988 44 "News Release: Silo Fires - Costly, Frustrating and Even Deadly" August 1993 45 NFPA 68 Guide for Venting of Deflagrations 1994 Edition 11/02/1994 46 NFPA 61 Standard for the Prevention of Fires and Dust Explosions in Agricultural and Food Products Facilities 1995 Edition & 1999 Edition 1995 1999 47 United States Fire Administration, The Hazards Associated with Agricultural Silo Fires - Special Report August 1998 48 C M Fleischmann, "Backdraft Phenomena" November 1993 49 Manual of Firemanship, Part 6C, Chapter 45, Section 8, "Fires in animal and vegetable oils", pp 180-190 50 Practical Firemanship, Part 6C, Chapter 45, Section 1, "Fires in Dusts" 14/4/2000 51 Fire Protection Handbook, 17th ed, section on "Characteristics of Dust Explosions", "Deflagration Characteristics of Selected Compatible Dusts", "Factors influencing Destructiveness of Dust Explosions", "Material Subject to Self-Heating", "The Fire Hazard" & "The Explosion Hazard". VOLUME 10 52 Newcastle Fire Brigade Printout 06/12/1999 53 NSWFB Incident Report 06/12/1999 54 Standards Australia, Dangerous Goods - Initial Emergency Response Guide, SAA/SNZ HB76:1997 1997 55 NSWFB Silo Fire data 1987-2002 56 NSWFB Standard Operational Guidelines 57 NSWFB drive-by audits 58 NSWFB Log 06/12/1999 59 NSWFB lists of firefighters who responded to Caines site on 06/12/1999 and explanation of codes used in Log VOLUME 11 60 Telephone message record 0329 hours 06/12/1999 to 0837 hours 06/12/1999 61 Radio messages 0039 hours 06/12/1999 to 2056 hours 07/12/1999 62 TMX412 Gas Detector Operators Manual 14/04/2000 63 NSWFB memo from Perkins to Hamilton dated 22/12/1999 re faulty TMX 412 gas detector NSWFB memo from Hamilton to Johnson dated 3/12/1999 re faulty TMX 412 gas detector 64 Gas detector instructions 65 NSWFB Station Officer Syllabus 66 NSWFB Station program volunteer f/f 67 NSWFB Station drill program permanent f/f 68 Telarah Fire Brigade Training Records 69 Course outline for NSWFB BA and Hazmat course & list of course attendees 70 NSWFB STP2001 Station Training Program Guidelines 71 NSWFB Training Manuals 01.11 and 01.06 VOLUME 12 72 BA/Hazmat Technicians Manual VOLUME 13 73 NSWFB, Firefighters Training Manual, Vol. 1 VOLUME 14 74 NSWFB, Firefighters Training Manual, Vol. 2 VOLUME 15 75 Caines Thermometer (physical exhibit) 76 Video by NSW Police entitled "Operating Procedures of Caines Factory Lot 10 Gardeners Road, Rutherford" (physical exhibit) 77 CIG - Inert Gas Purging, Carbon Dioxide, Seed Mill Flow Diagram, Operating Instructions for Riken portable gas leak checker 78 Letter from NSWFB to WorkCover re Drive-By Program 79 Dust Explosion Hazards Guidelines and Support Document 80 Extracts from Drysdale, An Introduction to Fire Dynamics (1985) 81 Extracts from Karlsson & Quintiere, Enclosure Fire Dynamics (2000) 82 TMX412 Specifications - Industrial Scientific Corp Website 83 Baker, "Explosion Prevention" (1987), The American Chemical Society 84 Structure Operator's Manual, Harvestor Systems, AO Smith Harvestore Products Inc 85 Apte & Pearson, "A Report of the Investigation of an Explosion in a Silo at Old Bonalbo NSW on 29 June 1996", (1997) 86 Bruhn & Kroegel, "Silo Fires - Why & How ?", International Silo Conference, Ontario 87 Copies of Caines oilseed production records from October 1999 to December 1999 88 Copy of Caines Expeller Plant Flow Sheet - LCO 20/1/001 89 Copy of Caines plant operating procedures 90 A C Wamble & W B Harris, "Recommended standard for operating screw press mills processing cottonseed", "Texas Engineering Experiment Station, Research Report 47, 91 Caines Pty Ltd, Confined Space Procedures 92 Caines Oilseed Plant, Operating Manual 93 Letter from Michelle Patterson (WorkCover) to Superintendent S W Findley (NSW) Police) dated 13 April 2000 including printout from SCID database 94 Photographs taken during Caines site visits by Pearson and Apte don't have 95 Record of conversation between David Pearson and Richard Zambrowski don't have 96 Bureau of Meteorology Report for 29/11/1999 to 11/12/1999 97 NSWFB, Basic Hazardous Materials 98 "Expert advises on avoiding explosions in grain silos" 99 K.S. Simon Yu, "Flashover and Backdraught" in Fire Engineers Journal December 1992 VOLUME 16 f) Documents the subject of objection to tender 1 FLYNN, Daniel Michael - Inquest Transcript 12/04/2002 2 Werner, "4 Firefighters Injured in Silo Blaze", Firehouse.com website 3 News release regarding silo fires on farm safety publications website www.nraes.org 4 Media report, Maitland Mercury, "Three plant workers fighting for their lives" 5 Media report, The Newcastle Herald, "1000 degree fireball" 6 Media report, The Maitland Mercury, "Plant vigil as second explosion feared" 7 Media report, "Silo fire blamed on hatch" don't have 8 Copy of communications between Professor B F Gray Combustion and Scientific Consultants and NSW Police regarding proposed testing of oilseed meal 9 Stockton Fire Brigade memo - produced by Cargill on 29/08/2006 don't have - obtain from first subpoena bundle 10 Cargills Emergency Action Plan January 1997 11 Cargills Emergency Action Plan June 1998 12 Cargills telephone messages etc

Parties

Applicant/Plaintiff:

Inspector Mayo-Ramsay (WorkCover Authority of NSW)

Respondent/Defendant:

The Crown in the Right of the State of New South Wales

Legislation Cited (9)

Factories, Shops and Industries Act 1962(NSW)

Health Act 1928(Vic)

Fire Brigades Act 1989(NSW)

Occupational Health and Safety Act 1983(NSW)

Fire Brigades Act 1999(NSW)

Local Government Act 1993(NSW)

Australian National Airlines Act 1945(Cth)

Western Australian Marine Act 1982(WA)

Workers Compensation Act 1987(NSW)

Cases Cited (33)

Australian National Airlines Commission v Newman (1987) 162 CLR 466 Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312 Bell v the State of Western Australia [2004] WASCA 205 Board of Fire Commissioners of NSW v Ardouin (1961) 109 CLR 105 Bropho v State of Western Australia (1990) 171 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Country Energy v Malone (2005) 138 IR 221 CSR Limited t/as CSR Wood Panels v WorkCover Authority of New South Wales (Inspector Reid) (2001) 109 IR 275 Fowler v Taylor [1957] VR 593 Garrett v Freeman (2006) 147 LGERA 96 Garrett v Freeman (No. 2) (2006) 145 LGERA 459 Hudson v Venderheld (1968) 118 CLR 171 Inspector Campbell v James Gordon Hitchcock [2003] NSWIRComm 148 Inspector Page v Woolworths Limited, unreported, Peterson J, 9 September 1994 Johnson v Refuge Assurance Co Ltd [1913] 1 KB 259 Ketchell v Wynch (2001) 164 FLR 460 CASES CITED: Legge v Coffey (No. 2) (2001) 110 IR 447 Morrison v Powercoal Pty Ltd & Anor. (No. 3) (2005) 147 IR 117 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 205 ALR 1 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 NSW Bar Association v Muirhead (1988) 14 NSWLR 173 Potter v Minahan (1908) 7 CLR 277 Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575 R & W Vincent Pty Limited v Board of Fire Commissioners of NSW (1977) 1 NSWLR 15) R v Hammer (1923) 2 KB 786 Re Carter Smith; ex parte The Commissioner of Taxation (1908) 8 SR (NSW) 246 Stephens v Stephens (1970) 72 SR (NSW) 459; (1970) 92 WN (NSW) 810 Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 The Ombudsman v Laughton (2005) 64 NSWLR 114 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante (2003) 126 IR 1 Workcover Authority of NSW (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1998) 103 A Crim R 213

43 At the time of the alleged offences in December 1999, s 78 of the Fire Brigades Act was in the following terms: 78. A matter or thing done by the Minister, the Commissioner, any member of staff of the Department, any member of a fire brigade or any person acting under the authority of the Commissioner does not, if the matter or thing was done in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown to any action, liability, claim or demand. 44 The defendant submitted, as I have noted, that the section provided immunity from all forms of legal redress, including criminal prosecution, in the circumstances covered by the section. If that be right s 78 would, subject to its terms, provide immunity for the defendant against any prosecution under the Occupational Health and Safety Act 1983 and its successor, the 2000 Act, because such prosecutions are criminal prosecutions. 45 Both the defendant and the prosecutor made extensive submissions as to the approach to be taken to the interpretation of s 78. The prosecutor put a number of alternative submissions in respect of s 78 as follows: (i) It is submitted that s 78 does not apply to the failures or omissions that occurred in this case under the Occupational Health and Safety Act 1983 ( OHS Act ) . (ii) Alternatively, it is submitted that s 78 does not operate to exclude criminal proceedings. (iii) Further in the alternative, it is submitted that, if s 78 can operate to exclude criminal proceedings, it does not operate to exclude proceedings for offences committed under the OHS Act. Whether s 78 provides immunity from criminal liability 46 Section 78 is an exemption from liability provision (Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312, Spigelman CJ (Giles and Ipp JJA concurring) at [33] that "protects the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights": Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 541 per Gummow J. The proper construction of such provisions has usually arisen in the context of civil proceedings (see, for example, Board of Fire Commissioners of NSW v Ardouin (1961) 109 CLR 105; Stephens v Stephens (1970) 92 WN (NSW) 810; and, R & W Vincent Pty Limited v Board of Fire Commissioners of NSW (1977) 1 NSWLR 15), although they have been considered in the context of criminal proceedings (see Fowler v Taylor [1957] VR 593; NSW Bar Association v Muirhead (1988) 14 NSWLR 173; Garrett v Freeman (2006) 147 LGERA 96). 47 Much of the defendant's submissions regarding immunity focused on seeking to demonstrate that the prosecutor's second alternative submission was wrong. That is to say, the defendant's proposition was that s 78 gave immunity not only from civil liability but also from criminal liability. 48 The question of whether s 78 provides immunity from criminal liability is a difficult one to answer. In order to determine the meaning of it one must have regard to the context in which it is to be found in the statute and in doing so adopt a purposive approach to the interpretation of the provision: s 33 of the Interpretation Act 1987; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 205 ALR 1 per McHugh ACJ, Gummow and Hayne JJ at [11] citing with approval the observations of McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Morrison v Powercoal Pty Ltd & Anor. (No. 3) (2005) 147 IR 117 at [36]-[43]. 49 The main considerations in favour of a positive answer to the question, namely that s 78 provides general immunity from criminal liability, are: (1) There is no authority to support the proposition that the words "claim" and "demand" in s 78 include process by which criminal proceedings are instituted. The words "claim" and "demand" refer to processes, both legal and antecedent to legal proceedings, by which a right to recover damages or other civil recompense is enforced. However, the term "action" is broad enough to encompass the concept of criminal proceedings depending upon the context in which it is used: Re Carter Smith; ex parte The Commissioner of Taxation (1908) 8 SR (NSW) 246 at 249; Johnson v Refuge Assurance Co Ltd [1913] 1 KB 259 at 264; R v Hammer (1923) 2 KB 786 at 790-791. See also section 11 of the Limitation Act 1969 and Butterworths Concise Australian Legal Dictionary , Second Edition (where "action" is defined as 'any proceeding in a court'). (2) The word "liability" may extend to criminal as well as civil liability depending upon the context in which it is used: see Workcover Authority of NSW (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1998) 103 A Crim R 213 at 230; Country Energy v Malone (2005) 138 IR 221 at [32]-[37] and [53]; (3) The purpose of Fire Brigades Act is the prevention and extinguishment of fires and protecting and saving life and property in case of a fire. It is the duty of the Commissioner under the Fire Brigades Act to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of a fire. The Fire Brigades Act affords to the Commissioner, and other officers, very wide powers, the exercise of which may directly and seriously infringe on private and public rights, in carrying out their functions. It is arguable, therefore, in balancing public and private interests against the interests of enabling the Fire Brigades to effectively carry out its duty of protecting life and property, the balance should fall in favour of the view that s 78 provides not only civil immunity but also immunity from criminal liability in circumstances where something is done in good faith for the purpose of executing the Fire Brigades Act or any other Act. For example, if the Fire Brigades faced the prospect of a criminal prosecution every time it found it necessary to have someone removed from the scene of a fire (see s 19 for power to do so), or found it necessary to destroy a wall or building pursuant to s 16 in order to prevent the spread of a fire, it would make the Fire Brigades Act unworkable and, therefore, it is arguable the balance lies in favour of construing s 78 as providing immunity from criminal liability; (4) The statutes ( Health Act 1928 (Vic); Workers Compensation Act 1987 (NSW); Local Government Act 1993 (NSW)) under consideration in those cases where the words "action, liability, claim or demand" were held not to grant immunity from criminal liability ( Fowler v Taylor [1957] VR 593; NSW Bar Association v Muirhead (1988) 14 NSWLR 173; Garrett v Freeman (No. 2) (2006) 145 LGERA 459; Garrett v Freeman (2006) 147 LGERA 96) were statues with quite different purposes to the Fire Brigades Act. 50 The main considerations in favour of a negative answer to the question, namely, that s 78 does not provide general immunity from criminal liability, are: (1) The combination of words "action, liability, claim or demand" are more likely to be associated with civil proceedings and not criminal proceedings; (2) In more recent times, it has become recognised that the term "action" was not appropriate to describe criminal proceedings: Ketchell v Wynch (2001) 164 FLR 460 at 467 per Thomas JA. (3) None of the cases relied upon by the defendant in support of the proposition that the word "action" might be construed to encompass criminal liability were criminal cases; (4) There was no case brought to the attention of the Court where the words "action, liability, claim or demand" had been held to grant immunity from criminal liability. This is despite the fact that the words have appeared in exemption from liability provisions in UK statutes for at least 150 years and in Australian statutes for at least 120 years: see Fowler v Taylor at 594; (5) In those cases where it was considered whether the words "action, liability, claim or demand" provided immunity from criminal liability it has been determined that no such immunity existed; (6) Of particular significance is that to gain statutory protection against liability under an immunity provision, the provision, should not only ordinarily so provide in express terms, but also that such provisions should be strictly construed: see Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116 per Kitto J; Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575 at 613 per Callinan J; Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312 at 321 per Spigelman CJ; Bropho v Western Australia (1990) 171 CLR 1 at 18 citing Potter v Minahan (1908) 7 CLR 277 at 304; The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 562-563 per McHugh J; (7) It would have been open to the legislature to make specific provision in s 78 for immunity from criminal liability in 1989, when the Act was made, in much the same way as such provision is made in other statutes (e.g., Independent Commission Against Corruption Act 1988) but this was not done; (8) In much the same way that Dean J found the health officer in Fowler v Taylor was entitled to forcibly enter the premises pursuant to s 359 of the Health Act (and thereby the assault was justified) it is arguable (subject to what I find under the next heading) that an officer of the Fire Brigades exercising a prescribed function under the Fire Brigades Act in the course of preventing and extinguishing fires and protecting and saving life and property (see ss 16, 17, 19 and 22 for instance), would not be criminally liable for exercising such a function given that it was directly authorised by the Act and, consequently, there would be no need to rely on s 78 for immunity. 51 My tentative view is that s 78 of the Fire Brigades Act does not provide a general immunity from criminal liability. However, it is unnecessary for me to decide this point in light of my later finding that the alleged failures by the defendant to ensure the safety on employees and non-employees were not matters or things done in good faith for the purposes of executing the Fire Brigades Act or any other Act. Whether s 78 applies to failures of defendant

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