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

(1) any operational guideline dealing with the peculiarities of fighting of fires in oil seed processing plants;

(2) adequate training of SO Evans, Captain Jenkins and other employees of the defendant with respect to fighting fires in silos prior to 6 December including an absence of training associated with the particular risks in oil seed extraction plants;

(3) a requirement to conduct a comprehensive risk assessment, the lack of which created serious risks to employees of the defendant and staff of Caines;

(4) SO Evans having knowledge of the hazard associated with introducing oxygen into the headspace of a silo with spontaneously combusted material inside;

it is impossible to come to any conclusion other than that the defendant failed to provide a safe system of work. The lack of knowledge and training displayed by SO Evans, an officer commanding a Hazmat unit, in respect of the circumstances confronting him on 6 December 1999 is telling. In an interview carried out by Inspector Mayo-Ramsay on 5 July 2000, the following exchange occurred between the Inspector and SO Evans: Q48. What training have you received in fighting fires in silos?

Q49. What safety precautions does the NSW Fire Brigades have in place to fight silo fires?

Q50. Were the firefighters under your control on the day of the incident, trained in fighting fires in silos?

The defendant cannot claim it provided a system of work that ensured safety when one of its officers in such a key firefighting role simply had not been provided with the necessary training and knowledge to deal with the situation. And where, as a consequence, SO Evans relied, uncritically, on the advice of Caines' staff who were, themselves, manifestly without the necessary knowledge, experience, equipment and skill to offer the advice. 128 I note the evidence of Commissioner Mullins that: 9. Given the diversity of the types of situations that firefighters can be called upon to handle, it is not possible to train in depth for every conceivable type of situation.

10. Training is aimed at instilling proficiency in the most common types of incidents attended, for example structure fires and motor vehicle accidents, and taking a structured risk management approach to other less frequent and sometimes complex incidents. Training also includes competencies such as the use of breathing apparatus, search and rescue, and locating fires in circumstances where visibility and access are often restricted. 129 I also note that no defence was offered under s 53 of the Act that it was not reasonably practicable for the person to comply with the provision of s 15(1) and s 16(1), or that the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the defendant to make provision. Moreover, I do not accept that a "structured risk management approach" was taken by the defendant at the Caines' site on 6 December 1999. 130 It was contended by the defendant that in terms of applying its system of work it was handicapped in being able to do so because of inadequate fire protection procedures and facilities at the Caines' site, giving rise to inherent hazards. This may have been so, but so apparent were the deficiencies at the site it should have provided a cautionary signal to SO Evans in deciding how best to proceed in dealing with the situation. If an adequate and safe system of work had been provided by the defendant the plant's deficiencies, and the risk they represented, would have become quickly apparent.

131 That local brigades may have carried out annual familiarisation visits or inspections of Cargill's plants does not amount to evidence of providing a safe system of work in respect of the fighting of fires in seed extraction plants generally. It simply means that local brigades responded to an invitation by Cargill to carry out the inspections. None of the information or expertise that may have been gained from these visits went beyond the local brigades. Indeed, Mr Mullins gave evidence that: [It] was a deficiency in our brigade exercise program as we called it for pre-incident planning as we call it now. Information gained by local stations remained usually in paper form at the station and was not disseminated throughout the brigades. The new system we're implementing is using templates on computer, they can be placed on CD, can be placed on the Intranet and disseminated throughout the brigades.

132 Whilst some policies, procedures and information on the fighting of fires in seed extraction plants did exist within the defendant's operations (the Manual of Firemanship; NSW Fire Brigades Station Officer Syllabus; the course outline for NSW Fire Brigades BA and HAZMAT course; the BA/HAZMAT Technicians Manual; NSW Fire Brigades Training Manual, and, other relevant available information (eg, Emergency Preplanning and Firefighting Manual - A Guide for Grain Elevator Operators and Fire Department Officials, March 1987 (a US publication)), there was no translation of this material into a functional, coherent system of work where specific operational guidelines and training were provided throughout the Brigade's operations; it remained no more than a paper system scattered throughout a variety of manuals until after the incident of 6 December 1999 when the Caines' fire and explosion obviously caused the defendant to review its capability for dealing with fires in oil seed processing plants and to put in place appropriate measures. 133 The reason for an absence of such a system of work at the time of the incident is not readily apparent, although I note Commissioner Mullins' evidence that it was "relatively uncommon for the NSWFB to be called to silo fires..."

134 The defendant did have in place prior to 6 December 1999 a system of "drive bys" and "site audits" to enable the identification of sites on which dangerous goods were handled and/or stored. Information derived from these inspections was added to the Stored Chemical Information Database. Besides falling well short of providing a safe system of work for dealing with fires in oil seed processing plants, resources were not made available to retained fire brigades for undertaking drive bys and site audits until after the incident on 6 December 1999. Consequently, no drive-by or site audit had taken place in relation to the Caines' Rutherford plant prior to 6 December 1999.

135 Whilst, as I have noted, there were elements of a relevant system of work within the defendant's operations, including some policies, procedures and information, there was no coherent system that was capable of being effectively deployed on the ground in the type of emergency that arose at Caines' plant on 6 December. However, even if the elements to which I have referred could be said to constitute a "system" it was, manifestly, not a system of work that was safe and without risks to employees and non-employees.

136 I turn to the question of whether the failures to provide a safe system of work placed the defendant's employees and the employees of Caines at risk. It is beyond reasonable doubt that if the defendant had provided and maintained a safe system of work, which would have included an adequate assessment of the risk and an adequate plan to deal with the circumstances that confronted the defendant's employees on 6 December 1999, the risks to health and safety to the defendant's employees and the employees of Caines could have been avoided.

137 The defendant submitted that the risk to its own employees and employees of Caines did not arise until the time of the explosion in bin D and that it was only certain personnel who were placed at risk because of their location vis a vis the effects of the explosion. The prosecution, on the other hand, submitted the risk existed from the time the defendant's employees arrived at the site and that all personnel present on the site were placed at risk.

138 The situation that existed at the time the Telarah brigade arrived and which still existed when the Hazmat unit and SO Evans arrived, included the following: (1) The design and construction of the bins did not include venting and/or dust explosion hatches and provision of fixed fire fighting apparatus in the plant was minimal (ie, there were no sprinklers and/or a deluge system);

(2) Caines had not developed and/or implemented any safe working procedures designed to deal with the fire and/or explosion risks inherent in the processes to be conducted in and about the Seed Crushing plant;

(3) Spent bleaching earth and cottonseed meal were known to be at risk of spontaneous combustion and to give off gases; (4) There was a strong, unpleasant odour in the vicinity of the storage bins;

(6) The meter of the gas monitor used by Caines' staff to detect hydrogen - a combustible and explosive gas - and hydrocarbons, went "off the dial" . 139 Notwithstanding these conditions, I do not consider there is sufficient evidence for me to find beyond reasonable doubt that the situation existing at the time the defendant's employees arrived at the site exposed them and the Caines' employees to a risk of fire and/or explosion. It would appear that in order for there to have been an explosion the ignition source in bin D would needed to have been powerful enough or there would needed to have been sufficient oxygen in the bin, or both. The evidence does not establish that this was the situation at the time the defendant's employees arrived at the site.

140 The evidence does, however, clearly establish that once the process of emptying bin D commenced there was the risk of an explosion both inside and outside bin D that extended throughout the storage area, the crushing mill and to the receival bay. Mr Pearson described both risks as "potentially extremely dangerous outcome as a result of unloading silo D". Mr Pearson stated in his report: There would have been clouds of dust produced as the meal collapsed and fell within silo D as it was unloaded. Of particular concern was towards the end of unloading of the hot side of the silo. At this time the smouldering meal was uncovered and the dies of the hopper were hit with iron bars to dislodge any meal hold up on its sloping sides. Therefore it is likely that clouds of potentially flammable dust were in contact with an ignition source. … As the meal was removed from silo D and the smouldering mass of meal was exposed to the silo's atmosphere, a dust or flammable gas explosion could have occurred at any time. Even a small initial explosion could have disturbed significant quantities of dust at the base of the silo hopper and contributed to a much larger confined dust explosion. This could have caused a catastrophic failure of silo D (Pearson, R D, "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 32 and 38).

141 Dealing, firstly, with the risk to the defendant's employees. These employees were located in and around the crushing mill, the receival bay and around bin D, at various times, after augering out of the meal commenced. Captain Jenkins directed four retained firefighters to form two BA (Breathing Apparatus) crews to man a charged hose in the receival bay. One member of each crew was directed by Captain Jenkins to station himself at the top of a ladder located next to the truck in the receival bay with a charged hose for the purpose of extinguishing any burning material augered from bin D, via the crushing plant's transportation system, into the back of the truck. The other member of each crew was directed to man the ladder. The members of these crews (RF Michael Pilton, RF Schofield, Deputy Captain Morriss and RF Armstrong) were wearing their full turn out uniform and fitted with SCBA (Self-Contained Breathing Apparatus). RF Schofield and RF Michael Pilton took the first shift while Deputy Captain Morriss and RF Armstrong stood by. Deputy Captain Morriss and RF Armstrong relieved RF Schofield and RF Michael Pilton after the low air warning sounded on RF Schofield's breathing apparatus.

142 In my opinion, by their presence in the receival bay during the augering process, RF Michael Pilton and RF Schofield were exposed to risk as a consequence of the defendant's failure to provide a safe system of work. The defendant has admitted that Captain Jenkins, Deputy Captain Morriss and RF Armstrong were exposed to risk.

143 RF David Pilton assisted his brother, RF Michael Pilton, and RF Schofield, Armstrong and Deputy Captain Morriss, to don breathing apparatus. With Deputy Captain Morriss' permission, he then left the site to go to his ordinary job as a mechanic. RF David Pilton left the Caines' site at approximately 0500 hours.

144 The evidence about when the augering commenced varied from about 0500 hours to 0540 hours. There is sufficient doubt about RF David Pilton being at the site after the augering commenced. I, therefore, find he was not exposed to risk as a consequence of the failure to provide a safe system of work.

145 RF Walter Morris acted as the breathing apparatus controller. He monitored the breathing apparatus crews including the time they spent in the apparatus. At the time of the explosion, RF Walter Morris was standing immediately adjacent to the Telarah pumper parked adjacent to the doors to the receival bay. When the explosion occurred RF Morriss ran to take cover behind the pumper. He said as he turned he observed "the flame come from within the truck loading bay door." I find RF Morriss was exposed to risk as a consequence of the failure to provide a safe system of work.

146 RF Jarrett stayed with the Telarah Pumper during the entire period from his arrival at the site with other members of the Telarah Fire Brigade until the time of the explosion. He assisted other members of the Telarah Fire Brigade to don breathing apparatus. In the absence of any other evidence, I am unable to find RF Jarrett was exposed to risk as a consequence of the failure to provide a safe system of work.

147 As the meal was being augered from bin D through the auger system and into the truck in the receival bay, FF McCall monitored the temperature of the meal as it came out of the chute in the receival bay. He also monitored the temperature outside bin D. FF Bear assisted FF McCall. Both FF McCall and FF Bear were exposed to risk.

148 SO Evans was moving about the base of bin D and in the receival bay during the augering process. SO Evans was exposed to risk.

149 It was conceded by the prosecution that the fact that some of the officers were wearing their full fire fighting kit this reduced the risk of injury as a consequence of potential exposure to fire. This was demonstrated by the fact that neither Deputy Captain Morriss nor FF Schofield actually sustained injury as consequence of being engulfed by the fireball. Nevertheless, as the defendant admitted, Deputy Captain Morriss was exposed to risk. If he was exposed to risk so were other officers wearing full kit. These officers could easily have removed their face protection or momentarily removed their gloves at the time of an explosion (cf Captain Jenkins).

150 The size of the fireball, the physical damage sustained to the plant and the injuries sustained by Captain Jenkins and the deceased are evidence of the magnitude and gravity of the risk to which the defendant's employees were exposed.

151 Turning to the Caines' employees, the defendant has admitted its failure to provide a safe system of work exposed the deceased employees and Mr Jordan to risk. No admissions were made in respect of the other Caines' employees.

152 During the course of the morning of 6 December 1999, after the arrival of the Hazmat Unit but prior to the explosion, Jason Brooker, Jason McKewen, Richard Zambrowski, Nigel Little, Steven Hipwell and Mark Price, at various times after augering commenced, all entered the seed crushing mill and the storage bin area unaccompanied, unprotected by proper personal equipment and unsupervised by members of New South Wales Fire Brigades (cf Mr Jordan ascending the stairs to the top of bin D to check the level of meal in the bin). There were no controls in place to prevent any Caines' employee from entering and moving about the crushing mill, including the area at the base of Bin D whilst augering was in progress. At the time of the explosion Mr McKewen was in the truck in the receival area and Mr Little and Mr Richard Zambrowski were inside the crushing mill adjacent to the base of bin D. Although these two men were only some 4 to 5 metres from the base of bin D at the time of the explosion, they were separated from the area in which Mr Anderson, Mr Booker and Mr Terry were working only by a single skin Colorbond sheet wall that was damaged in the explosion.

153 I am satisfied beyond reasonable doubt that all of the Caines' employees named in the s 16(1) charge were placed at risk as a consequence of the defendant's failure to provide a safe system of work.

154 It was alleged by the prosecution in the charge under s 15(1) that the defendant failed to provide and/or maintain a safe work method for use in the fighting of and/or extinguishing a suspected fire in a seed meal storage bin, including but not limited to the cottonseed meal stored in bin D at the subject premises. The defendant has admitted that it failed to maintain a safe work method but has not admitted that it failed to provide such a safe work method. The prosecution pressed this aspect of the charge.

155 For the defendant it was submitted: It beggars belief that the NSW Fire Brigades could be criticised, let alone prosecuted, for the charge that it failed to provide a safe work method in fighting and/or extinguishing a suspected fire in a seed meal storage bin including but not limited to the cottonseed meal stored in bin D at the subject premises in circumstances of such an disorganised and dysfunctional plant that ignored occupational health and safety requirements and responsibilities even when directed to do so by its insurer. The subject premises were a disaster waiting to happen. To allege that the NSW Fire Brigades somehow failed in its responsibilities under s.15(1) , said to be a failure to provide a safe work system, in these circumstances cannot be entertained. Indeed the evidence establishes that the NSW Fire Brigades had such a system. Additionally, the strategy of augering out the material, as determined by the NSW Fire Brigades, had worked. The theories of Mr Pearson… can be put to one side when reference is had to the evidence pertaining to the Caines' site. 156 There are a number of things to be said in response to this submission: (1) That an employer may operate a disorganised and dysfunctional plant from an occupational health and safety viewpoint could not, by itself, be regarded as the basis for relieving the defendant from providing a safe work method for use in the fighting of and/or extinguishing a suspected fire. (2) The poor state of the plant, the absence of any emergency plan and the absence of training of Caines' personnel should have served to highlight the need for an adequate risk assessment before embarking on a course of action to deal with the contents of bin D.

(3) The use of the auger to empty bin D may have proceeded without incident but that seemed to be more luck than good safety management. In any event, the important consideration in so far as the auger is concerned is the risks created by its use and these included those risks described earlier in relation to the failure to provide a safe system of work.

(4) The evidence establishes the defendant did not provide and maintain a relevant safe system of work. 157 Given my findings in relation to the failure of the defendant to provide a safe system of work, I am satisfied those findings apply equally to the failure of the defendant to provide a safe work method. I am also satisfied beyond reasonable doubt that the same employees that were placed at risk as a consequence of the defendant's failure to provide a safe system of work were also placed at risk as a consequence of the defendant's failure to provide a safe work method

Failure to provide a safe work method for the conduct of monitoring for flammable gases (s 15(1))

158 The s 15(1) charge alleged that the defendant failed to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. The defendant has admitted that it failed to maintain such a safe work method but did not admit it failed to provide that method. The prosecution pressed this aspect of the charge. 159 The defendant submitted there was gas monitoring. It was submitted the evidence was that FF McCall tested for the presence of, inter alia, carbon monoxide, hydrogen sulphide and lower level explosive limits of any gases in the air using a gas monitor known as a "TMX 412". After testing for approximately five minutes FF McCall found that the area "was clear".

160 The question here is whether the defendant failed to provide a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. The test conducted by FF McCall was carried out just after the auger commenced to be used and only for about five minutes. That was the extent of testing by the defendant for gases in circumstances where Caines' gas leak detector "went off the dial". The reason there was no further testing was that the gas detector was believed to have gone into low battery mode and so FF McCall "just put it back away because we had already checked the area and it was cleared so there was no need to go over it again".

161 Testing for the presence of gas for five minutes in circumstances where previous testing by Caines' staff had indicated the strong presence of gas, where there was a strong odour and where the presence of gas was a reason why Captain Jenkins called in the Hazmat unit did not, in my opinion, amount to the provision and maintenance of a safe work method with respect to the monitoring for flammable gases. It was not as though the lack of continual gas monitoring was caused by an individual's failure to implement an existing safe work method. There was no procedure that required gases to be continually monitored in the circumstances that presented at the Caines' plant on the morning of 6 December. 162 I note in contrast to the five minutes spent testing for gas, there was almost constant monitoring of the temperature of the bin undertaken by FF McCall and others on the morning of 6 December.

163 I must comment that I find it very difficult to understand how what may only be described as a perfunctory testing for the presence of gas could have been allowed to occur in circumstances where SO Evans noticed a noxious odour that continued to be present after FF McCall put away the malfunctioning gas detector; where there was a very large bin containing combustible vegetable matter; where the bin was very hot; where it would have been known or foreseeable that emptying the bin via the auger would have caused turbulence of gas and dust within the bin; and, where it would have been known or reasonably foreseeable that there was a risk of the build-up of flammable gases and the risk of an explosion.

164 Further, as the prosecutor submitted, the failure to monitor for gas continued even where there were visual indications of the presence of gas, specifically: (a) when white vapour or smoke was observed to be coming out of the augers;

(b) when pale blue smoke came out through the doors at the bottom of bin D;

(c) when RF Fatches saw smoke in the auger in the receival bay;

(d) when RF Morriss saw blue grey smoke emanating from under the truck in the receival bay (consistent with smoke passing through duct work that communicated with the boot elevator);

(e) when FF McCall saw smoke associated with clumps in the meal.

165 Other evidence supporting a finding that the defendant did not provide a safe work method with respect to the monitoring for flammable gases is as follows: (1) No monitoring was done from the top of bin D to test the headspace. The TMX 412 gas detector had the capability of testing gases remotely by the use of nozzles. Had a proper assessment been made of the area and had the inspection funnel at the top of the bin been discovered, it would have been possible to insert the gas detector (had it been working) to test the gases in the headspace of the bin. I accept it is likely that tests of the gases in the headspace of the bin would have demonstrated a presence of flammable gases. This would have enabled steps to be taken to have avoided the risk of an explosion.

(2) The defendant failed to ensure that FF McCall was properly trained in the use of the TMX 412 gas detector. In particular, the defendant failed to ensure that FF McCall would be alert to the possibility that the fact that it went into low battery mode may have indicated that it was not functioning correctly. SO Evans conceded that the fact that the device went into low battery mode might have indicated, "it was a somewhat more serious problem than a mere flat battery". (3) SO Evans made no inquiries as to the gas levels at the base of bin D either during the augering process or after it was thought that the meal had been emptied from the bin. In this respect, Mr Pearson stated: If a single initial measurement indicated the absence of flammable gases, then regular measurements may have provided early warning of their emergence and hence the opportunity to evacuate. (D Pearson, "Supplementary Report: Caines Fire and Explosion on 6/12/99", TestSafe Australia, 25 August 2006, at 28). 166 The defendant submitted that whilst it was the case that the gas monitoring activity was curtailed, by reason of a battery failure in the TMX 412 gas detector, it was not established that the ultimate explosion that took place, following the removal of the hatch at the base of bin D, was in fact a gas explosion. The preponderance of the evidence it was submitted, was to the contrary and, indeed, suggested that an initial back draft explosion took place with possibly a subsequent dust explosion.

167 My understanding of the evidence, however, including expert evidence of Inspector Pentony, is that the backdraft-initiated explosion started with the gas igniting "and it continued with the gas and the dust burning". Mr Pearson's expert opinion was the explosion was caused by the ignition of gases in the bin and the ignition of dust.

168 I find that the defendant failed to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D.

169 In relation to whether the aforementioned failure put employees of the defendant at risk, had the defendant provided a safe work method for the monitoring of flammable gases in bin D and had it conducted a proper assessment of the site including the extent to which access could be have been gained to the inspection funnel on the top of the bin, it is likely that tests of the gases in the headspace of the bin would have demonstrated a presence of flammable gases. This would have enabled steps to have been taken to have avoided the risk of an explosion. In particular, the site could have been evacuated or steps could have been taken to ensure that the augering process was not commenced or if it had commenced, ceased, and that the inspection hatch was not removed. 170 It follows that the defendant's failure to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D placed at risk the following employees of the defendant for the same reasons given in relation to the failure to provide a safe system of work: Captain Jenkins, Deputy Captain Neil Morriss, RF Michael Pilton, RF Darren Schofield, RF Walter Morris, RF Gary Armstrong, SO Gary Evans, FF McCall and FF Bear.

Failure to provide its employees with any information about the fire and/or explosion risks (s 15(1))

171 The defendant admitted that it failed to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants and that this failure contributed to a risk to the health, safety and welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong.

172 The defendant did not admit that it failed to provide its employees with any information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants and, consequently, no risk arose in respect of the defendant's employees.

173 The prosecution did not press that the defendant failed to provide any information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants. It did, however, press that the defendant failed to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants and that this failure contributed to a risk to the health, safety and welfare of all Fire Brigade employees at the site including those in respect of whom admissions were made, namely, Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong.

174 The prosecutor submitted that as at 6 December 1999, Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong had access to the same information as the other Telarah Fire Brigade officers in relation to whom the defendant has declined to admit that the failure to provide adequate information contributed to the risk to health, safety and welfare. It was submitted there was no evidence that these other firefighters had access to other, better information regarding the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants, than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. Nor was there any evidence, it was submitted, that Telarah Fire Brigade officers other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong had better access to the Firefighting Training Manual or to the Dangerous Goods - Initial Emergency Response Guide book, which on the evidence was carried on every fire fighting truck in the State of New South Wales at the time of the incident. All Telarah Fire Brigade officers appeared to have had access to the same information, it was submitted.

175 It was further submitted the other employees of the defendant were exposed to the same risks as Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong as a consequence of the inadequacy of the information. The other members of the Fire Brigades who had access to the same information as Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong and who were in and around bin D on the morning of 6 December 1999 were exposed to the same risks as Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong it was submitted.

176 In relation to SO Evans and the Hazmat crew it was submitted the fact that they may have been in possession of more information than members of the Telarah Brigade did not have the effect that this particular was not made out as against the Hazmat personnel. On the contrary, it was submitted, even with the additional information, Hazmat personnel failed to identify the risks. They were equally at risk as members of the Telarah brigade.

177 The defendant's admission in relation to the failure to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants means that there was a failure to provide adequate information not only to those employees who it was admitted were put at risk but the failure extended to all employees. It was not admitted, however, that the failure put at risk employees other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong.

178 The defendant's position thus appears to be that whilst employees other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong were not provided with adequate information about the fire and/or explosion risks, they were, nevertheless, not exposed to any risk on 6 December 1999. It follows that if all employees of the defendant were subject to the same disadvantage of not having been provided with adequate information, the reason why it was submitted employees other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong were not exposed to risk must be because these other employees were not close enough to the explosion to be exposed to risk. I have already dealt with the issue of when the risk arose and how employees were exposed to the risk.

179 I find that the defendant's failure to provide its employees with adequate information about the fire and/ or explosion risks inherent in the processes conducted in and about seed oil extraction plants exposed the following employees to risk to their health and safety: Captain Jenkins, Deputy Captain Neil Morriss, RF Michael Pilton, RF Darren Schofield, RF Walter Morris, RF Gary Armstrong, SO Gary Evans, FF McCall and FF Bear.

Failure to provide information to its employees regarding the risk of spontaneous combustion in stored seed meal, including cottonseed meal (s 15(1))

180 The defendant did not admit this failure. The prosecution did not press it.

Failure to provide its employees with information regarding the fire and/ or explosion risks associated with the heating and/ or partial combustion of seed meal (s 15(1)) 181 The defendant did not admit this failure. The prosecution did not press it.

Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to spontaneously combust, smoulder and give off pyrolytic vapours and gases (s 15(1)) Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating (s 15(1))

182 The defendant admitted to all aspects of these two failures except that it did not admit that it failed to provide its employees with information about the capacity of seed cake and seed meal to spontaneously combust. The prosecution did not press this aspect of the charge.

183 Further, the defendant admitted that these failures contributed to the risk to health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. However, the defendant declined to admit that the failure contributed to the risk to the health, safety or welfare of any other firefighter who was present at the Caines' Rutherford plant on the morning of 6 December 1999, namely, RF Michael Pilton, RF David Pilton, RF Darren Schofield, RF Walter Morris, RF Ronald Jarrett, SO Evans, FF McCall and FF Bear.

184 With the exception of RF David Pilton and RF Jarrett, for the reasons given earlier, if the defendant's failures to provide all of its employees with information regarding the chemical characteristics of substances associated with seed crushing plants contributed to the risk to health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong, the failures necessarily contributed to the risks to which the other employees were exposed. I so find.

Failure to provide adequate information, instruction and training to its employees with respect to use of the "Dangerous Goods - Initial Emergency Response Guide" book (s 15(1))

185 The defendant did not admit to any aspect of this particular of the charge. The prosecution did not press that aspect of the particular relating to the failure to provide information. It did, however, press this particular so far as the defendant allegedly failed to provide adequate instructions and training to its employees with respect to use of the "Dangerous Goods Initial Emergency Response Guide".

186 It was put by the defendant that the prosecutor's submissions on this particular come down to allegations that, because NSW Fire Brigade officers were not provided with sufficient information, by way of using the Emergency Response Guide, they were subjected to the risk of an explosion. It was observed by the defendant that all of the evidence points to the fact that the explosion occurred because the hatch at the base of bin D was removed and nothing else.

187 Undoubtedly, the removal of the hatch was the immediate cause of the explosion. But a focus on the immediate cause of an incident is too narrow. The inquiry under s 15(1) and s 16(1) needs to focus on the employer's acts or omissions and whether those acts or omissions caused employees, and those to whom the employer owes a duty of care under s 16(1) of the Act, to be exposed to risks to their safety, health or welfare.

188 In the present case, the prosecutor has made multiple allegations that by its acts or omissions the defendant failed to ensure the safety of its own employees and the employees of Caines. The defendant has admitted to a number of the acts or omissions and has admitted these acts or omissions caused certain personnel to be placed at risk in terms of their health and safety.

189 Regardless of the fact the hatch was removed the defendant's employees and the employees of Caines were still exposed to risk from an explosion and/or fire from the moment the auger began to operate because of the defendant's failures to ensure safety. In the circumstances that presented on 6 December 1999 the auger should not have been started up, let alone the hatch on bin D removed.

190 The defendant's proposition that the explosion occurred because the hatch at the base of bin D was removed and nothing else, entirely misses the point of the inquiry. It is not what caused the explosion but what caused the risk of the explosion. Similarly, in respect of the allegation that the defendant failed to provide adequate instruction and training to its employees with respect to use of the Emergency Response Guide, the question is not whether this failure caused the explosion but rather whether it caused the personnel the subject of the charge to be placed at risk. It is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question is whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way" see 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 at [49]-[50].

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.

194 If the reader had looked up "Self-Heating Solid, Organic" of the Guide the reader would have been advised under the heading "Fire or explosion":

· Exposure to air will lead to spontaneous combustion. · Burn rapidly · May re-ignite after fire is extinguished. · Fire may produce irritating, poisonous and/or corrosive gases. · Containers may explode when heated. · Runoff may create multiple fire or explosion hazard · Some may decompose explosively (D) or polymerise violently (P) when heated or involved in a fire.

195 Copies of the Guide were kept in all Fire Brigade vehicles including the Telarah Fire Brigade vehicle and the Hazmat vehicle that attended the Caines' site on 6 December 1999.

196 Both SO Evans and Captain Jenkins were aware that there was cottonseed meal (and tonsil activated clay) in bin D, Captain Jenkins knew the contents of the bin were spontaneously combusting, SO Evans conceded he knew the contents were combusting. Therefore, it must have been understood the material in bin D was likely to have been giving off some form of gas. SO Evans checked available databases on his laptop computer that provided information on chemicals and hazardous materials but the databases did not provide any information on cottonseed meal. SO Evans did not consult the Guide (nor did any other officer) because it was submitted he was not informed that a dangerous good was involved.

197 SO Evans may not have been told a dangerous good was involved but it seems to me that spontaneously combusting vegetable matter giving off gases in a large bin would squarely raise a question in the mind of a properly trained fire incident controller about the properties of the vegetable matter and, indeed, it did because SO Evans searched, unsuccessfully, for more information regarding cottonseed meal.

198 Not being any the wiser through the electronic search, it is arguable that if SO Evans and Captain Jenkins had received adequate training and instruction on how to use the Guide, they would have consulted it in order to determine if the matter in bin D was classed as a dangerous good and, if so, what hazards it presented. Conversely, if SO Evans and Captain Jenkins had not received adequate training and instruction on the Guide and its use, it is unlikely that they would have consulted the Guide. And, indeed, this was the thrust of the prosecutor's submission.

199 However, this is largely conjecture and I am of the opinion that the prosecutor has not established beyond reasonable doubt that the defendant failed to provide adequate instruction and training to its employees with respect to use of the "Dangerous Goods - Initial Emergency Response Guide" book. The onus was on the prosecutor to prove there was a failure to provide adequate instruction and training in relation to the Guide and there was no such proof beyond reasonable doubt that two key officers - SO Evans and Captain Jenkins - had not been provided with such training and instruction. There is no direct evidence that SO Evans, in particular, was not provided with adequate training, and too much scope for speculation as to why he did not consult the Guide, to conclude beyond reasonable doubt that it was because he was not provided with adequate training and instruction. 200 I find that this particular was not made out.

Failure to provide adequate information and training to Fire Brigades officers with respect to identification of dangerous goods (s 15(1))

201 The defendant did not admit to any aspect of this failure. The prosecution did not press it.

Failure to provide such supervision of the incident site as was necessary to ensure the health and safety at work of its employees whilst undertaking firefighting activities at the Caines site (s 15(1))

202 The defendant admitted this failure. Further, it admitted that the failure contributed to the risk to the health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Armstrong. The defendant declined to admit that the failure contributed to the health, safety or welfare of any other Fire Brigades officers, namely, RF Michael Pilton, RF David Pilton, RF Darren Schofield, RF Walter Morris, RF Ronald Jarrett, SO Evans, FF McCall and FF Bear. The prosecution pressed this aspect of the charge.

203 RF David Pilton was not placed at risk because, as I found earlier, there is reasonable doubt he was present when the risk arose and I am not satisfied RF Jarrett was exposed to risk. In so far as other employees of the defendant were concerned, there was an obligation upon SO Evans as incident controller to provide the necessary supervision to ensure health and safety. He had authority to "take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire" (s 13(1)(a) of the Fire Brigades Act) and he had authority "to control and direct the operations of any fire brigade". In respect of the employees other than RF David Pilton and RF Jarrett, each of them, for the reasons earlier provided, was put at risk of injury from fire and/or explosion. There was a failure by the defendant to provide the relevant supervision to ensure the health and safety at work of its employees whilst undertaking firefighting activities at the Caines' site on 6 December 1999.

Failure to provide and/or maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities (s 16(1))

204 The defendant admitted that it failed to maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. Further, it admitted that this failure contributed to the risk to the safety of the deceased members of the Caines' staff, namely, Robert Anderson, Ronald Brooker and Geoffrey Terry and, as well, Robert Jordan.

205 The defendant did not admit that it failed to provide a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. Nor did the defendant admit that its failure to either provide or maintain a safe work method statement regarding the use of non-Fire Brigades personnel, contributed to a risk to the health and safety of Caines' staff other than the deceased and Robert Jordan. The prosecution pressed both of these aspects of the charge.

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.

Failure to maintain strict control of the site and failure to control the access of Caines employees to areas that were liable to be and were affected by the explosion and fire emanating from Bin D (s 16(1))

Failure to provide any or any adequate supervision of Caines employees who were present on the Caines site prior to the explosion on 6 December 1999 (s 16(1))

The Defendant allowed Caines employees to enter areas of the seed crushing mill and its surrounds whilst unaccompanied and unsupervised by appropriately trained employees of the Defendant (s 16(1))

The Defendant allowed Caines employees to act independently of the fire prevention and/or fire suppression activities that were being conducted at the site by employees of the Defendant (s 16(1))

The Defendant failed to ensure that Caines employees were fitted with proper personal protective equipment prior to being permitted access to area of the site in which they were exposed to risks of injury from fire and explosion (s 16(1))

209 The defendant admitted all aspects of the foregoing failures. Further, the defendant admitted that these failures contributed to a risk to the safety of the deceased and to Robert Jordan. The defendant declined to admit that these failures contributed to a risk to the health and safety of Caines' staff other than the deceased and Robert Jordan. The prosecution pressed this aspect of the failures.

210 Putting aside the overlap that appears to be present between at least some of the failures, I am satisfied that all of the Caines' employees named in the s 16(1) charge were placed at risk by the foregoing failures. Each of the named employees was exposed to risk once the auger commenced to operate for the reasons given earlier. Each of the foregoing failures contributed to the fact that the employees were in a location in the plant without proper personal protective equipment such that they were exposed to the risk of injury from explosion and/or fire.

211 As I found at [105], the defendant has been unsuccessful in its reliance on s 78 of the Fire Brigades Act and it does not have immunity from liability under the Occupational Health and Safety Act in respect of the charges laid against it in these proceedings. Further, that the elements of each of the offences have been made out and, consequently, the offences under s 15(1) and s 16(1) have been proven. 212 Matter Nos IRC 768 and 769 of 2005 are listed for directions at 9.30 am on Friday 17 November 2006 for the purpose of setting a time and date to hear submissions on sentence and costs.

• 112 - ANNEXURE A Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of New South Wales (New South Wales Fire Brigades)

TAB DOCUMENT DATE LOCATION

VOLUME 1 Witness Statements, ROIs & Transcript 1 ALEXANDER, Robert - NSWFB Statement 12/04/2000 2 ALEXANDER, Robert - Statement 22/08/2000 3 ALEXANDER, Robert Gregory - Inquest Transcript 30/04/2002 4 ALEXANDER, Robert - 20 photos taken by 5 ALEXANDER, Robert - 14 photographs taken by 6 ALEXANDER, Robert - Definition of terms 7 ARMSTRONG, Gary - NSWFB Statement 19/03/2000 8 ARMSTRONG, Gary - WorkCover ROI 22/06/2000 9 ARMSTRONG, Gary - Inquest Transcript 08/10/2001 10 BEAR, Scott Anthony - NSWFB Statement 16/03/2000 11 BEAR, Scott - WorkCover ROI 22/06/2000 12 BEAR, Scott Anthony - Inquest Transcript 11/10/2001 13 BROOKER, Jason - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 14 BROOKER, Jason Phillip - Police Statement 09/12/1999 15 BROOKER, Jason Phillip - WorkCover Statement 22/02/2000 16 BROOKER, Jason Phillip - Inquest Transcript 17/09/2001 17 BROOKER, Jason Phillip - Inquest Transcript 09/04/2002 18 CHAMMINGS, David - Statement 17/09/2001 19 CHAMMINGS, David Vern - Inquest Transcript 10/04/2002 20 EVANS, Garry James - NSWFB Statement 22/12/1999 21 EVANS, Garry James - WorkCover ROI 05/07/2000 22 EVANS, Gary- Summary of training 22/07/2000 23 EVANS, Gary James - Inquest Transcript 29/08/2002 24 EVANS, Gary James - Inquest Transcript 30/08/2002 25 FATCHES, Douglas Bruce - NSWFB Statement 17/03/2000 26 FATCHES, Doug - WorkCover ROI 23/06/2000 27 FATCHES, Douglas Bruce - Inquest Transcript 05/10/2001 28 FATCHES, Douglas Bruce - Inquest Transcript 08/10/2001 VOLUME 2 29 GIBBONS, Douglas - WorkCover Statement 22/08/2001 30 GIBBONS, Douglas Edward - Inquest Transcript 11/04/2002 31 HALL, Daniel Thomas - Police Statement 10/01/2000 32 HALL, Dan - WorkCover ROI 18/02/2000 33 HALL, Daniel Thomas - Police Statement 21/09/2000 34 HALL, Daniel Thomas - Inquest Transcript 21/09/2001 35 HALL, Daniel Thomas - Inquest Transcript 24/09/2001 36 HALL, Daniel Thomas - Inquest Transcript 25/09/2001 37 HIPWELL, Stephen - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 38 HIPWELL, Steven John - Police Statement 09/12/1999 39 HIPWELL, Steven John - WorkCover Statement 22/02/2000 40 HIPWELL, Steven John - Inquest Transcript 19/09/2001 41 HISLOP, Graham - WorkCover ROI 14/06/2000 42 HISLOP, Graham - WorkCover ROI 14/06/2000 43 HISLOP, Graham Douglas - Inquest Transcript 02/09/2002 44 HISLOP, Graham Douglas - Inquest Transcript 03/09/2002 45 HISLOP, Graham - Sketch diagram 46 JARMAIN, Trevor - Police Statement 04/04/2000 47 JARRETT, Ronald Wilfred - NSWFB Statement 16/03/2000 48 JARRETT, Ronald Wilfred - Inquest Transcript 08/10/2001 49 JEFFREY, Ronald - Statement 05/10/2001 don't have 50 JEFFREY, Ronald - Inquest Transcript 10/10/2001 VOLUME 3 51 JENKINS, Ronald - Report of Fire at Lot 10 Garners Road, Rutherford, 06/12/1999 08/05/2000 52 JENKINS, Ronald James - W/C ROI 10/05/2000 53 JENKINS, Ronald James - Inquest Transcript 08/04/2002 54 JENKINS, Ronald James - Inquest Transcript 09/04/2002 55 JORDAN, Robert - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 56 JORDAN, Robert - Police Statement 10/12/1999 57 JORDAN, Robert Gerard - WorkCover Statement 17/02/2000 58 JORDAN, Robert Gerard - Police Statement 27/04/2000 59 JORDAN, Robert Gerard - Inquest Transcript 25/09/2001 60 JORDAN, Robert Gerard - Inquest Transcript 26/09/2001 61 JORDAN, Robert Gerard - Inquest Transcript 06/09/2002 62 LITTLE, Nigel - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 63 LITTLE, Nigel - Police Statement 10/12/1999 64 LITTLE, Nigel - WorkCover Statement 17/02/2000 65 LITTLE, Nigel Charles - Inquest Transcript 18/09/2001 66 MAYO-RAMSAY, Rosalie - WorkCover Statement 03/08/2000 67 McCALL, Gregory James - NSWFB Statement 16/03/2000 68 McCALL, Greg - WorkCover ROI 22/06/2000 69 McCALL, Gregory James - Inquest Transcript 03/10/2001 70 McCALL, Gregory James - Inquest Transcript 04/10/2001 71 McKEWEN, Jason - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 72 McKEWEN, Jason Scott - Police Statement 10/12/1999 73 McKEWEN, Jason Scott - WorkCover Statement 17/02/2000 74 McKEWEN, Jason Scott - Inquest Transcript 17/09/2001 75 MORRIS, Walter Albert - NSWFB Statement 17/03/2000 76 MORRIS, Walter - WorkCover ROI 23/06/2000 77 MORRIS, Walter - Inquest Transcript 09/10/2001 VOLUME 4 78 MORRISS, Neil Raymond - NSWFB Statement 17/03/2000 79 MORRISS, Neil - WorkCover ROI 22/06/2000 80 MORRISS, Neil Raymond - NSWFB Statement together with 2 photographs 22/08/2000 81 MORRISS, Neil Raymond - Inquest Transcript 08/10/2001 82 MORRISS, Neil Raymond - Inquest Transcript 09/10/2001 83 MULLINS, Gregory Philip - NSWFB 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 84 MULLINS, Gregory Phillip - Inquest Transcript 04/09/2002 85 PILTON, David Colin - NSWFB Statement 19/03/2000 86 PILTON, David Colin- Inquest Transcript 04/10/2001 87 PILTON, Michael John - NSWFB Statement 16/03/2000 88 PILTON, Michael - WorkCover ROI 23/06/2000 89 PILTON, Michael John - Inquest Transcript 04/10/2001 90 PRICE, Mark - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 91 PRICE, Mark Raymond - Police Statement 09/12/1999 92 PRICE, Mark Raymond - WorkCover Statement 17/02/2000 93 PRICE, Mark Raymond - Inquest Transcript 17/09/2001 94 RAYMOND, Neil Joseph - Police Statement 17/01/2000 95 SCHOFIELD, Darren - NSWFB Statement 17/03/2000 96 SCHOFIELD, Darren - WorkCover ROI 23/06/2000 97 SCHOFIELD, Darren - Inquest Transcript 05/10/2001 VOLUME 5 98 WALKER, Robert Bruce - NSWFB Statement 16/03/2000 99 WALKER, Robert - WorkCover ROI 22/06/2000 100 WALKER, Robert Bruce - Inquest Transcript 04/10/2001 101 WALKER, Robert Bruce - Inquest Transcript 05/10/2001 102 ZAMBROWSKI, John - Handwritten statement in Det HOGBIN's Police Notebook F 216853 06/12/1999 103 ZAMBROWSKI, John Peter - Police Statement 09/12/1999 104 ZAMBROWSKI, John Peter - WorkCover Statement 18/02/2000 105 ZAMBROWSKI, John Peter - Inquest Transcript 18/09/2001 106 ZAMBROWSKI, Richard Jeffrey - Police Statement 10/12/1999 107 ZAMBROWSKI, Richard Jeffrey - WorkCover Statement 17/02/2000 108 ZAMBROWSKI, Richard Jeffrey - Inquest Transcript 19/09/2001

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

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

Matter No IRC 768 of 2005 (a) There is established and, at all material times there was established, pursuant to Section 65 of the Fire Brigades Act 1989 (NSW), a "Department of the Government" of the Crown in the Right of the State of New South Wales with the name of "NSW Fire Brigades".

(b) At all material times the Crown in the Right of the State of New South Wales was an employer for the purposes of the Occupational Health and Safety Act 1983 (NSW).

(c) At all material times a member of a fire brigade was, when acting as a member of that fire brigade, an employee of the Crown in the Right of the State of New South Wales.

(d) At all material times the Crown in the Right of the State of New South Wales (NSW Fire Brigades) ("the defendant") was charged with statutory responsibility for the prevention and extinguishing of fires and protecting and saving life and property in the case of fire in any fire district within the State of New South Wales.

(e) At all material times the defendant's statutory responsibilities for the prevention and extinguishing of fires and the protection and saving of life and property included the prevention and extinguishing of fires and the protection and saving of life and property on premises known as Lot 10, Gardiners Road, Rutherford in the State of New South Wales ("the site").

(f) At all material times the defendant employed the following persons as members of the Telarah Fire Brigade: i. Retained Fire-fighter (RF) Ronald Jenkins, the Captain of the Telarah Fire Brigade ("TFB"); ii. RF Neil Morriss, Deputy Captain of the TFB; iii. RF Michael Pilton; iv. RF David Pilton; v. RF Darren Schofield; vi. RF Walter Morris; vii. RF Ronald Jarret; and viii. RF Gary Armstrong.

(g) In addition, at all material times, the defendant employed the following persons as members of the Newcastle Hazmat Unit: i. Station Officer ("SO") Evans; ii. Fire-fighter ("FF") McCall; and iii. FF Bear. (h) (i) At all material times, the defendant

i. Failed to maintain a system of work that was safe and without risks to its employees with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the incident site. ii. Failed to maintain a safe work method for use in the fighting of and/or extinguishing a suspected fire in a seed meal storage bin, including but not limited to the cottonseed meal stored in bin D at the subject premises.

iii. Failed to maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. iv. Failed to provide its employees with adequate information about the fire and/ or explosion risks inherent in the processes conducted in and about seed oil extraction plants. v. vi. vii. Failed to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to smoulder and give off pyrolytic vapours and gases. viii. Failed to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating. ix. . x. xi. Failed to provide such supervision of the incident site as was necessary to ensure the health and safety at work of its employees whilst undertaking fire-fighting activities at the subject site.

(j) As a result of the abovementioned failures, Captain Jenkins was placed at risk of injury.

(a) There is established and, at all material times, there was established, pursuant to Section 65 of the Fire Brigades Act 1999 (NSW), a "Department of the Government" of the Crown in the Right of the State of New South Wales with the name of "NSW Fire Brigades". (b) At all material times the Crown in the Right of the State of New South Wales was an employer for the purposes of the Occupational Health and Safety Act 1983 (NSW). (c) At all material times a member of a Fire Brigade was, when acting as a member of that Fire Brigade, an employee of the Crown in the Right of the State of New South Wales. (d) At all material times the Crown in the Right of the State of New South Wales (NSW Fire Brigades) ("the defendant") was charged with statutory responsibility for the prevention and extinguishing of fires and protecting and saving life and property in the case of fire in any fire district within the State of New South Wales. (e) At all material times the defendant's statutory responsibilities for the prevention and extinguishing of fires and the protection and saving of life and property included the prevention and extinguishing of fires and the protection and saving of life and property on premises known as Lot 10, Gardiners Road, Rutherford in the State of New South Wales ("the site"). (f) At all material times the defendant employed the following persons as members of the Telarah Fire Brigade: i. Retained Fire-fighter (RF) Ronald Jenkins, the Captain of the Telarah Fire Brigade ("TFB"); ii. RF Neil Morris, Deputy Captain of the TFB; iii. RF Michael Pilton; iv. RF David Pilton; v. RF Darren Schofield; vi. RF Walter Morris; vii. RF Ronald Jarret; and viii. RF Gary Armstrong.

(g) In addition, at all material times, the defendant employed the following persons as members of the Newcastle Hazmat Unit: i. Station Officer ("SO") Evans; ii. Fire-fighter ("FF") McCall; and iii. FF Bear. (h) (i) At all material times the defendant:

i. Failed to maintain a system of work that was safe and without risks to health and safety of persons not in its employ with respect to the prevention and/ or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the site. ii. Failed to maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. iii. Failed to maintain strict control of the site and to control the access of non-New South Wales personnel to areas that were liable to be and were affected by explosion and fire emanating from the storage bin known as bin D. iv. Failed to provide adequate supervision of non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd, who were present on the site on the morning of 6 December 1999.

v. Allowed non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd to enter areas of the crushing mill and its surrounds whilst unaccompanied and unsupervised by appropriately trained members of the New South Wales Fire Brigades. vi. Allowed non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd, to act independently of the fire prevention and/ or fire suppression activities that were being conducted at the site by members of the New South Wales Fire Brigades.

vii. Failed to ensure that non-New South Wales Fire Brigades personnel were fitted with proper personal protective equipment prior to being permitted access to areas of the site in which they were exposed to risks of injury from the fire located inside bin D.

(j) As a result of the abovementioned failures, Mr Robert Anderson, Mr Ronald Keith Brooker and Mr Geoffrey Robert Terry were exposed to risks to their health and safety arsing from the defendant's fire prevention and/ or suppression activities at the site.

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