33 An 'ERD' is an 'escape respiratory device'. These guidelines require preparation for evacuation when any unplanned, unexpected gas emission over 200 ppm occurs.
34 It follows, inescapably, from this evidence, that on 11 April, before Mr Edwards was sent into the blast furnace without breathing equipment, the level of carbon monoxide present was not established to be safe, either by BlueScope or by the defendant. In those circumstances, there could be no certainty that the time he remained in the blast furnace, would be limited to a period of time which would have ensured his safety. Any entry without breathing equipment was manifestly unsafe.
35 Given the evidence as to the little effect which the carbon monoxide to which Mr Edwards was exposed had upon him, there can be no doubt that the carbon monoxide levels in the blast furnace began falling, after the gas leak was stopped. Nevertheless, the level of concentration which had been reached at any particular place in the blast furnace and the rate at which that concentration of gas was falling, was not established either by BlueScope or by the defendant to be safe, before they sent Mr Edwards into the blast furnace, to provide assistance to those already affected by the gas. In the absence of those levels being established, safety necessitated Mr Edwards being given breathing apparatus to wear. That did not occur either. It also follows, that the safety of Mr Fermino, Mr McMahon and Mr Knezevic was therefore also not assured, by the steps taken when they were sent into the blast furnace.
36 Mr Fermino was sent to the assistance of Mr Russionello, who had also collapsed in the blast furnace when Mr Graham was taken out of the blast furnace, Mr Edwards, Mr McMahon and Mr Knezevic then returned into the blast furnace to assist Mr Fermino, who had been found unconscious on the second floor of the blast furnace. The defendant was first alerted to this second emergency, by a call to its control room at about 3.30 am. Because Mr Russionello could not be removed to PUP 52, the defendant's employees were directed to provide their assistance. Mr Edwards, Mr Fermino, Mr McMahon and Mr Knezevic did so, assisting ambulance officers move Mr Russionello out of the blast furnace.
37 The defendant's employees were tested shortly after 4.20 am, as to their expired air carbon monoxide levels. Mr Segovic and Mr Edwards were administered oxygen as a result, which the other employees did not require, given their expired air readings. None of the employees suffered residual effects because exposure to certain monoxide at certain levels is reversible. All the employees were able to attend their next rostered shift. Mr Segovic had the highest level recorded, on the evidence, most likely because he was a smoker. Luckily, none of these employees suffered other injury or harm and they had no residual effects from the carbon monoxide to which they were exposed. That was fortunate, but plainly did not result from the defendant's system protecting the employees from excessive exposure to carbon monoxide, which again, no doubt explained why a plea of guilty was entered to the charge.
38 In this respect, the potential effects of prolonged exposure to carbon monoxide must be considered. The Australian Government's Occupational Health and Safety Commission exposure standard indicates that carbon monoxide is readily absorbed into the lungs and binds about 200 -240 times more strongly with haemoglobin than does oxygen. It also has negative cardiac effects. The rate of excretion from the lungs is much slower, but the effects are reversible. High concentrations can, however, lead rapidly to unconsciousness and convulsions before a victim is aware of impending danger. Exposure is also dangerous because individual responses to carbon monoxide vary and it poses an acute hazard, because it is not detectable by human senses. There is a risk of death.
39 These matters must be taken into account, because it is well settled that the gravity of the consequences of an accident do not of themselves, dictate penalty. The gravity or otherwise of the risk to safety in question is relevant in determining the gravity of a defendant's breach and its culpabilities (see Tyler v Sydney Electricity (1993) 47 IR 1 at 6; Lawrence at 45).
40 I am satisfied that the submission made by both the prosecutor and the defendant, that on all of the evidence it was demonstrated that it was BlueScope which had the greater culpability for the risk here in question, was made out on the evidence. The defendant's employees were obliged to rely on BlueScope employees and to act in accordance with their instructions, when entering buildings such as the blast furnace at the steelworks, no doubt for good and sound reason, given the environment inside such buildings and the safety obligations imposed by the Act upon both the defendant and BlueScope. That being so, the defendant's employees being taken into the building in order to administer first aid to people who had collapsed and been rendered unconscious, as the result of exposure to carbon monoxide, without breathing apparatus being provided when a gas monitor showed levels of as high as 800 ppm, was entirely inconsistent with the requirements of safety. On the evidence, that failure was not that of BlueScope alone. The defendant also failed to take available steps which would have ensured its employees' safety.
41 In the light of the evidence, I am unable to accept the defendant's case that the offence ought not to be regarded as serious and should attract only a penalty at the lowest end of the scale. While it is relevant that this was the defendant's first offence, a matter to which I shall return, I am satisfied that this offence could not properly be characterised in the way advanced. On the evidence, while this was a first offence, it was plainly of a more serious kind than was submitted.
42 I accept that it is also pertinent to take into account, as the defendant argued, that it was confronted with an emergency, where aid was sought in ways which the defendant and BlueScope had not formerly agreed would be sought and provided. Despite this, when BlueScope sought assistance with an emergency, the necessary aid was given by the defendant and its employees. That response was entirely understandable, and indeed commendable, but could not, however, relieve the defendant of its obligation to ensure the safety of its employees.
43 What must also be taken into account in this respect, is the evidence of the steps taken after the accident, which showed that safety could have been ensured by the defendant, by its employees being given and retaining a gas monitor and using breathing apparatus, if gas levels climbed to 200 ppm. The only instruction given by the defendant to its employees when despatching them to render the aid sought, was to leave, if the employee felt unsafe. That was clearly an inadequate instruction in the circumstances. On the evidence, Mr Edwards ought to have felt unsafe when gas monitors recorded gas levels of over 400 and as high as 800 ppm, but still he did not leave, even though he had no breathing apparatus.
44 These observations lead me to the question of the role which general and specific deterrence have to play in the sentence to be imposed in this case. It is well settled that it is only in unusual circumstances that general deterrence will not feature. The approach discussed by the Full Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at [71] - [79], that deterrence should normally be a matter of significant weight in the sentencing process is binding and must be followed in this case.
45 Given that this risk to safety emerged in circumstances where assistance and first aid had to be rendered in an emergency, I am unable to conclude that general deterrence does not properly have a role to play in this case. Such situations will no doubt confront employers in many industries, where they will have an obligation to render aid and attend to an emergency, while also paying attention to the safety of their employees. Even these types of situations do not permit considerations of safety to be ignored, especially when employees are at risk of exposure to obvious and well known safety risks.
46 As to specific deterrence, I am satisfied that it has a lesser role to play in this case, than in many other cases, given the evidence of this employer's attention to safety, both before and after the incident.
47 Mr Carpenter's evidence demonstrated that this employer did not pay only lip service to its safety obligations and that it did not merely have a paper system in place. The defendant had general safety policies, procedures and manuals, as well as establishing a specific safety management plan for this site, when it first entered into its contract with BlueScope. That plan is reviewed regularly. It also had safe operating procedures for the site, as well as an accident and incident reporting and other safety systems, such as hazard identification procedures and rehabilitation policies. Each employee received safety training as part of an induction process, when commencing work at the site, receiving a 'passport' to permit work on the site. The training was directed to an extensive list of safety issues, including relevantly; gas awareness, control of hazardous substances, hazards and risks, security alarms, emergency response, breathing apparatus and first aid. There were site safety committees operated, as well as ongoing audits of safety systems, which involve individual employee participation, on a monthly basis.
48 The site safety committee has 10 members, including management representatives, as well as site employees and a fire officer. It meets monthly and communicates its activities to employees. Reports are made by the committee to weekly operational meetings, and to BlueScope. There is also a corporate Global Incident Reporting Policy, which pays regard to the severity of any incident.
49 The defendant expends considerable amounts annually on training its staff in safety matters. After the incident, the defendant engaged in extensive investigations and discussions with BlueScope, as to the incident and safety issues. This resulted in a new operations instruction, in which employees were trained. It required that if an employee was required to: