1 This matter concerns a prosecution brought by Inspector Paul Mansell of the WorkCover Authority of New South Wales ("the prosecutor") under s 16(1) of the Occupational Health and Safety Act 1983 of Orica Australia Pty Limited ("the defendant"). The matter now falls for consideration under the Occupational Health and Safety Act 2000 (see ss 139, 141 and Schedule 3 of that Act)("the Act").
2 The prosecution arose out of an incident which occurred at the defendant's factory premises at Gow St, Padstow, when an employee of a contractor, engaged by the defendant to undertake maintenance work, was injured due to a failure in the operation of an electric hoist from which he was suspended. The contractor was suspended inside a 20,000-litre resin storage tank. The failure of the hoist resulted in it continuing to raise him, whilst he was within the largely enclosed tank. He was crushed against the roof of the tank whilst the powered hoist continued its work, resulting in fractured ribs, spinal vertebrae, severe bruising and a temporary loss of consciousness.
3 The charge contained in the summons issued on the defendant was in the following terms:
On 12 August 1998 at the defendant's Dulux Australia resin manufacturing plant at 15 Gow St, Padstow in the state of New South Wales, the defendant being an employer did fail to ensure that persons not in its employment and in particular, John Todd, were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely, the work of removing cooling and heating coils from a resin storage tank such work being carried out under the direction and control of the defendant, by the employees of the defendant's subcontractor Anytime Industrial Services Pty Limited, while they were at the defendant's place of work, contrary to section 16(1) of the Occupational Health and Safety Act 1983 in that the defendant:
1. Failed to provide or maintain a system for the removal of cooling and heating coils from within a resin storage tank that was safe and without risks to the health of persons not in its employment.
2. Failed to provide or maintain plant being used in the work of removing cooling and heating coils from a resin storage tank that was safe and without risks to the health of its employees.
3. Failed to make arrangements for ensuring the safety and absence of risks to health in connection with the use of plant, to wit a mechanical hoist which was being used to assist persons not employees in carrying out the work of removal of cooling and heating coils from within a resin storage tank.
4. Failed to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety or persons not in its employment in relation to the work of removing cooling and heating coils from within a resin storage tank with the assistance of a mechanical hoist.
5. Failed to provide or maintain a means of egress from a confined space, to wit a resin storage tank, as was safe and without risks to health.
6. Failed to ensure that the work of removing cooling and heating coils from a resin storage tank was not carried out by using a mechanical hoist to support a person not in its employment, John Todd, within the tank contrary to Regulation 127(108) of the Construction Safety Regulations, 1950.
7. Failed to instruct persons not in its employment not to carry out the work involving the removal of cooling and heating coils from a resin storage tank by using a mechanical hoist, contrary to Regulation 127(108) of the Construction Safety Regulations, 1950, to support its non-employee, John Todd, in performing such work and in so doing failed to ensure the health, safety and welfare of its said employees.
4 The particulars of the charge contained in the summons were as follows:
1. The defendant was at all material times a company involved in various manufacturing processes including the manufacture of resin which was conducted form its Dulux Australia resin manufacturing plant at 15 Gow St, Padstow in the state of New South Wales ("the premises").
2. Prior to 12 August 1998 and subsequently the defendant had a contract with Anytime Industrial Services Pty Limited, ("the contractor") to carry out general maintenance work for it at the premises.
3. On 11 and 12 August 1998, as part of its contract with the defendant, the contractor provided the services of a fitter and a trades assistant in order to carry out specific maintenance work on a resin storage tank known as the L tank ("the tank").
4. The tank was situated in that part of the premises known as the resin storage plant.
5. Pursuant to its contract with the defendant the contractor supplied John Todd ("the injured worker") as the fitter and Greg Hogg ("the standby worker") as the trades assistant, ("the workers") to carry out the work for the defendant.
6. The contractor inspected the tank prior to the commencement of the work and determined that the inside of the tank where the work was to be carried out was a confined space.
7. Prior to 11 August 1998 it was agreed between the contractor and the defendant that the defendant would provide specific training to the contractor's employees for the purpose of carrying out the work required in the tank.
8. On 11 August 1998 the workers attended at the premises and were afforded training and instruction by the defendant's personnel for the purpose of carrying out the work in the tank.
9. The work to be carried out by the contractor's employees for the defendant was the removal of cooling and heating coils from inside the tank.
10. The tank was 3.6 metres high and 2.7 metres in diameter. There was a manhole access to the inside of the tank which was situated at the top of it approximately 220 millimetres from the outside edge.
11. The building in which the tank was situated had a steel roof structure that was 1.5 metres approximately above the manhole at the top of the tank.
12. The work to be carried out by the contractor's employees was the cutting away and removal of the heating and cooling coils from within the tank.
13. The defendant determined the work method to be adopted and determined and supplied the equipment to be utilised for the carrying out of the work.
14. Details of the work method and the equipment to be utilised as determined by the defendant included the following:
(i) The injured worker was to be suspended inside the tank on a harness connected to an air powered mechanical hoist ("the hoist") attached to the steel roof structure of the building above the tank.
(ii) A block and tackle was also to be attached to the steel roof structure to provide a lifting device for the purpose of supporting and removing the coils from inside the tank once they had been cut away by the injured worker.
(iii) The injured worker was also to be provided with the necessary respiratory equipment to enable him to work within the tank.
(iv) The workers were required to work as a team with one worker inside and one outside the tank and always to remain in sight of one another.
(v) The standby worker be provided with a two-way radio to enable contact at all times with other site personnel.
15. The hoist provided by the defendant and used by the workers on 12 August 1998 was not a hoist which complied with the specifications set out in Regulation 127(66) of the Construction Safety Regulations, 1950.
16. The use of the hoist for the purpose of suspending the injured worker within the tank contravened Regulation 127(108) of the Construction Safety Regulations, 1950.
17. The defendant afforded training to the workers on 11 August 1998 instructing them how to carry out the work utilising the work methods and equipment referred to above.
18. At about 7.10am on 12 August 1998 the injured worker was suspended within the tank in carrying out the work of removing the coils. The injured worker directed the standby worker to lower him further inside the tank and then asked to be raised up again and in compliance with that direction the hoist was operated by the standby worker but the upward motion of the hoist continued and could not be stopped. The hoist continued to pull the injured worker whilst he was suspended in a horizontal position as the hook attachment for the harness being worn by him did not enable him to be pulled up vertically.
19. The hoist continued to pull out of control and forced the injured worker against the domed underside of the top of the tank.
20. The action of the hoist continued out of control for some time after the injured worker's body came into contact with the tank.
21. As a result of being forced into contact with the top of the tank the injured worker lost consciousness and sustained a number of fractures to spinal vertebrae.
22. The hoist had gone out of control because the control rod or paddle control to the hoist had been jammed by the chain from the block and tackle preventing the paddle control from stopping the hoist's upward movement.
23. The injuries sustained by the injured worker prevented him resuming his employment for in excess of seven days. The injured worker continued to be absent from work for a period of at least four months from the date of injury and suffered from physical and psychological injuries for which he was still receiving treatment at four months from the date of injury.
24. Subsequent investigations of the accident by the defendant concluded the causes to be the following:
· Poor hoist design noting a powered hoist should not have been used to support the injured worker.
· The shackle point of the hoist to the support beam was too congested as the block and tackle in the vicinity was connected too close to the hoist mechanism such that the crossover of chain ultimately fouled the hoist mechanism.
· Access and egress from the confined space was not unobstructed.
· The safety harness connection to the injured worker was via a single shackle point between the shoulderblades and this connection should have been made via a spreader bar to shackle points at each of the injured worker's shoulders.
Statement of Agreed Facts
5 A statement of agreed facts was tendered in the proceedings in the following terms:
1. The informant is and was at all material times an Inspector duly appointed and empowered by section 48 of the Occupational Health and Safety Act 1983, to institute the within proceedings.
2. At all material times the defendant, ORICA AUSTRALIA PTY LIMITED [ACN 0004 117 828] was a company duly incorporated with its registered office at level 16, 1 Nicholson Street, Melbourne in the state of Victoria.
3. The defendant was at all material times a company involved in various manufacturing processes including the manufacture of resin which was conducted from its Dulux Australia resin manufacturing plant at 15 Gow Street, Padstow in the state of New South Wales ("the premises").
4. Prior to 12 August 1998 and subsequently the defendant had a contract with Anytime Industrial Services Pty Limited ("the contractor") to carry out general maintenance work for it at the premises.
5. On 11 and 12 August 1998, as part of its contract with the defendant, the contractor provided the services of a maintenance fitter and a trades assistant in order to carry out specific maintenance work on a resin storage tank known as the L tank ("the tank").
6. The tank was situated in that part of the premises known as the resin storage plant.
7. Pursuant to its contract with the defendant the contractor supplied John Todd ("the injured worker") as the fitter and Greg Hogg ("the standby worker") as the trades assistant, ("the workers") to carry out the work for the defendant.
8. The defendant inspected the tank prior to the commencement of the work and determined that the inside of the tank where the work was to be carried out was a confined space.
9. Prior to 11 August 1998 it was agreed between the contractor and the defendant that the defendant would provide specific training to the contractor's employees for the purpose of carrying out the work required in the tank.
10. On 11 August 1998 the workers attended at the premises and were afforded training and instruction by the defendant's personnel for the purpose of carrying out the work in the tank. Such training included training with respect to safety equipment to be used by the workers, the procedures to be followed to complete the work and emergency procedures.
11. The work to be carried out by the contractor's employees for the defendant was the removal of cooling and heating coils from inside the tank.
12. The tank was 3.6 metres high and 2.7 metres in diameter. There was a manhole access to the inside of the tank which was situated at the top of it approximately 220 millimetres from the outside edge.
13. The building in which the tank was situated had a steel roof structure that was 1.5 metres approximately above the manhole at the top of the tank.
14. In consultation with the workers, the defendant determined the work method to be adopted and determined and supplied the equipment to be utilised for the carrying out of the work.
15. Details of the work method and the equipment to be utilised as determined by the defendant included the following:
(i) The injured worker was to be suspended inside the tank on a harness connected to an air powered mechanical hoist ("the hoist") attached to the steel roof structure of the building above the tank.
(ii) A block and tackle was also to be attached to the steel roof structure to provide a lifting device for the purpose of supporting and removing the coils from inside the tank once they had been cut away by the injured worker.
(iii) The injured worker was also to be provided with the necessary respiratory equipment to enable him to work within the tank.
(iv) The workers were required to work as a team with one worker inside and one outside the tank and always to remain in sight of one another.
(v) The standby worker be provided with a two-way radio to enable contact at all times with other site personnel.
16. The hoist provided by the defendant to lift the injured worker did not have appropriate safety gear or locking devices.
17. The defendant permitted the injured worker to rise on the hoist without obtaining the written approval of the WorkCover Authority.
18. The defendant afforded training to the workers on 11 August 1998 instructing them how to carry out the work utilising the work methods and equipment referred to above. Further, the workers were present whilst all elements of the confined space entry were double checked. To this end, a confined space clearance certificate and a cold work clearance certificate were issued by the defendant in respect of the work to be undertaken by the workers and such certificates were signed by the workers.
19. At about 7.10am on 12 August 1998 the injured worker was suspended within the tank in carrying out the work of removing the coils. The injured worker directed the standby worker to lower him further inside the tank and then asked to be raised up again and in compliance with that direction the hoist was operated by the standby worker but the upward motion of the hoist continued and could not be stopped. The hoist continued to pull the injured worker whilst he was suspended in a horizontal position and forced the injured worker against the domed underside of the top of the tank.
20. As a result of being forced into contact with the top of the tank the injured worker lost consciousness and sustained a number of fractures to spinal vertebrae.
21. The hoist had gone out of control because the control rod or paddle control to the hoist had been jammed by the chain from the block and tackle preventing the paddle control from stopping the hoist's upward movement.
22. The injuries sustained by the injured worker prevented him resuming his employment for in excess of seven days.
23. Subsequent investigations of the accident by the defendant concluded the following:
a) Poor hoist design noting a powered hoist should not have been used to support the injured worker.
b) The shackle point of the hoist to the support beam was too congested as the block and tackle in the vicinity was connected too close to the hoist mechanism such that the crossover of chain ultimately fouled the hoist mechanism.
c) Access and egress from the confined space was not unobstructed.
d) The safety harness connection to the injured worker was via a single shackle point between the shoulderblades and this connection should have been made via a spreader bar to shackle points at each of the injured worker's shoulders.
24. The defendant failed to ensure that persons not in its employment, and in particular John Todd, were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely the work of removing cooling and heating coils from the resin storage tank in that it:
a) Failed to provide or maintain a system for the removal of cooling and heating coils from within a resin storage tank that was safe and without risks to the health of persons not in its employment.
b) Failed to provide or maintain plant being used in the work of removing cooling and heating coils from a resin storage tank that was safe and without risks to the health of its employees.
c) Failed to make arrangements for ensuring the safety and absence of risks to health in connection with the use of plant, to wit a mechanical hoist, which was being used to assist persons not employees in carrying out the work of removal of cooling and heating coils from within a resin storage tank.
d) Failed to provide or maintain a means of egress from a confined space, to wit a resin storage tank, as was safe and without risks to health.
e) Failed to provide and/or maintain plant, to wit a mechanical hoist for lifting the injured worker, that was safe and without risk to the health of persons not in its employment, in that the hoist was not fitted with appropriate gear or locking devices.
6 It was the matters in paragraph 24 of the statement of agreed facts to which the defendant plead guilty. The prosecutor indicated that he did not press the charge as particularised in summons, to the extent that it differed from that contained within that paragraph.
Evidence for the Prosecutor
7 In addition to the statement of agreed facts, the prosecutor tendered a report of the prosecutor compiled following an inspection on the day of the accident, a bundle of six colour photographs of the incident site taken at the time of the inspection and an extract from the Workcover Authority of New South Wales Prior Convictions Database.
8 The inspection report tendered into evidence was a single page document which described the physical layout of the accident site in somewhat more detail than the agreed statement of facts. For the purposes of sentencing, it is not necessary to set out the evidence contained in that report. The extract from the prior convictions database indicated that the defendant had some eight prior convictions under the Act; six before the Chief Industrial Magistrate's Court, one in this Court and one in the predecessor to the Commission in Court Session, the Industrial Court of New South Wales.
9 The prosecutor gave further oral evidence to clarify what was shown in the photographs of the incident site. He was not required for cross-examination.
Evidence for the Defendant
10 The defendant tendered five affidavits in support of its plea in mitigation of sentence. Those affidavits were deposed by Mr Michael Francis Siely, the former Operations Manager of the defendant and current Operations Manager of Selleys Pty Ltd, Ms Christina Antoinette (Anne) Smith RN, the National Occupational Health Services and Workers Compensation Manager for the Dulux, Berger and British Paints divisions of the defendant, Mr Patrick Joseph Hanrahan, the Corporate Safety Health & Environment Manager of the defendant, Mr Krste Corapovski, the Production Manager of the defendant and Mr Alan Au-Yeung, the Property Service Manager of the defendant.
11 Mr Siely gave evidence explaining the business of the defendant company, his role in the business and the circumstances in which the work giving rise to the injury came to be performed on the day of the accident. Broadly summarised, he stated that the defendant had operated a manufacturing plant producing various materials (in particular, unsaturated polyester resins) at its Padstow site for some 40 years. That plant was decommissioned in July 2000. At the time of the accident, August 1998, the defendant had engaged a company called Anytime Industrial Services Pty Ltd ("Anytime Industrial") to provide a full time mechanical contractor and a full time electrical contractor at the site. Anytime Industrial also provided other contract labour for specific tasks from time to time. No written contract existed between the defendant and Anytime Industrial, however, the arrangement between those companies was not in dispute in these proceedings. Anytime Industrial would ensure that any persons provided to the defendant were suitably qualified to perform the relevant work. The defendant would ensure that any workers, so provided, were given proper site induction training and provided proper training for the specific task to be undertaken. Mr Seily stated that the task of undertaking the training to be provided by the defendant to the employees of Anytime Industrial generally fell to the defendants Site Engineer. At the time of the accident, Mr Au-Yeung held that position.
12 As a part of its operations, the defendant maintained a series of resin storage tanks. These tanks required cleaning, usually on a yearly basis, to prevent an excessive build up of hardened residue reducing the storage capacity of the tanks. This process usually involved an emptied tank being sparged with steam for a period of approximately two weeks to loosen the hardened resin. The residue would, on Mr Siely's evidence, normally fall to the floor of the tanks and be scooped out manually. On this occasion, after having been sparged with steam, it became clear that manual cleaning would be required. As a part of this cleaning, Mr Seily, in conjunction with Mr Corapovski, the defendant's Production Manager of the Resin Plant, decided to remove a number of redundant cooling pipes within the tank.
13 To undertake these tasks, the defendant engaged Anytime Industrial. Mr Seily described the events surrounding the engagement of the contractors in this way:
On 11 August 1998, two contractors from Anytime Industrial, John Todd and Greg Hogg ("the contractors") arrived to cut out the pipes and clean the tank. Alan Au-Yeung and I conducted the training of the contractors in relation to the specific task of cutting out the pipes and cleaning the L tank. In normal circumstances, as the Operations Manager, I would not be involved in the issuing of cold or hot work clearances and this would be done by either Kris Corapovski or Alan Au-Yeung. However, as this job also required a confined space clearance and was a relatively complicated operation with a higher degree of risk than usual, I had instructed Alan Al Yeung that I wanted to be present at the issuing of the confined space clearance certificate. The issuing of the confined space clearance certificate took approximately four to five hours because I wanted to ensure that the contractors understood what they were to do and that they were confident we had done everything possible to ensure their safety.
At approximately 8.30am on 11 August 1998 Alan Au-Yeung, the contractors and I went to the L tank. Alan Au-Yeung and I showed the contractors that the mechanical isolations had been made on the tank i.e. the redundant water pipe had been terminated and blanked going into and out of the tank; the nitrogen line which had run into the top of the tank had been terminated; the drive belt on the motor for the stirrer in the tank had been removed; and that the stirrer motor had been disconnected.
14 Mr Siely gave evidence that he and Mr Au-Yeung, in the presence of the contractors, then tested the tank for flammables and oxygen, instructed the contractors on the use of the two-way radio and took the contractors through the Cold Work and Confined Space Work clearance certificates. The contractors were given specific instructions:
Neither of you are to be inside the tank for any more than 40 minutes at a time. The standby person must be able to see the person inside the tank at all times. If one of you has to go to the toilet, then the other had to get out of the tank. Do you understand this? It is very important.
15 Mr Seily gave evidence that the method of access and egress to the tank was decided upon in a discussion between himself, Mr Au-Yeung and the contractors. Due to the confined space within the tank, the need for the contractors to have both hands free to operate the relevant tools and the narrow opening, it was considered ladders would be unsuitable. Having decided upon the method ultimately adopted (that is, using the powered winch to support the worker), Mr Au-Yeung and Mr Seily demonstrated the proper use of the winch. In the presence of Mr Au-Yeung and Mr Seily the contractors then demonstrated the use of the winch and indicated that they were comfortable using it. Mr Seily gave evidence of then having left the scene of the accident. Mr Au-Yeung remained with the contractors.
16 Mr Siely gave evidence of having been made aware of the occurrence of the accident on his way into work at 8am on the day of the accident. He immediately commenced an internal investigation, interviewing a number of employees near the accident site. A preliminary report of his investigation was forwarded by way of email communication to the General Manager of Dulux Operations, Mr John Blackwood, and a number of other relevant persons at 5.30pm on the day of the accident. At 9.30pm that evening Mr Blackwood replied to Mr Siely's email indicating that as the accident "was potentially more serious than the end result", he wished to be involved in the investigation. The preliminary report was sent to Workcover on 14 August 1998, indicating several corrective measures that were to be taken by the defendant. A further investigation, involving Mr Blackwood, Mr Au-Yeung, Ms Anne Smith, Mr Simon Taylor and Mr Peter Hunt was undertaken on 18 August 1998 at the Padstow site. A draft investigation report was forwarded to various personnel of the defendant and amendments were made following the feedback received.
17 The final report of the investigation was prepared on 28 August 1998 and contained the following recommendations for corrective action:
a) Determine what non-powered personnel rescue equipment is available, and identify suitability for each confined space on site;
b) Withdraw the pneumatic winch from use on personnel;
c) Clarify the requirements of the various statutory regulations and modify the Model Procedure accordingly with respect to powered personnel lifting equipment;
d) Modify Model Procedures to ensure unobstructed use of manholes for personnel access. Clear statement in procedure;
e) Review the procedure for removing pipework from tanks; and
f) Assess additional training needs for confined space clearance authorisers and site maintenance personnel required to enter confined spaces.
18 Mr Seily also provided evidence as to the corrective actions taken following the accident:
a) The purchase of purpose-built equipment for entry into and exit from confined spaces. This equipment conforms with Workcover guidelines and is non-mechanical. [A copy of the invoice relating to the purchase of this equipment in an amount of some $2,800 was annexed to Mr Siely's affidavit].
b) The pneumatic winch was immediately withdrawn from use on personnel;
c) The requirements of the various statutory regulations were clarified and the Model Procedure modified accordingly with respect to powered personnel lifting equipment. [Copies of the previous procedures and the amended procedures were annexed to Mr Seily's affidavit].
d) The procedure for removing the pipes from the L tank was reviewed by Alan Au-Yeung. It was decided to firstly cut the pipes using a hacksaw; secondly, for the person to leave the inside of the tank, and then thirdly to pull the pipes out of the L tank using a rope. This job was not finished, however, as it was ultimately decided that the L tank was no longer needed;
e) The training needs for people authorised to issue confined space clearance certificates and site personnel to enter confined spaces was assessed by myself and Alan Au-Yeung.
19 Having reviewed the model safe procedures documents in relation to both "lifting equipment" and "entry into confined spaces" annexed to Mr Siely's affidavit, it is apparent that the defendant has undertaken, since the accident, a significant review and amendment to its relevant policies. As to the amendments to the lifting equipment policy, significant amendments have been made to the procedures to be undertaken prior to the selection of lifting equipment for a particular task. These changes required the identification the particular employee who is responsible for the matters raised in the policy. That employee is required to undertake an extensive risk assessment, covering not only the design of the machine, but the materials from which it is constructed to ensure that it is suitable to the task at hand. Where there is any doubt, the policy requires that a materials expert be approached to determine the particular device's suitability to the task. It requires the relevant employee to ensure that the equipment has been properly tested and certified with the Workcover authority or other relevant statutory authorities. The new lifting equipment policy also significantly amended the procedures in clause 4.2.2 of the model procedures, providing for "safe lifting practices". Other than requiring that any installation of lifting equipment shall be completed by properly authorised and qualified individuals, it contained amendments in the following terms:
Lifting equipment shall only be used for the purposes for which it was designed. In particular, people should only be lifted or suspended by equipment specifically designed for that purpose. Each operation involving lifting of people shall be specifically approved by the Responsible Manager Engineer and, where required by local legislation, by the statutory authority.