Inspector Phillip Estreich v TLC Plumbing & Bathrooms Pty Ltd

Judgment 1These prosecutions are brought by Inspector Phillip Estreich of the WorkCover Authority of New South Wales against TLC Plumbing & Bathrooms Pty Ltd ("the first defendant" or "TLC") under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") and Michael William Causer ("the second defendant") under s 8(1) by virtue of s 26(1) of the Act, by way of Applications for Order. 2It is alleged the first defendant, being an employer, in the course of its trade, business or other undertaking, on 30 March 2009 at Ocean Court, 83 - 85 Spring Street, Bondi Junction, in the State of New South Wales ("the premises"), contravened s 8(1) of the Act in that it failed to: by its acts or omissions as particularised below, to ensure the health, safety and welfare at work of all its employees and in particular, Todd Field and Troy Sarkis, contrary to section 8(1) of the Act. In particular: The particulars of the risk are that: a) The risk was the risk of employees being near an explosion and/or fire in the event that explosive gases were ignited; The particulars of the acts or omissions in failing to eliminate the risk are that: b) The defendant failed to ensure that there was an effective means of identifying the need to purge large volume gas installations so that employees were not exposed to the risk in the event that gas escaped into the plant room; c) The defendant failed to implement a safe work method in respect of working on pipes containing gases and, in particular the task of purging large volume gas installations so as to ensure that employees were not exposed to the risk posed by the escape of gases into the plant room; d) The defendant failed to ensure that there were no sources of ignition in or near the area where gases were escaping or were being purged from large volume gas installations so as to ensure that employees were not exposed to the risk if gases escaped; e) The defendant failed to undertake a risk assessment that properly identified the risk created by the escape of gases from large volume gas installations; f) The defendant failed to provide information to employees about the nature of gas purging, how correct purging would avoid the risk, the purging methods that were available to be used, how the volume of gas could be ascertained prior to the purge and the establishment of a purging area; g) The defendant failed to retain contractors to purge the gas lines prior to and after undertaking work on those gas lines; h) The defendant failed to carry out pressure testing in accordance with relevant Australian standards relating to gas installations. As a result of the defendant's failures and omissions employees and in particular, Todd Field and Troy Sarkis, were placed at risk of injury. 3It is alleged the second defendant, being a director of a corporation, on 30 March 2009 at Ocean Court, 83 - 85 Spring Street, Bondi Junction, in the State of New South Wales ("the premises"), contravened s 8(1) by virtue of s 26(1) of the Act in that it failed to: by its acts or omissions as particularised below, to ensure the health, safety and welfare at work of all its employees and in particular, Todd Field and Troy Sarkis, contrary to Section 8(1) of the Act. In particular: The particulars of the charge are as follows. a) At all material times the defendant was a director of the corporation. The particulars of the risk are that: b) The risk was the risk of employees being near an explosion and/or fire in the event that explosive gases were ignited; The particulars of the acts or omissions in failing to eliminate the risk are that: c) The corporation failed to ensure that there was an effective means of identifying the need to purge large volume gas installations so that employees were not exposed to the risk in the event that gas escaped into the plant room; d) The corporation failed to implement a safe work method in respect of working on pipes containing gases and, in particular the task of purging large volume gas installations so as to ensure that employees were not exposed to the risk posed by the escape of gases into the plant room; e) The corporation failed to ensure that there were no sources of ignition in or near the area where gases were escaping or were being purged from large volume gas installations so as to ensure that employees were not exposed to the risk if gases escaped; f) The corporation failed to undertake a risk assessment that properly identified the risk created by the escape of gases from large volume gas installations; g) The corporation failed to provide information to employees about the nature of gas purging, how correct purging would avoid the risk, the purging methods that were available to be used, how the volume of gas could be ascertained prior to the purge and the establishment of a purging area; h) The corporation failed to retain contractors to purge the gas lines prior to and after undertaking work on those gas lines; i) The corporation failed to carry out pressure testing in accordance with relevant Australian standards relating to gas installations. As a result of the corporation's failures and omissions employees and in particular, Todd Field and Troy Sarkis, were placed at risk of injury. 4Each defendant pleads guilty to the charges. 5Mr R Reitano, of counsel, appeared for the prosecution and Mr G Farmer, of counsel, appeared for the defendants. The prosecution relied upon an Agreed Statement of Facts with annexures which included: Factual Inspection Report of Inspector Phil Estreich dated 25 September 2009 ; TestSafe Report dated 10 August 2009; seventy-eight (78) colour photographs taken by Inspector John Whatman dated 31 March 2009 ; forty-four (44) colour photographs taken by Inspector Phil Estreich dated 2 April 2009; extracted pages of Australian Standard AS5601-2004 Gas Installations; prior convictions certificates for TLC Plumbing & Bathrooms Pty Ltd and Michael William Causer. 6The defendants relied upon an affidavit of Michael Causer, sole director of TLC, sworn 12 July 2011 . A number of relevant documents were attached to the affidavit including documents in relation to the pre-existing safe work method, the investigation of the incident and the upgrading of the system of work immediately after the incident. The corporate defendant also relied upon the affidavits of: Kelly Armstrong, Property Manager at McKenzie Hall, sworn 29 June 2011; Mel Crook, Managing Director of Mel Crook & Associates Pty Ltd, sworn 15 July 2011; Mousa Mashat, Engineering and Operations Manager at Broadway Shopping Centre for Mirvac Asset Management, sworn 30 June 2011. 7It was agreed that evidence in one prosecution be evidence in the other except as to the relevance of that evidence to the differing particulars relied upon in the Applications for Order. 8There was one Agreed Statement of Facts for both prosecutions which relevantly reads: 3. At all material times TLC conducted its business at premises located at 146 Bellingara Road, Miranda in that State of New South Wales. 4. At all material times Michael William Causer ("Mr Causer"), date of birth 9 August 1971, of 146 Bellingara Road, Miranda in the State of New South Wales was a director of the corporation and was responsible for supervision of TLC employees. Mr Causer is a licensed plumber, which permits him to undertake work as a drainer, gasfitter, LPG fitter, plumber and roof plumber and has been working in the plumbing industry since commencing his apprenticeship in 1988. 5. At all material times TLC undertook the business or undertaking of commercial maintenance of plumbing and gas fitting. TLC was registered with ASIC on 27 June 2003. TLC was an employer. TLC Plumbing employed Blake Giovenco, David Edwards, Troy Sarkis and Todd Field. 6. Mr Field was a 24 year old, fourth year plumbing apprentice employed by TLC. Mr Field had completed the NSW OHS construction induction training. Mr Field had done some gas fitting work on small residential buildings, but not on larger residential complexes. 7. Mr Sarkis was a 20 year old, first year plumbing apprentice employed by TLC. Mr Sarkis had completed the NSW OHS construction induction training. Mr Sarkis had learned the basics of plumbing, but had not yet been taught gas fittings in his studies. 8. "Ocean Court" at 83-85 Spring Street, Bondi Junction is part of the larger Eastgate Gardens complex which includes a second residential tower known as 'Harbour Court' and associated residential facilities, such as a pool and tennis courts. At the time of the incident, Ocean Court had approximately 300 tenants. The complex runs from 71-91 Spring Street, bordered by Ebley Street to the south and Newland Street to the west. The complex is located on top of the Eastgate Shopping Centre. 9. The plant room at the premises was located on the 29 th floor and was approximately 12.5 metres long by 1.9 metres wide and 2.5 metres high. It was constructed of concrete and brick. It only had one door. The plant room contained the final section of the main gas supply line for the building complex. As the gas line entered the room it was 100 mm in diameter, and was reduced down to 45 mm prior to the service metre. The plant room also housed nine hot water systems, switchboards and electronic panels. The Incident 10. On 20 March 2009 TLC was called to the premises in relation to the smell of gas in the plant room. A small gas leak was identified and a temporary repair was made with a power wrap bandage as the fittings required to make a permanent repair had to be ordered. 11. On 30 March 2009 Mr Causer prepared a safe work method statement on his laptop. It was Mr Causer's plan to be present throughout the whole of the job. Mr Causer then arranged for another plumber, Blake, to read the statement. Blake did this and told Mr Causer that "it was fine". Mr Causer then arranged for David Edwards, Troy Sarkis and Todd Field to read the statement individually. After it had been read, Mr Causer asked Troy if he understood it. He replied that he was "fine with it". Mr Causer then e-mailed the safe work method statement to Gordon McMillan, the manager of the Towers. 12. Mr Field understood that the process for the repair as requiring the path valve to be turned off on the footpath, then for the gas to be 'bled' from the piping and then to cut out the damaged section and replace it with a new section of piping. 13. Mr Causer, Mr Field and Mr Sarkis took their gear to the plant room. Access was gained to the plant room by use of an electronic pass key. The three men only had one key between them. Once in the plant room, they plugged chargers for the cordless tools into the plant room power points. The fittings and tools were laid out near the leaking pipe and then checked. Mr Sarkis was then sent back to the vehicle to get some pipe and cutters which were needed for the job. 14. When Troy Sarkis left the plant room, Mr Causer talked Todd through the procedure as outlined in the safe work method statement. There was discussion about the time that it might take for the remaining gas to run out. Mr Causer stated: "We could drop the temperature in the systems by opening the pressure temperature relief valves for the hot water systems." 15. At 12.06 pm and 12.22 pm Mr Causer telephoned Troy Sarkis to find out what was taking him so long. Mr Causer then went down to the vehicle to assist Troy Sarkis. Mr Causer then told Troy Sarkis to carry the gear up to the plant room and that he, Mr Causer, would cut the gas off from the path valve. Mr Causer told Troy Sarkis to "come back down to get me when you drop the gear off to Todd". Mr Causer then walked to the path valve. He turned the valve off using the gas key. 16. At 12.35 pm Mr Causer telephoned Todd Field on his mobile phone and believes he told him about Troy going up with the equipment or that he was going to turn the path valve off. At 12.37 pm Mr Causer again called Todd Field on his mobile and told him that the valve was turned off. Mr Causer did not say to Todd Field and he/it was "sweet to go". At 12.39 pm Mr Causer telephoned Troy Sarkis' mobile telephone and said "Where are you? Come down and get me". Mr Causer then received a telephone call from Todd Field. Mr Causer could hardly hear what Todd Field was saying. There was a loud noise in the background. The noise was deafening. Todd was yelling over the phone. Todd said: "Mick, Mick, I broke it. What do I do?" The telephone connection dropped out and Mr Causer immediately heard an explosion. 17. At 12.41 pm, Mr Causer dialled 000 on his mobile telephone. 18. At about 11.30 am Mr Sarkis went to the plant room. Mr Field had been there for about 10 minutes when Mr Sarkis arrived. Mr Field was standing next to a pipe holding a shifter. Mr Sarkis put down the tools he was holding to the left of the gas main in the plant room. 19. Mr Sarkis entered the room and he heard and smelled gas coming out of the test nipple. After about a minute or so that gas started coming out in greater quantities. Mr Sarkis heard a hissing noise about twice as loud as an air compressor. 20. Mr Field realised there was a fair amount of pressure coming out of the bleed valve and rang Mr Causer to make sure the path valve was fully shut off. Mr Sarkis gave Mr Field his mobile phone so that Mr Field could ring Mr Causer. Mr Sarkis and Mr Field walked around the corner from the plant room, about eight metres away from the gas pipe, and Mr Field rang Mr Causer. Mr Causer confirmed the path valve was off and told Mr Field to turn the valve the other way. Mr Causer denies that he was told by Mr Field to turn the valve the other way. Mr Field said to Mr Causer "Are you sure it is off?" and Mr Causer replied "It is off all the way". 21. Mr Field went back to the plant room to check on the valve because it was making a lot of noise. As he went back into the plant room the screw vibrated out of the pipe so that there was full gas pressure coming out and there was no way he could get the screw back in. Mr Field was still on the phone to Mr Causer when he advised Mr Causer that the screw had come out. Mr Causer told Mr Field to go in and turn off the hot water heaters. Mr Causer told Mr Field to turn off the hot water heaters and then the phone dropped out. 22. Either just before or just after Mr Field had hung up the phone, the gas ignited and a fire ensued. There was a large explosion, which caused the fire to go out. 23. Mr Field called out for, and looked for, Mr Sarkis. He could not hear or see Mr Sarkis because of the dust and smoke. Mr Field ran down the fire stairs to evacuate the building. 24. Mr Sarkis saw Mr Field turn back toward the leaking pipe and then the explosion happened. Mr Sarkis was blown about 10 metres across the room and ended up in a pile of rubble, about 1.5 metres from the edge of the fire stair landing. He called for help and looked for Mr Field. He ran down the fire stairs but he could not see because his eyes were blurred. He was bleeding and skin was hanging off him. He could taste gas. He got to ground level, saw Mr Causer and told him he thought that Mr Field was dead as a result of the explosion. Mr Causer assured him that Mr Field was alright and had already reached ground level. 25. Mr Sarkis and Mr Field were then placed under fire hoses until the ambulance arrived. 26. Levels 28 to 30 of the premises were significantly damaged, including damage to residential apartments and common areas. There were collapsed internal concrete besser block walls, collapsed gyprock ceilings and walls, exposed electrical cabling, smashed or blown out glass windows and doors, and imploded front doors of apartments. Other levels of the building also suffered damage, including front doors being damaged or dislodged from the hinges and frame, and damage to internal gyprock walls. Injuries 27. Mr Sarkis suffered lacerations to his head, requiring eight staples, a large bump on his head, burns to his face, including his eyelids, burns to his hands, arms and leg. Large areas of third degree burns on his right arm were grafted from donor sites on his body, including from his left thigh and behind his left ear. Mr Sarkis has lost feeling in his right index, middle finger and thumb. Mr Sarkis was in hospital for approximately three weeks following the incident. 28. Mr Field suffered burns to approximately 60% of his body, including arms, legs, chest, face and back. Mr Field was in hospital for approximately one month following the incident, and has sustained permanent scarring and mental suffering. 29. Both Mr Sarkis and Mr Field have returned to pre-injury duties with TLC. Work systems before the incident 30. Mr Causer had developed a safe work method statement that was discussed amongst the employees prior to them commencing work on the date of the incident. The safe work method statement did not identify the need to undertake purging or pressure testing before work commenced on the gas line. 31. Information was readily available prior to the incident in Australian Standard 5601-2004 - Gas installations, which clearly outlines the requirements for the controlled release of flammable gases to ensure that purge areas are defined and clear of ignition sources. The requirements of the Australian Standard were not referred to or incorporated into the safe work method statement. 32. TLC did not undertake any risk assessment that identified the need to purge explosive gases consistent with the relevant Australian Standards so as to avoid the risk of explosion and fire, and ensure that during the purging process there was no possible source of ignition of those gases. 33. On 10 August 2009, David Pearson and Daniel Massey of TestSafe Fire and Explosion and Personal Protective Equipment Branch prepared a report into the incident. The report in particular set out the following: A review of statements by the injured persons and their supervisor, and the physical evidence collected from the scene, strongly suggest that a natural gas leak occurred after an employee removed a test nipple from the gas manifold in the plant room. Although the natural gas supply to the building has been isolated, the residual pressurised gas remaining inside the pipe leading up to the plant room had not been safely vented . Once the test nipple was removed, gas jetted at high velocity into the plant room. Ignition is most likely to have occurred at the combustion chambers or the ignitions systems located within the gas fire water heaters . After the explosion a jet fire occurred as residual gas was released from the manifold test point, causing limited fire damage to the region surrounding the level 29 plant room door. Work systems after the incident 34. Following the incident a gas specialist was engaged to undertake repair works on behalf of the insurer as a result of the damage to the premises. The owners' corporation of the premises also asked the gas specialist to review and rectify any issues relating to gas installations and systems at the premises. 35. TLC now engages contractors to purge gas lines prior to and after any work is undertaken by TLC employees. 36. Following the incident TLC amended their safe work method statements to include the identification of the possible hazard or risk of explosion. 37. Following the incident TLC introduced pressure testing consistent with the relevant standards. 38. Following the incident WorkCover published a Safety Alert on the potentially catastrophic results of the uncontrolled release of gas within a building. The Safety Alert was published in WorkCover E-News and on the WorkCover internet site. The Safety Alert was also distributed to stakeholders including CCH, trade unions, the Department of Housing, Department of Commerce, RTA, Sydney Water, industry association including the Caravan and Camping Association and the Australian Liquefied Petroleum Gas Association, and the Directors of Education for Building and Construction/Primary Industries responsible for plumbing and gas fitting in the Western Sydney TAFE campuses. Co-operation 39. The defendants have co-operated with WorkCover during the course of the investigation and prosecution. Costs & Moiety 40. The defendants agree to pay the prosecutor's costs as agreed or assessed. The defendant agrees that the prosecution should have a moiety of any fine that is imposed. Prior Offences 41. The defendants have no prior convictions under the Act or associated legislation