Inspector Stothard v Allied Industrial Services Pty Ltd

Judgment 1This prosecution is brought by Inspector Mark Stothard of the WorkCover Authority of New South Wales against Allied Industrial Services Pty Limited ("the defendant") under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") by way of an amended Application for Order. 2It is alleged the defendant, on 22 May 2008, contravened s 8(1) of the Act in that it failed to: ensure, by its acts or omissions as particularised below, the health, safety and welfare at work of its employees, and in particular, Setaleki Kolomaka, contrary to s 8(1) of the Occupational Health and Safety Act 2000 . In particular: (a) The health and safety of the defendant's employees, and in particular Setaleki Kolomaka, was put at risk of injury from being struck by a stream of high pressure water from a water jetting lance, whilst undertaking high pressure water jetting operations. The particulars of the acts or omissions of the defendant in failing to eliminate the risk are: (b) The defendant failed to provide and maintain a safe system of work with respect to the task of high pressure water jetting at the site in that it failed to undertake measures as follows: i. provide employees with a mechanical control appliance for the high pressure water jetting lance; ii. ensure that employees considered and calculated the reaction force on the high pressure water jetting lance prior to undertaking water jetting operations so as to ensure the applicable reaction forces did not exceed recommended levels for hand-held operations; iii. ensure that employees were provided with adequate personal protective equipment when conducting manual high pressure water jetting operations, and in particular, Kevlar body protective clothing; iv. ensure that the operator of the lance had direct control of the water flow so as to ensure that the water flow could stop immediately if the operator lost control of the lance. As a result of the defendant's failures and omissions its employees, and in particular, Setaleki Kolomaka, were placed at risk of injury. Further, and as a consequence of the failures set out above, Setaleki Kolomaka suffered fatal injuries. 3The defendant pleads guilty to the charge. 4Ms P E McDonald SC appeared for the prosecution and Mr H J Dixon SC with Mr I Taylor, of counsel, appeared for the defendant. The prosecution relied upon: amended Application for Order; Agreed Statement of Facts; Tender Bundle containing Factual Inspection Report of Inspector Mark Stothard, Follow Up Factual Inspection Report of Inspector Mark Stothard, Photographs taken by Inspector Ian Lancaster, Allied Safe Operating Procedures - High Pressure Water Jetting Units, Australian/New Zealand Standard 4233.1:199, WOMA "Round Jet Nozzle Form 4" chart and URACA Nozzle chart, Company search and a Victim Impact Statement prepared by the widow of the deceased. No Prior Conviction Record of the company was tendered as this incident was the first by the company. 5The defendant relied upon a Statement of Peter Nicholas who was employed by Veolia Environmental Services (Australia) Pty Ltd ("VES") as the General Manager - Hunter Region Commercial Services. A number of relevant documents were attached to the Statement including documents in relation to the investigation of the incident by VES and the upgrading of safety measures within the system of work now conducted by VES. 6The Agreed Statement of Facts relevantly reads: Allied Industrial Services Pty Ltd ("Allied") 3. On 14 March 1955 Allied became a registered company. Since 17 April 2008, the registered office of Allied has been located at Level 4, 65 Pirrama Road Pyrmont in the State of New South Wales. 4. Allied is a wholly owned subsidiary of Veolia Environmental Services (Australia) Pty Ltd ("Veolia"). Veolia acquired 100% of the shareholding of Allied on 4 April 2008. All employees remained employed by Allied at this time. 5. At all material times Allied was an employer conducting a business providing industrial cleaning services. BlueScope Steel (AIS) Pty Ltd ("BlueScope") 6. BlueScope owns and operates a range of steel and building solutions businesses. Bluescope operates the Port Kembla Steelworks, which is an integrated steelworks that produces a wide range of finished and semi-finished flat steel products. 7. Part of the premises at Port Kembla includes what is known as a Recycling Area (also known as the Alliance and Recycling Area and 21 Area). The Recycling Area is used for the storage, recycling and processing of by-products. 8. Truck wash stations and settlement tanks are located at the premises. The truck wash stations allow vehicles on site to comply with environmental legislation for the cleaning of vehicles prior to re-entering the external road system. 9. The No. 5 Truck Wash Station and Settlement Tanks within the Recycling Area is used to collect loose material picked up by heavy vehicles travelling along the internal road infrastructure. 10. Allied operated a site office, equipment yard and maintenance facilities at the Recycling Areas ("the Premises") Service Agreement 11. On 14 December 2007 Allied and BlueScope entered into an agreement (agreement number PKS 047) ("The Agreement") whereby Allied would provide plant and industrial cleaning services at Port Kembla Steelworks. Pursuant to Section B of the Agreement, Allied agreed to provide all industrial cleaning services of the nature expected by a major manufacturing facility engaged in the production of steel and manufactured steel products. This included high pressure water jetting of plant and equipment. 12. Under the Agreement Allied would, amongst other things, provide: a. materials, plant and equipment, b. suitably skilled labour to perform the work; c. processes and systems; d. preparation of job packs and Authority to Work Permits, where authorized to do so; and e. management of day to day operations for the services. 13. In accordance with the Agreement, planning requirements were required to be undertaken before the provision of any service. Under clause 10.1 of the Agreement, prior to providing any service, Allied was required to meet with the Bluescope supervisor to plan the service and: a. review and detail plan the order; b. determine the required labour; c. determine the required equipment; and d. inspect the job site as may be necessary in consultation with BlueScope. 14. In addition, prior to providing any service, Allied was to prepare and submit a work method statement to the Bluescope supervisor for approval. The work being performed 15. In April 2008 Richard Placek, the Alliances and Recycling Manager of BlueScope, determined that there would be a cleaning of the settlement tanks of the No. 5 Truck Wash Station ("the Site"). The supervision of this task was delegated to Jose Gonzalez, a BlueScope civil engineer (Team Leader/Plant Supervisor). It was anticipated that the work would be completed by the end of June 2008. 16. he work to be performed involved cleaning out sludge and sediment from within the settlement tanks using a high pressure water jetting system. A high pressure water jetting system is a water delivery system which consists of an energy source, pump, control mechanism, hoses, pipes, nozzles and various other attachments. 17. The high pressure water jetting equipment which was utilised at the site was owned and operated by Allied. The equipment comprised of: a. A WOMA 250 Z high-pressure water pump unit, which was fitted to an Isuzu truck (registration number YDT 793); b. 3 metre stainless rigid steel lance; c. High pressure hose A 189 and A 184; d. WOMA dead man foot pedal; e. TST Kevlar hose protector (from hose to rigid lance); f. Hose stockings (fitted from hose to pedal; pedal to hose and hose to rigid lance); and g. Whip check from pump to delivery hose. Events leading up to the Incident 18. On 13 May 2008 a pre-work site visit and inspection was conducted at the Site. The following people were present: a. Andrew Ray, Allied First Line Manager; b. Hristavil (Chris) Nikoloski, Allied Leading Hand Service Provider; c. Sean McCarthy, Allied First Line Manager; d. Jose Gonzalez, BlueScope Plant Supervisor/ Team Leader; and e. Benjamin Cerezo, BlueScope Waste Management Officer/Team Leader. 19. During the meeting, the scope of work and method of work to undertake the task was discussed. 20. Following the meeting and as part of the BlueScope occupational health and safety system, documentation known as a "work pack" was prepared by Allied. The pack included the following documents: a. Job Safety and Environmental Analysis worksheet; b. Work Quality Plan No.491286; c. Work Requisition Form; d. Toolbox Check Sheet; e. Safe Operation of High Pressure Water Jetting Units Procedures; f. Visual Inspection of Water Jetting Pressure Hoses; g. Safety Audit Checklist; h. Environmental Audit Checklist; and i. Manual Handling Audit Checklist. 21. On or about 14 May 2008 an Allied Work Requisition Order ("Remove sludge from 21 Area truck wash (No 5 truck wash)") was ordered by Benjamin Cerezo, BlueScope's Waste Management Officer. 22. Allied commenced work on the cleaning of the settlement tanks at the Site on 20 May 2008. Prior to the commencement of work a pre-work meeting was held between Chris Nikoloski, Benjamin Cerezo and Jose Gonzalez of BlueScope and the Allied work crew, namely Setaleki Kolomaka, Steven Corea and Vojdin Poposki. Each member of the work crew was an experienced operator in high pressure water jetting with Mr Kolomaka having worked for Allied for 7 years, Mr Corea for 5 years and Mr Poposki for 6 years respectively. A toolbox talk was also conducted with Chris Nikoloski and the work crew. 23. During the pre work meeting an Authority to Work Permit (No.827707) ("ATW") was completed and issued by Jose Gonzalez for the period of 20-22 May 2008. The ATW Permit, was part of BlueScope's occupational health and safety system, and authorized the commencement of maintenance work at the site. 24. On 20 May and 21 May 2008 Jose Gonzalez and Benjamin Cerezo, conducted a number of site visits and inspections whilst the work was underway. During their visits, concerns with some aspects of the system of work in place were raised with Allied, being the lack of hearing protection being worn by the work crew, issues associated with the build up of sludge surrounding the settlement tanks and the absence of appropriate barricades. 25. On the morning of 21 May 2008 an excavator fitted with a narrow bucket was used to remove the sediment within the settlement tanks until the size of the bucket being used meant that no further sediment could be removed. While the excavator was working the Allied work crew cleaned the truck wash grates and trenches. Once the excavator could not remove any further product the work crew resumed high pressure water jetting. 26. On the afternoon of 21 May 2008 given the issue which had arisen the previous day regarding the effectiveness of cleaning the sediment within the settlement tanks as the use of the water jetting lance did not appear to be sufficiently effective. Allied proposed to Bluescope an alternative work method for 22 May 2008, namely that the employees should enter inside the tank under confined space conditions with jackhammers to break the sediment up which would have significantly reduced the need for further high pressure water jetting. The Events of 22 May 2008 27. The work crew arrived at the site between 7:00 am and 7:30 am on 22 May 2008 and commenced setting up the equipment. At approximately 8.30 am a toolbox meeting was conducted between Sean McCarthy, Robert Petrevski (Allied Safety Officer) and the Allied work crew. Mr McCarthy provided the work crew with the work pack for 22 May and discussed how the work was to be undertaken on that day, including the possibility of entry into the settlement tanks under confined space conditions. Robert Petrevski discussed the previous day's audit by BlueScope and in particular, the issues of barricading and hearing protection. 28. After the toolbox meeting a further meeting was held on-site to discuss whether the work crew could access the settlement tanks under confined space conditions in order to clean out the tanks more easily. The meeting was attended by BlueScope representatives Jose Gonzalez and Benjamin Cerezo and Allied representatives, William Lee (OHS & Quality First Line Manager), Sean McCarthy, Chris Nikoloski and Robert Petrevski. 29. The result of the discussions was that BlueScope were unable to provide permission for confined space access as BlueScope did not have available employees able to give the required authorization for the confined space permit on the day. 30. Following the meeting between BlueScope and Allied, a separate discussion took place between William Lee and Steven Corea in relation to changing the high pressure water jetting lance and pin jet nozzle insert ('nozzle tip"). Mr Lee suggested that they use a longer lance and a Woma style form 1 or form 4 nozzle tip, rather than a screw in type. Mr Lee stated that a 2mm Woma tip would be more efficient as it produced a greater water flow. Mr Lee claims that he advised Mr Corea that the tip should not be larger than 2mm. However, Mr Corea stated that Mr Lee instructed him to obtain a 2mm or 2.2mm tip. When asked in his interview why he suggested that the tip should be no larger than 2mm Mr Lee advised that it was because of the reaction force. Mr Lee did not discuss with Mr Corea on the use of up to a 2.00mm pin jet, the reaction forces on the operator. Mr Lee could not remember whether he raised the issue of reaction forces on the operator. 31. During the course of this discussion there was no reference or consultation to the manufacturer's nozzle charts (such as the WOMA or URACA nozzle charts), which set out the water flow rates and degree of recoil that will be exerted upon the operator. 32. At approximately 9.45 am Mr Corea went to the Allied store compound within the Recycling Area and obtained a new straight-ridged lance which was fitted with a 2mm nozzle tip. Mr Corea then returned to the No. 5 Truck Wash Station and the crew continued the high pressure water jetting. The work then ceased for morning tea. The Incident 33. At approximately 10.30 am the work crew returned to the settlement tank, discussed progression of the job briefly and continued cleaning the tank. 34. The work was organised on the same basis that it had been organised previously, that is, Mr Kolomaka was to continue to operate the lance manually, Mr Corea was responsible for the control of the high pressure water jetting unit and Mr Poposki was responsible for operating the foot control valve which controlled the flow of water. 35. At the time of operating the lance Mr Kolomaka was wearing a disposable suit, ear plugs, a helmet with face shield and other personal protective equipment. 36. Mr Kolomaka was working over the handrail of the northern side of the settlement tank. Mr Corea stood next to Mr Poposki, facing the settlement tank. The pair were situated some distance behind Mr Kolomaka and were watching his activities. 37. At approximately 10.45 am Mr Kolomaka lost control of the lance that he was operating. Mr Corea and Mr Poposki observed the lance fly back towards them and Mr Poposki released the foot control valve. However by that time, a stream of high pressure water had already struck Mr Kolomaka in the chest. 38. Mr Corea and Mr Poposki rendered assistance to Mr Kolomaka and the emergency services were called. The attempts to revive Mr Kolomaka were unsuccessful and cardiopulmonary resuscitation was ceased at 11.19 am. Investigation of the Incident 39. On 22 May 2008 and 23 May 2008, Inspector Mark Stothard and Inspector Ian Lancaster attended the incident site. Inspector Stothard made observations contained in a Factual Inspection Report and Follow-Up Factual Inspection Report. Attached and marked with the letter " A " is a copy of the Factual Inspection Report of Inspector Stothard dated 11 July 2008. Attached and marked with the letter " B " is a copy of the Follow-Up Factual Inspection Report of Inspector Stothard dated 11 July 2008. 40. During the course of the inspection at the incident site, Inspector Lancaster took a number of photographs. Attached and marked with the letter " C " is a copy of the photographs of Inspector Lancaster dated 22 May 2008 and 23 May 2008. System of Work Prior to the Incident 41. Allied had a documented safe operating procedure for high pressure water jetting activities. Attached and marked with the letter " D " is a copy of the Allied safe operating procedures. 42. The safe operating procedures directly reflected the Australian/New Zealand Standard 4233.1:199, High pressure water (hydro) jetting systems, Part 1: Guidelines for safe operation and maintenance ("AS/NZS 4233.1:199"). 43. Clause 6.7 of the AS/NZS 4233.1:1999 provides that when using a lance or hand-held gun for jetting operations, operators should abide by a number of principles including: a. the person operating the lance or gun should have direct control of the water flow; b. the reaction forces should be taken into account when designing a particular job; c. the reaction force along the axis of the gun barrel should be calculated in order for an average operator to gain control of the gun safely and comfortably. A maximum reaction force of 22.5 kg is recommended for an eight-hour shift and this should not be exceeded for normal operations; and d. where a high reaction force is required to achieve acceptable results, consideration should be given to mechanical control of the nozzle. Attached and marked with the letter " E " is a copy of the Australian/New Zealand Standard 4233.1:199, High pressure water (hydro) jetting systems, Part 1: Guidelines for safe operation and maintenance ("AS/NZS 4233.1:199"). 44. Contrary to clause 3.9 of the Safe operating procedure and clause 6.7 of the AS, on the day of the incident the operator of the lance did not have direct control of the water flow. As such the system of work was not safe as it relied upon a person other than the operator reacting instantly if the operator lost control of the lance. 45. Further, the work crew and Mr Lee did not consult the manufacturer's nozzle charts or consider the reaction forces on the operator prior to undertaking the water jetting operations at the Site. Clause 3.13 of the Safe operating procedure provides that Reaction forces will be taken into account when planning water jetting taks. The reaction force can be defined as: " the force created by the movement of water as it leaves the nozzle. The force acts in the opposite direction to the movement of water" (AS/NZS 4233.1:1999). 46. The manufacturer's nozzle charts, such as the WOMA "Round Jet nozzle Form 4" chart, enables the calculation of reaction forces and provides guidance on whether mechanical control or body support appliances should be used. Although WOMA the manufacturer of the jet nozzle provides its own nozzle chart, Allied and in particular Mr Lee, had a copy of the URACA nozzle chart. URACA are also a manufacturer of high pressure water jetting equipment and the URACA nozzle chart can similarly be used to calculate reaction forces. Attached and marked with the letter " F " is a copy of the WOMA and URACA nozzle charts. 47. The nozzle chart was included in the Allied water jetting operation training. A copy of the nozzle chart was not provided to the work crew. A copy of the nozzle chart was located in the office of Mr Lee. 48. Following the incident it was established that the reaction force at the time of the incident exceeded the maximum recommended force for manual operations, namely 250 Newtons. At the time of the incident, the size of the nozzle was 2.00 mm. 49. According to the Allied safe operating procedures, the manufacturer's nozzle charts and Australian Standards, the reaction force for manual operations must not exceed 250 Newtons ("N") (approximately 26 kg) in the longitudinal axis of the spraying device. If the operators had applied the size of the nozzle and the pump operating speed at the time of the incident to the URACA nozzle chart, they would have seen a reaction force located in Field 3 of the chart. Field 3 of the URACA nozzle chart provides that for reaction forces over 250 N, the nozzle must be mounted on a mechanical system. 50. Accordingly, the reaction force would have necessitated the use of the lance mounted on a mechanical system, such as a brokk - a mechanical device on wheels remotely operated. The defendant had mechanical control devices at the time of the incident available for use and had previously used them for some high pressure water jetting activities. However no such system was used at the time of the incident. 51. In addition the Allied safe operating procedures for this task provide that all persons must wear personal protective equipment. Mr Kolomaka was wearing a disposable suit. He was not however wearing Kevlar body protective. Kevlar body protective clothing was not required by the Allied safe operating procedures, nor the Australian Standards but it is recommended by the manufacturer of the high pressure water jetting equipment. Allied had Kevlar suits and the practice of Allied was that they would only be used by Allied personnel in Sydney when conducting ultra-high pressure work (being work at pressures much higher than work done at the site). Attached and marked with the letter " H " is an example of a Kevlar suit. System of Work After the Incident 52. On 22 May 2008 WorkCover issued the following notices upon Allied: a. Prohibition Notice (No. 152789) which required the company to provide and ensure a safe system of work so as to ensure the operator of the lance has full control of operation; and b. Improvement Notice (No. 7-159642) which required that the high pressure water jetting equipment involved in the incident be inspected and tested by a competent person to ensure safety of future operators of that equipment. Attached and marked with the letter " I " is a copy of the Prohibition Notice issued to Allied on 22 May 2008. Attached and marked with the letter " J " is a copy of the Improvement Notice issued upon Allied on 22 May 2008. 53. Following the incident Allied immediately ceased all high pressure water jetting operations. Allied conducted an investigation into the incident and undertook an extensive review of the systems of work which were in place with respect to high pressure water jetting. 54. Arising from this process Allied undertook the following corrective and/or preventative measures: a. conducted and documented risk assessments for all high pressure water jetting tasks; b. provided refresher training for all existing water jetting operators; c. developed and implemented specialised training programs for high pressure water jetting work for water jetting personnel, supervisors and managers; d. increased and/or implemented the use of mechanically held devices and automated equipment for cleaning operations; and e. purchased additional Kevlar body protection. 55. Allied also established a high pressure water jetting project team consisting of representatives from management, the union and safety committee to establish safe and sustainable high pressure water jetting operations. Co-operation with WorkCover 56. The defendant co-operated fully with WorkCover during the investigation including making facilities available on site for interviews by Inspector Stothard and Lancaster with a number of Allied employees and being responsive to both formal and informal requests for the provision of documents relating to the incident. The defendant 's criminal history 57 The defendant has no prior criminal convictions in NSW.