Maurice Michael O'Sullivan v Roads and Traffic Authority of NSW

PROSECUTOR Mr B Docking of counsel

SOLICITOR Jones Staff & Co. SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr B Hodgkinson SC

SOLICITOR Sparke Helmore SYDNEY.

JUDGMENT: - 13 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

MAURICE MICHAEL O'SULLIVAN v ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES

Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT

1 The prosecutor, Maurice Michael O'Sullivan, the General Secretary of the Public Service Association and Professional Officers Association Amalgamated Union New South Wales, is empowered by s48 of the Occupational Health and Safety Act, 1983 ('the Act'), to institute proceedings related to alleged breaches of that Act. This matter concerns one such prosecution of the Roads and Traffic Authority of New South Wales ('RTA') in respect of an accident occasioning injury to an employee of the RTA.

2 This matter was commenced on 27 October 2000, together with other related prosecutions and was listed for hearing on 6 December 2001. On 5 December 2001 a notice of discontinuance was filed in the other matters and a form of amended application in this matter was filed. Until that time a plea of not guilty had been indicated by the defendant. When the matter came before the Court on 6 December 2001 and after those matters were formalised, a plea of guilty was entered to the amended charge. The matter then proceeded on the basis of an agreed statement of facts and evidence introduced by the defendant in mitigation of penalty. The prosecutor sought a moiety of penalty and costs. The question of the Court's power to award a moiety in favour of the prosecutor in this case was then put in issue, although it must be said that notice of that claim had not been given. The matter was adjourned in order that both questions of law and fact might be considered by the parties and the hearing resumed on 15 March 2002. On that occasion the defendant conceded power and consented to a moiety of any penalty being made in favour of the prosecutor. It is sufficient now to refer to s122 of the Fines Act 1996 as authorising that approach here. See also Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 212.

3 The statement of agreed facts is extensive. I propose to extract the essential details from it for the purposes of judgment.

4 The charge is that on the 16 November 1998 at the Spring Hills roadside rest area on the Barrier Highway, Western NSW, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Denis Ford, in that there was not in place a safe system of work contrary to s15(1) of the Act. Mr Ford was employed as a maintenance control man to perform work out of the defendant's Broken Hill depot. Part of his function was to maintain and clean a barbeque at the Spring Hills roadside rest area on the Barrier Highway 120 kilometres east of Broken Hill. The barbeque was fuelled by liquid petroleum gas (LPG) contained in nine kilogram bottles.

5 Prior to 16 November 1998 the gas was supplied from a single gas bottle. The instructions as supplied to Mr Ford were that he should test the bottle for gas by attempting to ignite the barbeque. If after several attempts it failed to light, the bottle would be removed and replaced with a refilled bottle. The empty bottle would be taken to Broken Hill for refilling.

6 Mr Ford carried out his duties alone. He was provided with a Toyota Hilux utility which was supplied with two radios, a high frequency ("HF") radio which was used for communication with the RTA Broken Hill depot and other RTA vehicles. It also had a very high frequency ("VHF") radio which also contacted the depot and other RTA vehicles but also emergency services. The HF radio was designed to contact the Royal Flying Doctors service as well.

7 These radios did not operate effectively in certain areas known as "blackspots".

8 From 19 October 1998 until 6 November 1998 Mr Ford was employed as the acting storeman of the Broken Hill Depot. During this period modifications were carried out on the Spring Hills barbeque to convert the installation from a one-LPG bottle to a two-LPG bottle operation. Mr Ford returned to his duties as Maintenance Patrolman and on 10 November 1998 visited the Spring Hills site and tested the barbeque according to the instructions formerly given to him. The barbeque operated so that check was taken no further. Mr Ford was then unaware that the installation had been altered during his period of absence from these duties.

9 On 16 November 1998 he returned to Spring Hills and commenced the usual check of the barbeque by pressing the ignition button to ignite the gas burner. He attempted this operation three times without ignition. He unlocked the LPG bottle compartment and observed that the single bottle had been changed to a two-LPG bottle installation.

10 The two bottles connected to a single gas regulator mounted on the interior wall of the LPG bottle compartment. There were no instructions attached nor had Mr Ford been informed orally or in writing concerning procedures to be used to change over the LPG bottles or hazards involved with this task. He was out of range of contact with the Broken Hill depot.

11 I now revert to an extract from the agreed facts: 23 The employee checked the regulator. The arrow on the regulator was pointing towards the bottle nearest to the compartment entrance. The employee concluded that this LPG bottle was empty, and turned the regulator arrow to point at the remaining LPG bottle.

24 LPG is heavier than air, which results in any free gas seeking the lowest level in the area where it is released. LPG has an expansion rate of 270.1, which means that 1 litre of the compound in a liquid state, on release into the atmosphere has the capacity to expand to a volume of 270 litres as a gas. Escaping LPG is likely to burn if there is an ignition source.

25 The employee walked around the other side of the barbeque to test the ignition switch. The barbeque gas burner ignited immediately. The employee then walked back to the LPG gas compartment side of the barbeque, disconnected the LPG bottle which the employee thought was empty, and dragged it out of the compartment. The employee had to remove his gloves to disconnect the LPG cylinder, as he could not use the spanner and wear gloves at the same time. The LPG bottle, when the employee lifted it up, felt heavier than a normal empty LPG bottle.

26 When only one LPG bottle operated the barbeque, the burner would ignite when the employee pressed the lighter if the bottle had gas in it. If there was no ignition, there was no LPG in the bottle. The employee always tested the bottle for LPG after he had closed the gas valve on the LPG bottle, disconnected it, and removed the LPG bottle from the compartment. It was necessary to disconnect the LPG bottle to test the weight of the bottle, as the single LPG bottle was connected to the gas burner by a rigid copper pipe. Lifting the bottle was impossible when it was connected.

27 When the employee had dragged the LPG bottle referred to in paragraph 24 approximately 300 mm from the entrance to the LPG compartment, the employee checked whether there was any gas remaining in the LPG bottle as it felt much heavier than an empty LPG bottle. The ignition of the gas burner, disconnection, and removal of the LPG bottle took approximately 2-3 minutes.

28 The employee squatted down to test the operating valve, by opening it. The employee opened the valve very slowly until the employee heard a discharge of LPG. The employee immediately closed the valve. The valve did not discharge for more than two seconds. The valve was pointed in the direction of the barbeque.

29 After the employee closed the valve, the employee continued to squat and commenced to lift the LPG bottle with his hands around the middle of the bottle. The employee lifted the LPG cylinder a small distance from the ground.

30 LPG that had escaped from either or both of the gas bottles in the barbeque then ignited as a result of the flame from the lit barbeque. The employee was engulfed in a fireball which came from within the LPG bottle compartment. The fireball was accompanied by a whooshing sound.

31 The force of the fireball forced the employee to stand up, and the employee dropped the LPG bottle. The employee's hair and eyelashes caught fire, and the employee's RTA safety vest was also on fire. The fireball burned the employee's arms and the backs of the employee's hands. The employee commenced to beat the fire out on his RTA safety vest, as the fire from the vest was also burning the employee's face. When the employee had extinguished the fire on his RTA safety vest, the employee walked over to the drinking water tank at the Spring Hills Roadside Rest Centre.

32 The water tap is about 300mm from the ground, and the employee bent down to turn it on. The employee had difficulty doing this as he had burnt the inside of his hands extinguishing the fire on the RTA safety vest. A man appeared who held the tap on while the employee doused his face, hair, arms and hands with water.

12 Mr Ford attempted to use the radio to call for assistance without success. He did not attempt to call the Royal Flying Doctor Service. He then drove to Toper which is approximately 50 kilometres west of Spring Hills. At one stage he blacked out due to pain but then woke up with his vehicle approximately 50 metres from the Barrier Highway. He continued to drive and reached Toper in a state of pain and confusion. Two other RTA employees were in a vehicle parked there; one of those employees swabbed Mr Ford with water, put him in the passenger seat of the vehicle and commenced driving to Broken Hill. Attempts to make radio contact with Broken Hill were only successful approximately 50 kilometres therefrom. The vehicle was met by an ambulance about 10 kilometres east of Broken Hill. The employee was administered oxygen and given a morphine injection for the pain. Mr Ford was admitted to Broken Hill hospital and received treatment for burns over six days, being discharged on 21 November. He received second degree burns to twelve percent of his body as a result of the incident. He returned to work on or about 10 December 1998 on a rehabilitation programme.

13 Considerable modification has been made to the barbeque installation and in particular the LPG compartment subsequent to the injury.

14 The defendant's failures and or omissions were the following: a. Allowing a system of the employee pressing the lighter to ignite the barbeque, if the barbeque did not light then disconnecting a LPG bottle, lifting the bottle out and checking it for gas by opening the valve on the bottle.

b. Failing to conduct a risk assessment before allowing the work to commence.

c. Failing to have written procedures for the changing of gas bottles on a barbeque.

15 The barbeque is of rectangular brick construction with a stainless steel top in which is situated the cooking facility. At one end of the box-like brick construction is a metal door into a compartment in which the gas bottles are situated. The door is vented and the compartment has a meshed vent the size of one house brick in the lowest section of the end wall.

16 Mr Docking of counsel for the prosecutor submitted, in summary, as follows: (i) The maximum penalty for the offence, as a result of the operation of s51A(i) of the Act, given the RTA's earlier convictions, is $825,000.

(ii) That deterrence in both its general and specific aspects is a feature of this case.

(iii) The case involved an obvious and foreseeable risk.

(iv) The measures introduced to overcome the difficulty were straight forward by sealing up the gas bottle compartment and by providing written instructions.

(v) The injuries suffered by the employee were serious with superficial burns to the left hand and left and right arms and face (second degree burns to 12 percent of his body). This is an objective indication of the relevant detriment to safety.

(vi) The Act requires a proactive approach, the RTA should have found the error and corrected it.

(vii) The defendant's criminal history has been described negatively (per Kavanagh J in WorkCover Authority of New South Wales (Inspector Tyler) v The Roads and Traffic Authority [1999] NSWIRComm 391, 31 August 1999, unreported).

17 As to subjective matters Mr Docking submitted that the plea of guilty entered in this matter was not at the earliest opportunity. He referred to the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector McMartin) v Transfield Pty Limited t/as Transfield Maintenance (No 2) [2001] NSWIRComm 289, unreported, where his Honour said: 38 I do not accept Mr Hodgkinson's submission that the pleas were given at the first opportunity even though they were given when the charges were amended. And neither do I accept Ms McDonald's submission that the defendant "should not receive a discount for the plea of guilty as only minimal utilitarian advantage had been gained from the entry of the plea of guilty". I think the position is somewhere in between those extremes. The two elements eventually accepted by the defendant to establish its guilt, an air monitoring system and forced ventilation, were contained in the charges as originally laid and, in themselves, were even at that early stage sufficient to establish the charges and as to which the defendant could have made admissions but did not do so. It is perhaps relevant to point out that s 49A of the Occupational Health and Safety Act enables more than one contravention of s 15 or s 16 arising out of the same factual circumstances to be charged as a single offence in which case a single penalty only may be imposed in respect of more than one contravention of any such section so charged. Here, a single charge under s 15(1) and another under s 16(1) was brought and that was permitted by s 49A even though each single charge contained a number of elements any one of which was sufficient for the charge concerned to be proven. Therefore, in terms of the charges as brought, the particulars thereof, the length of the proceedings, the amendment of the charges on the sixth day of the hearing and the consequent pleas of guilty immediately the amendments were made result, in my opinion, in pleas of guilty for the purpose of reduction of sentence but in such a manner as not to be pleas entered as early as possible. Nevertheless, they were entered as soon as the amendments were made but where the hearing had been proceeding for six days with a further four days scheduled.

18 Mr Docking accepted that it is not appropriate in this case that there should be no discount for the guilty plea but the full benefit should not be afforded the defendant in the circumstances of the case.

19 The prosecutor also relied upon the judgment of Hungerford J in Transfield as an indication of the approach of the court where there is a risk of the entrapment of gas and an explosion when that gas comes in contact with an ignition source with consequential injuries. It was suggested that in the present case the objective circumstances are not as serious as Transfield's but the RTA has a more extensive criminal history or prior conviction record as an aggravating circumstance.

20 In Transfield the particulars of the ss 15 and 16 charges involved in that matter were identical as follows:

a) The defendant failed to provide or maintain systems of work, for the maintenance of the Steelmaking Ladle No 1, that were safe and without risks to health in that it failed to:

(i) Utilise forced ventilation inside the ladle, either above the top work platform or between it and the lower platform, capable of ensuring that the concentration of LP gas sourced from gas hoses and cutting equipment remained less than the flammable range.

(ii) Utilise an air monitoring system to identify LP gas concentrations inside the ladle. 21 As a result of those particularised failures injuries were suffered by two employees, one of the defendant and one an employee of another company. The facts were that the two injured persons were boilermakers repairing the rim of a steel-making ladle. It was necessary to remove steel and slag from the ladle by oxy/propane cutting. LP gas accumulated inside the ladle while it was being repaired and was ignited during the course of the work.

22 Hungerford J assessed penalty at the level of $200,000 in respect of each fine with a discount of 20 percent giving a fine for each offence of $160,000. On application of the parity principle, having regard to the fact that BHP was also fined in relation to a relevant prosecution, the total fine of $320,000 was found to be wholly excessive. His Honour then considered that both charges should be treated as though they constituted one offence giving a total fine of $160,000 apportioned $80,000 in respect of each offence.

23 The prosecutor conceded that the defendant had been cordial and co-operative in its attitude towards the prosecutor's investigating officer; that a number of steps had been taken to remedy the defects revealed by the accident including the issuing of a letter to local councils to alert them to the problem which the prosecutor described as "commendable". Reference was made to instructions which were issued and to the improvements in the radio facilities in use in the vehicles.

24 The prosecutor sought an order for costs as agreed or as fixed by the court in the absence of agreement and a moiety of penalty.

25 Mr Hodgkinson of senior counsel for the defendant, raised in the context of culpability of the defendant the unanswered questions which he submitted arose from the incident. Why was the barbeque burner left on when Mr Ford checked the bottle he had removed? Why did he undertake that check only 300 millimetres from the open door of the bottle compartment? Why did he not simply remove it to his vehicle for transportation to Broken Hill?

26 Mr Hodgkinson referred to a report of an investigation undertaken by the RTA into the accident within the fortnight following it which recorded two findings of significance:

· Boral Gas attended the accident site with RTA staff on the same day and checked the hoses, pipes and the gas regulator for leaks, however, no leaks were found.

· Boral Gas installed the dual regulator just recently.

27 It was submitted that there was a gap in time between the release of the gas from the disconnected bottle and the ignition of gas. It was difficult to understand this factually. As to the issue of deterrence it was submitted that specific deterrence has limited significance in the matter due to the response of the defendant to the accident.

28 As to any discount for the plea of guilty it was submitted that the plea was entered at the earliest time given the changed circumstances when the prosecution discontinued two of the three charges and substituted an amended application on the first day of hearing of the three days set aside for it. That position was supported by reference to an earlier judgment of mine in Inspector Vierow v Blue Water Boating [2001] NSWIRComm 179, unreported.

29 The material advanced in evidence by the defendant in mitigation of penalty was extensive. The RTA employs 6,425 persons in more than 200 workplaces throughout New South Wales. Its responsibilities include road management, design, construction and maintenance. It also has the task of promoting road safety and traffic management and has responsibility for driver licensing and vehicle registration.

30 The road system managed by the RTA stretches over 17,783 kilometres of state roads, 3,128 kilometres of national highways and almost 3,000 kilometres of regional roads and local roads in areas where there are no local councils. The RTA assists local councils in managing 18,430 kilometres of regional roads within their areas. It also takes an interest in 4,275 bridges, including major culverts and tunnels, nine vehicle ferries and traffic facilities such as traffic lights, roundabouts, signs and line markings.

31 Since August 2000 the RTA has employed a General Manager, Occupational Health & Safety. The incumbent has many years of experience in managing OH&S both in industry and government including ten years with the National OH&S Commission. He manages a branch of 17 OH&S specialist staff including 5 project staff and 10 field staff.

32 This is material which may appropriately be taken into account in assessment of penalty as indicating a measured response to the needs for workplace safety.

Conclusions 33 In assessing penalty I take into account the need to pay regard primarily to the nature and quality of the offence as the principal indicator and the need for elements particularly of general deterrence to be weighed in that respect. I take into account the history of the RTA and its record which I would accept is not generally good although it has to be understood in the context of the breadth and size of its operations. I do not consider this matter to be analogous with respect to penalty to that which was dealt with by Hungerford J in the Transfield case. To have welders working upon a ladle in a steelworks strikes me as being a very different industrial situation to an employee replacing a gas bottle in a roadside barbeque in isolated circumstances. The facts here disclose that the RTA had, by use of a single gas bottle system, one which was incapable of generating the possibility of an explosion since the removal of a single bottle would necessarily eliminate an ignition source. It was the introduction of the two bottle system, particularly without advice or instruction to Mr Ford, which created the possibility of this accident.

34 The unanswered questions raised by Mr Hodgkinson also seem to me to be of some limited relevance in determining the nature and quality of the relevant detriment to safety. One might suppose that Mr Ford can still ask himself these questions without being able to find an answer. Yet they are the type of questions which rise so often in prosecutions of employers in respect of accidents arising in the workplace. It is precisely the inexplicable with which the legislation has been said to be concerned. It is the protection of workers from the consequences of their own failures to which the Act is in part directed. Bauer J described it in WorkCover Authority (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257) this way: The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

35 Within the range of the maximum penalty of $825,000 I consider this penalty ought be assessed, before discount, at $120,000. I would give a discount on penalty of 25 percent for the plea which I accept, according to the approach taken in Inspector Vierow v Blue Water Boating, was entered at an early time. True it is that the plea was entered on the first day of three days set aside to deal with pleas of not guilty in this and other prosecutions. Upon the prosecutor's seeking to discontinue the other matters, the plea was altered to guilty. There was no evidence that the altered position imposed costs in respect of witnesses who were not required or any other costs which should sound against the defendant. The prosecutor, it seems to me, must bear some responsibility for the fact that a number of charges, ultimately it seems found unnecessary, were laid but later withdrawn.

36 The defendant is convicted of the offence with which it has been charged and fined the sum of $90,000. The prosecutor shall have a moiety of penalty and an order for costs as agreed or, if not agreed, as fixed by the court.

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