Safework NSW v Hydromet Corporation Pty Limited; Safework NSW v Jeremy Perera

Safework NSW v Hydromet Corporation Pty Limited; Safework NSW v Jeremy Perera - [2020] NSWDC 82 - NSWDC 2020 case summary — Zoe

[3]

Judgment

I do not understand why a business which handles extremely hazardous chemicals is given a licence and is then in effect left to police itself. The facts in this case demonstrate that Hydromet could not be trusted to comply with its obligations. Car drivers have to have their vehicles inspected every year to ensure that the vehicles are safe. Drivers have to undergo licence renewal tests at regular intervals to ensure that they can see properly. Is there no system of inspection and auditing of businesses licensed to handle dangerous chemicals? If there is a system, why did it fail to detect the long term failures of Hydromet? Any trained inspector who walked through the Hydromet premises would have spotted half the problems in the first hour. The deficiencies in the documented safety systems would have become apparent in the second hour. The third hour could have been spent drafting criminal charges concerning Hydromet's egregious failures to observe its health and safety duty under the Act. Hydromet was guilty over a lengthy period of a litany of failures to fulfil its statutory obligations. Why did workers have to be seriously injured before that came to the notice of the authorities?
On 18 March 2017 two workers employed by Hydromet Corporation Pty Limited (Hydromet) suffered serious burns when they were sprayed with 98% sulphuric acid while trying to deal with a leaking hose. Their injuries occurred because of the failure by Hydromet to eliminate or minimise risks arising from the processing of hazardous chemicals.
Hydromet has pleaded guilty to an offence that as a person who had a work health and safety duty pursuant to s 19 of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed Peter Riggs and Tomislav Mandic to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $1,500,000.
Mr Jeremy Perera has pleaded guilty to an offence that being an officer of Hydromet, a corporation which was a person that had a work health and safety duty pursuant to s 19 of the Act, he failed to comply with his duty under s 27(1) of the Act to exercise due diligence to ensure that Hydromet complied with its duty under s 19(1) of the Act, and the failure to comply with his duty exposed Peter Riggs and Tomislav Mandic to a risk of death or serious injury contrary to s 32 of the Act.
The maximum penalty for the offence is a fine of $300,000.

[4]

Background

The parties presented an Agreed Statement of Facts and this material is summarised below.
Hydromet was a person conducting a business or undertaking (PCBU) at 201 Five Islands Road, Unanderra, New South Wales (the site) which involved recycling used batteries, processing chemical and industrial waste, and the storage and handling of large quantities of hazardous chemicals. Hydromet employs approximately 65 people across three locations. About 30 people were employed at the site. Hydromet recycles up to 40,000 tonnes of used batteries at the site per year.
Mr Perera had been a director of Hydromet since 23 August 2012. He was responsible for Hydromet's day to day operations. Mr Perera held a degree in Chemical Engineering and had worked at Hydromet for 14 years. Mr Perera was present at the site on most weekdays.
Mr Tomislav Mandic was employed by Hydromet as a process chemist. He commenced employment with Hydromet in 2003. His main duties included chemical testing of recycled waste products and quality assurance to ensure that waste products met with licence guidelines. At the time of the incident Mr Mandic held a certificate in Chemistry and had over 40 years industry experience as a chemist.
Mr Peter Riggs was employed by Hydromet as a maintenance fitter. He commenced work with Hydromet in 2012. His main duties included mechanical repairs, maintenance and upgrades to plant. Mr Riggs had 16 years of experience as a qualified fitter.
Mr Robert Sepple was employed by Hydromet as a Team Leader. He commenced work at Hydromet in 2007. His main duties were to treat waste at the site so it could be disposed of within the limits of Hydromet's licence. Mr Sepple was the relevant supervisor on site at the time of the incident.
Mr Kenneth Ross Gale was employed by Hydromet as a Production Superintendent. He commenced work with Hydromet in 1996. His main duties included the management of the Battery Recycling Plant at the site, reporting to Mr Perera.
Mr Jason Logan was employed as a Waste Operations Manager for Hydromet. At the time of the incident, he was responsible for the operation of the Water Treatment Plant and the Acid Plant areas at the site. He had been working as an operator at Hydromet for 13 years. He reported to Mr Perera. Approximately six weeks before the incident, Mr Logan became responsible for the operation of the Water Treatment Plant area. Mr Gale was responsible for managing the Water Treatment Plant area prior to that time.
Mr Perera met with Mr Gale and Mr Logan each week to discuss the operational activities of Hydromet at the site.

[6]

The Incident

On 18 March 2017 at 10.30am, Mr Mandic was working overtime in the Water Treatment Plant under the supervision of Mr Sepple. Mr Mandic usually performed duties in the laboratory at the site, but worked in the Water Treatment Plant from time to time when the area was short staffed.
Mr Mandic was undertaking the task of treating the liquid waste by adding the 98% sulphuric acid and lime into the lime tank. He had not performed this specific task prior to the day of the incident.
Mr Mandic had completed the treatment of one batch of liquid waste under Mr Sepple's supervision that morning. He was in the process of completing the second batch. He had added the 98% sulphuric acid and was about to add the lime when he noticed that a flexible hose line connected to the lime tank was ruptured.
Mr Mandic informed Mr Sepple, who was standing on a catwalk overhead, of the ruptured hose. Mr Sepple directed him to close off the valves to the tank and seek out the fitter, Mr Riggs, for a replacement hose. Mr Riggs had finished his shift and was in the process of leaving the site when he was approached by Mr Mandic for his assistance.
Because he had finished work for the day, rather than complete the task himself, Mr Riggs instructed Mr Mandic to replace the hose. The replacement hose was to be taken from a nearby system that was not being used. Neither Mr Riggs nor Mr Mandic had replaced a flexible hose on the tank before.
Mr Mandic had previously observed other workers disconnect and replace hoses by unclipping the two clips (cam locks) on either side of the hose fitting before pulling the hose off the assembly.
At the time the hose was being disconnected, it was pressurised and contained 98% sulphuric acid. Both workers were unaware that the hose contained sulphuric acid. Mr Mandic thought the hose was empty. Mr Riggs thought that the hose contained lime. Mr Riggs was standing approximately 1.5 metres behind Mr Mandic and he was providing Mr Mandic with instructions on how to replace the hose.
When Mr Mandic disconnected the cam locks on the pressurised hose, Mr Mandic and Mr Riggs were sprayed with 98% sulphuric acid.
Mr Sepple instructed Mr Mandic and Mr Riggs to go to the showers. The workers ran past four emergency showers located in the immediate vicinity of the incident site and instead went upstairs, travelling approximately 50-60 metres to the men's locker room showers. They did not remove their contaminated clothing before entering the showers.
After showering for approximately 30 minutes, an ambulance arrived to treat the injured workers before conveying them to Wollongong Hospital. They were later transferred for treatment in the burns unit at Concord Hospital.

[10]

Risk Assessments / Standard Operating Procedures

No risk assessment was carried out in relation to the task of neutralising the waste in the Water Treatment Plant using the lime and waste grade 98% sulphuric acid.
No risk assessment was carried out in relation to the task of replacing damaged hoses that may contain hazardous chemicals such as 98% sulphuric acid.
The Hydromet Safety and Environmental Hazards Procedure Manual in place at the time of the incident was dated 2003. It required that a Job Safety Analysis (JSA) be conducted when new chemicals were introduced, including hazard identification, risk assessments and identifying controls. No JSA was conducted when sulphuric acid was introduced to treat liquid waste at the site.
Two Standard Operating Procedures (SOP) were in place prior to the incident in relation the procedure and equipment to be used for waste water treatment;
SOP UPM-BRP003 "Waste Water Treatment" provided that prior to any operation of the Lime Slurry Mixing Plant with lime or interaction with any other chemicals, all personnel must be wearing their full face respirator mask. This SOP attached a Safety Data Sheet (SDS) for hydrated lime which indicated that the chemical was corrosive and required safe work practices to avoid eye and skin contact and inhalation. This SOP did not provide information or instruction relating to sulphuric acid of any strength. Mr Mandic was trained in this SOP in January 2010 but could not recall the training or the contents of the SOP.
SOP UPM-WTP001 "Waste Water Treatment Plant" referred to hydrochloric acid. This SOP attached the SDS for hydrochloric acid with a concentration of less than 30%. It did not provide information or instruction relating to sulphuric acid of any strength. Mr Mandic was trained in this SOP in May 2009 but could not recall the training or the contents of the SOP.
Neither of those SOPs provided information or instruction to workers in the event that a hose became damaged or leaked. Neither SOP attached a SDS for sulphuric acid of any strength.
Each SOP contained minimal instruction to workers if a hose became blocked. The instruction for blocked hoses consisted of the following: "Check hose is not blocked. Unblock hose".
Both SOPs were last reviewed and updated in 2011, six years prior to the incident. Neither SOP was updated when Hydromet replaced hydrochloric acid with commercial sulphuric acid for the treatment of liquid waste at the site in 2014, or when 98% waste grade sulphuric acid was introduced in 2016.
A system audit was last carried out for the task of treating the waste in the Water Treatment Plant by Mr Gale on 28 April 2011. Mr Gale observed Mr Sepple perform the task, and concluded that the main hazards of the task were identified and mitigated, and that a valid SOP (UPM-BRP003 Waste Water Treatment) was in place. The system audit did not identify the risk of workers becoming exposed to hazardous chemicals during the process of replacing flexible hoses.
Mr Perera did not direct that a risk assessment should be carried out for the task or check whether an assessment had been undertaken. Mr Perera did not check that an appropriate SOP was in place for the task. He did not ensure that Hydromet had available for use, and used, appropriate resources and processes to ensure that such steps took place, including regular system audits.

[13]

Emergency Procedures and Drills

As part of their Environment Protection Licence (EPA Licence) issued by the NSW Environment Protection Authority, Hydromet was required to maintain and implement a current emergency response plan for the site, which included documented systems and procedures to deal with all types of incidents.
Four safety showers and eye wash stations were located near the incident location. The closest safety shower was approximately two metres away. The safety showers were not easily identifiable with a visible sign. After they were sprayed with 98% sulphuric acid, Mr Mandic and Mr Riggs ran past these four safety showers and went upstairs, travelling approximately 50-60 metres to the men's locker room showers instead.
Training in emergency procedures and emergency drills was held infrequently at the site and was not documented. Workers could not recall when emergency training or drills prior to the incident were held.
Mr Logan estimated that the last emergency drill would have been at least 10 years before the incident. Mr Mandic estimated that the last emergency drill would have occurred five to six years prior to the incident. Mr Sepple had not participated in any emergency drills at the site. Mr Gale could not recall the last emergency drill.
Mr Mandic could not recall the emergency procedures to be taken when a chemical exposure occurred at the site. He could not recall being trained in the location and operation of emergency safety showers at the site.
There was no regular inspection and maintenance regime in place prior to the incident to inspect safety showers at the site to ensure they were operating correctly.
A Site Emergency Plan was prepared for the site in September 2014. It contained a site plan identifying the location of safety equipment, including safety showers. It provided the following first aid instructions for chemical splashes on the body: "Immediately wash area and remove any contaminated clothing. Refer to SDS for any specific treatments and seek medical attention if required."
Workers were not trained to remove contaminated clothing in case of exposure to hazardous chemicals. Mr Mandic did not remove his clothing after being sprayed with the 98% sulphuric acid. His clothes peeled off under the shower.
The Site Emergency Plan provided that it was to be "reviewed every twelve months and updated if necessary", and that "emergency exercises are to be conducted at six monthly intervals", with workers to evaluate effectiveness.
The Site Emergency Plan was not evaluated or updated at 12 monthly intervals. The emergency plan was last updated for the site by Mr Gale in 2015. Workers were not involved or trained in the update. Hydromet did not maintain the first aid qualifications of trained first aiders Mr Sepple and Mr Riggs or send them to refresher training. Mr Sepple's first aid qualification expired in 2007 and Mr Rigg's qualification expired in 2012.
Mr Perera did not ensure that: 1. Hydromet had in place an emergency plan that was reviewed every 12 months; 2. Hydromet had available appropriate resources and processes to ensure that workers were trained in the emergency procedures; and 3. nominated first aid workers had current first aid qualifications.

[16]

Concentration of sulphuric acid

The Globally Harmonised System of Classification and Labelling of Chemicals (GHS) came into effect in NSW on 1 January 2017 after a widely advertised transition period of five years. The GHS is an internationally agreed system for classifying and labelling hazardous chemicals.
The GHS classifies sulphuric acid as a corrosive Hazardous Chemical, and it is also classed as a Schedule 8 corrosive substance under the Australian Dangerous Goods Code, meaning that it will cause severe damage when in contact with living tissue.
Various concentrations of sulphuric acid exist, ranging from 10% to 98.5% purity.
The WorkCover NSW Code of Practice Managing Risks of Hazardous Chemicals in the Workplace dated July 2014 (Hazardous Chemicals COP) was available to Hydromet prior to the incident and said that the concentration of hazardous ingredients is an important factor in the overall risk of handling a substance. It suggests using diluted acids rather than concentrates wherever possible.
Clause 38 of the Work Health and Safety Regulation 2011 (NSW) (the Regulation) provided that before any change at the workplace that is likely to give rise to a new or different risk to health or safety, a review and revision of any existing control measures must take place. In addition, cl 352 of the Regulation requires a review of any existing control measures at least every five years, and following any change to the SDS for a hazardous chemical or the register of hazardous chemicals used at the workplace.
Hydromet chose to use waste sulphuric acid at the high concentration of 98%, and did not review or revise existing control measures when sulphuric acid was introduced to treat liquid waste at the site. A review of the existing control measures in place in relation to hazardous chemicals at the workplace had not taken place in the five years preceding the incident.
Mr Perera did not ensure that any review had taken place, or enquire as to whether Hydromet had appropriate processes and resources to ensure that these reviews took place.

[21]

Emergency Procedures and Drills

Clause 43 of the Regulation requires an emergency plan that includes medical treatment to be prepared and available for a workplace. The plan must also include measures for testing the emergency procedures, including the frequency of testing. Information, training and instruction must be provided to relevant workers in relation to implementing the emergency procedures. The emergency plan for the workplace must be maintained so that it remains effective.
The Hazardous Chemicals COP recommends that the arrangements in place to deal with emergencies should be included in documented training to workers. It states that for an emergency plan to be effective, workers need to be appropriately trained, and any procedures tested. It recommends that practice drills and simulated emergencies should be conducted throughout the year and involve all workers.
WorkCover NSW Code of Practice "First Aid in the Workplace" dated July 2015 was available to Hydromet prior to and at the time of the incident and provided that immediate access should be provided to shower equipment in workplaces when there is a risk of exposure to hazardous chemicals. It also mandated that a PCBU must provide information about first aid to workers so they know what to do if they are injured, including the location of first aid equipment and the procedures to be followed. Hydromet would be considered a "high risk workplace" as per the definition in this Code of Practice, as workers were exposed to hazards that could result in serious injury or illness.
Australian Standard AS 4775-2007 "Emergency Eyewash and Shower Equipment" dated 26 October 2007 was available to Hydromet prior to and at the time of the incident and required the following in relation to emergency showers: 1. Emergency showers are to be positioned in accessible locations that require no more than 10 seconds to reach. 2. The shower shall be located on the same level as the hazard and the path of travel to it shall be free of obstructions. 3. Each emergency shower shall be identified with a highly visible sign positioned so that it is visible throughout the area served by the shower. 4. Each shower should be used/tested weekly to ensure proper function. 5. Workers who may be exposed to hazardous materials shall be trained in the location and proper use of emergency shower units. 6. All shower units shall be formally inspected annually to ensure compliance with the Standard and a compliance tag attached to document the inspection.
Hydromet did not maintain the emergency plan for the workplace. Frequent practice drills and simulated emergencies were not undertaken. Emergency showers were not identified by way of signage, and were not tested weekly to ensure functionality. Workers were not properly trained in the location and use of the safety showers in emergency situations. Hydromet did not maintain the first aid qualifications of trained first aiders Mr Sepple and Mr Riggs or send them to refresher training. Mr Sepple's first aid qualification expired in 2007 and Mr Rigg's qualification expired in 2012.
Mr Perera did not direct that these steps should take place, or enquire whether appropriate processes and resources were in place to ensure that they occurred.

[23]

Inspection and Maintenance of Hoses and Piping

Clause 351 of the Regulation requires that a PCBU must have regard to any structure, plant or system of work that is used in the use, storage or handling of hazardous chemicals, or that could interact with the hazardous chemical at the workplace.
The Hazardous Chemicals COP warns that hazardous chemicals that are corrosive to metals (such as 98% sulphuric acid) can cause damage to plant and equipment, such as containers, pipes, fixtures and fittings. Corrosion can lead to leaks or complete failure and loss of containment of the chemical, resulting in serious damage to property, exposure of workers to the hazardous chemicals and potential injury and death. It recommends that planned maintenance programs be designed and carried out at regular intervals to ensure that plant and equipment continues to be safe for use.
The Corrosive Substances Standard provides that provision shall be made to enable the complete and safe draining of transfer hoses and filling lines prior to decoupling them. Where maintenance work is to be carried out on equipment in an area where corrosive substances are kept, such equipment shall be checked to ensure that no corrosive vapours or residues remain, prior to maintenance work being carried out.
The EPA Guide recommends that fixed piping should be installed, where possible, to reduce the risk of disconnecting and connecting flexible hoses at the wrong point.
The EPA Guide also states that flexible hoses must be correctly maintained and operated. This includes flushing out the lines on a regular basis to avoid compatibility issues from a build-up of substances within the hoses and checking for any leaks. It warns that regular inspections and preventative maintenance of plant and equipment are important for reducing the risk of incidents occurring on site, and that a maintenance schedule should be documented for all plant and equipment.
Hydromet did not carry out a planned inspection and maintenance program for hoses and pipe work. Fixed piping was not installed to transfer the 98% sulphuric acid to the lime tank. There was no ability to ensure the complete and safe draining of transfer hoses and filling lines, and no checks were done to ensure that no residues remained prior to decoupling hoses or lines.
Mr Perera did not direct that these steps should take place, or enquire whether appropriate processes and resources were in place to ensure that they occurred.

[24]

Systems of Work Following the Incident

In response to Improvement Notice 43351 issued by SafeWork NSW on 18 March 2017, Hydromet carried out an investigation and prepared an incident Report dated 28 March 2017. The investigation was conducted by Mr Logan. The report identified the following factors as contributing to the incident: 1. Mr Rigg's lack of and incorrect use of personal protective equipment. 2. Lack of signage or labelling which contributed to poor instruction and assumptions being made. 3. Lax supervision in regards to Mr Mandic's experience level. 4. Hoses that were in use were not fit for purpose. 5. No formal JSA had been prepared on the task of disconnecting faulty or defective hoses. 6. Lack of means to bleed off any pressure in hose or pipe work.
The Incident Report proposed the following corrective action: "1. Sulphuric Acid dosing station has been relocated, and a single purpose dosing pump to be used until new equipment can be installed. 2. Re-engineer/redesign how Sulphuric Acid is fed to the dosing pump, and alter pipe work to have a means of draining the pipework. 3. Raise formal JSA based on the task of disconnecting hoses. 4. Pipework markers to be installed to indicate contents of pipes or hoses. 5. Any equipment that is not used for long periods of time to be removed from work area to avoid confusion. 6. Hoses that are used to transfer and or inject chemicals are to be replaced with chemical resistant hoses. 7. Tom is no longer permitted to work in the plant to carry out operational duties 8. Program in place to replace all hoses."
Hydromet developed a Safe Work Procedure dated 24 March 2017 for the activity of replacing damaged flexible hoses or pipe work. This procedure was developed by Mr Logan and Mr Gale and requires the following control measures to be taken when replacing hoses or pipe work to avoid splashes and chemical burns: 1. Refer to the safety data sheet to identify the chemical. 2. Follow depressurising procedures to release pressure or discharge contents inside hoses and piping. 3. Mandatory wearing of full face mask, acid resistant gloves and rain coat.
Hydromet replaced flexible hose lines with hard plumbing wherever possible, reducing the need for workers to periodically replace flexible hoses. The flexible hoses that were not replaced by hard plumbing were replaced with chemically rated high grade flexible hoses suitable for the transfer of 98% sulphuric acid. These hoses are less likely to become worn or damaged and require less maintenance, reducing the need for workers to replace damaged hoses.
Hydromet purchased a pipe labelling machine and proceeded to label and identify pipe work connected to the water treatment tanks so that workers can now identify what chemicals are contained in each of the lines connected to the tanks.
Hydromet employed a Work Health Safety Officer to monitor the safety performance of the operations and carry out safety audits of the workplace and ensure that all safety procedures were up to date, appropriate and complied with.
Hydromet designed and implemented a Safe Work Method Statement (SWMS No. 002) for working with hazardous chemicals, which required a risk assessment to be conducted and workers to be trained in the task and in potential hazards, prior to work commencing. The SWMS required that workers be trained in the location of safety showers, to read and follow the relevant SDS, and for appropriate PPE to be used prior to any chemical use. It also required equipment to be checked prior to use, in particular "inspect and repair tanks or hose/seals before use".
Hydromet now uses a SDS sourced from Incitec Pivot Limited, specifically for commercial sulphuric acid 98.5% that complies with the GHS. This SDS is in similar terms to the 51% SDS, and requires the use of splash proof goggles, PVC or rubber gloves, and coveralls. When using large quantities, rubber boots and a PVC apron should be worn. Where an inhalation risk exists, a respirator should also be worn.

[30]

Objective seriousness of the offence

The proportionality principle requires that a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term "objective circumstances" was used to describe the circumstances of the crime. The gravity of the offence was assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].
The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].
The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].
The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [82]. The question of foreseeability of the risk is to be determined objectively.
The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. This approach to sentencing, known as the "instinctive synthesis" approach, involves the making of a global judgment without any attempt to state precisely how any given factor has influenced the judgment.
The Court of Criminal Appeal has recently examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at par 34, under the heading "Assessment of Risk" said: "The sentencing judge commenced his consideration with the proposition that 'greater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk, and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors."
Further at par 42 his Honour continued: "The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step‑by‑step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and little, if any, costs."
At par 53 his Honour dealt with the proper approach to considering the objective seriousness of offences under the Act, saying: "It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from the failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of injury resulting is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialize. The objective seriousness of the conduct will also be affected by the ease with which mitigating steps could have been taken."
My findings about the level of culpability of both offenders are based upon the following: 1. Hydromet knew of the risk that its workers could suffer death or serious injury as a result of exposure to extremely hazardous chemicals during the process of replacing a flexible hose. Further, there was an abundance of Guidance Material concerning the risk. 2. The likelihood of the risk occurring was quite high. Safety standards seem to have slipped over the years at the site. Hydromet had failed to: 1. Review its systems of work when hydrochloric acid was replaced with commercial sulphuric acid; 2. Review its systems of work when commercial sulphuric acid was replaced with waste grade (98%) sulphuric acid; 3. Review its systems of work every five years to control the risks of hazardous chemicals; 4. Provide a current SDS to workers; 5. Deal with damaged or worn flexible hoses; 6. Require workers to use appropriate PPE; 7. Have a documented emergency management plan; 8. Identify the location of safety shower stations; 9. Identify hazardous chemicals within pipes; 10. Prevent workers changing flexible hoses containing hazardous chemicals; 11. Provide adequate instruction and training to workers; and 12. Permit only properly trained workers to deal with 98% sulphuric acid. 1. The potential consequences of the risk were catastrophic. Any exposure at all to the hazardous chemical used by Hydromet was very dangerous. 2. Steps to eliminate or minimise the risk were well-known and readily available. 3. It was not suggested that the burden or inconvenience of steps to be implemented was great. Hydromet managed to take the appropriate steps promptly after the incident. Further, Hydromet was a significant and profitable commercial operation. 4. The injuries to both workers were serious and the disabilities of Mr Mandic are permanent. 5. The maximum penalty for the offences is a fine of $1,500,000 for Hydromet and a fine of $300,000 for Mr Perera, which reflects the legislature's view of the seriousness of the offence. 6. Mr Perera provided no explanation at all for his own failures.
I find that Hydromet's level of culpability is in the high end of the mid range.
I find that Mr Perera's level of culpability is in the high end of the mid range.

[34]

Capacity to pay a fine

I am required to have regard to s 6 of the Fines Act 1996 (NSW) before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the court that it should exercise its discretion to limit the amount of the fine. The offender's capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.
In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said: "First, and more generally, questions of specific deterrence should take into account the size and scope of the operations of the defendant; a fine which may be crippling to a small business may have virtually no impact on the financial operations of a large corporation. The maximum penalty for the offence is undoubtedly set having regard to such a factor. Secondly, the Court is required to have regard to 'the means' of the defendant, pursuant to s 6 of the Fines Act 1996."
The evidence concerning the capacity of Hydromet to pay a fine is contained in the first affidavit of Mr Perera (DX1). Hydromet made substantial losses in 2015 and 2016 but has made profits in subsequent years. In 2019 its after tax profit was $1,163,000. The balance sheet for FY19 shows (in round figures) assets of $47,000,000, liabilities of $28,000,000 and total equity of $19,000,000. It has plant and equipment worth $34,000,000. Having regard to the size of the fine which will be imposed, I find that Hydromet has not established any reason to moderate the penalty.
The evidence of Mr Perera's own financial position is also in DX1. He jointly owns a property with his wife. He has about $45,000 owing on a personal loan and a credit card. Mr Perera has an annual income of $300,000. He too has not established any reason to moderate the penalty.

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Cases Cited (17)