SafeWork NSW v JA Investment Group Pty Ltd - [2021] NSWDC 569 - NSWDC 2021 case summary — Zoe

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SafeWork NSW v JA Investment Group Pty Ltd

[2021] NSWDC 569

District Court of NSW|2021-10-15|Before: Order JA

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-10-15

Before

Order JA

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37
(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
(2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39
(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited

Source

Original judgment source is linked above.

Catchwords

(1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37(2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71(2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty LimitedAttorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242SafeWork NSW v Sarjeet Sidhu [2021] NSWDC 148SafeWork NSW v MMP Industrial Pty Ltd [2019] NSWDC 854 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14

Judgment (42 paragraphs)

[1]

M Scott (Prosecutor) P Barry and H Pararajasingham (Defendant)

[2]

[5]

Reasonably Practicable Measures

Paragraph 13 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "13. The defendant failed to ensure so far as is reasonably practicable the health and safety of workers, in particular Mr Mahmoud Saadie, Mr Ali Al-Shihan and Mr Abed El Hamid Chama, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively to minimise if not reasonably practicable to eliminate) the risk: a. Conduct a risk assessment in relation to the task which identified the hazards and risks associated with the task and identified the control measures that provide the most adequate protection against the identified risks; b. Identify, clearly indicate and communicate to workers where there was a risk of explosion and/or fire occurring; c. Require petrol, diesel and any other hazardous chemicals or flammable liquids at the site to be stored in correctly labelled containers; d. Separate workers from fuel including petrol and diesel by distance or barriers, by storing petrol and diesel in a locked cage away from the wrecking area or other suitable methods of separation; e. Require the use of suitable battery-operated equipment or intrinsically safe electrical equipment and/or electrical wiring in hazardous areas at the site; f. Develop, implement and enforce a safe work procedure for the task which included but was not limited to, the following: i. prohibited workers from using fuel including petrol and diesel as a cleaning agent; and/or ii. prohibited the use, handling and storage of flammable liquids and hazardous chemicals, including petrol and diesel near the "oil separator" or sum-drain; and/or iii. prohibited or restricted the use of electrical equipment and/or electrical outlets in hazardous areas; g. Provide adequate supervision to workers at the site, such as is necessary to protect the workers against the risk of fire and explosion when working with or in the vicinity of hazardous chemicals and/or flammable liquids; h. Provide adequate information, instruction and training to workers at the site, including but not limited to, the following: i. The nature of the hazardous chemicals and/or flammable liquids stored in the wrecking bay, including petrol and diesel and the risks posed to workers from the use, storage and handling of same; ii. The Safety Data Sheet (SDS) for fuels stored in the wrecking bay and other hazardous areas at the site, including petrol and diesel; and/or iii. The safe work procedure to be followed when undertaking the task and in the use, handling and storage of hazardous chemicals and/or flammable liquids including petrol and diesel."

[7]

Operations at the Site - Automotive Dismantling

JA Investment purchased cars from car auctions, dismantled them, resold used parts and sent the rest of the vehicle to scrap.
The site had a concrete floor and included two "wrecking" or "dismantling" bays ("wrecking area"). Each bay had one hoist. The wrecking area was approximately 10-12 metres wide.
The wrecking area had a drain, referred to by JA Investment as the "oil separator", located behind the middle of one of the hoists. It was covered by a grate and was approximately 1.5 metres deep. The ground sloped to the oil separator, so that the drain could collect all the run-off from the wrecking area. Once it was full, the oil separator would either clear itself automatically or could be manually emptied using a switch. The pump used to empty the oil separator was powered by electricity.
At the back of the wrecking area was a garage door. The front of the wrecking area was closed. The wrecking area did not have any mechanical ventilation.
On both sides of the wrecking area there were workstations where tools were located. The workstations were approximately one metre away from the hoists.
The electrical equipment located in the wrecking area included a compressor, an electric gurney, electrical outlets, electric recipro saws, an electric tyre machine and an electric pump to power the oil separator.
The dismantling process involved a forklift lifting a car and placing it on a hoist. One worker worked on each hoist to pull the vehicle apart.
The task of dismantling vehicles involved removing fuel tanks. A worker extracted the tank from the underside of the vehicle and placed it on a gearbox hoist. Any remaining fuel in the fuel tank was syphoned with a jiggling hose into a plastic 20-litre drum.
JA Investment says that the extracted petrol and diesel was stored in the same drums. Approximately 8-10 20-litre drums of petrol and/or diesel were extracted from vehicles and stored at the site daily. Mr Al-Shihan stated that at the time of the incident, approximately 8-12 20-litre drums of petrol were stored near the hoist he was working on and another 5-8 drums were stored near the other hoist. He recalled that there was no partition separating the drums of petrol and the hoist. Mr Chama reported that there were approximately 8-12 20-litre drums stored at his hoist and about the same at the other hoist.
JA Investment did not put labels on the petrol or diesel drums to identify them as containing a flammable liquid or to warn workers of the risks associated with a flammable liquid. The petrol and/or diesel was removed from the site regularly by both Mr Hassan Assaad and Mr Abdallah Assaad and some of the workers who used it in their own vehicles from time to time.

[15]

Risk assessment and Safe Work Procedure

JA Investment was required, under cll 34-36 and 351 of the Regulation, to: 1. Identify reasonably foreseeable hazards that could give rise to a risk to health and safety. 2. Eliminate identified risks so far as is reasonably practicable. 3. If it was not reasonably practicable to eliminate the risk, then minimise the risk so far as was reasonably practicable by implementing control measures in accordance with the hierarchy of control. 4. Manage risks to health and safety associated with using, handling, generating or storing a hazardous chemical at a workplace.
The SafeWork NSW, "Managing Risks of Hazardous Chemicals in the Workplace" Code of Practice, July 2014 ("the Code") sets out, at Part 3, Appendices G and F, how to conduct a risk assessment. Part 4 of the Code sets out the hierarchy of risk controls and provides guidance on how to develop and implement control options.
JA Investment did not undertake a risk assessment for the task. It did not identify the hazards associated with the nature of the work being carried out, or that the task could interact with hazardous chemicals being stored at the site. It did not identify which workers were at risk of exposure or identify if and what kind of control measures should be implemented.
JA Investment did not have a safe system of work for the task of cleaning the wrecking area and cleaning vehicle parts. JA Investment said that it provided verbal instruction to workers that the system of work for cleaning parts of vehicles was to use a degreaser, which was provided. Mr Abdallah Assaad said that the degreaser was stored in spray bottles and workers were directed to mix it with water and to spray a little bit on the area they were cleaning. Workers were to leave it on for four to five minutes and then use the gurney to remove the degreaser.
However: 1. None of the injured workers reported being aware of or being directed to use degreaser to clean vehicle parts. 2. Some of the injured workers reported witnessing Mr Abdallah Assaad directing Mr Al-Shihan to use water to clean the tray. 3. Some of the injured workers reported witnessing Mr Al-Shihan using petrol to clean the tray.

[20]

Ignition Sources

Clause 355 of the Regulation provides that a person must, if there is a possibility of fire or explosion in a hazardous area being caused by an ignition source being introduced into the area, ensure that the ignition source is not introduced into the area (from outside or within the space).
The Code discusses physicochemical risks at Part 3.4. It states that fire and explosion can result when the following three primary elements come together: - a source of fuel, a source of oxygen and an ignition source - these elements are commonly referred to as the fire triangle. The Code states that the fuels that present the highest risk are those hazardous chemicals that are flammable, including flammable liquids and their vapours and fumes (which include petrol and diesel).
The Code states the sources of fuels, oxygen and ignition should be identified in the workplace and further states that ignition sources that have the potential to ignite a flammable or combustible material must be identified.
The Code states that an ignition source can be one of three broad types - flames, sparks and heat. The Code identifies that common examples of a spark are "electric motors" and "electrical equipment like power points". It also states that some electrical equipment may be a source of ignition.
Appendix H to the Code lists examples of common fuel and oxygen sources. Listed as common fuel sources are petrol and diesel. Appendix I lists fire and explosion risks. Listed as the risks in the "automotive industry" are "fuels, oils, spray painting, electrical, solvents, oxy-acetylene".
In addition, the SafeWork NSW "Guidance for managing the risks associated with end of life Petrol (ULP) Vehicles Fact Sheet" identifies that petrol is an extremely volatile liquid which gives off flammable vapours at very low temperatures. When mixed with air, these vapours can form a flammable atmosphere that will readily burn or explode if an ignition source is present. Flammable vapours will be released when petrol is handled, extracted from vehicles, transferred between storage tanks, drums or cans and whenever petrol is spilt or exposed to the air.
The possible fuel sources in the wrecking area at the time of the incident are listed below: 1. Mr Abdallah Assaad said that at the time of the incident, fuel was being stored behind the workers in the wrecking area on a shelf where they put tow bars. JA Investment said that petrol was being stored approximately three to four metres away from where Mr Al-Shihan was working at the time of the incident. Mr Al-Shihan said that it was being stored approximately one metre from where he was working at the time of the incident. 2. JA Investment said that approximately 8-10 20-litre drums of petrol and/or diesel were extracted from vehicles and stored at the site daily. Mr Al-Shihan said that at the time of the incident, approximately 8-12 20-litre drums of petrol were stored near the hoist he was working on and another 5-8 drums were stored near the other hoist. Mr Chama also said that there were approximately 8-12 20-litre drums stored at his hoist and about the same at the other hoist. 3. Mr Al-Shihan recalled that the petrol containers often accumulated over the week and were not taken off site daily. 4. Mr Al-Shihan said that the area he was working on had an incline so that the run-off (petrol, grease, water) could run down to the underground storage. He said he was working next to the collection point of all run-off for the entire wrecking area including the other hoist. JA Investment call this the "oil separator".
The possible ignition sources in the wrecking area at the time of the incident include a compressor, an electric gurney, electrical outlets, electric recipro saws, an electric tyre machine and an electric pump to power the oil separator.

[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].
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said: "The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
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. 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 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. Justice Basten at [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 [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 [event] 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 [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 defendant's level of culpability are based upon the following: 1. JA Investment through its managers knew of the risk. In any event the risk was foreseeable and there was guidance material directed to this particular risk. 2. The likelihood of the risk occurring was high, a matter properly conceded by counsel for the defendant. There were many sources of flammable vapour and multiple potential ignition points near the three injured workers. 3. The potential consequences of the risk were death or serious injury. 4. Simple and well-known steps were readily available to eliminate or minimise the risk. 5. There was no great burden or inconvenience in these steps being implemented. JA Investment took remedial measures quickly after the incident. 6. The harm caused was extremely serious. Three workers suffered significant burns which will have lifelong effects. The devastating impact upon Mr Al-Shihan is set out in detail in his Victim Impact Statement (PX 2) which is summarised below. 7. The maximum penalty for the offence is a fine of $1,500,000, which reflects the legislature's view of the seriousness of the offence. 8. Prosecutions involving explosions caused by flammable vapours being ignited by sparks often come before the court. Many of these incidents lead to workers suffering serious burns which have long term effects. See: SafeWork NSW v Plasser Australia Pty Ltd [2021] NSWDC 441; SafeWork NSW v JPS Car Wash Management Pty Ltd [2021] NSWDC 148; SafeWork NSW v SRS Star Management Pty Ltd; SafeWork NSW v Sarjeet Sidhu [2021] NSWDC 148; SafeWork NSW v MMP Industrial Pty Ltd [2019] NSWDC 854; SafeWork NSW v CRS NSW Pty Ltd [2017] NSWDC 312.
Both counsel submitted that the matter fell into the upper half of the mid range. That is also my view. I find that the level of culpability of JA Investment is in the upper half of the mid range.

[35]

Victim Impact Statement

The defendant was convicted at the sentence hearing on 15 October 2021.
Part 3 Division 2 of the Crimes (Sentencing Procedure) Act 1999 deals with Victim Impact Statements. The provisions apply to an offence being dealt with by the District Court where the offence results in the death of, or actual physical bodily harm to, any person - s 27(2)(a).
By s 28(1) a primary victim may prepare a statement that contains particulars of the following suffered as a direct result of the offence: 1. Any personal harm. 2. Any emotional suffering or distress. 3. Any harm to relationships with other persons. 4. Any economic loss or harm that arises from any matter referred to in (1)-(3) above.
A Victim Impact Statement may be tendered to the court only by the prosecutor - s 30A(2). A court must accept a Victim Impact Statement tendered by a prosecutor if the statement complies with the requirements of the Division - s 30B. A victim to whom a Victim Impact Statement relates may read out the whole or part of their Victim Impact Statement - s 30D(1).
A court to which a Victim Impact Statement has been tendered must consider the statement at any time after it convicts but before it sentences, and may make any comment on the statement that the court considers appropriate - s 30E(1).
The prosecutor tendered a Victim Impact Statement of one of the injured workers, Mr Al-Shihan, dated 6 October 2021 (PX 2). Mr Al-Shihan commenced working for JA Investment in 2014. He left JA Investment in September 2017 to work for another repair shop. In November 2018 he returned to working for JA Investment after Mr Abdallah Assaad offered to pay him more money.
When Mr Al-Shihan turned the gurney on there was an explosion and he found himself engulfed in flames with a piece of metal sticking out of his forehead. Mr Shihan explained that he thought he was going to die.
Mr Al-Shihan ran outside to the front of the building. He looked at his arm and saw his skin bubbling and peeling off. He looked at his reflection in one of the vehicles parked on the side of the driveway and saw skin hanging off his forehead. Mr Al-Shihan passed out. He sustained burns to both forearms, his face, his airways and injuries to his head, neck and lower back from when he was thrown out of the work bay by the explosion.
Mr Al-Shihan woke up in the Intensive Care Unit at Royal North Shore Hospital at 10.00pm that evening. Mr Al-Shihan described the next three weeks as unbearable. He was confined to his hospital bed not able to move or use his arms and was in a considerable amount of pain. Most of the time he felt like the pain medication did not help.
Mr Al-Shihan explained that he had issues with memory while he was in hospital. He wasn't sure that he would be discharged unless his memory improved so he cheated on the memory tests that the nurses conducted. He did not want to stay in hospital any longer and wanted to get back home to his normal life.
Mr Al-Shihan stated that since the incident he has lost almost three years of his life due to pain and suffering. He feels that the plans he had for his future will remain unaccomplished and he is uncertain when his life will return to normal. He stated that his life will never be the same again due to the incident.

[38]

Social Impact

Mr Al-Shihan stated that prior to the incident he regularly went to the gym and went fishing, hunting and skydiving with his friends. He no longer finds joy in his hobbies and is unable to be outdoors in the sun for long periods due to his burns.
Mr Al-Shihan has distanced himself from everyone around him including his family and friends. He stated that following his injuries he felt like a different person. Mr Al-Shihan stated that he shuts down and becomes quite angry when people try to help him. He feels like a failure as he is no longer able to do the things he used to enjoy doing.
Mr Al-Shihan avoids phone calls as he doesn't want to be asked about the incident. Eventually most people ceased trying to contact him. Mr Al-Shihan moved to Queensland as he wanted to be in a place where no one knew him and he could be alone. Due to the COVID-19 lockdown and his regular medical appointments in New South Wales Mr Al-Shihan reluctantly moved back to Sydney.
Prior to moving to Queensland Mr Al-Shihan ended his relationship with his partner. He stated that they were constantly arguing and that he would get angry at the drop of a hat. He reconnected with his partner six months ago. He stated that it has been tough and he finds it hard to communicate with her. He is concerned that she may not be able to stand him much longer and will decide to end things.
Mr Al-Shihan now requires assistance from his mother or partner to eat, shower, change his clothes, drive him around and remind him to take his medications. He only feels comfortable driving short distances to familiar locations. Currently Mr Al-Shihan takes Oxycodone, Pantoprazole, Paracetamol, Pregabalin, Quetiapine, Loratadine and Macrogol 3350. His doctors have advised him that he will continue to require this level of medication or something similar in the indefinite future.
Mr Al-Shihan stated that he has great difficulty concentrating. Prior to the incident he would spend hours being absorbed in working on his car but now he is unmotivated and is not physically capable of doing this.

SafeWork NSW v JA Investment Group Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (21)

Cited By (3)