SafeWork NSW v Plasser Australia Pty Ltd

The Risk

1. The risk is described in paragraph 26 of the Summons as follows: "26. The risk was a risk of serious injury or death as a result of an ignition, fire and/or explosion whilst workers were performing 'hot work', in particular, oxy-propane cutting, including but not limited to the oxy-propane cutting of waste solvent drums."

Reasonably Practicable Measures

1. Paragraph 27 of the Summons pleads particulars of Plasser's failure to comply with the duty under s 19(1) of the Act as follows: "27. Plasser failed to ensure, so far as reasonably practicable, the health and safety of workers, in particular Mr Fowler and/or Mr Burdy [sic] and/or Mr Miller and/or Mr Todorovski, whilst they were undertaking 'hot work', in particular oxy-propane cutting, in that Plasser failed to take one or more of the following reasonably practicable measures to eliminate the risk, or, in the alternative, if it was not reasonably practicable to eliminate it, to minimise the risk: (a) Undertaking a proper risks assessment in relation to the handling and/or the 'de-heading' of waste drums, including but not limited to the handling and/or 'de-heading' of waste solvent drums. Such a risk assessment should have identified the risk associated with the 'de-heading' of waste drums, including the risk associated with the 'de-heading' of waste solvent drums; and the risk assessment should have identified the measures to be taken to eliminate the risk, or if it was not reasonably practicable to eliminate the risk, the measures to be taken to minimise the risk, such as: (i) the provision and implementation of a detailed, documented, sequential safe work procedure and/or safe work method statement for the handling and/or 'de-heading' and/or disposal of waste drums, including but not limited to waste solvent drums; and or (ii) the provision and implementation of a formally documented instruction or direction that waste solvent drums were not to be 'de-headed', crushed and/or otherwise cut or pierced; or, in the alternative, if waste solvent drums were to be 'de-headed' and/or crushed and/or cut, the provision and enforcement of instructions in relation to a safe method for the cleaning and/or purging of the waste solvent drums, together with a process for the testing/verification of the cleaning and/or purging, before 'de-heading' and/or crushing is commenced; and/or (iii) if waste solvent drums were to be 'de-headed', crushed and/or otherwise cut or pierced, the provision and implementation of a written 'work permit' system in relation to the 'de-heading', crushing and/or cutting of waste solvent drums; and/or (b) Undertaking a proper risk assessment in relation to all types of 'hot work' performed as part of Plasser's business or undertaking at the site, including but not limited to the performance of all 'oxy-propane' cutting work undertaken at the site. Such a risk assessment should have identified the risk associated with all types of 'hot work' performed at the site, including but not limited to all types of oxy-propane cutting work performed at the site as part of Plasser's business or undertaking; and the risk assessment should have identified the measures to be taken to eliminate the risk, or if it was not reasonably practicable to eliminate the risk, the measures to be taken to minimise the risk, such as: (i) the provision and implementation of a detailed, documented safe work procedure or safe work method statement designed to ensure, as far as reasonably practicable, compliance with Australian Standard AS 4839 - 2001 "The safe use of portable and mobile oxy-fuel gas systems for welding, cutting, heating and allied processes" and/or the Australian Standards in series AS1674 including in particular AS 1674.1 'Safety in welding and allied processes - Part 1: Fire precautions'; and/or (ii) the provision and implementation of a 'Hot Work' permit system for the performance of oxy-propane cutting work, including in particular the cutting of scrap metal and like tasks, with the subject 'Hot Work' permit system to be a system of the type contemplated by Australian Standard AS 1674.1 Safety in welding and allied processes Part 1: Fire precautions; and/or (c) Requiring waste solvent drums to be handled and/or disposed of without being cut, including, in particular, oxy-gas cutting such as oxy-propane cutting; and/or (d) Providing and implementing a documented safe work procedure of safe work method statement for the handling, use and/or disposal of waste solvent drums, including but not limited to a direction or instruction that waste solvent drums are to be handled and/or disposed of without being cut, including, in particular, oxy-gas cutting such as oxy-propane cutting; and/or (e) further and In the alternative to sub-paragraphs (c) and (d) above - if waste solvent drums are to be permitted to be 'de-headed', crushed and/or otherwise cut or pierced - providing and implementing a formal, documented safe work procedure or safe work method statement that includes: (i) detailed, step by step instructions in relation to a safe method for the cleaning and/or purging of the waste solvent drums; and/or (ii) detailed, step by step instructions in relation to the testing and/or verification of the cleaning and/or purging to be performed before 'de-heading', crushing, cutting or piercing is commenced; and/or (iii) detailed, step by step instructions in relation to the fire and/or explosion control measures to be implemented; and/or (iv) detailed, step by step instructions in relation to the choice of tools and the process of 'de-heading', crushing, cutting and/or piercing of the waste solvent drums; and/or (f) Providing and implementing a 'Hot Work' permit system for the performance of oxy-propane cutting work, including in particular the cutting of scrap metal and like tasks, with the subject 'Hot Work' permit system to be a system of the type contemplated by Australian Standard AS 1674.1 Safety in welding and allied processes Part 1: Fire precautions; and/or (g) Providing and implementing a formal, documented safe work procedure or safe work method statement in relation to the performance of oxy-gas cutting, including in particular the oxy-propane cutting, of scrap metal and/or like tasks, including step by step instructions in relation to: (i) identification and use of a safe area(s) for the performance of such oxy-gas cutting works; and/or (ii) the fire and/or explosion control measures to be implemented; and/or (iii) the safe use and/or operation of the oxy-cutting equipment; and/or (iv) the issuing and use of a 'Hot Work' permit, including the appointment of a responsible officer to oversee and/or supervise the conduct of the 'Hot Work'; and/or (h) Providing and/or maintaining safe plant and/or equipment for use in the de-heading and/or cutting and/or piercing of waste drums, such as the provision and maintenance of a 'non-sparking' industrial drum tool for use in the de-heading, cutting and/or piercing of waste drums; and/or (i) Providing adequate training and/or instruction to workers assigned to perform the cutting of scrap metal and/or like tasks to ensure, as far as reasonably practicable, compliance with: (i) a 'Hot Work' permit system of the kind referred to in sub-paragraph (f) above; and/or (ii) a safe work method procedure or safe work method statement of the kind referred to in sub-paragraph (g) above; and/or (j) Providing adequate supervision to workers engaged in the cutting of scrap metal and/or like tasks to ensure, as far as reasonably practicable, compliance with: (iii) a 'Hot Work' permit system of the kind referred to in sub-paragraph (f) above; and/or (iv) a safe work method procedure or safe work method statement of the kind referred to in sub-paragraph (g) above."

Background

1. The parties presented an Agreed Statement of Facts and this material is summarised below.

Plasser

1. Plasser is a registered corporation which conducted a business at St Marys ("the site") involving the manufacture, maintenance and repair of railway machinery. Plasser is a wholly owned subsidiary of Plasser & Theurer Beteiligungs und Finanzierungs AG and is a member of the Plasser & Theurer Group of companies.
2. Mr Patrick Hofstadler was a director and the General Manager of Plasser. Mr Peter Figl was and still is a director, the company secretary and the Financial Controller of Plasser.
3. Plasser carried out the following work at the site: heavy structural steel fabrication; sheet metal fabrication; machining; electrical manufacture and installation; hydraulic and pneumatic installation; hydraulic cylinder manufacture; fitting and assembly; testing and calibration of plant and machinery. The works carried out at the site included welding, plasma arc cutting, oxygen/propane gas cutting (also known as "oxy-cutting" and "oxy fuel cutting" and "oxy-propane cutting") and grinding ("Hot Work").
4. On 13 March 2019 (the date of the incident) Plasser employed approximately 130 workers at the site.
5. Plasser had a range of specific, documented Safe Work Instructions relating to welding, other thermal or oxy-cutting and metal heating operations.
6. Plasser did not have in place: 1. A formal documented risk assessment in relation to the conduct of Hot Work either generally, or specifically in relation to use of oxy fuel cutting equipment at the site. 2. A Hot Work authorisation or permit system either generally, or specifically in relation to the use of oxy fuel cutting equipment at the site by workers such as labourers who were not Hot Work qualified. 3. A Safe Work Instruction ("SWI") in relation to the use of oxy fuel cutting equipment either generally, or specifically in relation to the use of oxy fuel cutting equipment by workers such as labourers who were not Hot Work qualified. 4. A Standard Operating Procedure ("SOP") in relation to the use of oxy fuel cutting either generally, or specifically in relation to the use of oxy fuel cutting equipment by workers such as labourers who were not Hot Work qualified.
7. Workers who were not Hot Work qualified workers were required or permitted by Plasser to use oxy fuel cutting equipment in the course of their employment.
8. Plasser did not have in place any system or procedures in relation to the training of unqualified workers in the use of oxy fuel cutting equipment, or the testing for competency of unqualified workers in the use of oxy fuel cutting equipment.
9. Unqualified workers who were required or permitted to use oxy fuel cutting equipment in the course of their employment with Plasser were provided with informal undocumented on-the-job instruction in the use of that equipment.
10. The works carried out by Plasser at the site routinely included the storage, handling and use of solvents, including GW0030 Gun Wash, T191 Cleaning Solvent and White Spirits.
11. Plasser maintained a Hazardous Goods Register in relation to hazardous goods used in various processes at the site. The solvents listed above were not identified in Plasser's Hazardous Goods Register as hazardous goods used in processes at the site. Plasser was in possession of Safety Data Sheets for each of these solvents: 1. The BC Coating Safety Data Sheet for GW0030 Gun Wash Reference No SDS 00067 issued 1/2/2017. 2. The Lacnam Paints Australia Safety Data Sheet for T191 Cleaning Solvent issued 1/10/2016. 3. The Reochem Safety Data Sheet for White Spirits Issue 5 issued 08/01/2015.
12. The Safety Data Sheet in relation to GW0030 Gun Wash stated: "Hazard Classification: Flammable Liquids - Category 2 Hazard Statements: H225 - Highly flammable liquid and vapour Prevention Precautionary Statements P210 - Keep away from heat/sparks/open flames/hot surfaces... P241 - Use explosion-proof electrical, ventilating, lighting and all other equipment P242 - Use only non-sparking tools P243 - Take precautionary measures against static discharge Specific Hazards: Highly flammable liquid and vapour. May form flammable vapour mixtures with air. Flameproof equipment necessary in area where this chemical is being used. Nearby equipment must be earthed. Electrical requirements for work area should be assessed in accordance AS 3000. Vapour may travel a considerable distance to source of ignition and flash back. Avoid all ignition sources. All potential sources of ignition (open flames, pilot lights, furnaces, spark producing switches and electrical equipment etc) must be eliminated both in and near the work area. Do NOT smoke. Fire fighting further advice: Heating can cause expansion or decomposition leading to violent rupture of containers… Conditions to avoid: Heat, sparks, flame and build up of static electricity. Disposal Considerations: Persons conducting disposal, recycling or reclamation activities should ensure that appropriate personal protection equipment is used, see: 'Section 8. Exposure Controls and Personal Protection' of this SDS. If possible material and its container should be recycled. If material or container cannot be recycled, dispose in accordance with local, regional, national and international Regulations."
13. An earlier version of the Safety Data Sheet for BC Coatings Gun Wash also stated in relation to Disposal Considerations: "Do NOT reuse empty containers without commercial cleaning or reconditioning Do NOT pressurise cut, heat or weld containers Empty product containers may contain product residue."
14. The Safety Data Sheets for T191 Cleaning Solvent and White Spirits were in similar terms.
15. Plasser did not have in place: 1. A formal documented risk assessment in relation to the safe use, handling or storage of solvents, including GW0030 Gun Wash, T191 Cleaning Solvent and White Spirits. 2. A documented SWI or a documented safe work procedure in relation to the safe use, handling and storage of solvents at the site. 3. A formal documented risk assessment in relation to the handling or disposal of waste (i.e. empty) solvent drums. 4. A SWI or a documented safe work procedure in relation to the cleaning or decontamination of waste solvent drums. 5. A SWI or a documented safe work procedure in relation to the disposal of waste solvent drums.
16. The use at the site by Plasser of materials delivered in metal drums generated waste drums. The waste drums included drums which previously had contained oils, paints, thinners and solvents.
17. Plasser required or permitted workers to: 1. Handle and de-head (i.e. cut the top and/or bottom off) waste drums for use at the site as storage or waste bins. This included waste solvent drums. 2. Handle, de-head, crush and dispose of waste drums, including waste solvent drums.
18. Plasser did not have in place a formal documented risk assessment in relation to the de-heading, or disposal of waste drums, including waste solvent drums.
19. Plasser did not have in place any formal, documented systems or procedures in relation to: 1. The handling of de-heading, crushing or disposal of waste solvent drums. 2. The training of workers in the de-heading of waste solvent drums. 3. The testing of competency of workers engaged in the de-heading of waste solvent drums.
20. Workers who were required or permitted to de-head waste solvent drums were provided with informal undocumented on-the-job training in the de-heading of waste drums.

Cutting Waste Drums prior to 2010

1. Mr Burdzy was employed by Plasser as a mobile crane driver and yard man. He was a worker within the meaning of s 7 of the Act.
2. Plasser had not provided Mr Burdzy with any formal documented trades-based training or any formal documented competency-based training in relation to the safe use or operation of oxy-cutting equipment.
3. In the course of his employment with Plasser, Mr Burdzy had received informal undocumented on-the-job training in the use of oxy-cutting equipment.
4. In addition to his formal responsibilities as a crane operator, Mr Burdzy was required or permitted by Plasser to use oxy-cutting equipment to cut up scrap metal for disposal in metal recycling bins located at the rear of the site.
5. Mr Burdzy was required or permitted by Plasser to de-head waste drums, including waste solvent drums.

The MHA Drum De-Header

1. In June 2010 Plasser purchased an MHA "Drum De-Header" for use in the opening or de-heading of waste drums, including waste solvent drums, generated by processes conducted on the site. The MHA "Drum De-Header" is a mechanical tool, also known as a "drum opener", which is used like a can opener to mechanically cut the ends off metal drums. Plasser did not cause a risk assessment to be performed for this plant. Plasser did not have in place for this plant: 1. A formal documented risk assessment. 2. A formal documented maintenance schedule. 3. A formal documented SWI or safe working procedure.
2. Mr Brian Jones was the Production Manager for Plasser and was responsible for the day-to-day management of all the manufacturing operations at the site. Mr Jones was an employer representative on the Plasser Work Health and Safety Committee. Prior to the inception of the Plasser Work Health and Safety Committee, Mr Jones had served as an employer representative on the Plasser Occupational Health and Safety Committee. As at 13 March 2019, Mr Jones had served as an employer representative on these committees for 15 years. He was serving in this role in 2010 when the MHA Drum De-Header was purchased.
3. About 8 to 12 months prior to 13 March 2019, the MHA Drum De-Header broke. Mr Burdzy says that he reported to Mr Jones that the MHA Drum De-Header was broken and in need of repair or replacement. Mr Jones attempted to repair the MHA Drum De-Header by re-sharpening it with a grinder. This restored the device's functionality for a short time before it again became completely inoperable.
4. Mr Burdzy says that he told Mr Robert Brindley, Plasser's Boilermaker Foreman, that he had informed Mr Jones that the MHA Drum De-Header was broken.
5. Mr Jones had declined to either have the tool repaired or replaced. Mr Brindley made no further inquiry and took no further action.
6. After the incident on 13 March 2019, Mr Jones denied having any recollection of receiving a report from Mr Burdzy that the MHA Drum De-Header was broken and/or in need of repair or replacement.
7. In 2018 after the MHA De-Header broke workers at the site, including Mr Burdzy, returned to the previous work practice of de-heading waste drums with oxy-cutting equipment.

Oxy-cutting of Waste Drums

1. The informal undocumented work practice which was followed by Mr Burdzy involved the following steps: 1. Positioning a hose for use in washing out the waste drums to be de-headed and also for use in case of fire. 2. Removing caps or bungs from the bung holes in the drums to be de-headed. 3. Checking the contents of the drums to be de-headed by sight and smell. 4. Where there was concern about the potential flammability of the contents of the drums to be de-headed: tip any remaining liquid contents onto the ground; wash out the drums with water; and placing a flame in front of the bung hole to check for any remaining flammable vapours, which would then burn off. 5. Proceeding to de-head the drums by cutting off one end, or if the drums were to be disposed of as scrap, cutting both ends off the drums, using the oxy-cutting equipment.
2. About 14 months prior to 13 March 2019, Mr Adam Miller commenced his employment with Plasser as an unskilled labourer. Mr Miller was a worker within the meaning of s 7 of the Act.
3. On about 22 January 2018 Mr Nicholas Todorovski commenced his employment with Plasser as an unskilled labourer. Mr Todorovski was a worker within the meaning of s 7 of the Act.
4. About two weeks prior to 13 March 2019, Mr Jones instructed Mr Miller and Mr Todorovski to use oxy-cutting equipment to cut up some metal frames for disposal as scrap metal. Prior to this, neither Mr Miller nor Mr Todorovski had received any formal documented competency-based training in the safe use and operation of oxy-cutting equipment.
5. Mr Jones demonstrated to Mr Miller and Mr Todorovski how to turn on and ignite the oxy cutter, how to adjust the cutting flame and how to use the oxy cutter to cut up metal frames for disposal as scrap metal.
6. The demonstration by Mr Jones to Mr Miller and Mr Todorovski was informal and undocumented. Mr Jones did not instruct Mr Miller and Mr Todorovski in the use of personal protective equipment or fire control measures, such as the deployment of a fire extinguisher. Mr Miller and Mr Todorovski were not required to undergo a competency-based assessment before commencing use of Plasser's oxy-cutting equipment.
7. In the period between the date on which Mr Jones first demonstrated the use of the oxy-cutting equipment to Mr Miller and Mr Todorovski and the date of the incident on 13 March 2019, Mr Todorovski attended in the area at the rear of the site on at least one occasion to practise using the oxy-cutting equipment. On this occasion Mr Todorovski used the oxy-cutting equipment to cut the ends off waste drums.
8. During the week before the incident Plasser performed a clean out of the Paint Shop at the site.
9. As a consequence of the clean out of the Paint Shop, a large number of waste drums, including waste solvent drums, were moved from the Paint Shop to the area at the rear of the site.
10. On 12 March 2019 Mr Jones instructed Mr Miller and Mr Todorovski to clean up the area at the rear of the site.
11. Plasser employed Mr Geoffrey Fowler as a labourer/crane driver to assist Mr Burdzy. Mr Fowler had been employed in this position for approximately nine months. Prior to his direct employment with Plasser, Mr Fowler worked at the site for approximately 15 months for a labour hire company engaged by Plasser.
12. On 12 March 2019 Mr Burdzy and his assistant Mr Fowler instructed Mr Miller and Mr Todorovski how to use the oxy cutter to cut up roofs that had been removed from rail carriages and how to de-head waste drums. The instructions provided by Mr Burdzy and Mr Fowler were unstructured, informal and undocumented. Mr Miller and Mr Todorovski were not required to undertake any assessment in relation to their understanding of the procedures used by Mr Burdzy and Mr Fowler. Mr Miller and Mr Todorovski used Plasser's oxy-cutting equipment to de-head about 12 waste drums.

The Incident

1. On 13 March 2019 Mr Miller told his supervisor Mr Michael Hay that Mr Burdzy had shown him and Mr Todorovski how to de-head waste drums using Plasser's oxy-cutting equipment.
2. Mr Hay was a qualified boilermaker and a foreman. Mr Hay was aware that: 1. The practice of cutting the ends off waste drums with oxy-cutting equipment was an unsafe work practice which involved a fire risk. 2. Plasser had purchased a mechanical de-header for use in the de-heading of waste drums.
3. Mr Hay told Mr Miller that he and Mr Todorovski should not use the oxy-cutting equipment to de-head waste drums and that they should use the mechanical drum de-header. Mr Hay did not ask Mr Burdzy why he was instructing labourers to use oxy-cutting equipment in the de-heading of waste drums. Mr Hay took no further steps to ensure that Mr Miller and Mr Todorovski were adequately trained in the use of the mechanical de-header or that Mr Miller and Mr Todorovski had used that tool in the de-heading of waste drums.
4. Later that morning Mr Todorovski and Mr Miller returned to the backyard area to continue cleaning up. Mr Miller asked Mr Burdzy about the MHA Drum De-Header and Mr Burdzy told Mr Miller that the de-header was broken.
5. Mr Miller and Mr Todorovski then used the oxy-cutting equipment to cut up old railway carriage roofs and de-head waste drums. At the time of the incident, Mr Miller and Mr Todorovski had used the oxy-cutting equipment to de-head six waste drums.
6. Mr Miller and Mr Todorovski worked interchangeably, with one working using the oxy-cutting equipment and the other standing nearby with a hose in case a drum caught fire.
7. At about 3.00pm Mr Todorovski and Mr Miller were using the oxy-cutting equipment to de-head a waste solvent drum. This drum had contained 205 litres of Lacnam T191 Cleaning Solvent.
8. The two bung holes in the top of the waste drum were plugged with bungs.
9. Mr Miller was standing to the side of the drum holding the hose at the ready to water the drum down in case of fire. Mr Todorovski was standing in front of the top of the waste drum preparing to cut a hole in the side of the drum.
10. Upon Mr Todorovski applying the cutting flame of the oxy torch to the side of the waste drum, near the joint between the side of the waste drum and its top, the top joint of the drum failed and the top of the drum separated explosively from the rest of the drum.
11. The top of the drum struck Mr Todorovski on his right leg.

Injuries

1. As a result of the incident Mr Todorovski sustained open fractures to his right tibia and fibula, an open fracture to his left foot and a laceration to his right elbow. Mr Todorovski was admitted to hospital where he underwent multiple surgical interventions, including surgical fixation of the fractures of his right tibia and fibula, as well as skin grafting.
2. Mr Miller was thrown to the ground when the incident occurred. He sustained minor physical injuries including a headache, dizziness and ringing in the ears.

Post-incident Inspection

1. The lid of the drum involved in the incident was located nine metres away from the rest of the drum. The lid of the drum was severely deformed. A bung was located in position in each of the two bung holes in the lid.
2. During the inspection of the area after the incident the following were located: 1. A portable oxy-propane cutting set. 2. A number of other 205-litre waste drums which had been de-headed (i.e. both top and bottom removed). The edges of the remnant waste drums, at both the top and the bottom, were blackened consistent with those edges having been cut by oxy-cutting equipment. 3. Three 205-litre drums with tops and bases intact. One drum was labelled as Plasser Gun Wash, Flammable Liquid 3 UN193, Packaging Group II; Hazchem 3YE, 205 litres. The other two drums were labelled as Lacnam Cleaning Solvent, 205 litres PG II, UN No. 1263.

Hot Work including oxy-propane cutting

1. Plasser did not have in place any formal documented Hot Work system, including a Hot Work permit system.
2. Plasser employed qualified tradespeople to undertake welding and allied processes in the performance of Hot Work.
3. An informal and undocumented work practice had developed pursuant to which unqualified workers were required or permitted to use Plasser's oxy-propane equipment to undertake oxy-propane cutting for various tasks, including the oxy-propane cutting of scrap metal and waste drums.

Handling and Disposal of Waste Drums

1. Plasser did not have in place any formal documented system of work for the handling or disposal of the waste drums.

Guidance Material

1. The Code of Conduct: Managing risks of hazardous chemicals in the workplace - July 2014 states, relevantly, at page 31 that: "Hot work is any process involving grinding, welding, brazing, oxy-cutting, heat treatment or other similar process that generates heat or continuous streams of sparks. Undertaking hot work in areas where flammable or combustible chemicals or other materials are present creates a significant risk of fire or explosion. Conducting hot work on containers such as drums, tanks and pipes that have not been properly decontaminated is a common ignition scenario resulting in fatalities. A hot work permit system is a system designed to eliminate or minimise risks from these activities, by controlling when and how hot work is undertaken in these areas. Further information on hot work permit systems is available in the following Australian Standards: • AS 1940: The storage and handling of combustible liquids • AS/NZS 2865: Safe working in confined spaces • AS 1674:1 Safety in welding and allied processes….."
2. The Code of Conduct provides at p 37: "Information, training, instruction and supervision must be provided not only to workers but to other person at the workplace such as visitors. Information, instruction and training should include the following: • the nature of the hazardous chemicals involved; • the control measures implemented, how to use and maintain them correctly, for example how and when to clean or replace filters on a spray painting booth • the arrangements in place to deal with emergencies, including evacuation procedures, containing and cleaning up spills and first aid instructions • the selection, use, maintenance and storage of any personal protective equipment (PPE) required to control risks and the limitations of the PPE • any health monitoring which may be required and worker's rights and obligations • the labelling of containers of hazardous chemicals, the information that each part of the label provides and why the information is being provided • the availability of the SDS for all hazardous chemicals, how to access the SDS, and the information that each part of the SDS provides • the work practices and procedures to be followed in the use, handling, processing, storage, transportation, cleaning up and disposal of hazardous goods. Information, training and instruction must be provided in such a way that it is easily understood. The amount of detail and extent of training will depend on the nature of the hazards and the complexity of the work procedure and control measures required to minimise the risks."
3. Plasser was in possession of a Safety Data Sheet for each of the solvents used in processes conducted at the site.

Changes Introduced after the Incident

1. Plasser issued a formal documented work instruction prohibiting the use of its mobile oxy-propane equipment or an angle grinder to de-head or remove the tops from any drums, no matter what substance the drums may have previously contained or what precautions workers may have informally put in place.
2. Plasser developed and implemented: 1. A formal documented Plasser Australia Safe Operating Procedure in relation to the use and operation of its mobile oxy-propane cutting equipment. 2. A formal documented Plasser Australia Safe Work Instruction in relation to the use and operation of its mobile oxy-propane cutting equipment.
3. Plasser formally recognised that unqualified workers may be required or permitted in the course of their employment to use Plasser's oxy-propane equipment to perform oxy-cutting. Plasser conducted a review, identified relevant workers and introduced training for the safe use and operation of mobile oxy-propane sets.
4. Plasser undertook formal documented risk assessments in relation to the safe use, handling and storage of solvents and the disposal of flammable waste solvent drums.
5. Plasser developed and implemented a formal documented safe work instruction for the disposal of waste solvent drums.
6. Plasser provided supplementary training to workers in relation to the decanting of hazardous substances.

Evidence for Plasser

1. Mr Michael Keefe swore an affidavit on 2 August 2021 (DX 1). Mr Keefe is the Managing Director of Plasser having been appointed on 9 March 2020. He has extensive experience in the railway industry and has tertiary qualifications in project management. Plasser is an Australian subsidiary of a worldwide company which has 5,000 employees. Plasser has operated at the site since about 1973. Mr Keefe said that the manufacture of heavy rail plant machinery "is inherently dangerous".
2. Mr Keefe set out the changed procedures adopted by Plasser since the incident and outlined the co-operation of Plasser with the prosecutor. Those matters appear in the summary of facts set out above.
3. Plasser provided assistance to Mr Todorovski and Mr Miller. It offered counselling to its workers who were affected by the incident. Senior executives of Plasser visited Mr Todorovski to check on his progress.
4. By 22 June 2020 Mr Todorovski had returned to his pre-injury duties subject to some minor restrictions. Plasser offered Mr Todorovski a boilermaker apprenticeship which has been taken up. Mr Todorovski remains a full-time employee of Plasser and can carry out his new duties with some minor restrictions.
5. Mr Miller returned to work on 29 March 2019. He had some days off as a result of headaches. Mr Miller was referred for occupational rehabilitation in September 2019 for assistance with his headaches and with his psychological well-being. By January 2021 Mr Miller had returned to his pre-injury duties but was still undergoing rehabilitation in relation to anxiety, depression and sleep disturbances. Mr Miller has been moved to a quieter part of the factory to reduce stress on his hearing and to avoid headaches. He remains a full-time employee.
6. In March 2021 Plasser provided financial assistance to Mr Miller to help him pay a bond and secure a rental property.
7. Mr Keefe said that since his appointment in March 2020 he has made "marked changes to policies to advance the culture around work health and safety". Spending for work health and safety has increased by 530%. The material in Mr Keefe's affidavit shows that he has promoted a positive safety culture. A Safety Manager and a Safety Officer have been appointed. Training and competency assessments have been improved. Safety meetings have increased in number.
8. Plasser has contributed to community charities and educational seminars.
9. As the Managing Director of Plasser, Mr Keefe acknowledged that Plasser took full responsibility for the incident that occurred at the site on 13 March 2019. He expressed sincere remorse for exposing Plasser's employees to a risk of death or serious injury and for causing Mr Todorovski to sustain serious personal injuries. Mr Keefe acknowledged that the incident should not have occurred and could have been prevented. He said that Plasser did not have sufficient controls in place to eliminate or otherwise mitigate the risk.
10. Mr Keefe concluded his affidavit by reiterating that he and the other directors of Plasser were committed to improve the safety performance of the company and had worked hard to change the safety culture.

Consideration

1. I have had regard to the objects in s 3 of the Act and the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Objective Seriousness of the Offence

1. 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].
2. 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].
3. 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."
4. 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].
5. 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.
6. 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.
7. 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."
8. 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."
9. 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."
10. My findings about Plasser's level of culpability are based upon the following: 1. The risk of suffering serious injury or death as a result of an ignition, a fire or an explosion while workers were performing hot work was foreseeable and was known by Plasser. The relevant guidance material made it plain that carrying out Hot Work in areas where flammable or combustible chemicals are present creates such a risk. 2. The likelihood of the risk occurring was relatively high in the circumstances where: 1. adequate risk assessments had not been undertaken; 2. there was no Hot Work permit system in place; 3. instructions to unqualified workers were informal and ad-hoc. 1. The potential consequences of the risk were serious injury or death. 2. The available guidance material set out appropriate control measures that should be in place including Hot Work permit systems and appropriate training in relation to the handling and disposal of hazardous chemicals. 3. There would not have been a significant burden or cost in taking such measures to ensure safety. Following the incident Plasser promptly formalised its procedures, undertook appropriate risk assessments and provided supplementary training to its workers. 4. Mr Todorovski suffered very serious injuries and Mr Miller was fortunate to have sustained lesser injuries. Both still suffer the consequences. 5. 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. 6. While Plasser did have a documented safety system, it was one with significant shortcomings. The unsafe de-heading of waste solvent drums had been going on for some time.
11. I find that the level of culpability of Plasser is in the upper half of the mid range.

Deterrence

1. The penalty imposed in relation to this offence must provide for general deterrence. Employers must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].
2. The penalty must reflect the need for specific deterrence. Plasser is still conducting a business in an inherently dangerous industry. Its operations involve the provision of railway machinery and the continuing engagement of workers.

Aggravating Factors

1. The injury, emotional harm, loss or damage caused to Mr Todorovski by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999.
2. Plasser has one previous conviction from 27 May 2009: s 21A(2)(d) Crimes (Sentencing Procedure) Act 1999. See: Inspector Marie Davidson v Plasser Australia Pty Ltd [2009] NSWIRComm 79.

Mitigating factors

1. Plasser is otherwise of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. It has been a good corporate citizen. The steps which it took after the incident demonstrate this. Plasser has been in business since the 1970s.
2. Plasser has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. It has taken positive steps to guard against the risk of an incident such as this ever happening again. It has brought its documentation and its procedures into line with those which, on all the evidence, should have been in place before this accident occurred.
3. Plasser has shown remorse for the offence: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. It has provided evidence that it has accepted responsibility for its actions and has acknowledged that the injuries to Mr Todorovski and Mr Miller were caused by its actions.
4. Plasser entered a plea of guilty: s 21A(3)(k) Crimes (Sentencing Procedure) Act 1999. The court must take into account the fact that the offender has pleaded guilty, when the offender pleaded guilty, and the circumstances in which the offender indicated an intention to plead guilty: s 22(1) Crimes (Sentencing Procedure) Act 1999. It is appropriate to give Plasser Australia Pty Ltd a 25 % discount for an early plea.
5. Plasser gave assistance to law enforcement authorities: s 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. It co-operated at all times with the prosecutor and provided all documents requested in a prompt fashion.

Capacity to Pay a Fine

1. 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.
2. 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 Plasser; 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 Plasser, pursuant to s 6 of the Fines Act 1996."
3. There was no submission about capacity to pay, so this issue does not arise.

Costs

1. The parties have agreed to an order that Plasser is to pay the prosecutor's costs.

Penalty

1. My orders are: 1. Plasser Australia Pty Ltd is convicted. 2. The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. 3. Order Plasser Australia Pty Ltd to pay a fine of $180,000. 4. Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. 5. Order Plasser Australia Pty Ltd to pay the prosecutor's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2021