SafeWork NSW v Silver Raven Pty Ltd

District Court of NSW|2019-08-02

Judgment

Silver Raven Pty Ltd (the offender) has pleaded guilty to an offence that being a person who had a health and safety duty pursuant to section 19(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Joshua Tilocca and Ron Wilson to a risk of death or serious injury contrary to section 32 of the Act.
The maximum penalty for the offence is a fine of $1.5 million.

Facts

The parties presented an Agreed Statement of Facts that can be summarised as follows.

The incident on 30 September 2015

At approximately 3:00am on 30 September 2015, Mr McElroy and Mr Cervantes collected two high pressure water pump trucks from the offender's property in Marrickville. They met the rest of the offender's workers at the premises at approximately 6:00am.
Manildra manager, Ennio Coslovich, discussed the work required with Mr McElroy and issued an "Authority to Work Permit - 12 Hour Duration" to the offender. The Permit was a controlled permit, issued for high risk work, which allowed the offender to access and control the area for the duration of time required to clean the pipework.
Mr McElroy conducted a toolbox talk with the offender's workers, who then separated into two teams with Mr McElroy supervising both teams. This was the first time Mr McElroy had been tasked with supervising two crews. One supervisor was often allocated to supervise more than one crew depending on the work to be undertaken. The supervisor would set up the jobs, make sure the controls were in place and alternate between teams. Generally, workers were to call a supervisor if the work changed.
The first team consisted of Mr Tilocca, Mr Sullivan and Mr Wilson, who were tasked with cleaning pipes in the area and cleaning the syrup line that ran from the evaporator slab across the DDG dryer.
The second team consisted of Mr Cervantes and Mr Manu-Broughton, who were tasked with cleaning the DDG dryer, condenser, vapour head, heat exchanger and ducting around the dryer. The second team was located approximately 100 metres away from the first team in a different building.
Mr McElroy began by setting up the first team. He then commenced cleaning three to four free standing loose lengths of pipe approximately 2 to 3 metres long and narrow in diameter. Manildra workers had previously positioned the lengths of pipe on the ground on the lower level in the area for cleaning.
Mr McElroy cleaned the pipes using a high pressure flex lance hose (the Flex Lance) with a bomb nozzle attachment (the Bomb Nozzle). The Flex Lance was 20 metres long with a diameter of 6 millimetres and a 1000 bar operating pressure (14,500 psi). The Bomb Nozzle was a fixed steel nozzle, which required the operator to rotate the flex lance hose and nozzle in order to ensure that the pipe was being cleaned effectively.
The Flex Lance was attached to a Hammelmann HDP487 Pump (the Pump) mounted on a Fuel Tank Base Frame truck with a C18 Diesel Engine (the Truck). The pressure of the Pump was regulated by a control panel on the side of the Truck, which allowed the water to be turned on or off. The Pump could also be controlled using a remote key switch. The remote key switch connected to the Pump via a control cable that ran from the Pump to a point that the operator of the key switch could see the operator handling the Flex Lance. When the key switch was turned off the water stopped. Once the key switch was activated, the Pump turned on and the hoses, including the Flex Lance, could be pressurised. The key switch functioned as a second stop mechanism (the first being the foot pedal).
The flow of water through to the Flex Lance's nozzle was controlled by a foot pedal. To start the flow of water to the Flex Lance, the foot pedal needed to be pressed down. If the foot pedal was not pressed down, the Pump remained pressurised but the water was diverted out of a secondary hose port in the foot pedal like an open tap. The foot pedal was not supposed to be operated by the person performing the water-blasting activities.
Mr McElroy was operating both the Flex Lance and the foot pedal. He was not wearing hydro blasting or Kevlar pants when cleaning the pipes. He was wearing "Tyveks" (plastic overalls), gumboots, a face shield, gloves and protective glasses. The work took approximately one hour to complete.
After Mr McElroy completed cleaning the loose pipes, he re-assembled the hoses for the first team to clean the overhead fixed pipe, known as the syrup line. The cleaning of the syrup line was to commence in one section prior to being moved to another section of the line.
Mr McElroy set up the equipment for the cleaning of the syrup line. A four inch nozzle known as a badger was being used (the Badger Nozzle). The Badger Nozzle was self-rotating, which meant it did not require the operator to apply a twisting motion. It was connected to a 20 metre length of hose, 10 millimetres in diameter with a 1400 bar operating pressure (20,000 psi) (the First Hose). The pump pressure required for the Badger Nozzle was 800 to 1000 bar (approximately 11,600 psi).
Mr McElroy instructed Mr Tilocca on how to set the pressure for the Pump via a switch on the Truck's control panel. Mr Tilocca pressed the button on the control panel until it reached the pressure level requested by Mr McElroy. Next, Mr McElroy fitted an anti-withdrawal device, connected the Badger Nozzle to the First Hose and set the pressure for the Badger Nozzle. An anti-withdrawal device (also known as a back-out preventer) is an attachment connected to the flange of a pipe at the insertion end of the pipe. It is specifically designed to prevent the nozzle on a hose from exiting the pipe inadvertently or by hydraulic force during operation. The Flex Lance hose is fed through the component during operation.
Mr McElroy commenced the job and pushed the nozzle about 5 metres into the fixed pipe, before he instructed Mr Tilocca and Mr Sullivan to continue cleaning the 60 metre long fixed pipe in the area. Mr Wilson left the area to undertake Manildra site induction training at the Manildra Safety House Office. Mr Tilocca and Mr Sullivan had performed a site induction at the premises on 9 September 2015.
Mr Tilocca proceeded to copy the attire of Mr McElroy and put on white plastic overalls over his normal clothing but he did not have a pair of gumboots so wore his normal work shoes. Mr Sullivan was wearing a rain coat and normal trousers.
Mr McElroy removed his white overalls and went to the second team. Before doing so, he instructed Mr Tilocca and Mr Sullivan to keep cleaning the fixed pipe and indicated he would come back to check on them later. When Mr McElroy left the first team, Mr Tilocca was operating the foot pedal and pushing the Badger Nozzle in the pipe and Mr Sullivan was operating the key switch. Mr McElroy intended to return to the first team once they had completed cleaning the fixed pipe so they could move the equipment to another section of the line.
Approximately two hours later, Mr Tilocca and Mr Sullivan had completed cleaning one pipe and were in the process of relocating the First Hose with the Badger Nozzle to the next area of pipe to be cleaned, when they were approached by Manildra workers. The Manildra workers had brought over two free standing and unsecured lengths of stainless steel pipe (the unsecured pipes) and placed them on the ground to be cleaned.
Mr McElroy said it was normal practice for the offender's workers to be given tasks by Manildra workers and the offender would action those requests as Manildra was (and is) its client.
Mr Tilocca and Mr Sullivan proceeded to commence the task requested by the Manildra workers, whilst Mr McElroy was supervising the second team in the other shed. They bolted the two unsecured pipes together as they were too small to clean individually. The combination of the two unsecured pipes was approximately 2.5 to 3 metres long and 3 to 4 inches in diameter with flanges on each end. Individually the pipes were 50mm in diameter and approximately 1.1 metres long.
Mr Tilocca attempted to clean the combined unsecured pipes with the Badger Nozzle on the First Hose but there was a part of the unsecured pipes where the Badger Nozzle would not fit. As a result, Mr Tilocca proceeded to re-assemble the fixed Bomb Nozzle on the Flex Lance. Mr Tilocca and Mr Sullivan were not provided instructions on how to assemble the hoses, though Mr Wilson had previously observed the equipment being set up.
Although it was possible to fit an anti-withdrawal device to the unsecured pipes, and despite the fact, that one was available at the time, neither Mr Tilocca nor Mr Sullivan fitted one to the unsecured pipes. Mr Tilocca and Mr Sullivan had not been trained or were aware of the need to use an anti-withdrawal device or on how to set up the task they were attempting to undertake.
Mr Tilocca inserted the hose into the pipe and told Mr Sullivan to activate the water pressure. He then proceeded to operate the Bomb Nozzle by inserting the Flex Lance into the first of the unsecured pipes bolted together. The foot pedal for operating the flow of water was located approximately 4 metres away from Mr Tilocca and was being operated by Mr Sullivan. As Safety Observer, Mr Sullivan was also operating the key switch. Mr Tilocca did not have any control over the flow of water in the Flex Lance he was operating other than by way of signalling to Mr Sullivan.
Mr Wilson returned to the area while Mr Tilocca and Mr Sullivan were in the early stages of cleaning the unsecured pipes. Mr Wilson had been unsuccessful in undertaking Manildra induction training as the Manildra representative was not available. Mr Wilson observed the unsecured pipes rolling around on the ground whilst Mr Tilocca was trying to clean them. He went straight up and put a foot on the loose pipe, to stop it from rolling around.
At approximately 8:55am, whilst Mr Wilson was standing on the first of the unsecured pipes, the pipe became unstable and the Flex Lance escaped from the unsecured pipes. Mr Tilocca lost control of the Bomb Nozzle. The Flex Lance and Bomb Nozzle spun around in an uncontrolled manner and being flexible, the Flex Lance spun around toward Mr Tilocca and in the direction of Mr Wilson.
Mr Wilson felt the water jet tap the back of his lower trouser, which were made of cotton drill. The Flex Lance whipped around Mr Wilson and passed him, wrapping around Mr Tilocca's leg. The water jet of the Bomb Nozzle cut through Mr Tilocca's trousers and a stream of water entered his right leg via the shin and exited out of his right calf. Mr Tilocca screamed and tried to kick the Flex Lance off. Mr Wilson suffered no injuries.
Mr Sullivan stopped the water flow to the Flex Lance by releasing the foot pedal and turning the control key to stop the pump. Mr Wilson said the nozzle was out of the pipe for one or two seconds until the water was shut off.
Mr Tilocca collapsed to the ground and covered the holes in his leg in an attempt to stem the bleeding. Mr Sullivan approached Mr Tilocca and requested to look at his leg. Mr Tilocca requested an ambulance be called. After looking at Mr Tilocca's leg, Mr Sullivan ran to the second team to notify Mr McElroy of the incident.
Mr Wilson called Emergency Services at 9:00am. The emergency operator told Mr Wilson to place a clean dry cloth over the wound and apply pressure.
Mr McElroy alerted Manildra's first aid persons. The first time Mr McElroy became aware that the scope of work had changed was when he was told by Mr Sullivan that Mr Tilocca was injured.
After the incident, Mr Wilson and Mr Sullivan moved the foot pedal to where Mr Tilocca was on the ground. Both workers panicked and thought it would be better for Mr Tilocca if it looked like he had been operating the foot pedal. Mr McElroy strongly denies he was present when the equipment was re-arranged.
Mr Tilocca suffered a 1 centimetre laceration to his right shin and a 5 centimetre by 5 centimetre exit wound to his right calf. He underwent skin graft surgeries. Almost immediately after the incident he developed compartment syndrome requiring emergency compartment releases of both medial and anterior compartments. This initial surgery led to the accidental severing of the peroneal nerve resulting in a decrease in function to his right foot requiring physiotherapy. He developed complex regional pain syndrome.
The offender did not have a documented system of inducting or training in relation to high pressure water jetting work. On-the-job training was provided by more experienced workers, who were deemed by the offender to be competent. Mr Tilocca was provided with informal on-the-job training and guidance. He had not been formally trained in flex work (using the Flex Lance and the Bomb Nozzle) or the particular task that he was undertaking at the time of the incident.
The offender did not ensure that Mr Tilocca was adequately trained and assessed as competent in the operation of high pressure water equipment. Mr Tilocca said he had approximately one month's experience in activities associated with high water pressure jetting operations, inclusive of labouring tasks, spread over the two months prior to the incident.
At the time of the incident, the offender had in place a Safe Work Method Statement (SWMS), which required only competent and trained workers to operate the water jetting equipment. It stipulated that workers were to wear protective clothing when using the "jet blaster" and to mark the hose to indicate 600mm point to "blast to" on the hose. The purpose of marking the hose is to warn the operator if he sees the mark on the hose, to stop the high pressure water jetting before pulling the Flex Lance out.
The SWMS did not detail the operation of using a Flex Lance hose in the horizontal position on loose pipes nor did it require the use of an anti-withdrawal device.
Section 4.1 of the SWMS identified that the operator and the supervisor were responsible for ensuring "inexperienced hydro blasters must work under the supervision of a senior hydro blaster at all times" and "not perform a task that [they had] not been trained to do". All of the members of the first team were inexperienced in flex work operations and should have worked under the supervision of a senior hydro blaster at all times.
Mr McElroy stated that he went through the SWMS to the workers on the day of the incident, though the use of high-pressure water jetting personal protective equipment (PPE) was not specifically discussed. The first team, inclusive of Mr Tilocca, were not wearing protective Hydro Blasting pants nor were they provided with instruction as to what type of clothing should have been worn to operate the hose. Adequate PPE was not available for use and Mr McElroy did not check if workers had the correct PPE prior to commencing work.
At the time of the incident, contrary to the SWMS, there was no visible marker on the Flex Lance hose 600 millimetres from the end.

The Offender's Case on Sentence

The offender relied on an affidavit of Michael Hannan, the offender's General Manager (at the time of the incident, the Operations Manager), affirmed 30 July 2019. Mr Hannan was present in Court but not required for cross-examination. The content of his affidavit can be summarised as follows.
Mr Hannan expressed remorse, on behalf of the offender, for the serious injuries suffered by Mr Tilocca. He accepted responsibility on behalf of the offender for its failure to ensure the safety of its workers and for the impact the incident has, and continues to have, on Mr Tilocca and his family. Mr Hannan stated that the incident has devastated and shocked the offender's employees and its directors.
The offender was incorporated in 1998 providing mostly civil construction and demolition works. In or around 2008 it commenced high pressure water services, referred to as its hydro business.
Currently, the offender has 20 employees engaged in its hydro business and 60 employees in total. At the time of the incident, it had nine employees working in its hydro business and 40 employees in total.
In the six months leading up to the incident, the son of two of the directors of the offender was diagnosed with a rare form of liver cancer. For that period and for the months following the incident, they stayed at the hospital and, for the first time, were not actively involved in the business operations. Prior to this, these directors were "hands-on" in the business and played a large role in overseeing the running of the business, including WHS compliance.
Prior to the incident, the offender had in place a WHS system, including a WHS policy and SWMSs. It had also taken steps to have the system accredited and audited.
In respect of the hydro business, the offender had developed a SWMS and provided PPE for use, including protective aprons. It was the role of supervisors to ensure the trucks carried the necessary PPE prior to attending hydro jobs and to ensure it was worn. Prior to any hydro work, the supervisor was also required to undertake a toolbox talk where the requirements of the job were discussed and relevant safe work procedures.
As hydro work is a niche area of work, there were limited formal training courses available in Australia, particularly in NSW. The offender's more experienced operators received training from Hammelmann, an equipment manufacturer, as to the safe set-up and use of hydro equipment. The more experienced operators then provided on-the-job training to the offender's other workers.
Mr Hannan accepted that while Mr Sullivan and Mr Tilocca had undertaken on-the-job training for hydro blasting, they were not adequately trained to undertake the work they were attempting to do.
In response to the incident, the offender has strengthened its WHS systems, particularly in relation to risks that may result from employees operating equipment without adequate training or experience. The offender continues to maintain accreditation of its safety management system.
In August 2017, the offender leased an industrial warehouse in Marrickville and created a Hydro Demolition Industrial Services Training Room so workers' competence could be observed operating the equipment. The offender pays $6,875 per month to lease the space.
Since September 2017, the offender has engaged Aqua Assets Pty Ltd (Asset Training) to attend and observe the competence of workers and subsequently issue certificates. This training was not available at the time of the incident. After the offender's workers obtain one of two certificates (operate a high pressure water jetting system or use high pressure water jetting equipment), they are taken through a hydro blasting induction with the offender's senior blaster.
The offender now allocates three people to a blasting job, with an operator responsible for supervising the work. There is always someone on the safety switch, acting as an observer. Prior to work being undertaken, workers are reminded that no blasting work can be carried out without the set-up being reviewed by a supervisor.
The offender has introduced a revised SWMS and invested significantly in upgrading their PPE. Every hydro blaster operator must wear a Kevlar blasting suit, which fully covers the body from neck to ankle. An assistant must wear boots, Hi-vis and a hard hat. Each worker has been issued with a blast helmet and boots and is required to bring them to site. Workers are not permitted to carry out any work without these items. In the years ending 2017 and 2018 the offender spent more than $100,000 on PPE, across the wider business.
The offender has also engaged two full-time Project Managers to attend work sites, to act as a point of contact for the clients, and oversee work practices. The offender has purchased a device known as a TLE, which ensures the hose does not whip back on the operator. They have certified further employees in First Aid and all trucks are fitted with First Aid kits. Every fortnight the offender holds a hydro business meeting, safety is always a standard agenda item.
On or around 9 November 2017, the offender engaged a full-time WHS Manager to review and look at areas where it can improve its safety systems and provide advice and guidance on compliance at a cost of $2,280 per week. The WHS Manager has recently resigned and the offender now relies on a safety consultant, Angus Laidler, Risk and Compliance Consultants, to provide ongoing safety advice as needed.

Consideration

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

Objective Seriousness

The offence is one of significant objective gravity.
The risk was obvious and actually known to the offender. The offender's SWMS identified the risk of serious injury or death in the conduct of hydro-blasting activities. The risk of water streams under high pressure piercing the skin was identified in the Australian Standard published in 2013, which was referred to in the SWMS. The SWMS had only been settled by the offender three weeks before the incident.
More than one worker was put at risk.
The manner by which the risk came home, ie the backing out of the nozzle from the pipe being cleaned, was identified in the SWMS. The risk had been identified as a high likelihood of occurring.
The steps identified in the SMWS to prevent the risk coming home were not taken by the offender. The workers were not trained and thereby not competent to do what they were doing. So much is obvious from the fact that Mr Tilocca did not have control of the foot pedal which would have operated as an emergency stop device. The workers were not being supervised by an experienced operator. The workers were not using an appropriate anti-withdrawal device and were unaware of the need to do so. The workers were not wearing appropriate PPE, which included high pressure rated blasting pants or apron and steel capped safety boots or gumboots. The measures that could have been taken to eliminate or minimise the risk were also identified in the Australian Standard.
Whilst there was an apron available on the truck it was not ordinarily used. The practice of the offender was not to require workers to use appropriate PPE, notwithstanding the entries in the SWMS.
The workers were left unsupervised to perform a particular job, while Mr McElroy went to supervise the other crew. The offender contended that it did not foresee that the Manildra workers would ask the offender's workers to attend to do other tasks in Mr McElroy's absence. Whilst this may have been Mr McElroy's subjective belief, it is not particularly mitigating because Mr McElroy did not instruct the workers not to do any other task until he returned, or until they spoke to him. In fact, he had himself cleaned loose pipes presented by the Manildra workers earlier that day. It was reasonably foreseeable that the offender's workers would attend to other tasks as requested by its client, especially when the other tasks were exactly what its workers were present to perform.
Mr Tilocca suffered a very serious injury. He has had a series of skin graft surgeries. He required emergency surgical release of both the medial and anterior compartments in his leg. During that surgery, his peroneal nerve was accidentally severed. The damage to Mr Tilocca's nervous system has resulted in a significant number of debilitating symptoms, and he is in need of considerable support. He has not been able to return to his pre-injury duties.
I have had regard to the maximum penalty for the offence.

Deterrence

The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].
There is some need for specific deterrence in this case but it is slightly reduced. The offender has taken extensive steps to address the risk that came home in this case. In particular, the provision of the dedicated training facility is a step that demonstrates an exceptional response.

Aggravating Factors

The injury, harm and loss caused by the section 32 offences was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. In this case the injury sustained was serious and has led to Mr Tilocca experiencing significant ongoing disabilities.

Mitigating Factors

The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was incorporated in 1998 and has conducted the business in excess of 20 years.
The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated, by the steps it has taken after the incident, that it has good prospects for rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Hannan, on behalf of the offender, accepted responsibility for its actions and has expressed contrition and remorse. The offender also took steps to assist Mr Tilocca after the incident.
The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%.
The offender co-operated with the SafeWork investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999.
The directors of the offender had stepped back from the day-to-day operation of the business because of the serious illness of one of their children. This is an appropriate matter to consider in mitigation to partly explain why the recent SWMS had not been properly implemented.

Penalty

The offender is convicted.
I have taken into account the Victim Impact Statement prepared by Mr Tilocca.
The appropriate fine is one of $300,000 which will be reduced by 25% to give effect to the plea of guilty.
I impose a fine of $225,000.
I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
The offender is to pay the prosecutor's costs as agreed in the sum of $40,000.

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: 20 August 2019

At a glance

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Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (3)

Cited By (1)