WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd

PROSECUTOR: Mr M Cahill of counsel SOLICITORS: PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: DEFENDANT: Mr R Reitano of counsel SOLICITORS: Leigh Virtue & Associates Solicitors

JUDGMENT: - 28 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

Matter Number IRC 412 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR EGAN) v BITUMINOUS PRODUCTS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 This is a prosecution brought against the defendant pursuant to s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). The defendant was charged with the following offence: 'It is alleged that the Defendant , BITUMINOUS PRODUCTS PTY LIMITED [ACN 000 684 079] , an employer, breached Section 15(1) of the Occupational Health & Safety Act 1983 on 8 February 1998 at premises located at 33 Violet Street, Revesby in the State of New South Wales, in that it failed to ensure the health, safety and welfare of its employees, in particular, Lyndon Adams and Junior Pisa, in that it failed to provide or maintain a system of work that was safe and without risks to health in respect of the removal of bitumen spillage from the external surface of a bitumen processing vessel. Particulars of the Defendant's failure are: (a) Failure to ensure that the processing vessel was adequately cooled prior to the removal of the bitumen spillage;

(b) Failure to ensure that the processing vessel was empty prior to the removal of the bitumen spillage;

(c) Failure to ensure that flammable vapours in the processing vessel were not exposed to a source of ignition during the removal procedure;

(d) Failure to provide adequate information, instruction, training and supervision to Lyndon Adams and Junior Pisa concerning safe working procedures for the removal of bitumen spillage from the external surface of the processing vessel.'

2 The defendant entered a plea of not guilty. 3 There was no statement of facts agreed between the parties, but a number of matters were agreed. They included the relevant status and authority of the inspector to commence the proceedings; the status of the defendant corporation, its location and business; that it employed Mr Lyndon Shaun Adams as a production trainee and Mr Saolotoga Junior Pisa as a foreman, and that Mr Pisa was supervising Mr Adams on the night of the accident. There was also no contest that Mr Adams was injured during an accident which occurred that night while he and Mr Pisa were cleaning solidified bitumen off the top of a mixing tank. 4 Evidence was called by the prosecution from Mr Adams, Mr Pisa and Mr Alan Ivo Krcmar, then employed as the defendant's production manager. Various documents were tendered for the defendant, but no other evidence was called. 5 Various documents were also tendered for the prosecution, including inspection reports prepared by the Inspector after the accident and statements taken during the investigation from Mr Adams, Mr Krcmar and Mr Bradley, the defendant's managing director. It was conceded for the prosecutor that during the investigation no statement had been taken from Mr Pisa, who could not be located at the time. 6 The prosecutor sought to tender the accident report furnished by the defendant to the WorkCover Authority, in accordance with the requirements of s27 to the Act and the regulations thereto. Section 69 of the Evidence Act 1995, which deals with the hearsay rule in the context of business records, was relied upon. It provides: '69. Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation: (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding. (4) If: (a) the occurrence of an event of a particular kind is in question; and (b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind; the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event. (5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). '

7 The tender was objected to. I concluded that while it had been demonstrated by the evidence given by Mr Krcmar, that the document satisfied the requirements of s69(1) and (2) of the Evidence Act 1995, it also fell within the provisions of s69(3)(b) and thus the tender could not be accepted. 8 I formed that view having in mind that it was a document created by the defendant in the course of its business when investigating the accident in question, so as to enable it to comply with the obligations imposed upon it by s27 of the Act. It plainly followed from those circumstances that the representations contained in the document were made 'in connection with an investigation ... leading to a criminal proceeding'. I took the view that 'investigation', not being a word defined in the Evidence Act should thus, in accordance with the usual rules of statutory construction, be given its ordinary meaning and should not be confined to an investigation of some particular kind, such as that conducted by the police, or a prosecuting authority such as the inspector. 9 It was plain from the evidence that the defendant's investigation here led to the creation and lodgment of the document containing the representations with the WorkCover Authority, thereby giving rise to that Authority's investigation of the incident and in due course, leading directly to this prosecution. That the lodgement of the document also satisfied the obligation imposed upon the defendant by s27 of the Act, does not in my view detract from that conclusion.

The Facts 10 Mr Adams had been employed by the defendant for some 3 months at the time of the accident. He was a trainee who was undergoing on the job training, always working with another employee. On this occasion he was working with Mr Pisa, who was going to show him a particular process that night. 11 He had been working for about half an hour when the accident occurred. The work then being performed was the cleaning of cold, solidified bitumen off the metal top of a mixing tank - called a processing vessel in the summons. This was the first occasion Mr Adams had performed that work. On one or two earlier occasions he had cleaned hot bitumen spilled on the ground, but that work was done in a different way. 12 There were only two employees at work on the night in question. Mr Adams and Mr Pisa. Mr Adams gave evidence largely consistent with the statement he had made in September 1998 and with the statements made by Mr Bradley and Mr Krcmar in October 1998, as to their understanding of how the accident had occurred. On Mr Krcmar's evidence, his understanding came from what he had then been told by Mr Adams and Mr Pisa when the defendant had investigated what had occurred and perhaps also from an accident report kept for insurance purposes. 13 Mr Pisa had no recollection of the evening in question. He was however cross examined as to what his usual practice was and what he might have done in particular circumstances. 14 I found Mr Adams to be a witness of credit and found no reason to doubt his evidence. The discrepancies between his oral evidence and his earlier statement, such as whether he was struck on the right or left arm by a hatch, were not such as to cause me any doubt that he was a truthful or credible witness, or that he might have sought to exaggerate, or do anything other than tell the truth, when giving his evidence. This conclusion was reinforced when consideration was given to the time between the accident in February 1998, when Mr Adams' statement was taken in September 1998 and this hearing in February 2001. 15 The tank which was to be cleaned was cold and empty, apart from dregs of bituminous product in the bottom. The method of cleaning, on Mr Adams' evidence, directed by Mr Pisa was for a blow torch to be used to melt the solidified bitumen on top of the tank, with a shovel being used to remove it from the metal surface of the tank. This description was consistent with Mr Krcmar's understanding of what had occurred when his statement was given in October 1998. 16 Mr Adams questioned Mr Pisa's use of the blowtorch that evening, but was told the job had been performed that way before. The work was performed by Mr Adams wielding the blow torch and Mr Pisa the shovel. Mr Adams was working close to a closed hatch on the top of the vessel. There was an explosion, Mr Adams was engulfed in flames, which also in part at least engulfed Mr Pisa, who was however on the edge of the flames, about 1-2 metres away. That the explosion was a short, sharp one, can be inferred from the fact that Mr Pisa was apparently not burnt and from the fact that there was no suggestion that his or Mr Adams' clothing was set alight. The explosion blew the lid off the hatch, which hit a roof above the workers and came down on Mr Adams, who deflected the lid with either his right or left arm, he having dropped the torch in the meantime. 17 Mr Adams went immediately to have a shower and about 45 minutes later was taken to a medical centre. He did not receive hospital attention. He was burnt on his neck and face and was off work for about a week. 18 Mr Pisa, having no recollection of the event, was cross examined as to the way in which cleaning work was normally done, both when the vessel was hot and when it was cold. His evidence was: 'Q. Can you tell her Honour now whether you had a procedure that you followed for cleaning the top of the tank? A. No, there was no procedure.

Q. Did you, were you taught on the job by somebody that you do go to clean the top of the tanks or was it just a task you were told to go and do? A. No, what do you mean?

Q. Did you have somebody show you from time to time how to do that job? A. No some time I might do it with Alan Krcmar, the production manager and also by John Bradley about not using a blow torch on the top of the mixer itself.

Q. Now, did you ever tell Mr Adams while you were training him how to go about doing that job? A. Clean on the top of the tank?

Q. Yes? A. I have shown him how we use scrapers and talcum powder to stop from sticking and anyone slipping over as far as I know and he chisels pieces using a blow torch from the bottom, hitting up a little bit and go upstairs and slice it open.'

19 Later, Mr Pisa was asked: 'Q. You certain would never have told Mr Adams to use a blow torch to remove bitumen or spillage from the top of the mixer? A. Yes, that is right.

Q. You would not have done that? A. No.

Q. Because you knew that that was not the way that the task was to be done? A. Actually instructed by John Bradley no blow torch to be up there, that is why.'

20 Mr Pisa was further asked: 'Q. I think the question I asked you was like this, if someone were on top of a mixer using a blow torch to clean bitumen spillage or rubber spillage and you were about a metre away and saw them doing it, what would you have done? A. I would have stopped them immediately.

Q. And how would you have done that? A. Approach them and tell them no blow torch to be used as directed by John Bradley.

Q. Do you recall ever seeing Mr Adams using a blow torch on top of the mixer cleaning spillage away in the way I have described it? A. I don't recall.

Q. If it was Mr Adams doing that, you would have told him to stop doing it? A. That is right.

Q. The two ways that you know how bitumen and rubber spillage were to be removed from the top of, either by using talc while the bitumen was soft and scrape it off with a shovel or use a chisel gun? A. That is right.

Q. And the only time you would use a heated gun to clear bitumen away was when you were somewhere other than on the top of the tank, if it was on the ground down below? A. That is right. … Q. If someone was there using a blow torch to scape (sic) bitumen or remove rubber away, would you have allowed that to happen? A. Hot product in there?

Q. No around the top of the lid? A. Yeah but what I am saying was the product inside?

Q. While there was no product inside would you still have let them use a blow torch in there? A. Depends what is surrounding you, the whole area. If we would have cleaned the tank, steam it to make sure that (sic) is no sign of solvent or fume smell, even if a tank beside it was going (sic) the same thing, no I would not.'

21 In re-examination, Mr Pisa's evidence was: 'Q. I think you said in answer to my friend that there was a difference between when there was a product inside the tank and when there was no product, it (sic) is that right? A. Come again?

Q. You told my friend that the procedure adopted for cleaning the top of the tank was different when there was no product inside the tank and when there was product inside the tank? A. That is right.

Q. Can you tell her Honour what the difference is between the procedures you understood were to be adopted when there was no product in the tank? A. No product in the tank air gun chisels would be used for bitumen, for rubberised same thing, add talcum powder to make sure there is no sign of fume or anything by using steam to steam the tank out and the blow torch gets used again on top.

Q. So, it is not the case as you recollect it that blow torches were never to be used on top of the tank? A. That is right.'

22 Mr Krcmar also gave evidence about these cleaning procedures. His evidence in chief was: 'Q. Can you tell her Honour what was the method used when the tank was cold? A. If the tank was cold there were several ways of doing it. If you wanted to use a lot of elbow grease, you could, or you could use a pneumatic jackhammer and chisel it up. The other way it could be done is heat the shovel with a gas torch and when the shovel was hot it would scrape into the bitumen like a hot knife in butter. By doing that you could scrape it up.'

23 In cross examination, Mr Krcmar was asked in connection with Mr Pisa: 'Q. Have you at any time spoken to him about using blow torches for that task? A. Yes.

Q. And can you recall, to the best of your recollection, what you would have said to him about that? A. About using the - in relation to--

Q. In relation to removing of spillage of bitumen and rubber and the like? A. Yes, it's common knowledge that you only use the blow torch if the bitumen was cold. When it is cold it goes solid so that's the only time, if you want to remove it, that would be the only time that you would be required to soften it with the heat so you can remove it.

Q. Would you have told Mr Pisa, probably amongst others, but Mr Pisa, that he was not to use blow torch when the mixer was hot, as it were? A. Yes.

Q. Or when the bitumen was hot, correct? A. Correct.

Q. Did you ever see Mr Pisa using the blow torch at any time when the bitumen wasn't hot? A. Yes.

Q. When was that? A. I can't recall exactly when.

Q. What did you say to him on that occasion? A. To use the blow torch when the bitumen wasn't hot.

Q. Sorry, I said wasn't. I meant when it was hot, sorry. Did you ever see him use a blow torch when the bitumen was hot? A. No.

Q. But you did see him use it when it was cold? A. Yes.'

24 Mr Adams' evidence in chief as to the way in which the work was performed on the night of the accident was: 'Q. … can you tell her Honour where you were located by reference to that hatch? A. I was right next to that hatch.

Q. Now what was it that Mr Pisa told you to do while you were working on top of the mixer? A. He told me to heat up the spill of bitumen while he was scraping it up and putting it into a drum.

Q. And did you have a tool for the purpose of heating the bitumen? A. I used a burner, blow torch.

Q. If I can ask you to have a look at the photographs in the rear of that Exhibit 1 which are marked from 11 to 13, can you tell her Honour whether you recognise the type of implement that is depicted in each of those photos? A. That is the nozzle of the torch.

Q. Now, that is the nozzle of the torch for the type of torch that you were using on the day? A. Yes.

Q. I take it that, for the purposes of softening the bitumen, you had to light the torch? A. Yes.

Q. Now what happened while you were working? A. While we were cleaning it up?

Q. On the top of the tank? A. I was heating the top and Mr Pisa was scraping it up and we got to the section which was right next to the hatch and the next thing we knew it blow up, we were engulfed in fire.'

25 While Mr Adams was cross examined as to the detail of what happened and how his evidence departed in some respects from what he had said in the statement he gave to the investigating inspector, it was not put to him that a blow torch had not been used on that evening. 26 Each of the witnesses also gave evidence about the defendant's approach to safety matters and the training employees were given in such matters. There was no real contest about those matters. I will deal with those matters below.

The submissions. 27 Mr M Cahill of counsel submitted for the prosecutor that Mr Adams was a trainee employee receiving on the job training, but had received no theoretical instruction in matters such as methods of work. There were no instruction manuals and no written guidance as to how he was to go about his job. His safety training was restricted to what he had received in his initial induction. The document which Mr Adams then signed demonstrated that this was extremely general and contained no material relevant to the task being performed when the accident occurred. There was no written instruction as to that work and the only instruction recieved was that from Mr Pisa on the night in question. 28 The evidence was that while there was some safety material available at the site, it was not generally available and had not been supplied to either of the two workers there that night. There was, in any event, never any specific written instructions developed for this work, which was done on a regular basis. The only written instructions related to hot spills of bitumen, as opposed to the cold spills here being worked with. 29 The Safety Code of Practice relied upon by the defendant demonstrated its knowledge of the potential sources of vapour flashpoints at its workplace and how they might be ignited. It was submitted that it was relevant that the Code envisaged not just oral instruction of employees working with bituminous products, but work permits and written procedures. The defendant had neither in place - either generally or in relation to this work. 30 The evidence demonstrated that there were different methods of work adopted depending on whether the tanks were hot or cold. That coincided with commonsense and Mr Krcmar's evidence as to the different behaviour of bitumen when hot and cold. His evidence was that when hot, the bitumen was soft and sticky, necessitating the use of talc and when cold, it was hard and needed to be broken off with a tool or alternatively, heated so that it could return to a soft and tacky state for removal. 31 On the evidence of both Mr Pisa and Mr Krcmar, it was apparent that the defendant did not have a blanket ban on the use of blow torches on the top of mixing tanks. This was despite the evidence given by Mr Pisa in cross examination, where he talked about a policy of no blow torches being used. In re-examination however, he explained the differing approaches adopted when a tank was full or empty. 32 The evidence led to the conclusion that blow torches could be used when the tanks were empty and no fumes could be detected. This involved an exercise of judgment by employees - effectively a 'sniff and smell' test. The evidence did not properly allow for the conclusion that the defendant had an invariable practice of not using a blow torch when cleaning the top of a tank. 33 In this case it beggared belief that Mr Adams could have got a blow torch and gas bottle to the top of the tank, to ignite it and begin using it, without Mr Pisa noticing. While it might be hard to believe that Mr Pisa could not remember this accident, the evidence of Mr Adams was straightforward and forthrightly given and would be believed. It was also consistent with the underlying evidence of Mr Pisa and Mr Krcmar. Mr Adams' evidence was that he was dubious about using a blowtorch, but was told to go ahead by Mr Pisa. 34 It was apparent that the blow torch was used because the tank was cold and it was believed by the workers that it was safe to do so. It was not however, because there were vapours present which led to the explosion. The risk to safety which here arose could have easily been ruled out by the defendant by a blanket ban on the use of blow torches. This was confirmed by the answers given by Mr Krcmar to the investigating inspector during the investigation, which demonstrated the defendant's failure to have in place adequate systems of information, instruction and training. 35 The failure here established fell squarely within the views expressed by the majority in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 219. 36 There were also demonstrated deficiencies in the supervision of the employee who was injured, as well as the training of the employee who provided that supervision, Mr Pisa. The evidence demonstrated that the requirements of s15(1) had not been met by the defendant. 37 Mr R Reitano of counsel submitted for the defendant that the offence as particularised had not been made out. Further, the prosecution had not established a causal connection between the failings alleged against the defendant and the accident which had occurred. 38 It was submitted that the evidence was that the tank was cool, hence paragraph (a) of the offence as particularised was not made out. Paragraphs (b) and (c) had not been established. The submission that an explosion was evidence of flammable vapours would be rejected. There was no necessary correlation between the two and on Mr Adams' evidence the tank had not been used for several days and was all but empty. There was evidence as to the use of solvents, although Mr Adams' evidence was that they were not in use that night. 39 The prosecutor had the obligation to show that the vessel was other than in an empty state. There was no evidence which would allow the conclusion beyond reasonable doubt that it was other than empty. 40 It was also not able to be concluded that the torch, if used, was the source of ignition and that it was flammable vapours which were ignited. There was no evidence as to the temperature at which flammable vapours flowing from bitumen might ignite. The Court was not entitled to make any assumptions about such matters. 41 In relation to paragraph (d) of the particulars, the conundrum of who supervised the supervisor arose. Mr Pisa was the supervisor that night. He gave evidence about two work methods, the second involving scraping with a blow torch. There could be no suggestion that there was here no training. That there was no written document did not demonstrate a failure to train. 42 Mr Pisa's evidence as to the use of a blow torch on the tank was clear. It was not permitted and he would not have allowed it. No causal nexus had been established between a failure to have a document about how such work was to be done, or an audit document dealing with such matters and the accident. 43 Mr Pisa's evidence as to the use of a blow torch was to be understood in the context of the steam cleaning of the tank, rather than the lid or the hatch of the tank, work not being undertaken that evening. 44 Reference was made to State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 123-124, where the causal nexus to the detriment to safety and the fact of an accident are analysed: 'It will be seen that the majority in Cullen determined the matter on the employer's failure to ensure a safe system of work by not laying down and policing specific rules and procedures so that any discretion of the linesman in charge could be exercised safely by following rules as to when a tree-branch could be cut or deferring the job until a power-out had been implemented. In the case before us, the critical facts are somewhat different from those in Cullen ; no issue arises that the appellant should have de-energised the wires over the rail line, but rather it is alleged the appellant failed to provide the necessary degree of supervision to ensure that Mr McFadyen was safe in the way in which he performed the work. Nevertheless, the majority judgment in Cullen emphasises the stringent nature of the provisions of s.15 and the high duty cast upon an employer in organising work where that work is to be performed under the control of an employee delegated to exercise supervisory responsibilities. It is in that respect of supervision, where, in our view, the decision in Cullen has relevance to the instant case. In terms of the relevant principles, although a contrary conclusion was reached on the facts, Fisher P in Cullen observed at 210-211: "In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged . … I consider that this safety code should be viewed in the light of the Industrial Commission's practical experience of industrial circumstances. The deceased was well trained by experience over many years and by qualification to both work at and supervise tree lopping. Neither qualifications nor experience were seriously challenged in the evidence, indeed, the evidence established the deceased's responsible behaviour and experience as a qualified linesman in this precise work. The employer was entitled to rely upon these qualities. The case against the employer is not strengthened by suggested reliance on ever higher levels of supervision. The case against the defendant is not proved beyond reasonable doubt if there remains an acceptable hypothysis reasonably consistent with the innocence of the Defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach . I consider that on the evidence and for these reasons, the prosecution has not made out its case to the exclusion of reasonable doubt. Were it necessary to do so, I would also accept, this time on the basis of probabilities, that a probable cause of the events alleged, the unforeseeable and unanticipated conduct of a properly trained and experienced supervisor supervened to remove from the employer the ability to control the happenings of the day which the employer otherwise would have had . The absence of information to the employer about the supervisor's casual acts of negligence, including the abandonment of a number of safety measures it was his duty to put in place, made it impractical for the employer to make further provision. My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control. (Our italics.) The decisions in Cullen point up the not unusual difficulties which arise in determining cases of this nature where the ingredients of the offence for breach of statutory duty impose a strict liability, as does s.15. It seems to us that the distinction between the majority and minority judgment in Cullen does not relate in any way to a different view of the relevant principles, but rather to the result of their application to the particular facts. There is nothing in the majority judgment to detract from the observations of Fisher P as to the onus and standard of proof required of the prosecution in criminal proceedings. We respectfully agree with his Honour's observations in that respect.'

45 Here the prosecution asked the Court to take a large leap of faith, namely because there was an accident, there must have been flammable vapours present and so on. The Court was not entitled to work backwards and make such assumptions. 46 It was relevant that Mr Pisa did not remember these events. After all, he was supposed to have been only a metre and a half away when this occurred and had allegedly given the instructions which led to the explosion, instructions which he says he would never have given That did not beggar belief. It rather suggested that the accident had not occurred as Mr Adams suggested or that he had exaggerated what had occurred. There were after all a number, albeit minor matters, where his recollection in the witness box differed from the statement given during the investigation. These matters cast some doubt on whether there had been an explosion as portrayed by Mr Adams. This was not a question of credit, but rather one of doubt. This led to the question of whether there was reasonable doubt, as to which the defendant should receive the benefit. This question would have to be resolved by either Mr Pisa or Mr Adams' evidence being disbelieved. 47 The real issue here was what had caused this explosion, if it could properly be so described, and what its connection with the defendant's failings in respect of s15 were. 48 The Code of Practice was not of assistance, because there was no evidence that the tank was a pressure vessel. It was submitted that it was not. The real importance of the document was its purpose. While the document dealt with vapours and emissions, it was of no assistance here, because nothing said in the document matched what had here occurred. 49 As to the suggestion that there was in place a 'sniff and smell' test at the defendant's premises, it was submitted that there was no evidence to that effect. Nor was there evidence that the test of whether a tank was hot or cold or whether to use a blow torch or not was, simply that of an employee's judgment. 50 The further submission that there should have been a ban on the use of blowtorches improperly sought to add a new particular to the charge and would be rejected.

Consideration 51 The onus which falls on a prosecutor in proceedings such as this is well known. The prosecutor was obliged to prove, beyond reasonable doubt, that the offence with which the defendant was charged had been committed. This required the demonstration that the risk to safety in question had occurred as the result of steps which the defendant, through its employees, had taken or failed to take. 52 That there had been a risk to safety was amply demonstrated on the evidence. Mr Adams, a trainee employee being supervised in the performance of particular cleaning work which he had never performed before, was injured when there was an explosion at the place at which he was working with a naked flame. That the accident had occurred was not in issue, although it was submitted for the defendant that it was open to conclude that there was some doubt as to the severity of what had occurred and whether it should properly be described as an explosion, particularly given that Mr Pisa had no recollection of the events, thus throwing some doubt on the accuracy of the evidence given by Mr Adams. 53 I am unable to so conclude. There could be any number of reasons why Mr Pisa had no recollection as to what had occurred on this evening. Why he couldn't was not explored with him. The simple fact was that he did not. Mr Adams on the other hand had a clear recollection of the events, consistent with his own earlier statement, other than as to relatively minor details and also with what the defendant's investigation had revealed to it at the time. I am satisfied that his evidence should be accepted. 54 It was also submitted for the defendant that the prosecutor had not established beyond reasonable doubt that the explosion had occurred when flammable vapours had ignited, that there had been flammable vapours present, what their ignition point was and whether it was the blow torch which had been the ignition point. 55 I reject that submission. On the evidence, there were in reality only two hypotheses which could explain the events which occurred here. The first was that flammable vapours had ignited when they came into contact with the naked flame of the blow torch and the second that it was a solvent which had come into contact with the naked flame, thereby causing the explosion. 56 There was no evidence of any other source of ignition other than the blow torch. Neither Mr Pisa nor Mr Adams were questioned about other possible sources. 57 Mr Adams was cross examined about the use of solvents on the evening in question. It was his evidence that they had not been used. That was consistent with the understanding of Mr Bradley and Mr Krcmar when interviewed by the inspector in 1998. Mr Adams had been asked about the use of solvents by the investigating inspector in 1998. He explained the answer he gave at that time to the inspector to a question asked about 'Tuolene', a solvent. This was in the context that after the accident, and before being interviewed, Mr Adams had been shown how to use that solvent. He had not used it before. It was not put to Mr Pisa that solvents had been used on the day of the accident. It follows that the use of solvents does not arise on the evidence as a possible basis for a reasonable alternative hypothesis to explain the explosion. 58 The risk of flammable vapours igniting if they came into contact with a source of ignition, on the other hand, was well known to the defendant in the context of the work being performed at this workplace. The defendant relied upon a 'Code of Practice for Safe Handling of Bitumen Products' issued by the Australian Institute of Petroleum, a copy of which was kept in the lunchroom provided for employees. Neither Mr Adams nor Mr Pisa had, however, ever seen this brochure and it was not provided to employees on induction, or seemingly otherwise in their training. Nevertheless, it emphasised the dangers of flammability in the context of the handling of bituminous products. 59 It is relevant to this consideration that, on the evidence the vessel, even when cold and not in use for mixing bitumen, was never completely empty. 60 Relevantly the Code provided: '3.3 Flammability Three factors must be present at anytime before a fire can occur: fuel , oxygen and a source of ignition . When handling bituminous products, the risks of fire should be minimised by limiting, as far as reasonably practicable, the extent of production of flammable atmospheres and by avoiding sources of ignition in areas where flammable atmospheres might be present. 3.3.1 Flammable atmospheres Bitumens other than cutback grades normally have flash points exceeding 250C, which is well in excess of the maximum recommended handling temperatures (Appendix C). Flammable atmospheres can occur, however: (i) in storage tanks when temperatures exceed the flash point of the product; (ii) in storage tanks when contamination with lower flash point materials has occurred, such as can arise from leaking hot oil coils; (iii) in storage tanks when vapours become trapped in porous carbonaceous deposits (see 3.3.2(c)), and are subsequently released when these deposits are disturbed; (iv) in the vicinity of vents from such tanks. Flammable atmospheres can also be produced in poorly ventilated spaces by overheating bitumen locally to the temperatures at which thermal cracking can occur. This releases lower flash point material from the bitumen. Flammable atmospheres often occur in cutback bitumen storage taken vapour spaces at normal working temperatures. Consequently, sources of ignition in these areas should be controlled. 3.3.2 Sources of ignition (a) Electrical equipment Non-sparking or explosion proof electrical equipment should be installed in areas around fixed plant and equipment where flammable atmospheres might occur, such as around cutback bitumen storage tanks. To facilitate this, the areas in and around cutback bitumen storage tanks should be subjected to area classification. (Refer AS 2430). The use of electrical tools or equipment which might be sources of ignition for flammable vapour should be controlled by the use of work permit systems. (b) Auto-ignition of bitumen Auto-ignition of bitumen can occur when it is exposed to the air at temperatures as low as 250C. (c) Carbonaceous deposits - excluding coke Carbonaceous deposits arise from the condensation of bitumen vapours on the underside of tank roofs or walls, or the thermal cracking of bitumen to form coke in high temperature areas such as around heater tubes. These deposits. do not normally provide an ignition hazard unless they are disturbed, exposing underlying pyrophoric deposits to air. Pyrophoric metal oxides are formed from the reaction of the metal with oxygen. These deposits will self-heat when they are exposed to sudden increase in temperature or oxygen supply arising from a change in storage tank operating conditions, such as an increase in temperature control settings, or the opening of man holes. In order to avoid self-heating and possible auto-ignition, carbonaceous deposits, once formed, should be kept in a steady state with their surroundings until such time as they can be removed by thorough tank cleaning. This steady state is promoted by: (i) avoiding through drafts of fresh air in tank vapour spaces, by keeping hatches closed, etc.; (ii) avoiding step changes in temperatures surrounding the deposits. This includes avoiding the introduction of bitumen at higher than normal temperatures; (iii) removal of these deposits by cleaning before they begin to break away, exposing new surfaces at which self-heating might occur.'

61 The document indicates that there are dangers both of ignition of bitumen and bitumen deposits, including self ignition in the absence of a source of ignition and the ignition of flammable atmospheres in the presence of a source of ignition. That there should be limited circumstances in which a blow torch would be used on the top of the defendant's mixing vessel, can readily be understood in that context, as can what Mr Krcmar told the investigating inspector as to the cause of the accident. 62 While Mr Krcmar understood employees were told to read the Code of Practice on induction, it seems that this was not enforced - neither Mr Pisa nor Mr Adams recollected having seen it. There was no evidence that they had received training in the dangers of use of sources of ignition, such as outlined in the Code. That deficiency and the method used for detection of vapours at this workplace, might well explain why a blow torch was used for the cleaning work performed on the evening of the accident. 63 The evidence of Mr Pisa and Mr Krcmar can only lead to the inference that the presence of fumes and vapours at the mixing tank was detected by employees by smell. There was no evidence of any other procedure being in place, nor was it suggested to them in cross examination. It followed that should an employee have failed to detect the presence of flammable vapours by smell, the possibility of an ignition occurring if a source of ignition such as a blow torch was introduced in the vicinity of the vapours, immediately arose. 64 As earlier noted, I accept the evidence of Mr Adams, that this explosion occurred when he and Mr Pisa were cleaning to top of the tank, using a shovel and blow torch, when he was working adjacent to a hatch in the top of the tank. I take the view that Mr Adams evidence must be accepted, including that he was instructed so to perform the work by Mr Pisa. While Mr Pisa's evidence on the one hand was that he would not have given such an instruction, on the other his evidence was that there were occasions when a blow torch would have been used in that work and, in any event, he could not remember the events in question. 65 On the evidence here I am satisfied to the requisite degree that the explosion occurred as the result of the ignition of flammable vapours by the blow torch being used by Mr Adams, there being no other reasonable hypothesis to explain the explosion, in respect of which the defendant should receive the benefit of the doubt. 66 I am also satisfied that the work was being performed by Mr Adams, in accordance with his instructions, under the supervision of Mr Pisa. While Mr Pisa said that if he had seen Mr Adams using the blowtorch he would have told him to stop, he also gave evidence that there were occasions on which a blowtorch was used. Mr Pisa had no recollection of the evening in question. Mr Adams' evidence was that Mr Pisa did direct him to use the blowtorch, and explained to him that the work had been done that way before. This was consistent with Mr Krcmar's evidence. 67 It was submitted for the defendant that this was a case which fell into the class of cases discussed by the Industrial Commission of New South Wales in Court Session in Dawson, as flowing from the error or failings of a supervisor, rather than those of the defendant. I am unable to accept that submission. 68 I cannot conclude on the evidence in this case that the system of work established by the defendant for cleaning spills of bitumen when the mixing vessel was cold was a safe one, or that this was an accident which resulted from a failure of a well experienced supervisor upon whom the defendant was entitled to rely, rather than from the defendant's failure. 69 The evidence of both Mr Pisa and Mr Krcmar demonstrated that the use of blow torches on the top of the vessel when it was being cleaned was not prohibited. Whether it was safe to do so plainly involved the detection of whether or not there were flammable vapours present which could be ignited were a blow torch used. Failure to detect vapours for reasons such as inadvertence, carelessness or physical inability to detect the vapours in question by smell, are to my mind, obvious deficiencies in the system established by the defendant. I am satisfied that this system did not meet the high standards imposed upon employers by the section. 70 I am also satisfied that the system of training employees such as Mr Adams and supervisors such as Mr Pisa in safety matters in connection with this work was not such as to meet the statutory obligation. The safety documents tendered by the defendant were not provided to either Mr Adams nor Mr Pisa in the course of their employment. Mr Pisa's evidence as to his own lack of training in relation to safety and supervision matters confirmed the defendant's failures. 71 In any event, the only internal document dealing with cleaning aspects did not deal with the work in question, or with safety considerations arising in cleaning spills of bitumen from a cold vessel. While it can be accepted that on the job training in respect of particular work may be adequate to meet the statutory obligation, when such training involves the detection of the presence of potentially flammable vapours by smell, it cannot be so regarded. 72 While Mr Pisa's evidence on the one hand indicated an insistence by Mr Bradley that no blow torches be used on the top of the vessel, on the other he gave evidence that on occasions they were used. Mr Krcmar's evidence confirmed this. Had Mr Bradley intended a blanket prohibition on such usage, it was not implemented. That this was not just a circumstance of casual neglect by Mr Pisa in departing from a safe system of work in which he had been trained was confirmed by Mr Krcmar's evidence. He also described at least two circumstances in which blow torches were used in cleaning the top of the vessel. 73 An appreciation by the defendant of its failure was demonstrated by an observation made by Mr Krcmar at the interview in October 1998: 'A. -A.K.- "It shouldn't have been in that state to begin with, I understand whey they were cleaning it up, but the method they had chosen was totally unacceptable. It's standard knowledge from our safety policy that you don't have naked flame present around any vessel that's loaded with a hot product or a cold product which has flammable vapours present." … 33. "Did management investigate the accident?" A: -A.K - "Yes." 34. "What was the outcome of that investigation?" A: -A.K.- ""Procedures had been breached, with regard to the use of a heating lance being used on top of a mixing vessel to clean split bitumen." … 41. "With the benefit of hindsight how do you think this accident could have been prevented?" A: -A.K.- "In hindsight as a company we need to formalise more our training procedures for our staff and emphasis to our staff more how serious we are when we are training. Hopefully, this will improve their work culture."'

74 Having all of these matters in mind, I am of the view that the defendant must be found guilty of the offence as charged, except for particular (a) of the charge. There was no evidence led from which it could be concluded that the vessel had not been adequately cooled prior to the removal of the bitumen spillage. To the contrary, Mr Adams' evidence was that it was cold. I accept his evidence on that point, as on others. 75 The defendant sought the opportunity to address on the question of penalty in the event that it was found guilty of the charge. The parties should approach my Associate in order to make arrangements for a time for those submissions to be put. ------------------------

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