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.'