WorkCover Authority of New South Wales (Inspector Glass) v Kellogg - [2000] NSWIRComm 53 - NSWIRComm 2000 case summary — Zoe

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WorkCover Authority of New South Wales (Inspector Glass) v Kellogg

[2000] NSWIRComm 53

Industrial Relations Commission (NSW)|2000-02-04|Before: Walton J, Schmidt J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2000-02-04

Before

Walton J, Schmidt J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Glass) PARTIES : DEFENDANT: Kellogg (Aust) Pty Ltd FILE NUMBER: IRC4732 of 1997 CORAM: Walton J Vice-President CATCHWORDS : Prosecution brought under s15(1) of OH&S Act - Offence proven - Assessment of penalty - Question of costs - Prior convictions - Objective seriousness of the offence - Culpability - Detriment to safety - Failure in the system of work - Steps taken after the accident - Absence of training - Absence of a plea of guilty - Mitigation - Degree of foreseeability - Gravity of the offence - Simple and straightforward remedial steps - General and specific deterrence - Subjective features of the offence - General principles for sentencing - Reduction in penalty for various factors Occupational Health and Safety Act 1983 s15(1) s51A s35 s32 s33 LEGISLATION CITED : Factories Shops and Industries Act 1962 Crimes Act 1900 s556A WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Limited & another (unreported, Walton J, Vice-President, Matter No. IRC 1104 and 1106 of 1998, 4 February 2000 Director of Public Prosecutions (Cth) v Said Khador El Karhani (1990) 21 NSWLR 370 CASES CITED : Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Warman International v WorkCover Authority of NSW (1998) 80 IR 326 WorkCover Authority of NSW v ACI Operations Pty Limited (unreported, Schmidt J, CT1025 of 1993, 25 February 1994) WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Matter No. CT1280 of 1995, 2 April 1997 HEARING DATES: 12/15/1999 DATE OF JUDGMENT: 04/14/2000

[27]

CONSIDERATION 26 The general principles to be applied in this matter are set out in my judgment in WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Limited & another (unreported, Matter No. IRC 1104 and 1106 of 1998, 4 February 2000 at 87 - 98). I adopt the discussion of those principles for the purposes of this judgment. 27 The maximum penalty for an offence, in a general way, indicates the seriousness with which Parliament, representing the people, has viewed the offence and represents an appropriate starting point for the assessment of penalty: Director of Public Prosecutions (Cth) v Said Khador El Karhani (1990) 21 NSWLR 370 at 380. 28 The prosecutor and the defendant contended that the provisions of s51A of the Act do not apply to the present proceedings as there are no relevant prior convictions for the purposes of that section. They submitted that the maximum penalty prescribed for the offence was $500,000. 29 The submissions of the prosecutor and the defendant were not developed at any length in relation to this point and the material produced as being relevant to the question was not entirely satisfactory. However, on the evidence presented to the Court, it would appear that the provisions of s51A do not apply in the present matter. 30 Section 51A(1) is in the following terms: This section applies to proceedings for a second or subsequent offence against this Act which comprises a wilful repetition of the act or omission which constituted a previous offence. 31 I will firstly consider the prior convictions of the defendant under the Factories, Shops and Industries Act 1962. Section 51A(1) is confined to circumstances where a person has been previously convicted under the Act. Whilst the Factories, Shops and Industries Act 1962 is associated legislation to the Act (see s35), it does not relevantly fall within the words "this Act" for the purposes of s51A. If more were needed, this conclusion is confirmed by the terms of s32 of the Act, which provides that the Factories, Shops and Industries Act 1962 shall be observed "in addition to the provisions of [the] Act". The provisions of the Factories, Shops and Industries Act 1962 are thereby applied additionally to the provisions of the Act. By the operation of s33 the Act prevails over the provisions of the Factories, Shops and Industries Act 1962 which are inconsistent with the Act. 32 It appears that a prosecution was brought against the defendant under the Act but this charge was dismissed pursuant to s556A. No conviction was entered against the defendant. In these circumstances, s51A would not apply as its operation is restricted to a prior conviction for an offence. 33 In the circumstances I shall approach this matter as one in which the maximum penalty is $500,000. 34 It is appropriate to have regard firstly to the objective seriousness of the offence. 35 At the trial the defendant was found not guilty of the charge of failing to maintain plant, namely the rotary cookers, to ensure the health and safety of employees at work. The Court found that steam had been released at pressure into cooker number 4 but that the defendant could not be criticised for this occurrence. At the requisite standard of proof, the Court was not satisfied that the defendant had failed to adequately repair or maintain the plant. 36 The Court also rejected the allegation that it was unsafe to leave product within the cooker for five days in the circumstances of this case. 37 However, in the judgment of the Court of 19 October 1999 the culpability of the defendant was broadly described as follows: Thus, whilst the defendant cannot be criticised for the fact that the valve leaked steam into cooker number 4 nor, on the evidence, for the suggestion that it had been leaking and had not been repaired, the defendant was guilty of a failure to ensure that the operators checked the pressure gauges, including the trend screen, before attempting to remove the lid. 38 The Court did find that Mr Jovanovic had undertaken checks on the gauges in relation to cooker number 2 before discharging it, but had failed to do so with respect to cooker number 4. In the result the lid of pressure cooker number 4 was opened under pressure. The Court had also noted that operators, such as Mr Jovanovic and Mr Husakovic, had effectively worked without supervision and were encouraged to do so. Facilitators were engaged by the defendant, but these persons had little knowledge of the productive processes and were certainly not in a position to advise experienced operators. Specifically, it was noted that these persons were not supervisors. The operators had to act on their own resources and were instructed to do so. 39 The detriment to safety occasioned by, and the culpability of, the defendant were in these circumstances described as follows: I find that the duty under s15(1) translates in this case to a duty on the defendant to ensure that where the lid on a cooker has been secured so that any pressure within it cannot escape through the lid, then the lid should not be loosened or removed unless and until it has been ascertained that there is no pressure within by checking the gauges and the computer screen including the trend screen. This is an essential aspect of the duty to provide a safe system to remove spoiled product from the cookers which is at the heart of the summons in Matter No. IRC 4732 of 1997.

[30]

In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees. 40 This is a case therefore where there existed a known and perceived danger which was insufficiently controlled by the defendant. It is necessary for the defendant, in order to meet the requirements of the Act, to search for and identify all possible risks and institute safety measures to guard against those risks: McDonald's Australia Limited at 133. However, the existence of settled safety procedures and instructions is a factor which will mitigate the seriousness of the offence: Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 25; Warman International v WorkCover Authority of NSW (1998) 80 IR 326 at 342. In this respect, I note that the defendant had established various safety procedures and instructions including a system of pressure gauges and procedures for the checking of these instruments. 41 It is also appropriate to have regard to the degree of foreseeability in assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence. The proper test of foreseeability and the standard of foreseeability is discussed in Kembla Coal & Coke (at 27). I adopt that reasoning for the purposes of this decision. 42 In my view, the risk of injury in this case was both known and foreseeable. This was the conclusion reached at the trial in the following extracts from the Court's judgment of 19 October 1999: The release of the lid on a cooker such as number 4 was hazardous. The cooker was built to contain product and steam at pressure. There was an obvious risk (with or without any previous incidents) of a violent expansion of product and/or steam in the event that the lid was loosened or removed whilst there was product and steam under pressure within. This was a reasonably foreseeable risk although it is not necessary for me so to find in relation to s15. It was incumbent upon the defendant therefore to ensure that the system for removal of the lid was safe. ... In this case, the accident was not, as Mr Carson sought to characterise it, a freak occurrence which cannot be explained and which arose in an unknown situation. The risk of valves leaking was both known and foreseeable. The possibility of steam leaking from a defective valve into a container charged with spoiled product and on which the lid was secured so containing the pressure was equally obvious. The possibility of an explosion thereby resulting was also known. These were dangers which the defendant could have, and should have, taken steps to address. 43 Furthermore, this is a case where simple and straightforward remedial steps could have been taken by the defendant to avoid the accident. This again is a matter relevant to the assessment of the seriousness of the offence: see WorkCover Authority of NSW v ACI Operations Pty Limited (unreported, Schmidt J, CT1025 of 1993, 25 February 1994). 44 In my view, simple measures were available to the defendant to avoid the risk occasioned to the employees of the defendant in this matter, namely the giving of better warnings, instructions and training as to the need to carry out checks before the opening of pressurised vessels and the use of all relevant pressure gauges. Further, the measures taken by the defendant after the accident also indicated the simple and straightforward steps which may have been taken by the defendants to prevent the accident: WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Matter No. CT1280 of 1995, 2 April 1997 at 21). These measures were described in the judgment of the trial as follows: Exhibit 11 contains a new procedure entitled "Cooker Lid Removal Procedure - Manual Operation". That document states at paragraph 1.6 that the cooker pressure must be checked both at the cooker pressure gauge and on the computer display "to establish that the cooker is no longer under pressure, i.e. the cooker gauge reads zero (0) and the [computer] display reads zero (0)". The procedure also requires that "at all times during this procedure the cooker shall be considered under pressure until proven otherwise". The document, in the description of the purpose of the procedure, stipulates that the procedure expressly applies to bad cooks. Additionally, a bad cook disposal and conditioning procedures were brought into existence.

[31]

The revisions were steps which demonstrably could have been taken in relation to bad cooks before the accident but were not. Instructions in relation to bad cooks could have been specifically conveyed to operators and appropriate training could have been supplied. However, even had that revision taken place prior to the accident and appropriate instructions and training issued, it would have been insufficient, in my view, to fulfil the duty on the defendant which I have identified. In view of the patent danger of opening, or partially opening, a cooker under pressure, as was so dramatically illustrated to Messrs Bannerman, Vanslambrouck and Zolnierczyk, the paramount importance of carrying out the pressure check, identified in the revised manual, should have been brought home to the operators much more forcefully than simply inserting it in a manual or giving an instruction as to the use of such a procedure. The operators were largely self-taught and self-supervised. The experience (or experiences) of Messrs Bannerman, Vanslambrouck and Zolnierczyk was never conveyed to Messrs Husakovic and Jovanovic, although they knew vaguely of an earlier incident. The risk that a cooker charged with product might be under pressure of boiling steam by reason of a phenomenon known to occur from time to time, namely a leaking valve, appears self-evident. 45 Before turning to the subjective features of this matter I note that whilst the defendant's record keeping system was not causative of the accident, it was, in my view, gravely deficient. There was not a reasonable system for recording faults and malfunctions and acting promptly upon them. 46 I have also concluded that both elements of general and specific deterrence should play a role in the determination of sentence in this case. As to the specific elements of deterrence, I have had regard to the fact that the defendant is a large enterprise involved in the operation of potentially dangerous equipment under pressure involving the injection of steam. There is a need to ensure that due diligence is paid by industry where existence of vessels or machinery under pressure are used to ensure that a sufficient level of diligence is undertaken in the instruction and training of employees in relation to the opening of such vessels or machinery. 47 I now turn to the subjective features of the offence. In addition to the discussion of general principles for sentencing in McDonald's Australia Limited, to which I have earlier referred, I note and adopt my discussion of the relevance of subjective features in the assessment of an appropriate sentence in Kembla Coal & Coke at 29-30. These are factors which will properly lead to a reduction in penalty. 48 In this case, I have had regard to the factors raised by Mr Carson in his submissions on penalty. In particular I have had regard to the measures introduced by the defendant after the accident to improve the safety mechanisms operating at the workplace, the prior record of the defendant and its co-operation with the WorkCover Authority. 49 Whilst the defendant has had some prior convictions under the Factories, Shops and Industries Act 1962, these penalties concerned relatively minor matters. Having regard to the size of the corporation, the number of employees and longevity of its operations, I consider that, in all the circumstances, I should treat this corporation as one which, in relative terms, should receive discount for good industrial citizenship. This is particularly so as the defendant has operated throughout this period in a hazardous field and where it is quite evident that the defendant has strived for the establishment of good safety procedures and continues to do so.