WorkCover Authority of NSW (Inspector McColl) v Dowdon Contracting Pty Limited and ors

WorkCover Authority of NSW (Inspector McColl) v Dowdon Contracting Pty Limited and ors - [2003] NSWIRComm 477 - NSWIRComm 2003 case summary — Zoe

[21]

(i) IRC Matter No 4321/02 re Dowdon Contracting Pty Limited Dowdon Contracting Pty Limited [ACN 003 413 983] did fail contrary to section 16(1) of the Occupational Health and Safety Act, 1983 to ensure that persons not in its employment and in particular, Bill Pope, Hing In, Piseth Soun, Leang Heng and Ly Bun Hout ('the workers'), were not exposed to risks to their health and safety arising from the conduct of its undertaking, namely the demolition and removal of material from the site, in that, part of the work in the performance of its undertaking was sub-contracted to John Watson Building Services Pty Limited [ACN 054 214 783] pursuant to which sub-contract, works involving the removal of a non asbestos based material known as vermiculite and glue residue from the ceiling of the welding school Block D room D-G-13 was carried out in a confined area and the removal of a glue residue was partly carried out with the use of a petrol driven high pressure water blaster by the workers who, while doing so, were overcome by fumes from the said water blaster by reason that: (i) It failed to ensure that the sub-contractor, John Watson Building Services Pty Limited [ACN 054 214 783], carried out its work at the site in accordance within the terms of the work method statement provided pursuant to its contract with Dowdon Contracting Pty Limited. (ii) It failed to ensure that the person engaged by its sub-contractor, John Watson Building Services Pty Limited, to act as a supervisor of the work being performed, was appropriately licensed or qualified to act in that capacity at all material times. (iii) It failed to properly supervise the works being conducted by its sub-contractor so as to ensure that the petrol driven water blaster was not set up in a confined area. (ii) IRC Matter No 4322/02 re John Watson Building Services Pty Limited John Watson Building Services Pty Limited did fail to ensure the health, safety and welfare at work of its employees and in particular, Bill Pope, Hing In, Piseth Soun, Leang Heng and Ly Bun Hout ('the workers'), contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that the workers were engaged at the site in the removal of vermiculite and glue residue from the ceiling of the welding school of Block D room D-G-13 at the site using a petrol driven high pressure water blasting machine in a confined space when they were overcome by fumes emanating from the water blaster by reason that: (a) John Watson Building Services Pty Limited failed to provide and maintain a system of work that was safe and without risk to health in that: (i) the manner in which the work was being carried out was outside the scope of the agreed work method statement in respect of the job; (ii) the competent person named in the WorkCover Permit was not present and supervising the performance of the work at the time of the incident; (iii) the person engaged to supervise the work being carried out at the time of the incident was not appropriately licensed to enable him to act as the competent person; (iv) the use of a petrol driven water blaster to conduct the work within a confined area was unsafe. (b) John Watson Building Services Pty Limited failed to maintain a place of work under its control in a condition that was safe and without risk to health in that the workers performed work in a confined area when there were exhaust fumes present from a petrol driven water blaster being used to carry out the work. (c) John Watson Building Services Pty Limited failed to provide such information, training, instruction and supervision in relation to the work as was necessary to ensure health and safety in that: (i) having arranged for the petrol driven water blaster to be delivered to the site, did not provide proper instructions to the workers in relation to it; (ii) having arranged for the petrol driven water blaster to be delivered to the site, did not provide proper supervision of the workers in relation to the use of the water blaster; (iii) did not provide any information to the workers in relation to the risks associated with the use of a petrol driven water blaster within a confined area; (iv) provided no specific training in relation to the use of the petrol driven water blaster in relation to the work being carried out. (iii) IRC Matter No 4320/02 re John Michael Watson John Michael Watson being a director of John Watson Building Services Pty Limited [ACN 054 214 783] and a person concerned with the management of the company, which company on 30 May 2001 failed to ensure the health, safety and welfare at work of its employees and in particular, Bill Pope, Hing In, Piseth Soun, Leang Heng and Ly Bun Hout ('the workers'), at Blacktown TAFE, Hereward Highway, Blacktown, in the state of New South Wales ('the site') in that the workers were engaged at the site in the removal of vermiculite and glue residue from the ceiling of the welding school, Block D, room D-G-13 at the site using a petrol driven high pressure water blasting machine in a confined space when they were overcome by fumes emanating from the water blaster by reason that: (a) The company failed to provide and maintain a system of work that was safe and without risk to health in that: (i) the manner in which the work was being carried out was outside the scope of the agreed work method statement in respect of the job; (ii) the competent person named in the WorkCover Permit was not present and supervising the performance of the work at the time of the incident; (iii) the person engaged to supervise the work being carried out at the time of the incident was not appropriately licensed to enable him to act as the competent person. (iv) the use of a petrol driven water blaster to conduct the work within a confined area was unsafe. (b) The company failed to maintain a place of work under its control in a condition that was safe and without risk to health in that the workers performed work in a confined area when there were exhaust fumes present from a petrol driven water blaster being used to carry out the work. (c) The company failed to provide such information, training, instruction and supervision in relation to the work as was necessary to ensure health and safety in that: (i) having provided for the petrol driven water blaster to be delivered to the site, did not provide proper instructions to the workers in relation to it; (ii) having arranged for the petrol driven water blaster to be delivered to the site, did not provide proper supervision of the workers in relation to the use of the water blaster; (iii) did not provide any information to the workers in relation to the risks associated with the use of a petrol driven water blaster within a confined area; (iv) provided no specific training in relation to the use of the petrol driven water blaster in relation to the work being carried out. And John Michael Watson is deemed to have contravened the same section by operation of section 50(1) of the Occupational Health and Safety Act, 1983 .

[23]

10 An agreed statement of facts has been tendered in respect of all defendants. While there are some specific background details that differ as between Dowdon and the other two defendants in relation to their respective roles in the offences before me, there is no difference between them as to the precise facts giving rise to the offences. In order to avoid duplication, I set out the statement of facts in relation to Dowdon and add only those specifically pertinent to the other two defendants in relation to the documentation filed. Those facts read as follows: [1] At all material times Dowden Contracting Pty Limited had been engaged by the Department of Public Works & Services to conduct demolition works and removal of contaminated material from Blacktown TAFE situated at Hereward Highway, Blacktown in the state of New South Wales ('the site'). [2] The terms of the contractual arrangements between Dowden Contracting Pty Limited and the Department of Public Works & Services were contained in document known as 'Tender Document for Blacktown TAFE, Block D, Demolition and Removal of Contaminated Material - Contract No: 0100728 - April 2001,' as well as other correspondence between Dowden Contracting Pty Limited and the Department of Public Works & Services. [3] Dowden Contracting Pty Limited had been engaged to conduct demolition works and the removal of contaminated material from the site and engaged a sub-contractor, John Watson Building Services Pty Limited [ACN 054 214 783] to perform work involving the removal of contaminated materials from the site, on the basis that John Watson Building Services Pty Limited was a licensed asbestos removal business operation. Dowden Contracting Pty Limited did not check to see that Mr Pope had an asbestos removal licence on the basis of the understanding that Mr Pope was introduced as an asbestos removal supervisor and that John Watson Building Services Pty Limited was a licensed asbestos removal business operation. [4] At all material times Dowden Contracting Pty Limited was an employer and engaged the following four employees to perform demolition work, including the removal of bonded asbestos, at the site on 30 May 2001, Maurice O'Connor, Adam Dowling, Brian Kingi and Wharewhiti Taunor. [5] At all material times John Watson Building Services Pty Limited engaged by Dowden Contracting Pty Limited had the following employees to perform work relating to the removal of contaminated materials, including friable asbestos, at the site: Bill Pope, Hing In, Piseth Soun, Leang Heng and Ly Bun Hout ('the workers'). [6] At all material times Dowden Contracting Pty Limited was responsible to the Department of Public Works and Services for the performance of the demolition and removal of contaminated material works on the site, including the removal of vermiculite from the ceiling of the welding school Block D on the ground floor at the site. [7] At all material times the workers were engaged on the site in the removal of vermiculite from the ceiling of the welding school Block D on the ground floor at the site. It was thought that the vermiculite contained asbestos. Subsequent examination of the material removed from the plaster underlay showed that the vermiculite did not contain asbestos. [8] At all material times the area in which John Watson Building Services Pty Limited was required, pursuant to its contract, to conduct the removal work, was contained entirely within the walls of the ground floor in Block D. [9] In order to carry out the removal work a containment area had to be set up by securing plastic sheeting in order to isolate it, which area was known as 'the bubble.' Contained within this bubble was the workroom, a decontamination unit and showers. [10] At all material times there were two exhaust fans which operated inside the workroom. [11] The work method statement agreed between John Watson Building Services Pty Limited and Dowden Contracting Pty Limited involved John Watson Building Services Pty Limited conducting the removal works in the following manner:

[26]

· The waste material was then to be put into bags and sealed and removed via the decontamination unit, washed and transported to a plastic lined skip. [12] The workers conducted the removal process on and prior to 30 May 2001 in accordance with the requirements of the work method statement. [13] During the course of the works the workers wore protective equipment including masks, overalls, gumboots, gloves and helmets. [14] At all material times, Bill Pope, an employee of John Watson Building Services Pty Limited, was appointed as a foreman by John Watson Building Services Pty Limited for the works relating to the removal of contaminated materials on the site. It was agreed between Dowden Contracting Pty Limited and John Watson Building Services Pty Limited that Bill Pope, as the foreman, would be responsible for the welfare of the men within the bubble and the execution of safe work procedures. This was particularly since Dowden Contracting Pty Limited was not in a position to supervise the performance of works within the bubble as John Watson Building Services Pty Limited was licensed to carry out the removal of contaminated materials within the area of the bubble. The supervisors of Dowden Contracting Pty Limited had the responsibility to supervise the work being performed by John Watson Building Services Pty Limited at the site, in particular so as to ensure the petrol driven water blaster was not set up in a confined area [15] Following completion of the removal of vermiculite from the ceiling of the welding school Block D on the ground floor of the site, the workers were in the process of removing the remaining glue residue. At this stage, it was suggested by Bill Pope that the workers use a high speed water blaster to remove the glue residue to quicken the process. [16] On or prior to 30 May 2001, John Watson, the managing director of John Watson Building Services Pty Limited, made a decision to use a high pressure water blaster to assist in the removal of the vermiculite and glue residue from the ceiling of Block D. [17] John Watson ordered the high pressure water blaster from Active Hire Group Pty Limited and it was delivered to the site at approximately 9.00 a.m. on 30 May 2001. At approximately 10.30am, on 30 May 2001, John Watson was instructed by Mr Robert Gordon, director of Dowden Contracting Pty Limited at all material times, to not use the water blaster on the site, although Dowden Contracting Pty Limited did not adequately enforce and ensure that the instruction that John Watson Building Services Pty Limited not use the water blaster on the site. John Watson subsequently advised Mr Robert Gordon that he had instructed Bill Pope not to use the water blaster in the bubble. [18] The high pressure water blaster, which was delivered to the site on 30 May 2001, was inspected at the site on 31 May 2001 by WorkCover Inspector Alan Jones and the following features were noted by him: (a) A pressure cleaner unit consisting of a petrol operated engine black and white in colour and a compressor unit silver in colour. (b) The petrol engine and compressor unit was mounted on a carriage frame that was black in colour. (c) The carriage frame was mounted on 4 red coloured wheels and black coloured tyres. (d) A black horizontal metal place was mounted above the compressor unit. (e) A yellow sign with the words (ACTIVE HIRE) written in blue was attached to the black metal place. (f) The number (G 153) and the words (ACTIVE HIRE) and been inscribed on the black metal plate. (g) The black vertical metal plate was attached to the end of the carriage adjacent to the compressor unit. (h) A white sign with the work (STEAMASTER) written in black was attached to the black metal plate. [19] Prior to commencement of works pursuant to its sub-contract, John Watson Building Services Pty Limited had obtained from the WorkCover Authority a permit applicable to the works involving the removal of asbestos from the site, being permit number 200149AS1082. [20] It was a term of the permit that all work carried out in respect of the works by John Watson Building Services Pty Limited must be supervised by a WorkCover assessed, competent person, who was an employee of John Watson Building Services Pty Limited. [21] At all material times the nominated competent person in respect of the permit so issued to John Watson Building Services Pty Limited, was the managing director, John Watson. [22] At all material times on 30 May 2001 works involving the removal of vermiculite were conducted by the workers at the site in the absence of John Watson although John Watson did attend the site from time to time. [23] At all material times the work method statement in respect of the works as submitted by John Watson Building Services Pty Limited to Dowden Contracting Pty Limited, did not specify the use of a high pressure water blaster. [24] John Watson Building Services Pty Limited attempted to use the water blaster with it placed outside the work area using a hose connected to it, which was pushed through into the bubble. The hose however was too short and the water blaster was not capable of being used effectively and a decision was made by the foreman of John Watson Building Services Pty Limited to bring the water blaster inside the bubble without Dowden Contracting Pty Limited's permission. [25] At about 12.30 p.m. on 30 May 2001 the workers carried the water blaster inside the bubble and commenced to carry out further works involving the removal of the glue residue using the water blaster. [26] The use of the petrol driven water blaster inside the bubble involved contamination of the bubble area with petrol fumes. [27] The workers continued to use the water blaster for more than one hour inside the bubble until all of the workers became affected by the contamination of the air within the bubble from carbon monoxide emanating from the petrol driven engine of the water blaster. [28] Two of the workers were rendered unconscious and had to be carried out of the bubble by employees of Dowden Contracting Pty Limited, and they each regained consciousness soon after being removed from it. The other three workers were rendered dizzy and nauseated but were able to make their own way out of the bubble. This occurred as a result of carbon monoxide emanating from the petrol driven engine of the water blaster and contaminating the air within the bubble. [29] All of the workers were subsequently treated at hospital for carbon monoxide poisoning but none were seriously injured as a consequence of the incident. All workers were able to return to work the following day.

[27]

11 Additional agreed facts that are not included in the statement of facts above and pertinent to the defendants John Watson Building Services Pty Limited and Mr John Michael Watson have been amended to read relevantly as follows: [1] At all material times John Watson Building Services Pty Limited was an employer. [2] At all material times John Watson Building Services Pty Limited was engaged in the business of asbestos removal, internal strip outs and industrial cleaning. [3] At all material times John Watson Building Services Pty Limited employed Bill Pope, Hing In, Piseth Soun, Leang Heng and Ly Bun Hout ("the workers") and Mr Day as leading hand/site manager. All these persons were accredited holders of certificates in the removal of asbestos. [4] Mr John Michael Watson of 22 Boyle Street, Balgowlah, 2093 in the state of New South Wales, is a director of John Watson Building Services Pty Limited (ACN 054 214 783). [5] Mr John Michael Watson was at all material times the competent person named in the WorkCover Permit involved in the works being conducted by the company at Blacktown TAFE, Hereward Highway, Blacktown, in the state of New South Wales ('the site') and a person in a position to influence the conduct of the company in respect of such works. [6] On or about 15 May 2001, John Watson Building Services Pty Limited entered into a contract with Dowdon to remove contaminated materials from the site. [7] At all material times Dowdon retained responsibility for supervision of works at the site being performed by itself and its sub-contractor, John Watson Building Services Pty Limited. Each of the workers and Mr Pope completed information, induction and training sessions with Dowdon before commencing the work. [8] Mr Pope had been employed by John Watson Building Services Pty Limited for four (4) years and was a very experienced, competent and skilled operator within the asbestos removal industry for 23 years as a leading hand/site manager for a number of years. Mr Pope contacted Mr John Michael Watson and it was agreed to use the water blaster on the works. [9] It was a term of the permit that all work carried out in respect of the works by John Watson Building Services Pty Limited must be supervised by a WorkCover assessed, competent person, who was an employee of John Watson Building Services Pty Limited. Mr Watson perceived that Mr Pope, whilst acting in the leading hand role and having experience in asbestos work was a competent foreman and capable of carrying out instructions in his absence. [10] It was Mr Watson's usual practice to attend regularly at the site to discuss all aspects of the works and assist Mr Pope with any difficulties. On the day of the incident Mr Watson was not in attendance. [11] At all material times the work method statement in respect of the works as submitted by John Watson Building Services Pty Limited to Dowdon, did not specify the use of a high pressure water blaster. The terms of the contract between Dowdon and the Department of Public Works was that vehicle and plant exhaust emissions were to be minimised and no vehicle or plant producing exhaust emissions would be used. 12 In addition to the agreed facts, the following documentary material was tendered without objection: (i) By the prosecution: (a) 14 photographs of the relevant worksite. (b) Two factual inspection reports of Senior Inspector Alan Jones dated 30 May 2001 and 31 May 2001 respectively. (ii) On behalf of Dowdon Contracting: (a) Affidavit of Mr Robert Gordon. Mr Gordon is a former Director of Dowdon Contracting Pty Limited. He was a Director of Dowdon at the time of the accident in May 2001. He was actively involved in negotiating with JWBS in relation to the work at Blacktown TAFE and generally administered the work being undertaken by Dowdon at the site in consultation with Dowdon's site supervisor at the time, Mr Maurice O'Connor. (b) Affidavit of Mr Maurice O'Connor with annexures. Mr O'Connor is a current Director of Dowdon Contracting Pty Limited. He was the site foreman for Dowdon at Blacktown TAFE and, in that capacity, liaised with Mr Bill Pope, the site supervisor for JWBS in relation to the work being undertaken and the use of the water blaster. (iii) On behalf of JWBS Pty Limited and John Watson: (a) Two affidavits of Mr John Michael Watson with annexures dated 5 September and 15 September 2003 respectively.

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties

Cases Cited (2)

Cited By (1)