WorkCover Authority of NSW (Inspector Sequeira) v Foti's International Fireworks

JUDGMENT: - 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 12/12/2003

WorkCover Authority of NSW (Inspector Sequeira) v Foti's International Fireworks (Displays) Pty Limited

Prosecution pursuant to s15(1) of the Occupational Health and Safety Act 1983 Extempore Judgment NSWIRComm 471

1 On 3 August 2000, Mr Teuira Maireriki was employed by the defendant preparing a number of 75mm aerial shells for use in a fireworks display. He was doing that work in a work shed on the defendant's premises.

2 In the course of that work a series of explosions occurred in the work shed. The work shed caught fire and Mr Maireriki was caught inside the shed and died as a result of smoke inhalation. His body was found inside the shed after the fire had been extinguished.

3 As a result of the above accident the defendant was charged with an offence under s15(1) of the Occupational Health and Safety Act 1983. On 24 July 2003, the defendant entered a plea of guilty to the summons as amended.

4 The offence to which the defendant has entered its plea states that the defendant: Failed to ensure the health and safety and welfare at work of all its employees, in particular Teuira David Maireriki whilst he was preparing a number of 75mm aerial shells, for use in a fireworks display, in a work shed situated at 51 St Andrews Road Leppington in the State of New South Wales, contrary to section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are as set out: (a) At all material times the defendant employed a number of persons, including Teuira David Maireriki. (b) At all material times the defendant owned and operated a fireworks business which prepared and supplied fireworks displays on a commercial scale at premises situated at 51 St Andrews Road Leppington in the State of New South Wales ("the said premises"). (c) At all material times the defendant had a number of employees working at the said premises. (d) The defendant failed to ensure that a safe system of work was provided to its employees to ensure their health and safety whilst preparing fireworks in the work shed at the said premises, for use in a fireworks display. (e) The defendant failed to provide safe plant, namely the work shed including means of access and egress, to ensure the health and safety of its employees namely David Maireriki, Dominic and Celestino Pangallo and Vince and Fortunato Foti, while fireworks were being prepared in the work shed at the said premises for use in a fireworks display. (f) The defendant failed to provide or maintain a working environment for its employees that was safe and without risks to health by failing to provide sufficient personal protective clothing for the said employees. (g) The defendant failed to take such steps as are necessary to make available in connection with the use of any plant (including the work shed and equipment within the work shed) at the said premises, adequate information to its employees about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health when properly used. (h) The defendant failed to take such steps as are necessary to make available in connection with the use of any substance (namely the display fireworks and components of the display fireworks) at the said premises adequate information about any research or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (i) As a result of the said failures Teuira David Maireriki was placed at risk of injury and suffered fatal injuries.

5 In the proceedings before me an agreed statement of facts was tendered. Omitting the formal parts it states as follows: [1] At all material times the defendant employed a number of persons, including Teuira David Maireriki. [2] At all material times the defendant owned and operated a fireworks business which prepared and supplied fireworks displays on a commercial scale at premises situated at 51 St Andrews Road, Leppington in the state of New South Wales ('the said premises'). [3] On 3 August 2000 at about 8.45 am Teuira David Maireriki ('Mr Maireriki') was preparing or assembling for display a number of 75mm aerial shells including four (4) groups of seven (7) Orchidea-80 shells (also known as Jiangsu Shells) in the work shed when a series of explosions was heard emanating from the work shed. Employees at the said premises hurried towards the work shed which had caught fire. After the fire was extinguished Mr Maireriki's body was found inside the shed, burnt to the extent that it was unrecognisable. [4] At about 8am on the day of the accident Mr Maireriki had been directed by Fortunato Foti ('F Foti'), a director of the defendant, to prepare fireworks for display from a list which F Foti handed to Mr Maireriki. Mr Maireriki collected a number of 75mm aerial shells, including Orchidea-80 shells, from a nearby storage building and brought them to the work shed. [5] The work shed had been moved to its 3.8.00 location some two months previously by two employees of the defendant, Anthony Foti ("A Foti") and Celestino Pangallo ('Pangallo'). From that time the work shed was used to prepare aerial shells for fireworks displays. [6] Inspector Brendan Sequeira attended the said premises at about 10.30am on 3.8.00 and carried out a factual inspection (Annexure A). Photographs of the premises including the remains of the work shed were also taken (Annexure B). [7] Investigations revealed that the work shed measured 4.8m long, 2.8m wide and 2.3m high. It was constructed of fabricated aluminium sheets. There was one door measuring 0.73m wide and 1.9m high, on the front side of the shed, beginning 0.23m from the left hand corner of the shed. The door was hinged to open inward. Also on the front of the shed were two windows measuring 0.77m wide and 1.03m high. [8] Inside the work shed were a number of pyrotechnic items in addition to the items Mr Maireriki was preparing for the fireworks display. These additional pyrotechnic items included a number of electric matches (also called electric igniters), about 1200 delay fuses, primed safety fuse, 4 bundles of quick match, a small number of comets and one 3" jewel mine. [9] Also inside the work shed were a number of metal tools including 3 scissors, 3 knives, 5 tape dispensers, screw drivers and a dust bin. There were also a number of pieces of furniture including work tables, chairs, shelving and storage cabinets. Many of the items of furniture had substantial metal components. [10] The fireworks device that Mr Maireriki had been instructed to work with by F Foti was received from China. The fireworks once assembled were to be used in public displays. Assemblage by Mr Maireriki of the fireworks in the work shed involved the following steps: (i) removal of the protective sleeve on the end of the quick match to expose the bare end of the black match fuse (also called "leader"). The wrapped quick match is cut with metal scissors to remove the exposed black match and expose between about 15mm to 25mm of black match; (ii) an electric match (igniter) head is prepared for attachment to the black match by withdrawing the protective shroud to fully expose the electric match head; (iii) the exposed electric match head is positioned on the black match and secured in place by masking tape, with sufficient tape being applied to cover the bared length of black match. [11] Mr Maireriki was preparing sets of seven devices in the work shed on 3.8.00 for simultaneous ignition. This involves carrying out the first of the operations mentioned in paragraph 12(i) above until seven devices have their quick match fuses prepared with about 25mm of black match exposed. The seven quick match fuses are then tied or taped together immediately above the exposed black match so that seven exposed black match ends form a bundle. A bared electric match head, prepared as in the second operation described in paragraph 12(ii) above, is positioned in the centre of the black match bundle, and secured in place with sufficient turns of tape being applied to cover all the exposed black match. The finished bundle of seven would then be put aside and the operations as outlined in paragraph 12 above, repeated until a total of four bundles of seven had been prepared. [12] The defendant imported the electric matches or electric igniters from an American-based company called Davey Fire. A box of Davey Fire electric igniters dated 21 March, 2000 was found at the defendant's premises during the investigation of the accident. On the box is a warning in the following terms: 'Do not attempt to remove the protective shroud from the fusehead. The use of the igniters by persons not having appropriate training and experience may KILL or INJURE. Avoid excessive heat, flame, sparks, impact and friction.' ('Fusehead' is another term for electric igniter.) [13] At the time of the accident the defendant had a set of work instructions for assembling fireworks for display. These instructions included: (i) keep building doors open at all times; (ii) handle a maximum of one case of shells at a time; (iii) when fusing shells with time-fuse, place the shells in appropriate size rack of mortars. [14] Given the circumstances under which Mr Maireriki was working in the work shed on 3.8.00 there was a risk of accidental ignition of the fireworks. Ignition may occur as a result of using scissors to cut the quick or black match of a shell's leader fuse. Ignition may also occur as a result of an action involving electric igniters, through, for example, scraping, crushing or cutting the electric igniter tip. Fireworks with electric igniters installed are much more sensitive to accidental ignition than fireworks without electric igniters. [15] The work shed was an unsafe place in which to assemble fireworks using electric igniters. It had only a single door as an exit. The door opened in an inward direction only and was quite narrow. As well, its location, in the front corner of the work shed on the same (north) wall as the work tables, was not a preferred location relative to the work areas inside: Report Regarding Fatal Accident at Foti's International Fireworks on 3 August 2000 by Dr. Kenneth L Kosanke dated 11 July 2002 at VIII (B) (2) (a) ("Kosanke Report") (Annexure C). [16] The work shed was also unsafe because of its size and the presence of a relatively large number of aerial shells within it, as well as the presence of a significant amount of other pyrotechnic items and materials: Kosanke Report at VIII (B) (4). [17] At the time of the accident there were a number of unsafe work practices directly relevant to fireworks assembly in the work shed. [18] The work rule which directed that doors should be kept open did not provide an adequate substitute for providing a proper emergency escape exit from the work shed. The work rule also had the potential for risking the safety of other workers in other work areas at the said premises: Kosanke Report VIII (D) (1) (e). [19] Work practices failed to provide adequate separation or isolation from too large a group of industrial aerial shells in the work shed at the time of the accident: Kosanke Report VIII (D) (2). [20] The generally accepted work practice of cutting quick and black match using scissors was unsafe since there is the potential for igniting quick and black match when cutting them with scissors: Kosanke Report VIII (D) (4). [21] The generally accepted work practice of removing the protective shroud from the electric match was unsafe since electric matches are sensitive to accidental ignition and the function of the protective shroud is to mitigate the potential risk of such accidental ignition: Kosanke Report VIII (D) (5). [22] The defendant did not have in place at the time of the accident any adequate rules or procedures for the use of personal protective equipment, including clothes, for workers engaged in assembling or preparing fireworks for display in the work shed: Kosanke Report VIII (D) (6). [23] Items located inside the work shed on 3.8.00 during the investigation into the accident included metal items which have the potential to produce sparks when accidentally struck with sufficient force. There is the potential for heavy metal objects to produce ignition of pyrotechnic materials, especially electric matches when they are crushed with sufficient force such as when tipped or dropped: Kosanke Report VIII (E) (4). [24] At no stage prior to the accident had the defendant conducted any assessment of the risks associated with ignition sensitivity of Orchidea-80 pyrotechnic devices or other aerial shells particularly those assembled with electric igniters. [25] Mr Maireriki prior to the accident had not received any adequate training instruction or information and had not received any adequate training instruction or information that involved any formalised documented procedures dealing with safety issues in the assembly of fireworks for display. [26] It is alleged that on 3 August 2000 at premises situated at 51 St Andrews Road Leppington in the State of New South Wales the defendant Foti's International Fireworks (Displays) Pty Limited [ACN 003 754 596], being an employer, failed to ensure the health and safety and welfare at work of all its employees, and in particular Teuira David Maireriki whilst he was preparing a number of 75mm aerial shells in a work shed for use in a fireworks display, contrary to section 15(1) of the Occupational Health and Safety Act, 1983 .

6 In addition to the statement of facts, I also received by consent: (i) A factual inspection report prepared by Inspector Sequeira. (ii) A series of 26 photographs taken by Inspector Sequeira, some taken on the day of the accident and some on days after depicting relevant aspects of the defendant's premises including the burnt out shed where the accident occurred. (iii) a report prepared by Dr Kenneth Kosanke dated 11 July 2003 titled Report regarding Fatal Accident at Fotis International Fireworks on 3 August 2000. As an expert, Dr Kosanke has a Ph.D in chemistry with post doctoral studies in physics. He has conducted basic research on pyrotechnics (mostly fireworks) for 25 years, producing more than 100 technical papers on that work. Dr Kosanke's report was prepared for the WorkCover Authority of NSW. References to a number of relevant findings and opinions expressed by Dr Kosanke in his report going directly to the issue of the unsafe work practices of the defendant at the time of the accident are identified in the statement of facts.

7 In addition to the prosecution material, counsel for the defendant tendered by consent a statement with annexures of Mr Fortunato Foti. Mr Foti is currently a Director with the defendant company. In addition to him, there are a number of other members of the Foti family involved in the running of the defendant company, either as directors or employees.

8 I have read the material provided to the Court by both parties. Dr Kosanke's report provides a very detailed consideration and summation as to the root causes of the accident on 3 August 2000. They amount to a series of unsafe work practices in place at the time that created the risks to safety that underpins the offence before me. Those unsafe work practices are expressed in detail in paras [15] to [25] of the statement of facts supra. I do not propose to repeat them here.

9 On the evidence before me, the approach taken by the defendant to occupational health and safety at the time of the accident involving Mr Maireriki was what I would characterise as cursory at best rather than a comprehensive and risk assessed consideration to the work being undertaken by the defendant's employees.

10 I say that having regard to the annexures B and C of Mr Foti's statement. As well, I note that in Mr Foti's statement he deposes that he 'regularly reminds employees of safety issues on a daily basis, as the work is being performed.'

11 That may well be so but simply reminding employees from time to time is not sufficient to discharge an employer's obligations to ensure a safe, risk free working environment. On one view, the defendant has acknowledged that by the entry of the plea of guilty as well as the work undertaken since the accident to fundamentally overhaul its occupational health and safety systems and procedures.

12 Documented policies are of little assistance in creating a risk free working environment unless they are accompanied by an active and committed approach to workplace hazard identification and risk assessment supported by relevant training and instruction. As well, the process must be promulgated in the workplace, consistently reinforced and be the subject of ongoing workplace audit and review.

13 I note that in Mr Foti's statement he states that 'there are no external training courses available for persons learning about working with fireworks.' If anything, what that statement emphasises is the onus that is placed on the defendant to be scrupulous in its adherence to training and instruction in relation to all aspects of fireworks preparation with particular emphasis on safety issues. As Dr Kosanke's report confirms, the defendant's system of work in relation to the assembly of fireworks using electric igniters was seriously deficient having regard to:

· the particular workplace used by Mr Maireriki, specifically its inadequacies as to size and safe egress.

· unsafe work practices as to the specifics of the task being undertaken by Mr Maireriki including the tools used and procedures adopted. · inadequate provision in relation to personal protection equipment.

· the presence of additional items in the work shed used by Mr Maireriki that had the potential to produce ignition of pyrotechnic materials.

· the absence of any specific risk assessment in relation to the ignition sensitivity of the relevant pyrotechnic devices that Mr Maireriki was working with.

· inadequate training and supervision of Mr Maireriki in relation to the safe assembly of fireworks.

14 On any view, those unsafe work practices, when considered cumulatively, constituted an unsafe system of work with obvious and foreseeable risks to safety for the defendant's employees. Given that the handling of explosive material is part of the defendant's activities as well as the presence of pyrotechnic items and materials, the need for vigilance and a proactive approach to occupational health and safety should, on any view, be a paramount consideration.

15 Further, those unsafe work practices as identified were numerous and significant. They gave rise, in my view, to obvious and foreseeable risks to safety within the defendant's system of work that goes directly to establishing the existence of an objectively serious offence as enunciated in Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (1999) 90 IR 464 and particularly 476.

16 As well, the remediation measures reported upon by Dr Kosanke in his report were all readily available and feasible measures able to be undertaken by the defendant. 17 Having regard to the facts and circumstances of the matter before me, I am of the view that the nature and quality of the offence before me is objectively serious and I propose to approach the determination of penalty on that basis.

18 The defendant has a prior conviction which invokes the maximum penalty threshold of $825,000. The circumstances of that prior conviction should be noted. They are, as I understand it, the defendant entered a plea of guilty to an offence arising under s16(1) of the Occupational Health and Safety Act 1983. That offence arose following an incident that occurred in 1996. That incident involved the presence of unexploded shells in a showground following a firework display prepared by the defendants. As I am advised and understand, a number of the shells failed to ignite and remained lying in an accessible part of the showground, or certainly in a part of the showground where they were subsequently picked up by children.

19 The subsequent charge to which the plea of guilty was entered was dealt with before the Chief Industrial Magistrate and a fine of $10,000 was imposed. Without knowing more in relation to that offence, whilst serious in its implicit risk to safety, the nature and quality of the offence before me would appear to be significantly different in a number of respects, not least of all the number of failures as particularised constituting the risks to safety in the work being performed.

20 Since the accident, the defendant has produced, with expert assistance, a comprehensive Safety System Manual. This document identifies Legislation, Regulations and Australian Standards relevant to the defendant's operations and new Hazard Identification and Risk Assessment policies. General Procedure and Risk Management Plans for all individual pieces of machinery, all firework preparation tasks and the various genres of pyrotechnic display is also included. It has been, on any view, a most comprehensive process with provision for ongoing review. As well, the defendant has engaged in considerable improvements in building design and construction issues designed to ensure a safer work environment. Such matters include the installation of conductive flooring as well as specialist flooring to minimise the risks flowing from potential electrostatic discharge.

21 In imposing a penalty in this matter, regard must be had to general and specific deterrence. That much is evident from the decision given by the Full Bench of this Court in Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 particularly paras [74] to [77]. That much is properly acknowledged by counsel for the defendant.

22 The defendant continues to operate in the firework display industry. It could not be said that such an undertaking is not fraught with risks to safety or, to put it another way, it is an industry that, on any proper consideration, is an inherently dangerous industry. Accordingly, the need for consideration both as to general and specific deterrence in the imposition of a penalty is essential in the matter before me.

23 I have considered the submissions of counsel on behalf of the defendant. He has emphasised, properly in my view, that while the defendant did not, at the time of the accident, have documented occupational health and safety policies and systems to the extent that would have been expected, the defendant nevertheless has always been conscious of its obligations in the area of safety and it emphasises that throughout its workplace. He drew my attention to two matters in particular that he says demonstrated this ongoing commitment, in principle, to safety: (i) Reference in paras [28] and [29] of Mr Foti's statement to the decision made by the defendant company in 2002, in which Mr Fortunato Foti himself was particularly involved, to call off the fireworks display on Sydney Harbour on safety grounds. (ii) Participation by the defendant in the development of relevant Australian Standards in the handling of pyrotechnics. I acknowledge both of those matters.

24 The prosecution has acknowledged that the defendant had entered its plea at the earliest available opportunity and is entitled to a discount on that basis. I assess that discount at 25% of the penalty I propose to impose.

25 There are subjective features which I can and do properly take into account in the determination of penalty in this matter. It is acknowledged that the defendant has fully cooperated with the WorkCover Authority in relation to the investigation into this tragic and unfortunate accident. I have already commented generally on remediation measures undertaken by the defendant. The material before me is extensive and attests to the seriousness with which the defendant has given attention as to its need to address occupational health and safety matters within its workplaces. What is required, of course, is an ongoing commitment to these policies and procedures to continue to ensure a risk-free work environment.

26 The defendant has been in the business of firework displays in Australia since 1952 and even longer internationally. I have already commented on the one prior conviction that is relevant to the matter before me. Given the length of time that the defendant has been operating it can, I think, say that overall it has a relatively good record as an employer in an industry that I have already said is an inherently dangerous industry. That is a factor that I do take into account and the defendant is entitled to ask the Court to have regard to.

27 Taking all those subjective features into account, I determine a further discount on penalty of 10%.

28 Taking all those matters that I have commented upon into account, I determine a notional penalty in this matter of $250,000. In applying the discounts assessed, I determine a final penalty of $162,500.

29 Accordingly, I make the following orders: (i) The defendant is convicted of the offence before me. (ii) I impose a penalty in this matter of $162,500. (iii) I allocate a moiety to the prosecution on the usual terms. (iv) Costs to the prosecution as agreed or as determined in accordance with the Rules of the Court.

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