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 .