WorkCover Authority v Howard and Sons Fireworks Spectaculars - [2001] NSWIRComm 116 - NSWIRComm 1994 case summary — Zoe

NSWNSWIRComm

WorkCover Authority v Howard and Sons Fireworks Spectaculars

[2001] NSWIRComm 116

Industrial Relations Commission (NSW)|1994-03-10|Before: Boland J, Fisher CJ, Peterson JJ, Ms J, Mr P

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-03-10

Before

Boland J, Fisher CJ, Peterson JJ, Ms J, Mr P

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority v Howard and Sons Fireworks Spectaculars (No. 2) [2001] NSWIRComm 116 PROSECUTOR: WorkCover Authority of New South Wales (Insp Robins) PARTIES : DEFENDANT: Howard and Sons Fireworks Spectaculars Pty Ltd FILE NUMBER: IRC 839 of 1999 CORAM: Boland J CATCHWORDS : Occupational health and safety - Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 (NSW) - Plea of not guilty - Injuries to spectator from fireworks shell that failed to explode - Offence proven - Fine imposed with moiety to prosecutor Dangerous Goods Regulation 1978 LEGISLATION CITED : Dangerous Goods Act 1975 Occupational Health and Safety Act 1983 Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 Ferguson v Nelmac (1999) 92 IR 188 Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 CASES CITED : Independent Cargo & Wool Services Pty Limited v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994) Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (1999) 90 IR 464 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211 WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179 Workcover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 HEARING DATES: 04/30/2001 DATE OF JUDGMENT: 05/29/2001

[7]

1 In an earlier judgment in this matter (Workcover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211), the Court found the defendant, Howard & Sons Fireworks Spectaculars Pty Limited, guilty of an offence under s 16(1) of the Occupational Health and Safety Act 1983. The charge against the defendant was that "it did fail to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking, while they were in the defendant's place of work". The particulars of the charge were as follows: 1. The defendant was at all material times was (sic) incorporated in New South Wales having its registered address at 4th Floor, 460 Church Street, North Parramatta in the State of New South Wales. 2. The defendant was, at all material times, an employer engaged in the business of setting up and carrying out fireworks' displays. 3. On 18th February, 1997, the defendant entered into a contract with the Newcastle Agricultural, Horticultural and Industrial Association Inc. to provide a fireworks' display on 27th and 28th February and 1st March, 1997 at the Newcastle Showground which is located at Broadmeadow in the State of New South Wales. 4. On 28 February, 1997, at approximately 10.30 p.m., Judith Westphal, a person not in the employ of the defendant, was standing between the general grandstand and the members' grandstand of the Newcastle Showground, approximately one to three metres behind the show ring fence to view a fireworks display put on by the defendant. There was a short delay in the high level fireworks' display towards the end of the entire fireworks' exhibition, approximately the same time as the ground level fireworks' display was initiated. At this time, an undetonated fireworks' shell struck Judith Westphal on the lefthand side of her face, causing her injury. 5. The fireworks' shell that struck Judith Westphal was a Thunder Bird brand TB84-308 fireworks' shell, measuring 100 mm which the defendant had purchased from Hop Kee Pyrotechnics, a company engaged in the manufacture of fireworks located in China. 6. The defendant was aware that on previous occasions, fireworks' shells had not burst. 7. The system of work used by the defendant for providing the fireworks' display on 28 February, 1997 commenced with a site inspection to determine safety distances between the proposed firing point and spectators, which in turn determined what fireworks would be used for the exhibition. The fireworks were then prepared at either the firing point or on trailers, depending upon the location of the proposed firing point and the pre-fireworks' display activities around the proposed firing point. 8. The safety distances used by the defendant to determine maximum shell size for a display are from the WorkCover Authority of New South Wales Dangerous Goods Publication DG108 "Fireworks Displays" and the Draft Australian Standards DR96479 "Explosives Part 4: Pyrotechnics - Outdoor Display". The defendant used the aforementioned documents to set up a fireworks' display so that a fireworks' shell which fails to burst does not result in injury to spectators even though these were distances formulated for correctly functioning fireworks, not for fireworks' shells which fail to burst. 9. The defendant did not use any instrumentation to verify the angle which a fireworks shell is launched from a mortar. As the angle that the mortars are fixed to the trailer and the angle the trailer are set to are estimated. (sic) Without verification of the firing angle and hence potential trajectory of the fireworks' shell, safety distances to spectators from fireworks' shells which fail to burst cannot be determined. 10. The defendant failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking, while they are in the defendant's place of work in that the defendant: (i) Failed to apply distances between the firing point and spectators which minimised the risk of spectators being injured by malfunctioning fireworks; (ii) Failed to have an adequate system of work for determining the firing angle and hence potential trajectory of the fireworks' shell; (iii) Failed to determine the distance that a fireworks' shell, which fails to burst, will travel for a given lift charge and set mortar angle, with the knowledge that fireworks' shells may misfire.

[10]

The Informant, Senior Inspector Robins, is an inspector appointed pursuant to s 31 of the Act; 3. The defendant contracted with the Newcastle Agricultural, Horticultural and Industrial Association Inc. to provide a fireworks display on 27th and 28th February and 1st March, 1997 at the Newcastle Showground; 4. Christian Howard, a Director of the defendant, was in charge of the fireworks display conducted during the evening of 28 February 1997. He was assisted by an employee of the defendant, Michael Lawrie; 5. At the time he conducted the fireworks display at the Newcastle Showground, Christian Howard held a current Display Fireworks General Permit issued in accordance with the Dangerous Goods Act 1975 and the Dangerous Goods Regulation 1978; 6. Christian Howard had conducted between 400-500 fireworks displays prior to the display at Newcastle; 7. In or about November 1996 Andrew Howard, another Director of the defendant, carried out a site inspection of the Newcastle Showground in preparation for the fireworks display. Andrew Howard also designed the display having regard to, amongst other things, the size of the arena at the Showground. Andrew Howard was unable to conduct the display and Christian Howard, having been briefed by Andrew, undertook the task; 8. The fireworks display consisted of a ground display and an aerial display. The finale of the display was a high level aerial display; 9. The aerial display was launched from a towable, double axle box trailer acknowledged as suitable for the purpose. Approved mortar tubes were placed vertical in the trailer and wedged in with wooden wedges. The trailer was situated in the centre of the arena. The trailer had a jockey wheel situated in the mid-front of the trailer. By turning the handle on the jockey wheel the front and rear end of the trailer could be raised or lowered. At the two rear corners of the trailer were situated two jockey pads, both which could be raised or lowered so that in conjunction with the front jockey wheel the level of the front and rear ends of the trailer could be raised or lowered and the trailer made into a stable platform. By these mechanisms the angle of the mortar tubes wedged into the trailer could be increased or decreased from the vertical. The trailer could also be moved so that it faced any direction;

[12]

Mr Howard did not use any instruments to set the angle of the mortar tubes and relied solely on visual estimation. Mr Howard agreed under cross examination that he could not be absolutely certain that the angle at which he set the mortar tubes was five degrees or even 15 degrees but he said he determined the angle "from prior knowledge of shooting shells." In relation to wind speed and direction, the evidence was that wind readings taken at Nobby's Lighthouse, approximately 10 kilometres from Newcastle Showground, at 2200 and 2300 hours on 28 February 1997 were north-east at 10 knots and north-north-east at 11 knots, respectively. At the time of the accident Ms Westphal's evidence was that the wind was "just a gentle sort of breeze"; 12. It will be noted from the sketch that the direction of firing was away from the position in which Ms Westphal was standing. The angle between the point of aim and Ms Westphal's position was about 135 degrees in an anti-clockwise direction; 13. The distance between the firing point and Ms Westphal was about 84 metres. The distance from the firing point to the north-eastern fence of the arena was about 62 metres; 14. The calibre or diameter of the aerial shells containing the fireworks used on the evening of 28 February 1997 were variously 2.5 inches (60 mm), 3 inches (75 mm) and 4 inches (100 mm). The 60 mm shells travelled to a height of about 60 metres before exploding, the 75 mm shells a height of about 90 metres and the 100 mm shells about 120 metres; 15. The calibre of the shell that hit Ms Westphal and caused her injuries at about 10.30 pm on 28 February 1997 was 100 mm. The shell was a Thunderbird brand TBB4/308 manufactured in China by Hop Kee Pyrotechnics and was owned by the defendant. The shell failed to explode. The reason why the shell malfunctioned is not definitely known. The reasons speculated for the malfunction were that the fuse simply went out or, alternatively, the shell in question was struck by another shell in flight thereby extinguishing the fuse;

[15]

Table 3.2 "Minimum Safety Distances - Aerial Shells and Salutes" of the draft Australian Standard DR96479 provided that the minimum safety distance from the firing point to spectators for a 100 mm aerial shell or salute was 50 metres. The draft Standard also provided that: "Mortars shall be angled such that- (a) any aerial shell which has not initiated as intended will fall within the display site (or within a controlled and unoccupied area); and (b) pyrotechnic devices will not cross over or burst above any area occupied by spectators." And further that: "Notwithstanding the minimum safety distances, display fireworks shall be placed at a safe distance from spectators." 1. The Display Fireworks Permit held by Christian Howard was issued subject to compliance with the conditions in a Brochure known as DG 108 issued pursuant to the Dangerous Goods Regulation 1978. The Brochure provided that in respect of high level displays (those where fireworks are expected to reach a height in excess of 60 metres) the minimum distance for shells was "at least 50 m from the point of launch except in the direction of flight when the distance shall be 100 m. A larger distance may be required for shells over 200 mm. These must not cross over or burst above spectators." 3 A significant issue in the earlier proceedings was a contention by the defendant that, according to the Summons, it was required to answer charges relating to alleged failures under s 16(1) only in respect of one person, namely, the person injured on the evening of 28 February 1997, Ms Judith Westphal. The defence contended this on the basis of the wording in Particulars 10 and 11 of the Particulars of the offence set out in the Summons. Mr D Day, counsel for the defendant had submitted that because Particular 11 limited the defendant's failure to Ms Westphal and that the prosecution did not word the Summons to say, for example, "persons including Ms Westphal", that all the defendant should be required to answer is the charge relating to Ms Westphal.

[21]

The appropriate sentence, based on the facts on which the offence was proven, is not insignificant, but is not the worst type of case. 2. The primary factor to be considered when determining the appropriate sentence to impose is the objective seriousness of the offence charged. In the case of prosecutions under the Occupational Health and Safety Act, this proposition has been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": Lawrenson Diecasting Pty Limited v WorkCover Authority of NSW (1999) 90 IR 464 at 474. Subjective factors must play a subsidiary role in the determination of penalty to the gravity of the offence itself. 3. The objective circumstances relied upon by the prosecutor were: (i) the maximum penalty prescribed by Parliament: WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179; Independent Cargo & Wool Services Pty Limited v Inspector Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, 10 March 1994); (ii) the need for general deterrence: Fisher v Samaras Industries Pty Limited (1996) 82 IR 384; Capral Aluminium Limited v WorkCover Authority of NSW (2000) 99 IR 29 at par 73. The need for specific deterrence: Capral at pars 71-79; (iii) the offence involved obvious risks: WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. The question of foreseeability is relevant to the assessment of the seriousness of the offence: Department of Mineral Resources of NSW (Inspector McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 at 27. The risk to the north-eastern spectators was found to have been readily foreseeable; (iv) It will be a serious offence where there is an obvious risk or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Lawrenson Diecasting at 476. In the present case it was found "Clearly, the risks to health or safety were due to causes over which the defendant did have control and against the happening of which it was practicable for the defendant to make provision". (v) The gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the respondent: Lawrenson Diecasting at 476; Capral Aluminium at par 94. In the present case the facts concerned a business of setting up and carrying out fireworks displays. The distance from the firing point to the north-eastern fence of the arena was about 62 metres. DG108 required the distance to be 100 m. The calibre or diameter of the aerial shells containing the fireworks used on the evening of 28 February 1997 were variously 2.5 inches (60 mm), 3 inches (75 mm) and 4 inches (100 mm). The 60 mm shells travelled to a height of about 60 metres before exploding, the 75 mm shells a height of about 90 metres and the 100 mm shells about 120 metres. Mr Saddington's evidence was that he was present along with committee members and other persons on the verandah in the horse office (i.e., the direction of the firing to the north-east) and there were between 10,000 and 15,000 people at the show. The people watching the fireworks display were either in the grandstands or "moving around". Mr Howard's evidence was that there were people around the arena to the east and north-east and west and south-west of the firing point who were less than 100 metres from the firing point; (vi) The Act requires a pro-active approach on the part of the employer to safety, particularly in an industry which is very dangerous or perhaps even inherently unsafe: Ferguson v Nelmac (1999) 92 IR 188 at 210 ; WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85; (vii) The criminal history of a defendant should not lead to the imposition of a penalty which is disproportionate to the seriousness of the offence but may be relevant to show that the instant offence has manifested a continuing disobedience of the law or that the offence was an uncharacteristic aberration: Lawrenson Diecasting at 477. The defendant has one prior previous conviction under s 16(1) for which the Chief Industrial Magistrate imposed a penalty of $3,500. Alternatively, or additionally, the prior conviction means the defendant does not get the benefit in mitigation of no prior convictions. It is to be noted that the incident giving rise to that offence occurred after the offence which is the subject of these proceedings. 4. An appropriate subjective circumstance that might be taken into account is cooperation with the authorities: Camilleri's Stock Feeds Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683 at 700 per Kirby P; WorkCover Authority of NSW (Inspector Sheppard) v State Rail Authority of NSW at par 50. 5. The defendant does not get any benefit from any plea of guilty. 9 Mr Day for the defendant called evidence from Christian Anthony Howard. Mr Howard was a Director of the defendant and was present on the night of the incident which led to the charge being laid against the defendant.

[30]

18 As to the question of deterrence, Hungerford J remarked in Fisher v Samaras Industries Pty Limited at 388: The fundamental duty of the Court in this important area of public concern ….[is] to ensure a level of penalty for a breach as will compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace. 19 In Capral the Full Bench after referring the remarks by Hungerford J in Fisher v Samaras Pty Limited, said at pars 74-77: 74 We consider that the extract from the judgment of Hungerford J in Fisher v Samaras Industries Pty Limited accurately states the approach that members of this Court should take in relation to the question of deterrence, both general and personal or specific, when sentencing an offender in relation to a serious breach of the legislation. It follows that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Limited (No. 2) [2000] NSWIRComm at 40 - 43) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted. 75 We now refer more particularly to the issue of personal or specific deterrence. For the reasons we have given, we do not accept that the appellant's submissions could have a substantial impact upon the weight to be attached to general deterrence in determining an appropriate penalty in the present case. Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable. 76 On the other hand, the attitude of a defendant to questions of workplace safety and any steps taken to improve safety following an accident may be relevant to specific deterrence. Here the objective is to deter the particular offender from repeating the offence. ……. 77 In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The court may form such a view as a result of the rehabilitation of the offender: R v Corner (unreported, Court of Criminal Appeal, 19 December 1997) or because the offender will not have the opportunity to commit a similar offence in the future: R v Macdonell (unreported, Court of Criminal Appeal, 8 December 1995). However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in case of offences under the Act. At least where the offender continues to be an employer, risks to the safety of its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur both by commission and omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. They must adopt an approach to safety which is pro-active and not merely re-active: WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. In view of the scope of these obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the offender in the future. This is particularly so where the offender conducts a large enterprise which involves inherent risks to safety: see WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd [2000] NSWIRComm 53 at 46. 20 While I have commented that the industry of conducting fireworks displays is an inherently dangerous industry, I do note that the defendant has a remarkably good record, over a long period of time, with only one other conviction. Moreover, in light of the seriousness with which I believe the defendant regards the incident giving rise to the charge against it, I am not inclined to believe that is any great propensity for the defendant to re-offend or that the defendant represents a serious threat to the community. Consequently, in arriving at an appropriate penalty I do not consider that specific deterrence is a major consideration, although I acknowledge "the need to encourage a sufficient level of diligence by the offender in the future" and I note the defendant's previous conviction for an offence under the Act, which I shall come to shortly.

WorkCover Authority v Howard and Sons Fireworks Spectaculars

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Judgment (46 paragraphs)

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