WorkCover Authority v Sydney Water Corporation Limited;WorkCover Authority v Australian Water Technologies Pty Ltd - [2001] NSWIRComm 240 - NSWIRComm 1992 case summary — Zoe

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WorkCover Authority v Sydney Water Corporation Limited;WorkCover Authority v Australian Water Technologies Pty Ltd

[2001] NSWIRComm 240

Industrial Relations Commission (NSW)|1992-06-30|Before: Boland J, Fisher CJ, Hill J, Mr J

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Court

Industrial Relations Commission (NSW)

Decision date

1992-06-30

Before

Boland J, Fisher CJ, Hill J, Mr J

Catchwords

02/20/2001
07/23/2001 DATE OF JUDGMENT: 10/05/2001

Source

Original judgment source is linked above.

Catchwords

02/20/200107/23/2001 DATE OF JUDGMENT: 10/05/2001

Judgment (77 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority v Sydney Water Corporation Limited;WorkCover Authority v Australian Water Technologies Pty Ltd [2001] NSWIRComm 240 PROSECUTOR: WorkCover Authority of New South Wales (Insp. Thomas Clark) PARTIES : DEFENDANTS: Sydney Water Corporation Limited Australian Water Technologies Pty Ltd FILE NUMBER: IRC 3404 and 3409 of 1998 CORAM: Boland J CATCHWORDS : Occupational health and safety - Prosecutions under s 15(1) and s 16(1) of the Occupational Health and Safety Act - Death by drowning - Pleas of guilty - Guilty verdicts entered - Penalties imposed Occupational Health & Safety Act 1983 LEGISLATION CITED : Occupational Health and Safety (Confined Spaces) Regulation 1990 State Owned Corporations Act 1989 Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610, 99 IR 29 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) NSWLR 683 Department of Mineral Resources (NSW) (Chief Inspector Bruce Robert McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 R v Thomson, R v Houlton [2000] NSWCCA 309 CASES CITED : Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 Tyler v Sydney Electricity (1993) 47 IR 1 Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 Wong v Melinda Group Pty Ltd (1998) 82 IR 118 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited (1999) 95 IR 383 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of NSW [2000] NSWIRComm 179 WorkCover Authority (NSW) (Inspector Kelsey) v University of Sydney (unreported, Hill J, Matter No CT 1280 of 1995, 2 April 1997 ) WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236 WorkCover Authority (NSW) v Waugh (1995) 59 IR 89 HEARING DATES: 02/19/2001; 02/20/2001; 07/23/2001 DATE OF JUDGMENT: 10/05/2001

[23]

28 On the afternoon of 24 June, 1996, an employee of Ledonne, Geoffrey Rowling, (a general hand) carried out pressure testing of the newly installed pipeline from the Pumping Station to the reservoir site. AWT was not involved in the pressure testing. The obligation to test was part of Ledonne's contractual obligations to Sydney Water. The pressure testing was a standard and necessary procedure. Prior to carrying out the pressure testing, Jabboury (of Ledonne) contracted Sydney Water to charge up the pipes with water. 29 As a result of the pressure testing, Rowling (of Ledonne) detected a leak. After Rowling found the leak, he informed Jabboury (of Ledonne) of the leak. 30 The leak came from somewhere in the outlet pipe, approximately 1.5-2 metres from the valve chamber in the location of a 45 degree bend in the watermain in pipe work that had been laid by Ledonne. 31 On the afternoon of 24 June 1996, the leak was inspected by Jabboury, Rowling and Mark McCarron (all of Ledonne). McCarron was a pipe layer machine operator employed by Ledonne. During that inspection, Michael Kenny, (a mechanical fitter employed by AWT as a leading hand) was also present. The only reason that Kenny had gone to the site that afternoon was to determine who would be responsible for the repair of the leak. During the inspection, it was agreed between AWT and Ledonne that the matter of the leak was a problem for Ledonne to rectify in accordance with Ledonne's contractual obligations to Sydney Water. Once it was agreed that the leak was a problem for Ledonne to rectify Kenny returned to the Pumping Station, leaving the leak to be fixed by the employees of Ledonne. No solutions for rectifying the leak were discussed with Kenny. 32 Jabboury, Rowling and McCarron (of Ledonne), dug up the soil to the concrete anchor block which supported the 45 degree bend ("concrete anchor block") and established that the concrete anchor block had moved. Rowling, McCarron and Jabboury discussed the method that they would use to inspect and stop the leak. Rowling suggested that they gain access into the pipe by removing the straub coupling and then the spigot valve connector. Rowling suggested to Jabboury that they could then gain access to the inside of the outlet pipe to establish the seriousness of the leak and if possible, push the join "back home". It was decided by Jabboury, Rowling and McCarron to commence the work the next day. Rowling took his instructions from Jabboury. This proposed work was not part of the work anticipated within the works for the project. 33 Late in the afternoon of 24 June 1996, Pathinather (of AWT) went to the Pumping Station to determine the results of the pressure testing carried out by Ledonne. Pathinather was informed of the leak by Jabboury (of Ledonne). Pathinather and Jabboury agreed to visit the reservoir site to attempt to observe the leak. Upon reaching the reservoir site, they observed a disturbance in the soi1, approximately 1.5-2 metres away from the valve chamber. The valve chamber was then still under construction. A concrete floor and walls had been installed. A concrete support block for the gate valve and ladder were yet to be installed. Provision had been made for these in the plans. 34 Jabboury (of Ledonne) informed Pathinather (of AWT) that the concrete anchor block on the 45-degree angle may not be strong enough and he would have to replace it with a bigger block. Pathinather requested that Jabboury provide him with a proposal regarding how the leak should be fixed and asked Jabboury to provide the next day more specific details of his action plan. At no time did Jabboury inform Pathinather of a proposal to remove a pipe section or of any proposal for Rowling (or anyone else) to enter the pipe. Pathinather was not informed of an action plan by Jabboury.

[24]

35 Dewar was not at work on 24 June, 1996, having called in sick. On the day of the accident (25 June, 1996) Dewar rang his employer to inform them that he would be coming to work late. 36 Early on the morning of 25 June 1996, Robert Cockburn, a truck driver/operator employed by Ledonne was instructed by Kevin McDonald (Ledonne's foreman or leading hand) to assist Rowling (of Ledonne) in opening the scour valve (which was necessary to let water out of the main pipe from the Pumping Station to the reservoir) and removing a section of pipe to allow an inspection. Jabboury was then not on the site. Rowling was aware that Sydney Water alone was responsible for water isolation. Neither Ledonne employee carried an access ladder for entry into the valve chamber which was approximately 3 metres below. Both men stepped on the top of the gate valve then onto the floor of the valve chamber. A ladder was a standard piece of equipment on AWT trucks. Cockburn (of Ledonne) described the action they took in a statement to Inspector Clark on 23 July 1996. He said: "At about 7am, I was told to go with Geoff Rowling to the Reservoir and help him prepare the line so a section can be removed in the pit. We checked the valves in the pit [valve chamber], they were still off, we opened the air valve between the two pits. The water came out, we then went down to the Carcoola Avenue, and opened the 'scour valve'. We ran that for about 10-15 minutes. Turned it back off and then went back up the Reservoir, we then checked the air valve between the two pits to see if air was going in. We saw that there was still water there. We presumed that the line between the two pits was an isolated line. I then went in to the pit and cracked the bolts on the down side of the bypass valve, allowing air into the line so that the section could be removed. I then went to smoko and that was the last I worked on that pit until the accident." 37 'Scour valves' as mentioned by Cockburn (of Ledonne) above, are located at the lowest points along a water main. They are used to drain the pipeline so work such as cleaning or repairs can be carried out. Scour valves are usually left open when repairing or replacing part of a watermain to allow drainage of the water into what is usually a water course. However, Cockburn and Rowling (both of Ledonne) closed the scour valve in Carcoola Avenue after they had opened it for about 10-15 minutes. This scour valve was not open at the time of the accident. 38 At about 7.30 am on 25 June 1996, Rowling (of Ledonne) requested Kenny (of AWT) to assist with the removal of the straub coupling and spigot valve connector. This request was consistent with the contractual relationship between Ledonne and AWT whereby Ledonne was in charge of the work performed by AWT in installing valves and pipework. In accordance with that request, at about 8.00am that day, Kenny and John Watson (a fitter employed by Waycon) attended the reservoir site. Kenny said to Rowling "Just make sure the valves are off". Both gained access to the inspection pit by placing a foot on the gate valve and jumping down to the floor of the valve chamber. This method of gaining access to the pit had been used by other workers during the project. Both Kenny and Watson realized they had the wrong size spanners to undertake any work and so returned to the Pumping Station (located approximately a 5 minute drive from the reservoir site) to obtain the correct equipment. Later, whilst at the Pumping Station, Kenny informed Watson that Ledonne employees were ready at the reservoir site and requested him to return to the valve chamber with the tools and remove the straub coupling and the spigot valve connector. 39 At about 9 am Dewar arrived for work at the Pumping Station. Watson (of Waycon) approached Dewar at the Pumping Station and requested a lift to the said site and asked Dewar to assist him in the valve chamber. 40 When they arrived at the reservoir site, both Dewar and Watson (of Waycon) entered the valve chamber by stepping on the top of the gate valve. The bypass valve assembly had been disconnected from the spigot valve connector. Watson removed the straub coupling and then, with the assistance of Dewar, both men removed the bolts which attached the spigot valve connector to the gate valve. They left two bolts in position at ten o'clock and two o'clock on the gate valve until an excavator could assist in pulling the spigot valve connector out of the valve chamber. 41 Approximately 5 metres from where they were working in the valve chamber, McCarron (of Ledonne) was operating an excavator with a hydraulic hammer attachment, hammering the top of the concrete anchor block in order to try and break it. Dewar climbed out of the valve chamber by climbing on the gate valve and asked McCarron (of Ledonne) to remove the spigot valve connector from the valve chamber. A sling was attached to the spigot valve connector inside the valve chamber and McCarron lifted the spigot valve connector out of the valve chamber using the excavator. Watson climbed out of the valve chamber by climbing on the gate valve and removed the sling off the spigot valve connector. Watson then left the valve chamber area for a short time. 42 After removal of the spigot valve connector, Rowling (of Ledonne) entered the outlet pipe and crawled through the outlet pipe a distance of about two metres. He was inside the outlet pipe for approximately 2 minutes inspecting the rubber ring joint to see if it was causing the leak. During this time, Dewar was standing on the floor of the valve chamber. Rowling exited the outlet pipe and Dewar then entered the outlet pipe to have a look himself. He was not asked to enter the pipe and it was not part of his duties to do so. Dewar had completed a refresher training course in working in confined spaces in February 1996 (see paragraph 47(a) below). Rowling remained on the floor of the valve chamber. Dewar had been inside the outlet pipe for about two minutes, when the water pressure caused the gate valve and socket valve connector (which weighed approximately 840 kgs) to dislodge from the inlet pipe. The valve chamber flooded with water in approximately 10 seconds and Ledonne's Rowling floated to the top of the valve chamber where upon he shouted for help. Throughout this time, both Sydney Water and AWT (except for Malcolm Dewar) was unaware of what was taking place at the incident site. No employees of Sydney Water or AWT (except for Malcolm Dewar) were present at the reservoir site at the time of the accident. 43 Prior to entry to the pipe, Dewar did not obtain a safety harness. 44 Immediately after the incident referred to in paragraph 42 above, Macdonald (Ledonne's leading hand) who was present at the reservoir site, contacted Kevin Brown (an isolation expert employed by Sydney Water in its Network Services Division) on Brown's mobile telephone to request his urgent assistance to stop the flow of water. The responsibilities of the Network Services Division of Sydney Water (in which Brown worked) included the monitoring of the operation of the water system which in turn involved responsibility for performing shut down and "charge up" being connection of the water) procedures. At approximately the same time as Macdonald informed Brown of the incidents, Keith Ross (also an employee of Sydney Water working in the Illawarra Region) became aware from the flowmeters in the control room (located in the regional office of Sydney Water at Coniston) that a large volume of water was escaping at the reservoir site. Ross contacted Brown on his mobile phone to notify him of this issue. Brown informed Ross that he was already aware of the problem and was on his way to the reservoir site. 45 Water continued to flow from of the valve chamber until Brown (of Sydney Water) arrived on site about 15 minutes after the accident and isolated the water. Brown effectively isolated all valves necessary for the isolation of the water and the water ceased flowing out of the valve chamber. Each of the valves had between 40 and 100 turns depending upon the size of the valve. It took Brown approximately thirty minutes to turn off the water. 46 No request was made of Sydney Water to isolate the mains water in respect of the reservoir site. Both Sydney Water and AWT were unaware of any plan to remove a section of pipe from the valve chamber. As Ledonne failed to advise either Sydney Water or AWT of any proposal to remove a pipe section or for Rowling (of Ledonne), or anyone else, to enter the outlet pipe, no means were utilised to safely isolate the water prior to commencing work in the valve chamber. The Verdict 11 After reviewing the agreed facts and in light of the charges and the particulars thereof, I am satisfied that the offences have been proven. The pleas of guilty by the two defendants were properly made and I enter verdicts accordingly.

[35]

· The true measure of penalty lies in the nature and quality of the offence. Subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 474; · The level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high: Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at 339; Lawrenson Diecasting at 475. · The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, 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 defendant: Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Lawrenson Diecasting at 476 · An offence under s 16(1) will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at 9; Lawrenson Diecasting at 476. · A plea of guilty, contrition and cooperation with WorkCover are relevant matters to be taken into account in sentencing: Alcatel Australia Limited v WorkCover Authority of New South Wales (Inspector Clyant) (1996) 70 IR 99 at 106. 23 Mr Fernon put extensive submissions on the nature and quality of the offence, which he contended could not be classed as serious. He canvassed both the objective and subjective factors that he submitted should be taken into account in sentencing. I trust I do not do any injustice to those submissions by summarising them in the following way: · SWC was a large organisation employing approximately 6,000 employees in numerous locations. AWT employed about 2,000 employees. The nature of the work performed within these large organisations was inherently dangerous and this should be taken into account in mitigation: WorkCover Authority of New South Wales v Civil and Civic Pty Ltd (unreported, Fisher CJ, 30 March 1994; [1994] NSWIRC 27). · SWC had engaged Ledonne under contract to undertake the project. Ledonne was required to provide all things and take all measures to protect people and property. Ledonne was required to comply with all occupational health and safety legislation and with procedures, instructions and standards relating to working in confined spaces. Given Ledonne's role, SWC was at least once removed from being culpably associated with the incident; the incident was not reasonably foreseeable by SWC or AWT. · The project manager and the person directly supervising the project was Mr Jabboury, who had been engaged by Ledonne. · Ledonne had a contractual responsibility to provide equipment, training, personnel and documentation necessary to satisfy the safety requirements of the contract with SWC. · AWT's role was one of having been contracted by Ledonne to perform part of the work required under the contract with SWC. · SWC was not informed, and was unaware, of any proposal to disconnect and remove the straub coupling and spigot valve connector in Inspection Pit No. 7 and to allow employees to enter the pipe. No employee of SWC was present at the time of the accident. · No request was made of SWC to isolate Inspection Pit No. 7 from the possibility of being inundated by water in accordance with the established procedure set out in the contract between Ledonne and SWC. · Ledonne, through its employee Mr Rowling, was aware that SWC alone was responsible for water isolation. · The work of repairing the leaking pipe was rectification work and was not anticipated when the original assessment of the work to be performed was done. · Ledonne was asked by AWT to provide a plan for rectifying the leaking pipe but no plan was provided. · The defendants had a strong commitment to occupational health, safety and rehabilitation. · The defendants provided extensive training to employees and contractors in relation to confined spaces and safe working procedures. · At the time of the incident the defendants had comprehensive systems in place to identify hazards and extensive procedures in place to avoid risks to health and safety. · Following the incident the defendants took immediate and appropriate action to avoid a repetition of the incident and comprehensively reviewed and overhauled their occupational health, safety and rehabilitation procedures and systems. · The defendants viewed the obligation on them to take remedial steps very seriously and involved their respective Boards in that process.

[56]

39 In WorkCover Authority of NSW (Inspector Lyons) v Warman International Ltd (2001) 105 IR 236, after quoting extensively from the judgment in Capral, Walton J, Vice President said at 256: 79 It follows, in my view, that notwithstanding the somewhat strident steps taken by the defendant to ensure the occupational health and safety of its employees, to which I will return in relation to the subjective features of this matter (and which are earlier described in the summary of the defendant's evidence and in the submissions made on behalf of the defendant), the question of specific deterrence may, as a matter of general principle, nevertheless be relevant. The fact that the industry in which the defendant operates is hazardous in nature does not eliminate the need for specific deterrence. Contrary to the submissions of the defendant in this respect, the need to encourage a sufficient level of diligence by an offender will be particularly relevant where the offender, such as the defendant, conducts a large enterprise which involves inherent risks to safety: Capral at [77]. 80 In my view, and having regard to the principles of sentencing in Capral , specific deterrence should feature in the assessment of penalty in this matter. The defendant has conceded that it was unaware of, and had taken no steps to, assess the risks to safety of employees engaged in the process giving rise to the incident. It is necessary, in these circumstances, to ensure a sufficient level of diligence in the defendant searching for, identifying and removing risks to safety (even where the work to be undertaken does not form part of the defendant's ordinary work practices). This will be so in a hazardous industry, although regard needs to be paid, as noted in Capral , to the particular circumstances of the offence and the offender. 81 It should be noted at this juncture that allowance should also be made for the nature of the industry in which the defendant operates (and the inherent risks to safety therein) in the assessment of the defendant's prior record and in relation to the assessment of subjective features. These matters are discussed later in the judgment. 82 It should also be observed that general deterrence will also be a factor to be considered in the assessment of penalty: Capral at [75]. 40 The approach taken by his Honour in Warman International is also relevant in the present case. Following the incident on 25 June 1996 SWC has taken what may be described as highly commendable steps to ensure the health and safety of persons working on its sites. Nevertheless, both general and specific deterrence should feature in the assessment of penalty in this matter. General deterrence should be a consideration in assessing penalty for the reasons expressed by the Full Bench in Capral at par 75. In relation to specific deterrence the Full Bench in Capral said at par 77: 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 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.

WorkCover Authority v Sydney Water Corporation Limited;WorkCover Authority v Australian Water Technologies Pty Ltd

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Cases Cited (17)

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