Workover Authority of New South Wales (Inspector Ankucic) v The Crown in the Right of the State of New South Wales - [2003] NSWIRComm 170 - NSWIRComm 1994 case summary — Zoe

NSWNSWIRComm

Workover Authority of New South Wales (Inspector Ankucic) v The Crown in the Right of the State of New South Wales

[2003] NSWIRComm 170

Industrial Relations Commission (NSW)|1994-03-10|Before: Staunton J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1994-03-10

Before

Staunton J

Source

Original judgment source is linked above.

Judgment (144 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Workover Authority of New South Wales (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170 PROSECUTION: WorkCover Authority of New South Wales (Inspector Ankucic) PARTIES : DEFENDANT: The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) FILE NUMBER: 3216 of 2002 CORAM: Staunton J CATCHWORDS : Occupational health and safety - plea of guilty - issue of causation establishd by entry of plea of guilty - objective seriousness of the offence - foreseeability of risk of injury - general and specific deterrence - penalty imposed Occupational Health and Safety Act 1983 LEGISLATION CITED : Rural Fires Act 1997 National Parks and Wildlife Act 1974 State Rail Authority (New South Wales) v Dawson (1990) 37 IR 110 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng)(1999) 90 1R 432 at 449-450 CASES CITED : WorkCover Authority (Inspector Farrell) v Ross Collin Morrison [2001] NSWIR Comm 325 Lawrenson Diecasting v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, Full Bench, CT92/1041, 10 March 1994) at 4 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 HEARING DATES: 04/22/2003 DATE OF JUDGMENT: 05/29/2003

[13]

6 In relation to that offence, it is alleged that the defendant: DID FAIL To ensure the health, safety and welfare at work of all its employees, whilst conducting a hazard reduction operation or prescribed burn, contrary to Section 15(1) of the Occupational Health and Safety Act 1983. The Particulars of the Charge: (a) The Crown in the Right of the State of New South Wales (National Park and Wildlife Service) ('the defendant') was at all material times an employer. (b) At all material times the defendant was charged with statutory responsibility for the management of national parks and reserves within the State of New South Wales, including the Ku-ring-gai Chase National Park. (c) At all material times the defendant's statutory responsibilities included bushfire management within national parks and reserves within the State of New South Wales, including the Ku-ring-gai Chase National Park. (d) At all material times the defendant had responsibility for and undertook the planning, preparation and conduct of a prescribed burn or hazard reduction operation conducted within the confines of the Ku-ring-gai Chase National Park on 7 June 2000 and 8 June 2000. (e) At all material times the defendant employed the following persons as officers of the National Parks and Wildlife Service: (i) Mr Ray Jasper as Area Manager for the subject area; (ii) Mr Jamie Shaw as Senior Ranger (Fire) for the subject area; (iii) Mr Ken Blade as a Ranger in the subject area; (iv) Mr Peter Milgate; (v) Mr George Fitzsimmons; (vi) Mr Eric Furlan (vii) Mr Mark Cupit; (viii) Mr Luke McSweeney; (ix) Ms Claire Deane; and (x) Ms Natalie Saville (f) The defendant failed to provide a system of work that was safe and without risks to health to employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (g) The defendant failed to ensure such personal protective equipment as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations was worn during the above mentioned prescribed burn operation. (h) The defendant failed to provide such training as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (i) The defendant failed to provide such instructions as were necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (j) The defendant failed to provide such information as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (k) The defendant failed to provide such supervision as was necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above mentioned prescribed burn operation. (l) The defendant failed to provide such means of access to and egress from the fireground as were necessary to ensure the health and safety at work of its employees undertaking prescribed burns or hazard reduction operations in relation to the above- mentioned prescribed burn operation. (m) As a result of the above-mentioned failures, Mr George Fitzsimmons, Mr Jamie Shaw, Mr Eric Furlan, Mr Mark Cupit, Mr Luke McSweeney, Ms Claire Deane and Ms Natalie Saville were placed at risk of injury.

[17]

(8) In 1995/1996 the Hornsby/Ku-ring-gai District Bush Fire Management Committee ("H/KDBMC") approved a 'prescribed burn', or 'hazard reduction,' for an area covering 171 hectares located within the Ku-ring-gai Chase National Park. The area approved for hazard reduction was located in the vicinity of Mount Ku-ring-gai near Hornsby in the Sydney Metropolitan Area. (9) Subsequently, the 171 hectare area approved for hazard reduction was divided into a number of smaller areas, including an area of approximately 37 hectares located at the 'urban interface' adjacent to Merrilong Avenue, Mount Ku-ring-gai ('the subject burn'). (10) In 1997 Mr Ray Jasper, then Senior Ranger (Fire) for the relevant district, prepared a 'burn prescription' for the Mt Ku-ring-gai burn. The burn prescription identifies the environmental and weather conditions set by management with a view to achieving the relevant management goals. In the present case, the principle management goal was the reduction of fire risk at the urban interface and this goal was to be achieved by reduction of high fuel loads (ie hazard reduction) within the burn area. The burn area was recognised by the NPWS as falling within a region which was: one of the most fire prone environments in Australia with a very high fine fuel potential, very flammable fuel types, steep slopes, regular occurrence of extreme fire danger weather and large areas of urban-bushland interface. (11) The subject burn was not undertaken in 1995/1996 and was "rolled-over", from year to year, awaiting conditions in which the prescription for the burn would be met. Work was carried out on the tracks and hand tool lines proposed as the boundaries of the burn during this period. (12) In early June 2000 Mr Jasper, the then Area Manager, and Ranger Ken Blade discussed scheduling the subject burn in the week commencing 5 June 2000, as the weather forecast appeared to identify weather conditions favourable to the conduct of the burn. The burn had been originally designated as a ' spring' or ' autumn ' burn, but the favourable weather conditions were seen as an opportunity for the safe conduct of the burn.

[105]

27 There were a number of inexperienced staff involved in the prescribed burn operation. They were dispersed within the three crews operating that day. There were also very experienced officers including Mr Fitzsimmons, the crew leader, who had over 30 years of bushfire fighting background with the Rural Fire Service and the defendant. As emphasised in para [29A] of the agreed facts: It was the practice within the National Parks and Wildlife Service to give newly trained staff practical fireground experience under the supervision of experienced fire fighters. 28 All of the defendant's employees who participated in the prescribed burn operation on 8 June 2000 had undertaken the relevant preparatory fire fighting course. It was certainly an agreed practice on the part of the defendant to utilise activities such as prescribed burn operations for the purposes of on the job training for such employees. Nevertheless, before the Coroner, the transcript evidence of Mr Robeson from the Serious Accident Reduction Unit with the NSW Rural Fire Service about this issue, reveals the following expert opinion: CAHILL: Q. Mr Robeson, you're aware of the fact that there's been evidence in the course of the Coronial (inquiry) so far which suggests that this particular prescribed burn and other prescribed burns were seen as providing an opportunity for training? A. Yes. Q. In so far as that's concerned, as an expert involved in questions of training and planning and so forth, how does the motion of using a prescribed burn as a training tool affect the planning process. Is it relevant? A. Yes, it would need to be taken into account in the planning process in that in determining the number of people that you'd need to conduct the burn if you have trainees involved, you would not be able to count them fully as being able to do all the duties you'd expect of trained people and that you would need to have some sort of supervision and mentoring for them. Q. It would increase the need for a focus on safety as well wouldn't it because of the fact that you have less experience - more, a greater number of less experienced people and indeed in this case, totally inexperienced people on the fire ground. A. Yes. Anything which has been done as a training exercise will normally have a high level of safety consideration. Q. And you need to take into account in making your assessments about how you're going to go about things, the fact that you're utilising the burn as a training process? A. Yes. Q. So for that to occur, to make it a worthwhile training experience, you need to identify in advance and set proper training goals don't you? A. Yes. Q. Is there any evidence that you've heard in these proceedings that suggest to you that there was an appropriate focus on the safety of the inexperienced officers who have been given the training in this particular program? A. I haven't heard or seen anything to that effect, no. Q. Have you heard any evidence that would suggest to you that anybody identified training goals? A. Not in the evidence I've heard, no.