Inspector Dell v Tafe Commission [2005] NSWIRComm 104 (7 April 2005)

Last Updated: 14 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Dell v TAFE Commission [2005] NSWIRComm 104

FILE NUMBER(S): IRC 610 and 819

HEARING DATE(S): 02/03/2005

DECISION DATE: 07/04/2005

PARTIES:

PROSECUTOR

Inspector Brian Dell

RESPONDENT

TAFE Commission

JUDGMENT OF: Boland J

LEGAL REPRESENTATIVES

PROSECUTOR

Mr D O'Neil of counsel

Solicitor: Ms F Miller

WorkCover Authority New South Wales

DEFENDANT

Mr M Shume of counsel

Solicitor: Mr G McCann

Sparke Helmore

CASES CITED: Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317

Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; (2000) 99 IR 29

Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317

Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319

Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57

Morrison v Powercoal Pty Ltd & Anor (No. 3) [2005] NSWIRComm 61

Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364

Veen v The Queen (No2) (1988) 164 CLR 465

WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207

WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323

WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Occupational Health and Safety Act 1983

Occupational Health and Safety Regulation 2001

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Boland J

Thursday 7 April 2005

Matter Nos IRC 610 and 819 of 2003

INSPECTOR DELL V TAFE COMMISSION

Prosecution under section 16(1) and 15 (1) of the Occupational Health and Safety Act 1983

JUDGMENT

[2005] NSWIRComm 104

1 Mark Anthony Allan, Robert George Andersen and Adrian Joseph Moffat were students at the Tamworth Campus of the TAFE Commission's New England Institute of Technical and Further Education. On 28 February 2001 the three students were in the process of fabricating a base frame for a demountable cabin, involving placing cut steel on a level surface in an open cement quadrangle and welding them together as part of a TAFE course. The students were being supervised by a teacher, Allan Gerard Phipps, and another teacher, Graeme William Miller, was nearby.

2 A loud explosion occurred that threw Mr Moffat and Mr Andersen sideways and threw Mr Allan, along with a number of 8-metre long rolled hollow steel sections, and a 1metre x 1metre x 75mm concrete and cast-iron pit lid, approximately 2 to 3 metres in the air. The force of the blast also dislodged part of a concrete cover over a trench that housed an acetylene pipe. Mr Allan was found unconscious on the ground and taken to Tamworth Base Hospital along with Moffat and Andersen who were examined but later allowed to leave.

3 Mr Allan suffered two fractured hips, a fractured kneecap, a fractured patella, lacerations to the left hand, lacerations to the back left-hand side of his hand, a bruised left elbow, a deep hole in his left buttock and hearing problems in his left ear.

4 Arising out of the incident Inspector Brian Dell ("the prosecutor"), of the WorkCover Authority of New South Wales, charged the TAFE Commission ("the defendant") with offences under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. Those sections of the Act provide as follows:

15 Employers to ensure health, safety and welfare of their employees

(1) Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.

16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

5 The charge under s 15(1) in the second amended application for order was that the defendant did fail:

to ensure the health safety and welfare at work of all its employees and in particular, Allan Gerard Phipps and Graeme William Miller contrary to Section 15(1) of the Occupational Health and Safety Act, 1983 in that the defendant failed to ensure that the course work involved in welding, necessary for students for the completion of their course, the Engineering Production Certificate, that was safe and without risks to health.

Particulars of the charge:

On 28 February 2001 at the Tamworth Campus of the New England Institute of TAFE situated in Janison Street, Tamworth, in the State of New South Wales, being an employer, it failed to ensure that its employees in particular, Allan Gerard Phipps and Graeme William Milller were not exposed to risks to the health or safety arising from the conduct of its undertaking while they were at their place of work with it in particular the defendant failed:

1 To provide and maintain systems of work for conducting welding necessary for students for the completion of their course, the Engineering Certificate, that was safe and without risk to health. In particular:

a. The defendant failed to ensure that a risk assessment was carried out to identify the hazards involved in performing tasks such as welding and grinding within the confines of C Block’s quadrangle area. In particular, the hazard posed by the oxygen and acetylene reticulation system running under the area in the condition it was in on 28 February 2001.

b. The defendant failed to ensure that routine maintenance of the oxygen and acetylene reticulation system took place in accordance with Australian Standard 4289:1995 : Oxygen and Acetylene Gas Reticulation Systems.

2 The defendant failed to maintain its place of work in a condition that was safe and without risks to health in that it:

a. Failed to maintain the connection between the valve and the attached acetylene line so that it was not corroded.

6 The charge under s 16(1) in the second amended application for order was that the defendant did fail:

To ensure that persons not in it’s employment, in particular Mark Anthony Allan, Robert George Andersen and Adrian Joseph Moffat, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health & Safety Act 1983 in such case made and provided.

Particulars of the Charge

On 28 February 2001 at the Tamworth Campus of the New England Institute of TAFE, situated in Janison Street, Tamworth, in the State of New South Wales, being an employer, it failed to ensure that persons not in its employment, in particular Mark Anthony Allan, Robert George Andersen and Adrian Joseph Moffat, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. In particular:

1. To provide and maintain systems of work for conducting welding necessary for students for the completion of their course, the Engineering Production Certificate, that was safe and without risks to health. In particular:

a. The defendant failed to ensure that a risk assessment was carried out to identify the hazards involved in performing tasks such as welding and grinding within the confines of C Block’s quadrangle area. In particular, the hazard posed by the oxygen and acetylene reticulation system running under the quadrangle area in the condition it was in on 28 February 2001.

b. The defendant failed to ensure that routine maintenance of the oxygen and acetylene reticulation system took place in accordance with Australian Standard 4289:1995 : Oxygen and Acetylene Gas Reticulation Systems.

2 The defendant failed to maintain its place of work in a condition that was safe and without risks to health in that it:

a. Failed to maintain the connection between the valve and the attached acetylene line so that it was not corroded.

7 The defendant pleaded guilty to both charges.

8 The prosecutor tendered an agreed statement of facts. The statement had annexed to it factual inspection reports by Inspector Dell relating to the incident, a material safety data sheet relating to the properties of acetylene, Australian Standard 4289-1995 - Oxygen and acetylene gas reticulation systems and twelve colour photographs of the incident scene.

9 The statement indicated that the cement quadrangle where the incident occurred was surrounded on three sides by a two-storey brick building identified as “C Block”. C Block was constructed by a private construction company from plans provided by the NSW Department of Public Works and was officially opened on 23 March 1982.

10 The plans provided for the installation of an oxygen and acetylene reticulation system to run from a purpose built storage area on C Block’s western wing, through a trench under the quadrangle then into a pit on the eastern side of the quadrangle before entering metal fabrication class rooms contained within C Block’s eastern wing. It was agreed that the pit appeared to have been originally built to house and allow access to a waste valve designed to drain contaminates from the acetylene line. To prevent a build-up of water or other waste material within the pit the plan required a floor waste drain to be installed in its base. The builder or their appointed contractor failed to install the drain and this failure prevented water from escaping, and led to it remaining there until dispersed through evaporation.

11 The agreed statement indicated:

Brown stains on the walls of the pit indicate that water trapped within the pit reached levels of about 300mm and that the valve and the section of acetylene line connected to it would at different stages have been either partially or fully submerged. Circumstances suggest that there was a cycle of water seeping into and evaporating out of the pit which continued unchecked for a number of years and led to the connection between the valve and acetylene line corroding to a point where it began to leak. Pressure testing of the system by Dillon’s Plumbing on 1 March 2001 found the connection between the valve and acetylene line to be leaking the gas. Further testing within C Block found three further leaks.

On the day of the accident sparks from the welding ignited acetylene leaking from a threaded connection between the badly corroded waste valve and a section of acetylene pipe, which formed part of the oxygen and acetylene reticulation system located near the base of the underground pit, near where the students were working. The welding work itself was conducted on top of the trench, which housed the acetylene pipe taking the gas from the manifold to the welding workshop.

12 The agreed statement also contained the following:

On 29 June 2001 the Prosecutor interviewed Mr. Leon Taylor, Properties Team Leader for the defendant, and he provided an unsigned document entitled “Programmed Maintenance – Gas Manifolds” which indicated that between 1993 and 1997 programmed maintenance including leak testing was performed on the system but it appears that visual inspections, which would have detected the corroded valve, were not included. Taylor did not know of the underground components of the reticulation system ever being visually inspected. The document also fails to indicate who performed the task, their qualifications or to what standard the testing was performed. Taylor believes it may have been done by a now-retired in-house fitter, whose identity is unknown, and he concedes records ceased in 1997.

There was no system in place for programmed maintenance in accordance with AS4289-1995 between 1997 and 28/2/01.

The Material Safety Data Sheet (“MSDS”) for Acetylene states that it is used, among other things, as a fuel gas for oxy-acetylene welding. It is a colourless gas with an “ethereal odour” and is explosive when mixed with oxygen. The percentage of acetylene to air required to reach explosive level can be anything from 2.5% to 85%. Sparks from a MIG welder, such as that used by the students on the day of the accident, is able to ignite acetylene. The MSDS describes it as an “extremely flammable gas.”

13 For the defendant, an affidavit of Peter Brian Johnson was read. Mr Johnson was the Senior Legal Officer with the Department of Education and Training. His duties included providing legal advice to TAFE and overseeing the preparation of TAFE legal cases. Mr Johnson was not required for cross-examination. Mr Johnson's evidence included the following:

(a) TAFE is comprised of over 130 campuses grouped by geographic area into ten Institutes.

(b) The New England Institute currently has 819 staff and 22,332 students across its campuses.

(c) The Tamworth Campus itself has 262 staff and 9,518 students.

(d) An outline of the physical layout of the college campus.

(e) The installation of the oxygen and acetylene reticulation system. In this respect Mr Johnson deposed:

Prior to the incident, the staff of the Welding and Metal Fabrication faculty and maintenance staff were not aware of any circumstances requiring the valve in the pit to be operated.

As a result of enquiries made there had been no operational problem experienced with the system prior to the time that the incident occurred for which there was any requirement to drain the acetylene line at its lowest point.

The original plans required that the acetylene pipes below ground be made of stainless steel, however the pipes installed were made of mild steel. The original design also required that the oxygen pipe be made of copper, which it was.

...

There had never been any reason for the College to question the installation of the pit, or to be made aware of any vulnerability of the system. The College relied upon the builders (contractors) and the supervisors of the contract, to properly construct the pit and the reticulation system.

(f) The circumstances and events on the day of the incident.

(g) The defendant's occupational health safety and welfare policy.

(h) The maintenance arrangements in respect of the oxygen and acetylene reticulation system. In this respect Mr Johnson deposed:

Enquiries have shown that in relation to the maintenance system in place there are two different versions of events. On the one hand I have been informed that some work was conducted by CIG contractors. On the other hand I have also been told that some maintenance work was performed by an in-house maintenance fitter.

Mr Greg Allen of BOC Gases Ltd has stated to my instructed solicitors that CIG, now known as BOC Gases Ltd, performed routine maintenance of the system at the College between 1992 and 1995. According to Mr Allen, CIG were contracted by TAFE to conduct 6 and 12 monthly maintenance on the reticulation systems. ...

Mr Allen stated that every 6 months the CIG maintenance would include blowing out the lines, a pressure test (for leaks), and a drop test. Every 12 months they would conduct the same maintenance as above but also clean the safety valves and flashback arrestors.

Mr Allen also stated that prior to 1995 the standards used by CIG were their own internal best operations practice, and that in 1995 these standards became the Australian Standards 4289.

Alternatively to Mr Allen’s information, I have been informed that it was an in-house maintenance fitter who performed the maintenance on the system between 1992 and 1997.

...

In the mid to late 1990’s CIG ceased to provide their services to Tamworth TAFE, after which Dillon’s Plumbing Pty Ltd were contracted to do work on the reticulation system at the request of TAFE.

Dillon’s Plumbing were Licensed Gas Fitters who serviced the Tamworth and surrounding region. They held themselves out to have the requisite knowledge and expertise to perform work on and inspect and ensure the safety of the reticulation system. ...

I understand that there is no special licensing of contractors for the installation and maintenance of oxygen and acetylene gas systems and any competent person as defined in the Australian Standard may undertake work on such systems.

Dillon’s Plumbing Pty Ltd were contracted to carry out work at the College in the nature of scheduled/routine maintenance for gutter cleaning, pit maintenance and cleaning of condensation traps, and servicing of backflow retention devices annually.

If there were any breakages or if repairs were needed for the oxygen acetylene system, requisition forms were used to arrange for Dillon’s Plumbing Pty Ltd to attend and undertake repairs. ...

Mr Dillon of Dillon’s Plumbing Pty Ltd, states that all the work they conduct is done in compliance with the Australian Standard. ...

In June 2000 Dillon’s Plumbing Pty Ltd, attended and conducted work in accordance with the work orders, including cleaning the reticulation system filters in the eastern wing in C block. They also performed a back flush of the oxygen and acetylene systems and metal fabrication and welding workshops. They did not find any leaks on this occasion. ...

Mr Paunovic of Dillon’s Plumbing Pty Ltd stated that they also conducted a pressure test in accordance with the Australian Standard 4289 of 1995.

Dillon’s Plumbing Pty Ltd were not requested and did not conduct maintenance pursuant to section 6.3.1(e) of the Australian Standard 4289:1995: Oxygen and Acetylene Gas Reticulation Systems which states that “Particular attention is given to valves, including glands, to joints of all types, to connections and to areas of corrosion to ensure that no leaks are present”.

Following the incident a new storage area was set up at the northern end of the eastern wing of C Block, enabling the acetylene gas lines to be run directly into the building and therefore allow access for inspection. ...

(i) The actions taken by the defendant following the incident. These included the following:

All metal fabrication & welding workshops in NEI were tested and checked by BOC contractors.

An engineering audit for compressed gas welding installations at Tamworth TAFE was conducted by BOC Gases in March 2001.

A Safety - Maintenance plan was introduced for all centres to be tested and checked by accredited contractors at six monthly intervals.

BOC Gases were contracted from September 2001 to undertake an ongoing maintenance program of all of the New England Institute’s campuses’ industrial gas systems. Maintenance is provided on a six monthly basis in accordance with the requirements of AS4289 of 1995....

The underground pipeline between the two workshops at the Tamworth campus has been decommissioned and a decision was made not to reinstall the pipe work underground. This was done so as to ensure that it was possible to make regular inspections of the surface condition of the pipe work.

(j) Assistance and cooperation was provided to WorkCover during the conduct of their investigations.

(k) An expression of contrition.

14 A record of prior convictions was tendered. The record indicated five prior convictions.

Consideration

15 As the Full Bench of the Commission in Court Session recently observed in Morrison v Powercoal Pty Ltd & Anor. (No. 3) [2005] NSWIRComm 61 at [13]-[15] in relation to the approach to be taken to sentencing:

13 The principles of sentencing in this Court are now well settled. We do not repeat them here except to note that the sentencing practice established in this Court under the Occupational Health and Safety Act conforms with the requirements of that Act and the Crimes (Sentencing Procedure) Act 1999 (see sections 3A, 21A, 22, 22A and 23). It involves a consideration of both the objective and subjective factors relevant to the offence and the offender. The primary factor is the objective seriousness of the offence, which involves an objective assessment 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. Subjective factors play a subsidiary role in the determination of penalty. In Lawrenson Diecasting at 475 the Full Bench put it this way:

As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence.

14 We endorse what Hungerford J said in Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 386 in relation to the duty of the Court in the important area of occupational health and safety and that is:

[T]o 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. At the same time, the Court has a corresponding duty in so far as a defendant is concerned not to impose such a penalty as would be oppressively high.

15 We also adopt, with respect, the following observations of the Chief Justice as to established sentencing practice in Regina v Way [2004] NSWCCA 131 at [121]:

The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act.

16 In considering, firstly, the nature and quality of criminal conduct in respect of which the defendant pleaded guilty, in relation to both charges under s 15(1) and s 16(1) of the Act the defendant failed to provide and maintain systems of work that were safe and without risks to health and failed to maintain its place of work in a condition that was safe and without risks to health.

17 The failure to provide and maintain safe systems of work involved a failure to ensure that a risk assessment was carried out to identify the hazards involved in performing tasks such as welding and grinding in the quadrangle, especially given the hazard posed by the oxygen and acetylene reticulation system and a failure to ensure that there was routine maintenance of the reticulation system. The failure to maintain a safe work place involved a failure to maintain the connection between the valve and the attached acetylene line so that it was not corroded.

18 In circumstances such as those that obtain under s 15(1) and s 16(1) of the Act, where an employer is required to ensure the safety of workers, a risk assessment for the purpose of identifying hazards is an essential step that must be taken by the employer, especially where the workers are to perform a task that is out of the ordinary or in a different environment to what they may have been used to. The requirement to identify hazards and undertake risk assessments has now been codified in the Occupational Health and Safety Regulation 2001 (see, for example, cll 9 and 10).

19 In Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at [62]-[63] the Full Bench made the following observations regarding risk assessments:

62 This brings us to the summons in No 606 of 1998, which alleged a failure to conduct a risk assessment of the structural integrity of the ceiling. The appellant submitted that a risk assessment would not have revealed any risk. Given the nature of the risk, namely, construction work adversely affecting the structural integrity of the ceiling, we do not regard as adequate a risk assessment confined to testing whether ceiling panels were waterlogged and/or testing the capacity of the turnbuckles to bear extra weight. The appellant should have been aware of all of the factors that might impinge on the safety of its employees using the trafficable ceiling. This flows from the duty to “ensure” the safety of its employees at work. The appellant had a duty to make a proper and comprehensive assessment of the risks to its employees associated with using the trafficable ceiling as a walkway. It is no defence for the appellant to say it was not aware of the construction work that might adversely affect the trafficable ceiling or it was not aware that the dust wall was to be removed at a time when its employees would be using the ceiling. Proper inquiry by the appellant, certainly after the variation to its contract to remove the thermostats on the old northern wall, would have revealed the nature of the risk. But there was no inquiry. Not even the physical state of the ceiling space, which moved Kavanagh J to describe it as “appalling”, prompted the appellant to investigate whether the safety of its employees might be at risk. In failing to carry out a risk assessment the appellant exposed its employees to the risk of the construction work adversely affecting the structural integrity of the trafficable ceiling. We refer to what we said about the process of risk assessment in the Mainbrace appeal (Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) [2000] NSWIRComm 239) associated with this same incident and which is relevantly apt here:

Mr Parker submitted that properly understood the evidence of Mr Henry, in particular, showed “that it was most unlikely that examination of the ceiling space would have revealed its likelihood of collapse.” Given the nature of the risk an adequate risk assessment would have encompassed much more than the ceiling space. An examination of the ceiling space would have at least revealed the presence of excessive water, with the prospect of it having been absorbed into the ceiling panels, thereby increasing the weight of those panels. To what extent might not have been evident but a risk assessment would have at least raised the issue in the mind of the assessor. Further reflection on the state of the ceiling would have led to the realisation that with the work activity in the ceiling, the weight of workers and equipment would have placed even more stress on the capacity of the ceiling to cope with the additional load. Of course, a proper risk assessment would have also focused on the work associated with the demolition and re-construction of the northern wall - including the removal of the dust wall - and how it might affect the ceiling as a means of access and egress. This would have revealed that the ceiling would, for a period of time, be detached from the northern wall and, therefore, one of the main supports of the ceiling removed. It would also have revealed that the dust wall would necessarily become load bearing. Finally, it would have highlighted the need as an elementary safety precaution to ensure that there was no person in the ceiling at the time the dust wall and acrow props were removed and that no person entered the ceiling space until such time as it had been properly inspected to determine its safety.

63 The evidence does not reveal any prohibition or constraint on the appellant that would have prevented it from conducting an adequate risk assessment. We find the offence proven.

20 In the present case, the students were undertaking welding and grinding work in the quadrangle area. No risk assessment was undertaken. A risk assessment would have revealed a trench running across the quadrangle from the area where the oxygen and acetylene was stored and where there was a warning sign prohibiting naked flames in the storage area. The trench was covered by concrete blocks and contained the pipes leading from the oxygen and acetylene bottles in the storage area to a concrete pit adjacent to the wall of the welding workshop. The pit contained the badly corroded gate valve and acetylene line. A risk assessment would have raised the question in the mind of the assessor as to what was beneath the concrete blocks (which had open slits at each end) running from the oxygen and acetylene storage area into the pit and an inspection would have revealed the oxygen and acetylene pipes.

21 In circumstances where acetylene is an extremely flammable gas it would have been essential for the assessor to ensure there was no leak from the acetylene pipe given that welding was to occur in the immediate vicinity of the pipe. An assessor following the direction of the trench would necessarily have had to inquire as to what was in the pit. That would mean lifting the lid of the pit, because a moment's reflection would have made it apparent the pit was constructed for some purpose. (I note in an affidavit of Philip Prangley attached to the affidavit of Mr Johnson, he assumed the pit "was to do with the rainwater from the roof" but apparently ignored the fact that a trench covering the oxygen and acetylene pipes led straight into the pit).

22 Not being able to see what was in the pit because the lid was too heavy (apparently its mass was 200kg) the assessor would have been left with no alternative than to either arrange for some lifting equipment, test for leaks or not allow the welding to proceed. Testing for leaks may have revealed the leak. Lifting the lid would have revealed a badly corroded pipe and gate valve, and preventing the welding would have avoided any risk from a gas explosion.

23 Now, if this seems onerous, unrealistic or idealistic, what was at stake was the health and safety of persons using welding equipment in close proximity to pipes carrying highly inflammable acetylene gas. Given the obligation on the defendant to ensure that persons were not subject to risk there was a duty on the defendant to do all that was reasonably practicable to prevent exposure to the risk of an explosion. In failing to carry out a risk assessment, the defendant merely assumed there was no risk. It did not actively search for the presence of risk. In the result, a student was very badly injured and could easily have been killed.

24 I note in affidavits of Allan Phipps and Graeme Miller attached to the affidavit of Mr Johnson, they depose that risks assessments were carried out yet the defendant has pleaded guilty to the charge. The prosecutor placed no particular reliance on these two affidavits so I do not propose to give them any weight on this aspect.

25 The second failure was a failure to carry out routine maintenance of the reticulation system. That failure meant that, because of the original builder's failure to provide for a drain in the pit, over a number of years water that collected from time to time in the pit covered the gate valve and pipe and caused corrosion that went unnoticed. There was no issue that there was no system in place for programmed maintenance of the reticulation system in accordance with Australian Standard 4289:1995 between 1997 and 28 February 2001. That Standard provides, amongst other things, that inspections should be carried out at intervals not exceeding six months and particular attention be given to valves and connections to ensure no leaks are present. At twelve monthly intervals, leak testing of all piping at the designated pressure should be carried out with particular attention being given to places where corrosion has occurred.

26 The failure to comply with the Standard is not an element of the offence but Standard 4289:1995 provides readily available guidance as to what is acceptable practice in relation to the maintenance of oxygen and acetylene reticulation systems.

27 The defendant was obviously aware of the existence of the reticulation system and from time to time arranged for maintenance and repair work to be undertaken in respect of it. It appears from the evidence that some form of maintenance was carried out pre-1997 on the reticulation system but it is unlikely, in my opinion, given the corroded state of the gate valve and pipe that any checking was done in the pit, probably because of the effort required to remove the lid. After 1997 Dillon's Plumbing Pty Ltd, a local plumbing and licensed gasfitter, was contracted to do work on the reticulation system. During 2000 Dillon's carried out a number of jobs on the system in the nature of repairs and maintenance, including in June 2000 testing for leaks. No leaks were found. This work was done on an ad hoc basis and could not be said to constitute routine maintenance of the type described in the relevant Australian Standard.

28 In my opinion, Dillon's could not have opened the pit and checked the state of the pipe and gate valve in 2000 because it would have been obvious that it was in urgent need of repair. But on the evidence of Mr Johnson, Dillon's were not required to check the system for evidence of corrosion.

29 The thrust of the defendant's case was that it was simply unaware of what was in the pit but if it had it would have properly attended to the requirement for repair and maintenance. It was probably the case that the defendant did not know what was in the pit because it never took the trouble to look and, unfortunately, neither did any of those persons who undertook maintenance and repair work in relation to the reticulation system. If the defendant had arranged for routine maintenance of the system, which according to the Australian Standard required inspection of the piping to ensure that the surface condition had not deteriorated and required particular attention to be given to areas of corrosion, the risk to health and safety that arose on 28 February 2001 would have been avoided.

30 The inference is readily available that at least from 1997 no inspections were carried out of the piping. If inspections had been carried out of the piping in accordance with the requirements of 6.3.2 of AS 4289:1995 it would inevitably have led to a discovery of what was in the pit. I accept that the defendant's failure to carry out routine maintenance was not in deliberate disregard of its obligations under the Occupational Health and Safety Act but I do consider it was negligent in that respect. The failure over a number of years to ensure routine maintenance was conducted of a system that contained highly inflammable gas, including inspection of the pipes with particular attention being given to areas of corrosion, was a serious omission by the defendant.

31 The third failure was a failure to maintain the connection between the gate valve and attached acetylene line so that it was not corroded. There is a significant duplication between the failure particularised in particular 1(b) (failure to ensure routine maintenance) of the charges and the failure in particular 2(a) and the prosecutor conceded as much.

32 The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that is relevant to the assessment of the gravity of an offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 at [81]-[82]; Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [87].

33 It was foreseeable that in the absence of providing and maintaining a safe system of work by carrying out a risk assessment and ensuring routine maintenance of the reticulation system was undertaken, the system might leak or might develop a leak and give rise to the possibility of an explosion thereby endangering students and staff at the campus.

34 Another factor to be taken into account in assessing the objective seriousness of the offence is whether death or serious injury occurred: Rodney Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [31]-[33]. Further, s 21A of the Crimes (Sentencing Procedure) Act provides:

(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

...

35 As I earlier observed, Mr Allan was seriously injured and could well have been killed in the explosion. The injury caused by the defendant's failures to ensure persons were not exposed to risks to their health and safety was substantial.

36 Section 3A of the Crimes (Sentencing Procedure) Act provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

...

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

...

37 In relation to general deterrence, that is deterring other persons from committing similar offences, it was stated in Inspector Gregory Maddaford v Graham Gerard Coleman & Anor [2004] NSWIRComm 317 at [80]:

[80] Firstly, the Chief Industrial Magistrate underrated the importance of general deterrence in determining the level of penalty. The Court in WorkCover Authority v Schrader held at [69]-[70]:

The purpose of the Act is well known and often referred to in judgments of this Court. In my view, it is important, when considering notions of general deterrence, that the Court be cognisant of the fact that the Act is for the benefit of the public generally and particularly employees at work. The goal is the prevention, deterrence and punishment of breaches of health and safety requirements. The notion of general deterrence is well understood. However, in my view, and in accordance with what was stated by the Full Court in Capral Aluminium (at [72] - [74]), in cases such as this, it should be reiterated that "one of the main purposes of punishment, ... is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" (emphasis added): R v Rushby [1977] 1 NSWLR 594 at 597 per Street CJ citing R v Radich [1954] NZLR 86 at 87 (adopted by this Court in Capral Aluminium at [72]).

Further, I would note that it has been described as "the fundamental duty of this Court" to ensure that any penalty imposed is severe enough to "compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace": Fisher v Samaras Industries Pty Limited (1996) 82 IR 384 at 388 adopted in Capral Aluminium (at [74]).

See also the Full Bench decision in Inspector Ian Lancaster v Burnshaw Constructions Pty Ltd [2002] NSWIRComm 319.

38 It is difficult to imagine a corporate defendant having "impulses" but it is perfectly clear that the power of the Court to include in any fine an element for general deterrence has an important role in compelling the attention of employers generally to occupational health and safety issues (see Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384) and making them aware of the consequences of not doing so. The penalty thereby derives its deterrent effect.

39 The risks associated with the storage of industrial gases and failure to maintain gas reticulation systems in commerce and industry are very high. It is appropriate that the attention of employers generally is drawn to this fact by the imposition of an appropriate level of penalty.

40 In relation to specific deterrence, I do not regard the risk of the defendant re-offending as very high because it has taken steps to avoid a re-occurrence of the incident that occurred on 28 February 2001. Nevertheless, the defendant is a very large organisation with campuses all over the State and a large student and staff population. In my opinion, it needs to be reminded of the need to ensure that those for whom it is responsible are protected from any risks to the health and safety and that not only is it necessary to have systems in place to that end but those systems must be constantly monitored and maintained.

41 In considering the subjective factors that may mitigate the seriousness of the offences committed by the corporate respondent, sections 21A(3)(e) and (f) of the Sentencing Procedure Act provide:

(3) Mitigating factors. The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

...

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

...

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

42 The defendant has a prior record of offences under the Act. And whilst this fact means that the defendant will attract a higher maximum penalty than if this was a first offence, it does not lead automatically to the conclusion that the defendant has demonstrated a predisposition for re-offending and, therefore, deserving of condign punishment in the sense discussed in Veen v The Queen (No2) (1988) 164 CLR 465. Proper consideration has to be given to the circumstances in which the prior offences occurred. This might lead to the conclusion that the defendant has shown a propensity to re-offend under Occupational Health and Safety Act and that the latest offences should, therefore, attract a heavier fine than otherwise might be the case. On the other hand, the prior offences might involve quite disparate and unconnected circumstances that do not suggest a "continuing attitude of disobedience of the law". It is a matter for the Court to weigh up all the circumstances.

43 In the present case the prosecutor relied on five prior convictions. Four of them were recorded between 1995 and 2000 arising from breaches of ss 15 and 16 of the Act. The convictions were recorded in the Local Court. I have not been provided with any information regarding the circumstances of these prior convictions.

44 The fifth recorded conviction arose out of proceedings before Staunton J in WorkCover Authority (NSW) (Inspector Stewart) v The Crown in Right of the State of NSW (Department of Education and Training, Department of Juvenile Justice and TAFE) (2002) 118 IR 207. There the defendant pleaded guilty to an offence under s 15(1) of the Act. The penalty imposed was $294,000 and involved multiple failures by the defendant in three emanations in relation to an incident at Yasmar Juvenile Detention Centre where a teacher was stabbed by a student-detainee occasioning death. The circumstances of that offence are completely different to that with which I am concerned and do not indicate a propensity to re-offend.

45 I am unable to say whether the convictions in the Local Court are relevant to assessing the defendant's propensity to re-offend but I consider in this regard I must give the defendant the benefit of any doubt.

46 The defendant has taken appropriate steps to improve its occupational health and safety systems and procedures relating to gas reticulation systems and to avoid the prospect of the risks associated with the failures re-occurring. I also accept that the defendant has demonstrated a strong commitment to workplace safety and that is a factor to be taken into account in its favour: WorkCover Authority of NSW (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at 135.

47 Other mitigating factors to be taken into account are the defendant's cooperation with the investigating authority and the contrition expressed by Mr Johnson on behalf of the defendant.

48 The defendant entered a plea of guilty, although I do not consider it was at the earliest possible opportunity. I propose, nevertheless, to discount the penalty for the utilitarian value of the plea by 17.5 per cent.

49 Given the two offences in respect of which the defendant has pleaded guilty, the principle of totality is to be applied. The principles are described in Crown in Right of the State of NSW (Dept of Education and Training) v Keenan (2001) 105 IR 181 at [36]-[38] and quoted with approval in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 at [76]. See also WorkCover Authority of New South Wales (Inspector Mansell) v Robert Josef [2004] NSWIRComm 323.

50 The charge under s 15(1) relates to the employees of the defendant and the charge under s 16(1) relates to the students. The substratum of facts and the particulars of each charge, which arise from a single incident, are virtually in identical terms and, accordingly, I consider any penalty in each case should be the same. I propose to discount the penalties by 27.5 per cent, which is inclusive of the discount for the guilty plea.

51 The maximum penalty in each case is $825,000. An appropriate level of penalty in each case, after applying the discount, is $180,000 making a total penalty of $360,000. Having regard to the overall culpability of the defendant in respect of the two offences, and to avoid double counting, I consider the penalty should be $180,000 equally split between the two offences.

Orders

52 The Court makes the following orders:

1 The offences are proven and verdicts of guilty are entered in each matter.

2 The defendant is convicted of the offence alleged under s 15(1) and the offence alleged under s 16(1) of the Occupational Health & Safety Act 1983 in the second amended applications for orders.

3 In Matter No IRC 819 of 2003, the defendant is fined the sum of $90,000 with a moiety of that fine to the prosecutor.

4 In Matter No IRC 610 of 2003, the defendant is fined the sum of $90,000 with a moiety of that fine to the prosecutor.

5 The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

LAST UPDATED: 07/04/2005