District Court New South Wales Medium Neutral Citation: SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549 Hearing dates: 2-3 August 2021, 20-23 June 2022, 27 June 2022, 18-20 July 2022, 22 July 2022, 18 August 2022 Date of orders: 14 November 2022 Decision date: 14 November 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements set out in the Amended Summons dated 23 June 2020 have been proved beyond reasonable doubt. (2) I find the defendant Buddco Pty Ltd guilty. (3) The matter will be listed for a Sentence Hearing on a date convenient to the parties. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury OTHER – blockages affected the operation of an ink holding tank and mill – side access hatch was removed before anchor blade was electrically isolated – contractor became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation procedure inadequate – absence of an external interlock switch or emergency stop – confined space entry permit had only been partially completed – inadequate job safety analysis and confined space entry permit procedures Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW) s 165 Work Health and Safety Act 2011 (NSW), ss 7, 12A, 16, 17, 18, 19, 32, 244, 274 Work Health and Safety Regulation (NSW), cll 5, 36, 66, Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Constantanidis v R [2022] NSWCA 4 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267; (2001) 110 IR 57 Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Orr v Cobar Managemement Pty Ltd [2019] NSWDC 224 Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 213 A Crim R 340 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 SRA (NSW) v Dawson [1990] 37 IR 110 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 SafeWork NSW v Arkwood (Gloucester) Pty Ltd [2022] NSWDC 89 Texts Cited: Australian/New Zealand Standard AS/NZS 4024.1503: 2014, Safety of Machinery, 30 June 2014 Australian Standard AS 2865-2009, Confined Spaces, 4 September 2009 Safe Work Australia Code of Practice, How to Manage Work Health and Safety Risks, December 2011 WorkCover NSW, Confined Spaces Code of Practice, December 2011 WorkCover NSW, Managing the Risks of Plant in the Workplace Code of Practice, July 2014 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Buddco Pty Ltd (Defendant) Representation: Counsel: C Magee (Prosecutor) M Scott with J Simpson (Defendant) Solicitors: Department of Customer Service (Prosecutor) Lander & Rogers (Defendant) File Number(s): 2019/208718 Table of Contents Judgment Introduction The Task of this Court The Elements of the Offence The Amended Summons The Risk Reasonably Practicable Measures The Relevant Law General Principles Evidence of Workers at the Site Mr Phillip Roy Mr Andrew Furlong Mr George Berdyshevski Mr Yatin Mehta Mr Robert Graham Mr Philip Seaman Mr Scott Eirth Mr Aaron Pfeiffer Mr Mamadou Diallo Mr Damien Coad Mr Evert Van Oeveren Evidence of SafeWork NSW Inspector Mr Prasad De Silva Documentary Evidence Company Information Contracts Between Parties on Site Drawings of the Tank and the Site Blackshop Tank Cleaning Before Incident Documents Leading up to the Incident Documents Created on the Day of the Incident Buddco Work Health and Safety Material DIC Work Health and Safety Material Training and Qualifications Photographs Industry Guidance Material Work Health and Safety Regulation 2017 Medical Post-Incident Remedial Measures Expert Evidence Mr Joseph Simurina Dr Milos Nedved Findings of Fact: Agreed Facts Additional Findings of Fact Prosecutor's Additional Facts (MFI 7) Defendant's Additional Facts (MFI 8) Submissions for the Prosecutor Submissions for the Defendant Consideration of the Expert Evidence Consideration of Submissions: How Mr Tanner Came to be Inside the Tank Consideration of Submissions: "Entry" Consideration of Element 1 – Whether the Defendant Owed a Duty Consideration of Element 2 – Whether the Defendant Failed to Comply with the Health and Safety Duty The Risk Reasonably Practicable – Section 18 The Likelihood of the Risk Occurring – Section 18(a) The Degree of Harm that Might Result from the Risk – Section 18(b) What the Defendant Knew or Ought Reasonably to Have Known – Section 18(c) Availability and Suitability of Ways to Eliminate or Minimise the Risk – Section 18(d) The Cost Associated with Available Ways of Eliminating or Minimising the Risk – Section 18(e) Reasonably Practicable – As Pleaded Conclusion on Element 2 Consideration of Element 3 – Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury Conclusion on Element 3 Conclusion Orders Judgment Introduction 1. Buddco Pty Ltd (Buddco) pleaded not guilty to a charge that being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Craig Tanner and Mr Yatin Mehta, to a risk of death or serious injury contrary to s 32 of the Act. 2. On 7 December 2017, workers at an ink manufacturing plant were preparing an ink holding tank (the tank) for cleaning. When the tank cleaning contractor Mr Tanner was inside the tank an agitator (the anchor blade) activated, causing his leg to become trapped between the side of the tank and the anchor blade. He suffered fatal injuries. Workers at the plant, including Mr Mehta, who entered the tank to assist Mr Tanner also suffered injuries. 3. DIC Australia Pty Limited (DIC) conducted a business or undertaking at a factory in Auburn which involved the manufacture of ink products for the printing industry. Buddco conducted a business or undertaking which involved designing, constructing, installing, commissioning, maintaining and servicing of the ink manufacturing plant. Buddco had an agreement with DIC to maintain and service all of the plant at Auburn, including the tank which was located in the Blackshop (so named because that part of the factory manufactured black ink). Buddco engaged, or caused to be engaged, Mr Tanner (who traded as Complete Blasting Solutions) as a contractor to clean out the tank. 4. The issues to be determined are: 1. Did the defendant owe the workers a health and safety duty under s 19(1) of the Act? 2. Did the defendant fail to comply with its health and safety duty by failing to take any of the steps particularised in par 13 of the Amended Summons? 3. Did the defendant's breach of duty expose the workers to a risk of death or serious injury? The Task of this Court 1. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. 2. The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt. 3. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty. 4. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence. 5. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW). 6. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4. In the present case many of the witnesses worked for the defendant, or worked for others at the site. For that reason they might have in theory attempted to minimise their own involvement or that of the defendant. 7. I say straight away that I formed the impression that all witnesses were doing their best to tell the truth. There were no submissions to the contrary. I regard any discrepancy between their oral evidence and any prior statements to be due to lapse of time and perhaps to the trauma of the incident itself. The Elements of the Offence 1. Section 32 of the Act provides: "A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness." 1. The elements of the offence are: 2. Element 1 The defendant owed the workers a duty under s 19(1) of the Act; 3. Element 2 The defendant failed to comply with that duty; and 4. Element 3 The failure exposed the workers to a risk of death or serious injury. The Amended Summons 1. The first page of the Amended Summons dated 23 June 2020 particularises the date of the offence as 7 December 2017 and the place of the offence as the premises at 323 Chisholm Road, Auburn, in New South Wales. 2. Paragraphs 1-11 of Annexure A to the Amended Summons set out the background facts which the prosecutor seeks to prove: "Particulars of the defendant's duty under s 19(1) of the Act 1. Buddco Australia Pty Ltd (the defendant), being a corporation, was a person conducting a business or undertaking within the meaning of the Act. 2. At all relevant times, the defendant conducted a business or undertaking which involved designing, constructing, installing, commissioning, maintaining and servicing of ink manufacturing plant (the business). 3. DIC Australia Pty Limited (DIC) conducted a business or undertaking which involved the manufacture of ink products for the printing industry from premises located at 323 Chisholm Road, Auburn New South Wales (the premises). 4. At all relevant times, DIC engaged the defendant to maintain and service all plant at the premises including an ink holding tank (the ink holding tank) located in the Blackshop at the premises. 5. At all relevant times, the defendant engaged or caused to be engaged Craig Tanner (Mr Tanner), trading as Complete Blasting Solutions, as a subcontractor to clean out the ink holding tank (the work) at the premises. 6. At all relevant times, Mr Tanner's activities in carrying out the work were influenced or directed by the defendant. 7. On 7 December 2017, Mr Tanner was at work in the defendant's business or undertaking in that he was carry out [sic] activities in relation to the task of cleaning out the ink holding tank at the premises, at the request of the defendant. 8. At all relevant times, the defendant engaged or caused to be engaged Yatin Mehta (Mr Mehta), an employee of the defendant engaged to undertake work at the premises. 9. At all relevant times, Mr Mehta's activities in carrying out the work were influenced or directed by the defendant. 10. On 7 December 2017, Mr Mehta was at work in the defendant's business or undertaking in that he was carrying out the function of a standby person/spotter for the cleaning of the ink holding tank, at the request of the defendant. The Duty 11. The defendant had a duty under section 19(1) of the Act to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Tanner and Mr Mehta, while they were at work in the defendant's business or undertaking." The Risk 1. Paragraph 12 of Annexure A of the Amended Summons pleads particulars of the risk to workers as follows: "12. The risk was a risk of workers, in particular Mr Tanner and Mr Mehta, suffering serious injury or death as a consequence of being crushed and/or entangled and/or cut as a result of entering a confined space, namely the holding tank, fitted with moving mechanical parts, namely, a rotating anchor blade, which had not been electrically isolated (the risk)." Reasonably Practicable Measures 1. Paragraph 13 of Annexure A of the Amended Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "13. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular Mr Tanner and Mr Mehta, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a. ensure that the ink holding tank was de-energised and isolated from all energy sources prior to permitting any work in respect of, or in relation to, the cleaning of the inside of the holding tank to commence, including any work which permitted persons to be able to access the inside of the holding tank; b. requesting that DIC install an interlocking device on the ink holding tank hatch which de-energised the tank when the hatch was open; c. requesting that DIC install engineering controls in respect to the operating systems for the ink holding tank including controls: i. which permitted workers undertaking tasks that required entry into the ink holding tank to isolate the tank from all forms of energy; and/or ii. which permitted the locking out and tagging out of the means of energizing the operating systems by workers undertaking tasks that required entry into the ink holding tank; and/or iii. to alert workers when the operating systems, including moving mechanical parts, had not been electrically isolated; and/or iv. which permitted the operating systems, including moving mechanical parts, to be deactivated by means of an emergency stop. d. develop, implement and enforce a safe work procedure for the task of cleaning the ink holding tank which set out the minimum steps that workers were required to undertake when carrying out the task, including a requirement that: i. a Job Safety Analysis (JSA) be prepared prior to commencing the task; ii. a Confined Space Entry Permit be completed prior to commencing the task; iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken; iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank; v. workers consult and obtain approval from Buddco before commencing the work; vi. the hatch of the ink holding tank not be opened until the steps above have been completed. f. provide adequate instructions and supervision to workers performing the work including information as to how the task is to be performed, in particular that: i. a JSA be prepared prior to commencing the task; ii. a Confined Space Entry Permit be completed prior to commencing the task; iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken; iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank; v. that workers confirm that the ink holding tank has been isolated from all forms of energy prior to commencing the task; vi. workers consult and obtain approval from Buddco before commencing the work; vii. the hatch of the ink holding tank not be opened until the steps above have been completed." 1. Particulars (e) and (g) were abandoned during closing submissions. 2. Paragraphs 14-15 of Annexure A of the Amended Summons plead the following: "14. As a result of the defendant's failures to comply with its duty workers, and in particular, Mr Tanner and Mr Mehta, were exposed to a risk of death or serious injury. 15. The fatal injuries sustained by Mr Tanner and the serious injuries suffered by Mr Mehta on 7 December 2017 were manifestations of the risk." The Relevant Law General Principles 1. The parties agreed that the general principles of law which are applicable can be summarised as follows. 2. The objects clause in s 3 of the Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable." 1. The offence is one of strict liability: s 12A of the Act. 2. The content of the duty is set out in s 19 of the Act which provides: "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking." 1. The meaning of "worker" is dealt with by s 7(1) of the Act which provides: "A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor…" 1. Section 16 of the Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity." 1. Section 17 of the Act deals with the management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable." 1. The word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury – s 32(c). 2. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015. 3. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once. 4. "Reasonably practicable" is defined in s 18 of the Act which provides: "In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk." 1. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ. 3. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68]. 4. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J. 5. The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ. 6. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 7. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by a worker, but defendants must conduct operations on the basis that such acts will occur, and they must be guarded against to the fullest extent practicable. 8. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [127]. 9. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378. 10. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130]. 11. Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 of the Act provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. …" 1. Counsel for Buddco submitted that there were additional propositions of law which were applicable (MFI 9, pars 13, 15 and 16). 2. The first submission was that where a defendant lays down a safe system of work, an assessment must be undertaken as to whether the defendant has done or omitted to do anything causally connected with the risk in question. The court must consider whether the manner in which the risk manifested was beyond the defendant's control: SRA (NSW) v Dawson [1990] 37 IR 110. 3. Counsel for Buddco also referred to the decision of Judge Scotting in Orr v Cobar Management Pty Ltd [2019] NSWDC 224 at [226], [291] and [303]. This case involved a mine worker who consciously and deliberately acted in breach of the defendant's safety system. Counsel for Buddco also referred to my decision in Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364 where I said at [342]: "While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees." Evidence of Workers at the Site Mr Phillip Roy 1. In December 2017 Mr Roy was the Operations Manager for DIC. He was in charge of manufacturing, distribution, the engineering team and occupational health and safety. Part of his role included planning in relation to maintenance and production. DIC used Buddco as an external contractor to perform maintenance. DIC also had two employees who worked as part of the maintenance team. One of those was Mr Eirth. He took directions from the Buddco engineering team. Buddco had an office at the DIC premises, which was above the engineering area. 2. Mr Robert Graham provided his services as a qualified electrician through RJB Electrical Pty Ltd (RJB). Mr Graham undertook work as directed by the Buddco engineering team. 3. Mr Roy explained the process of making ink in the Blackshop. Carbon was conveyed in the dispersion phase into a pre-dispersion mixer. This was a large tank in the Blackshop which was also known as an Onslow mixer. After about four hours the liquid was transferred into the tank. From there it could be transferred to the ink mills. Transferring the ink from the Onslow mixer to the tank meant that two batches of ink could be made in the Onslow mixer in the one day. 4. Attached to the underside of the tank were load cells which measured weight. The display on the load cells showed the operators how much ink was in the tank and thus how much volume was left in the tank. There was a load cell on each of the three legs of the tank. 5. There was an access hatch on the top of the tank (the top hatch). A worker could get up on a ladder to lift up the top hatch. When access was obtained in that fashion, a fan was used to ventilate the tank. The fan was used to flush out any atmospheric contaminants so that the tank then held a breathable atmosphere. These contaminants were flushed by the fan down from the top and out through a lower hatch which was on the side of the tank, near the base (the side hatch). 6. Within the tank was an anchor blade. It was shaped like an anchor with two sides which came up each side of the tank. There were paddles halfway up the shaft. The anchor blade was designed to agitate the product in the tank to try to stop the pigment from settling out. If the pigment settled out too quickly, the discharge line from the tank became blocked with carbon. 7. The anchor blade was driven through a motor and a gearbox at the top of the tank. This was electrically powered. The blade rotated at around 60 revolutions per minute (rpm). The anchor blade was designed to agitate the pre-dispersion mix and to stop carbon from settling out inside the tank during the milling process, which could take 14 or 15 hours. 8. Pigment which blocked the discharge lines from the tank to the mills had always been a problem. Depending on the materials used, the blockage could occur in as short a time as 6 to 12 months, or as long a time as 4 to 5 years. 9. When the tank became blocked it had to be cleaned from the inside. This required a worker to enter the tank through the side hatch. 10. The electrically driven anchor blade could be controlled by a switch and buttons on a control cabinet. A switch on the control cabinet had three positions, being "Off", "On" and "Auto". There was a green button which Mr Roy said was the "Start" button and a red button which was the "Stop" button. There were indicator lights including a blue light which indicated that there was a low level inside the tank. The top row of indicator lights included a green light for "Running", a red light for "Stop" and a yellow light for "Overload". 11. Generally the tank operated in the Automatic mode. In Automatic mode the anchor blade was triggered to operate based upon the weight recorded by the load cells. If the load cells recorded a heavy weight in the tank, the anchor blade would operate by rotating for one minute every hour. The speed of the rotation of the anchor blade was 60 rpm in both Automatic and Manual modes. 12. When blockages were identified in the tank, DIC endeavoured to flush the tank. This flushing sometimes worked and sometimes did not work. If flushing did not work, then the only option was for a worker to enter the confined space of the tank and manually remove the build-up of material inside the bottom of the tank. DIC had no role in the physical work of cleaning out the tank. Such work was coordinated through Buddco. Communications were sent by email to Mr Berdyshevski and Mr Budd. Buddco engaged a contractor to come to the site to clean out the bottom of the tank to remove the residual contaminant. 13. Contractors who came on site were required to complete an induction to be able to access the site. Any contractor engaged by Buddco had to go through the induction process. DIC had a process in place that required a contractor to obtain a permit and approval to conduct any confined space work activities. DIC did not have its own confined space permit but relied on the permits provided and issued by Buddco. DIC did not do its own confined space work at the time, because this was regarded as a high-risk activity. Mr Roy understood that Buddco only ever used accredited people with confined space qualifications to clean out the tank. 14. DIC required a Job Safety Analysis (JSA) to be completed for any maintenance-based activity on site. The idea behind the JSA was to give the contractor the ability to review the activity they were doing, to highlight or identify risks, and record whether a permit was required to do the activity. On the JSA the contractor was required to record the hazards, the control measures, and who was responsible for carrying out the control measures. The JSA was "designed to make the contractor think about the activity that they are undertaking and the risks associated with that activity" (Tcpt 36/19). A JSA was required to be completed by all contractors, subcontractors and by Buddco. 15. Mr Roy was not personally aware that Buddco was engaging Mr Tanner to carry out the cleaning of the tank. Mr Roy was taken through emails which went back and forth concerning arrangements for Buddco to engage a contractor to clean out the tank. While this was scheduled to occur on 7 December 2017, Mr Roy had no personal knowledge that the work was to be done on that day. 16. After the incident occurred in which Mr Tanner and Mr Mehta were trapped inside the tank, Mr Roy rang Emergency Services. He also spoke to Mr Robert Graham to have the equipment electrically isolated. Mr Graham said to Mr Roy "No-one rang me" (Tcpt 47/41). Mr Graham confirmed to Mr Roy that he had taken steps to isolate the tank after he was called to the scene of the incident. 17. Mr Roy made enquiries to locate documents relating to the work done by Mr Tanner. He was trying to find a Confined Space Entry Permit as well as a JSA "because I couldn't understand how he could have entered the tank without doing the paperwork and the process" (Tcpt 48/40). 18. Mr Roy said that one of the maintenance workers handed him a copy of the Confined Space Entry Permit and said they had found it by Mr Tanner's truck. That document was tendered as Exhibit PX 8. Mr Roy put the document in his office and continued to try to look for the JSA for the tank cleaning task. It was never located. 19. Mr Roy was asked about changes to the systems of work that were implemented by DIC after the incident on 7 December 2017. He referred to emails sent out by Mr Ian Johns of DIC, the Managing Director. Buddco was requested to create a Standard Operating Procedure in relation to the cleaning of the tank. Buddco then provided such a document. Mr Roy identified the Standard Operating Procedure in PX 2, Tab 89. 20. An edited version of the Record of Interview with Mr Roy was tendered (DX 2). 21. Another step taken was the re-writing of the DIC Confined Space Entry Procedure. The new procedure was identified in PX 2, Tab 90. Mr Roy thought that Buddco updated its own Confined Space Entry Procedure after the incident. 22. The black ink holding tank was never used again. 23. In cross-examination Mr Roy was taken to a Record of Interview with a SafeWork NSW inspector dated 18 April 2018 (DX 2). In relation to the requirement for a JSA, Mr Roy said in the interview that the whole point of a JSA is to allow whoever is doing the activity to go through a series of steps. It is in effect a Safe Work Method Statement. He said that the Confined Space Entry Permit was a different procedure which was managed by Buddco. It focussed on what was required before a worker entered a confined space such as a tank. There were supposed to be two forms in relation to confined space work, being the JSA and the Confined Space Entry Permit. Once these two forms were completed, all checks had been done and everything was okay, the next step was to obtain authorisation to enter the tank. Such authorisation was to be obtained from the Buddco engineering team. They had to be satisfied that all the confined space procedures were completed. This included mechanical isolation and electrical isolation. The point of the procedure was to make sure that everything was correct before anyone was allowed to enter the tank. 24. In re-examination Mr Roy was asked what the procedure was for isolating the tank in the Blackshop. He said that as a general rule if the contractor had been hired to clean the tank, he would be the one who would ensure that isolation had been done. Buddco would then go and verify that everything was okay and then access would be permitted to continue the activity. Mr Roy said that the isolation always had to be done with the electrician and the contractor who was undertaking the activity. Mr Andrew Furlong 1. Mr Furlong was engaged by DIC as a contractor. He worked at DIC between 1989 and 2020 when he was made redundant. In December 2017 he was the supervisor of Web Inks Production. He did the planning for ink production and made sure that all work in the factory ran smoothly. He negotiated with customers and informed them if something could not be done or delivered. He made sure that stock levels and raw materials were coming in. Mr Furlong supervised operators who worked in each of the ink sections at the DIC site. He monitored the output of the mills in each of those sections. Part of his job was to identify breakdowns in machinery and refer them to the engineering department, meaning Buddco. He usually spoke to Mr Berdyshevski or Mr Budd. 2. Mr Furlong described the sequence in relation to the production of black ink. The material was first treated in a pre-dispersion mixer and then put into the tank. The ink then went through the mills. The purpose of the tank was to speed up production, so that one batch from the pre-dispersion mixer could be held in the tank while another batch was put through the pre-dispersion mixer. The tank allowed two batches to be prepared at the same time. 3. Mr Furlong said that when the weight in the tank came to 900 kg the anchor blade came on and continued until the weight had dropped below 900 kg. There was an Automatic mode and a Manual mode to keep the ink in the tank agitated. Normally the tank was kept on Automatic. If there were any problems with the batch then the tank was put on Manual mode. 4. Mr Furlong was aware of problems caused by ink settling in the tank and blocking the pipes from the tank to the mills. If this happened he called the workshop and told them to have a look at it. If the blockage could not be cleared, then someone had to physically go into the tank and scoop the material out. He said that there was a "man-hole" built into the tank for that reason (ie the side hatch). There was a ladder needed to approach the side hatch. There were 12-18 bolts around this hatch. When work had to be done on the tank he contacted the Buddco maintenance team. 5. Mr Furlong had no interaction with Mr Tanner prior to the incident in December 2017. He had seen the cleaning task done using jackhammers, spades, shovels and buckets. Material was removed from the bottom of the tank, placed into a bucket and passed out through the side hatch. 6. On the evening of 6 December 2017 Mr Furlong arranged for the final batch of ink to be milled. This was to empty the tank and to allow it to cool down. Mr Furlong said that the pre-dispersion mixer was restarted on the morning of 7 December 2017, but Mr Berdyshevski, or someone from the Buddco workshop, asked him to switch it off. Mr Furlong was not at the DIC site on the morning of 7 December 2017, but he rang and asked for the pre-dispersion mixer to be switched off. 7. Mr Furlong was not involved in the preparation of any changes made after 7 December 2017 to practices in relation to the cleaning of tanks across the site. Mr George Berdyshevski 1. Mr Berdyshevski worked for Buddco between 2011 and the end of 2018. He was the Engineering Manager for Buddco. Mr Berdyshevski was a fitter by trade. He allocated work to the fitters working for Buddco and the fabricators working on various projects. He helped run the Ampro software system and did site audits. The Ampro system was the DIC preventative maintenance system. Mr Berdyshevski did JSA audits. As of December 2017 there were seven people in the Buddco crew. They were involved in doing preventative, corrective and breakdown maintenance. Mr Berdyshevski was made aware of maintenance work which was required by discussions, emails, meetings and telephone calls. Mr Graham of RJB was one of the crew that he managed. 2. Mr Berdyshevski said that the Blackshop was a "pretty problematic plant" (Tcpt 82/34). There were blockages in the tank on a regular basis. Once the tank was blocked it would have to be cleaned out. Buddco used a contractor to do the confined space work of cleaning out the tank. The job had previously been done by Mr Tanner. The contractor who cleaned the tank had to gain access through the side hatch. Bolts had to be taken off the side hatch to access the tank. These bolts were usually removed by a Buddco person, or by a DIC employee such as Mr Eirth. While Mr Eirth was a direct employee of DIC, he was part of the Buddco maintenance crew. 3. Mr Berdyshevski was asked to look at the Buddco Work Health and Safety Management Plan for the DIC site (PX 1, Tab 45). He accepted that the plan required equipment to have an adequate means of isolation and a means of proving isolation of the equipment. He said that the tank was an old piece of equipment and there were no official isolation points. The electricity to the tank had to be disconnected by an electrician. He remembered that Mr Graham used to have to open up a cabinet and pull out wires to isolate the tank. 4. Mr Berdyshevski had the understanding that when the tank had to be cleaned out, the electrical energy to it would have to be isolated, and that would have to be verified, before anyone entered the tank. Two pieces of paper had to be filled out, being a JSA and a Confined Space Entry Permit. The person who could enter the tank would need to wear special clothing, and there would be equipment such as drums and tools that needed to be used on the job. The area had to be barricaded. 5. Mr Berdyshevski was asked to recall when, during the process, the side hatch should be opened. He said: "It should be right before entry, I'd say that's – yeah – that would be the best answer" (Tcpt 90/5). 6. Mr Berdyshevski had never been present when the side hatch was opened. He was asked whose responsibility it was to verify that the equipment had been de-energised. He said that the electrician would have to do the isolation. Then Mr Berdyshevski would have to make sure that the tank was isolated. Anybody else who was "on the JSA and the confined space would have to go through the whole isolation process themselves to make sure that they understand it to be safe as well" (Tcpt 90/15). 7. Mr Berdyshevski was taken to the Buddco Employee Induction Manual (PX 1, Tab 47). He was not aware of anyone from Buddco giving Mr Tanner a site induction. Mr Berdyshevski acknowledged that the Induction Manual said that Buddco had to make the necessary isolations, including electrical isolation. He said this had to be done as a team, so an electrician was needed. This was RJB. He also said that the confined space team had to do their bit as well. They were to cordon off the area, swing the hatch out of the way, move the blade to where it was needed, then do the isolation or put the hatch back on, or whatever may be needed at the time (Tcpt 92/45). 8. Mr Berdyshevski was taken to a Buddco document relating to confined space entry (PX 1, Tab 48). Mr Berdyshevski acknowledged that the document said: "Buddco will be responsible for… isolating, locking out, and danger/warning tagging of hazardous services provided to the confined space" (Tcpt 94/27). 9. Mr Berdyshevski said that the contractor was responsible for reporting to the Buddco site supervisor with the risk assessment or Confined Space Entry Permit, prior to commencing work for entry into a confined space. The contractor had to obtain a Buddco permit authority to proceed with the work. The Buddco person who could issue such authority was either Mr Budd or Mr Berdyshevski himself. 10. Mr Berdyshevski usually conducted a toolbox talk with his crew at about 6.00am each morning. At the toolbox talk there was a discussion with workers about what was planned for the day in terms of tasks and maintenance jobs. Tasks were allocated to particular workers. Mr Berdyshevski conducted the toolbox talk on 7 December 2017. He said that Mr Mehta was to be the standby person for Mr Tanner. Mr Eirth and Mr Seaman were to help Mr Mehta set up the area for Mr Tanner to do his cleaning. Mr Berdyshevski thought that Mr Graham, the electrician, was at the toolbox talk that morning. Mr Berdyshevski said that he knew that the area would have to be set up with drums to store the "gunk" removed from the tank. There would be rags, water, cardboard on the floor and tools such as shovels provided. There was a need to install a light at the top of the tank. 11. Mr Berdyshevski was asked whether there was any specific practice in relation to when the side hatch removal would occur. He said that after the barricades were put in place the side hatch could be opened. The team would then assess and relocate the blade to where it needed to be. However, he said that in relation to these answers he was "just guessing" (Tcpt 102/45). 12. Mr Berdyshevski did not go to the Blackshop to supervise the undertaking of the preparatory steps. He recalled Mr Tanner arriving at the DIC premises on the morning of 7 December 2017. He and Mr Tanner discussed the job and the fact that Mr Mehta was to be the standby person. There was discussion about filling out the JSA and the Confined Space Entry Permit. Mr Berdyshevski remained in his office and Mr Tanner did not return to the office after this initial meeting. 13. Mr Berdyshevski was summoned to the Blackshop after the incident occurred. By that time both Mr Tanner and Mr Mehta were trapped inside the tank. Mr Berdyshevski saw Mr Graham come to the Blackshop. He asked Mr Graham whether he had checked that the isolation was correct and Mr Graham informed him that he had not been called to isolate the tank. Mr Berdyshevski asked him to do that straight away. 14. Mr Berdyshevski was involved in making a number of changes to systems at work after the incident. The Confined Space Entry Procedure was updated. A Tank Cleaning Procedure was created and introduced. 15. Mr Berdyshevski was cross-examined in relation to a Record of Interview conducted on 12 April 2018 by Inspector Ball (DX 1). He said that for confined space work a JSA had to be completed and a Confined Space Entry Procedure document needed to be filled out. These documents included consideration of the need to isolate the tank, test the gases and have an exit plan. Those forms had to be completed prior to starting work in the tank. A third person was then required to review the whole process and sign off, giving authority to go inside the tank. This third person was either Mr Budd or Mr Berdyshevski himself. 16. On 7 December 2017 Mr Berdyshevski was not given any paperwork to review and as far as he knew no paperwork was filled out. Mr Tanner had said to him that he was going to go down and assess the job and then come back and fill out the paperwork. 17. In the Record of Interview Mr Berdyshevski described what Mr Graham would do to isolate the tank. Mr Graham would open up the electrical cabinet, take the wires out of the contactor, and then sign off that he had done this and tested the isolation. Mr Berdyshevski said in the Record of Interview that it was the responsibility of Mr Tanner to identify that the tank needed to be isolated, and then ask someone who was qualified to come in and do that. Mr Tanner had followed that procedure previously. Mr Berdyshevski had confidence that Mr Tanner understood what he had to do and had followed procedures in the past. He had done that exact job before. Everyone was happy with the standard of work of Mr Tanner and with his approach to the safety of such jobs. 18. Mr Berdyshevski said in the Record of Interview that Mr Tanner and Mr Mehta were expected to complete the paperwork together for the job. Everyone on the job had to sign off on the JSA and the Confined Space Entry Permit. Mr Yatin Mehta 1. Mr Mehta started employment with Buddco in 2010 and finished his apprenticeship as a fitter and turner in 2016. He was then a Buddco maintenance fitter employed doing plant maintenance, servicing mills, changing filters and dealing with breakdowns. It was day-to-day production maintenance. One of the pieces of equipment on which he worked was the tank. 2. Mr Mehta became aware in late 2017 that there were blockages in the tank in the Blackshop. Mr Mehta attended a toolbox talk at 6.00am on the morning of the incident on 7 December 2017. Mr Berdyshevski conducted the toolbox talk. Mr Eirth and Mr Seaman were there. He could not recall whether Mr Graham was there. During the toolbox talk there was a discussion about a contractor coming in to clean out the tank. 3. Mr Mehta had worked with Mr Tanner before 7 December 2017. This work was dealing with pumps and pipes but did not involve work on the tank in the Blackshop. Prior to 7 December 2017 Mr Mehta had never been involved in the work of cleaning out the tank. 4. Mr Berdyshevski told Mr Mehta to prepare the site including setting up all the drums and cardboard. Mr Mehta understood that he was to help Mr Tanner if he needed something when he was inside the tank. Mr Mehta had training in confined spaces. His training certificate was Exhibit PX 1, Tab 59. He was trained in being a standby person for confined space work. The standby person is there to assist the person inside the confined space, to keep an eye on him and to help him if he is in trouble. Mr Mehta had not performed the role of a confined spaces standby person prior to 7 December 2017. 5. Mr Mehta made an entry in the Ampro system to indicate that the tank was blocked. He recorded that the first job to be done by him was "open up and make tank ready for Craig" (Tcpt 127/30). He understood that the work which needed to be undertaken to assist the subcontractor included opening the top hatch, setting up lights, loosening the bolts on the side hatch and removing the side hatch. 6. Mr Mehta filled out a JSA in relation to the preparation work he was doing such as getting the cardboard and putting it on the floor, obtaining a 44-gallon drum and setting up a light at the top of the tank. 7. Mr Mehta said that he loosened the bolts on the side hatch of the tank. This was done with a spanner. He could not recall using a stepladder to reach the side hatch. He could not recall Mr Seaman coming to assist him with loosening the bolts. Mr Mehta said that when he was loosening the bolts, he had not taken any steps to arrange for the isolation of the tank. He said the following (Tcpt 131/15-25): "Q. And did you understand that the ink holding tank was required to be isolated before the bottom hatch was opened? A. Yes. Q. Had you been provided with any training or information as to how the ink holding tank in the black shop could be isolated? A. No. Q. Had you been provided with any information or instruction as to who was to be contacted if there is a need to isolate the ink holding tank? A. Yes, Rob Graham." 1. Mr Mehta said that he recalled Mr Tanner arriving at the DIC premises on the morning of 7 December 2017. He saw him parking his truck outside the Blackshop. At that stage Mr Mehta was still doing preparatory steps including getting cardboard. They had a conversation about the weather but did not speak about the work to be done. Mr Mehta saw Mr Tanner go over towards the Buddco workshop. Mr Tanner said that he was going to get the paperwork done but he did not show any paperwork to Mr Mehta. 2. Mr Mehta was shown a Buddco Confined Space Entry Permit which had been partly completed (PX 1, Tab 7). He acknowledged that the entry "Yatin 7/12 8.30" was in his handwriting. He could not recall when he wrote that on the document. He noted that the spelling of his name on the front page of the document was incorrect. He could not recall any discussion with Mr Tanner about the document. He thought that Mr Tanner must have given him the document and that he simply inserted his name and copied the same date and time. He could not recollect any discussion with Mr Tanner about the document. 3. Mr Mehta had his attention drawn to that part of the document where there was a tick to indicate that isolation had been carried out. He could not recall seeing that part of the document completed when he put his name on the document. Mr Mehta understood that there needed to be testing of the atmosphere inside the tank. He understood that Mr Tanner would do that. 4. While Mr Mehta did fill out a JSA for his preparatory tasks, and he expected to complete a second JSA with Mr Tanner in relation to the cleaning job, he did not see Mr Tanner with a JSA document. 5. Mr Mehta was shown a Record of Interview conducted on 1 March 2018 by Inspector Ball. His recollection was assisted by seeing that Record of Interview. He did recall seeing Mr Tanner with a gas detector that morning. He recalled loosening the bolts and removing some of the bolts from the side hatch. The bolts were loosened and removed so that the hatch could be moved to the side but not completely opened. Mr Mehta, having seen the Record of Interview said that he had helped Mr Tanner to move the hatch. This was so Mr Tanner could check the gas. He gave the following evidence (Tcpt 140/31-38): "Q. At the time that you removed the bolts and helped Mr Tanner move the side hatch a bit, were you aware of whether any steps had been taken to isolate electrical power to the ink holding tank at that time? A. No. Q. What was your understanding as to whether the tank was required to be isolated before the testing of the atmosphere inside the tank? A. Yes, it's supposed to be isolated before." 1. An edited version of a Record of Interview with Mr Mehta dated 1 March 2018 was tendered (DX 4). An edited version of a Record of Interview with Mr Mehta dated 31 August 2018 was tendered (DX 5). 2. Mr Mehta said that one of the steps that the Buddco crew would take would be to contact Mr Berdyshevski. In turn Mr Berdyshevski would contact Mr Graham to come to the area to undertake the electrical isolation. Mr Mehta understood that Mr Berdyshevski had to sign off on the Confined Space Entry Permit. 3. Mr Mehta was asked about the Buddco Lock Out and Tag Procedure. He was aware that in relation to the tank, there was a lock out mechanism and it was usually the electrician who had to pull the wires out. He had never seen the electrician do that before. 4. After Mr Mehta assisted Mr Tanner in pushing aside the hatch, he saw Mr Tanner go outside the Blackshop. He thought that Mr Tanner was going to do his paperwork. This would include the Confined Space Entry Permit and the JSA. Mr Mehta continued with his preparation of the site area. He put up barrier tape. 5. He was getting the rags and cardboard ready for the work to be done when he heard screams coming from the tank. He was standing near the roller door and went inside the Blackshop to see where the screams were coming from. He saw a ladder near the side hatch to the tank. He went up to the side of the opening of the tank and looked inside, where he saw Mr Tanner who was stuck. Mr Mehta started calling people for help and he went inside the tank himself. He went in through the side hatch. 6. Mr Mehta tried to help Mr Tanner by lifting him up. The anchor blade started turning and it hit Mr Mehta's leg. He recalled another worker named Mamadou Diallo attempting to get in through the side hatch. 7. In cross-examination Mr Mehta was taken to photos at PX 2, Tab 66. In particular, he was taken to a photo which showed the side hatch cover swung fully away from the opening and held up by a rope connected to a pipe. Mr Mehta said that part of his job was to have the side hatch cover removed. This would require two people to lift it off and put it on the ground. The job had not got to that stage when the incident occurred. He could not recall having seen the side hatch cover swung out of the way and held by the rope on the day. 8. Mr Mehta confirmed that no emergency plan had been created for that day, as the job was not that far advanced. An emergency plan would have to be discussed with the contractor who was going into the tank. An emergency plan would have to be written down on the Confined Space Entry Permit and then taken back to the Buddco supervisor for sign off. 9. Mr Mehta agreed that his understanding of the electrical isolation for the tank was that the electrician should come along and pull the wires out. Mr Mehta had no conversation with Mr Tanner about the job that day or how it was to be done, as he never got that opportunity. 10. Mr Mehta confirmed that he had said in his Record of Interview (Tcpt 152/25-33): "Q. Okay. Going back to the preparation work, is the tank required to be isolated before the hatch is opened? A. Yes. Q. So that's normally the first thing that happens? A. Yeah, because it's not confined space anymore if you open. Like, it is a confined space, but it's not safe because there is an access point." 1. Mr Mehta confirmed that his understanding was that the JSA and the Confined Space Entry Permit would be completed by Mr Tanner and himself. He expected that Mr Tanner would have taken the completed documents to Mr Berdyshevski and that Mr Berdyshevski would have contacted the electrician to do the isolation. 2. After the court raised a query about whether a JSA for the job of cleaning out the tank had ever been found, Mr Mehta was asked some more questions in cross-examination. He said that he did fill out a JSA for the preparatory work, but he did not take it back to the office. He usually kept such a document on his person. When he was taken to hospital all of his clothes were removed, and his preparatory JSA was probably lost with his clothes. Mr Robert Graham 1. Mr Graham is an electrician. RJB was contracted by DIC Australia to provide Mr Graham's electrical labour services at the site. He has worked at the DIC premises since 2008. He looked after maintenance and breakdowns and general electrical work. Buddco performed all the maintenance at the site and Mr Graham worked as part of the maintenance crew with Buddco. He attended toolbox talks each morning conducted by the Buddco engineering manager. Buddco provided him with instructions or directions in relation to the maintenance tasks that he was required to undertake that day. The instructions to Mr Graham came from either Mr Berdyshevski or Mr Budd. 2. Mr Graham had no training in confined space work. He had been trained in isolation, tag out and lock out procedures. In relation to maintenance work, one of the tasks of Mr Graham was to carry out isolation and turn off the electrical power to equipment. 3. He had been involved on prior occasions in isolating the tank in the Blackshop. There was an occasion when the side hatch was opened and the anchor blade was blocking access into the tank. He jogged the Start button to move it out of the way and then isolated the tank. On that occasion the anchor blade had stopped directly in front of the side hatch opening. 4. When the switch for the tank was in the Manual position the anchor blade ran continuously providing that the weight was above a set point, which was controlled by the load cells. When the switch was in Automatic mode, the tank would run every half hour. The low-level set point was about 900 kg. In Automatic mode, the blade would rotate from time to time as long as the level of the weight measured by the load cells was above 900 kg. If the weight was slightly below 900 kg and then some weight was put on to the tank, the anchor blade could start. For example, if the weight was close to the set point or just below, and someone pulled on the side of the tank, the anchor blade could start (Tcpt 179/39-49). 5. The tank could be isolated from the motor control centre cabinet. Mr Graham had a key to unlock the door to the cabinet. No-one else had the key. To isolate the tank he unlocked the cabinet, turned off the circuit breaker by pulling a switch down and then pulled the cables out of the bottom of the contactor. Taking the wires out of the contactor made it just a bit harder to power the tank up again. He described this as an extra level of safety. 6. Mr Graham recalled Mr Tanner coming to the site on earlier occasions. The first time he came to the DIC site Mr Graham went to the mezzanine level of the Blackshop and explained to Mr Tanner how he isolated the tank. Mr Graham put his lock onto the circuit breaker and Mr Tanner put his own lock onto the circuit breaker. Mr Graham then removed the cables from the bottom of the overload device. Mr Graham said that he would have signed a JSA for that isolation. There was no specific JSA for isolation, but there was a general JSA which had a section for isolation on it. 7. On the morning of 7 December 2017 Mr Graham commenced work at 6.00am and attended a Buddco toolbox talk run by Mr Berdyshevski. He recalled Mr Mehta, Mr Eirth and Mr Seaman being at the toolbox talk. He overheard a conversation towards the end of the meeting about the tank being cleaned that day. There was no conversation directed towards Mr Graham about this topic. Mr Graham could not recall Mr Berdyshevski telling him anything about his involvement in the cleaning of the tank. Mr Graham then went about his other tasks for the day. He was not contacted at any point to be told that Mr Tanner had arrived at the site to commence the task of cleaning out the tank. He was not contacted by Mr Berdyshevski to isolate the tank. 8. The first time Mr Graham became aware of the incident was after Mr Eirth rang and said that Mr Graham should come to the Blackshop and isolate the tank. When he got to the Blackshop he saw Mr Diallo lying on the floor and he knew something was wrong. He went to the mezzanine level and isolated the tank by opening the cabinet and turning off the circuit breaker. He did not have a locking mechanism with him at the time. He then went to the workshop and got a padlock and put that on the circuit breaker as well. 9. After the rescue crews arrived, further isolation was performed by turning off the main switch on the main distribution board on the ground level of the Blackshop. Mr Graham physically removed the fuses from this unit. 10. Mr Graham was involved in changes to the procedures at the Blackshop after the incident. There was a problem with the Onslow mixer. It could not be locked out, but steps were taken to fix that mechanism. Mr Graham provided a letter on RJB letterhead dated 15 December 2017, confirming that the mechanism had been repaired. Mr Graham was also involved in the installation of emergency stops (E-stops) in the Blackshop. 11. Mr Graham was cross-examined in relation to his Record of Interview dated 22 March 2018 (DX 6). In that Record of Interview, he said that a maintenance worker could not isolate the equipment on their own, because there had to be an electrician who could get inside the panel. He said that he had been involved with the tank cleaning before and he had always isolated the tank. Mr Graham said that Mr Tanner had done the work about three or four times before the day of the incident. He had never had a phone call from Mr Tanner asking him to do the isolation, it was always someone else who called. The only conversation he ever had with Mr Tanner about isolation was on his first visit, when he showed him how the isolation was carried out. 12. In the Record of Interview Mr Graham was asked whether he could think of any reason why Mr Tanner would put off the isolation. He could not think of any reason. He was asked whether it was common practice for workers to work on plant without isolating the plant, and he said that that was "never done". Mr Philip Seaman 1. Mr Seaman commenced working for Buddco in February 2017 as a Trades Assistant. He has since obtained a qualification as a mechanical fitter. His role at Buddco was to respond to breakdowns and perform short term and preventative maintenance. He worked closely with the maintenance fitters including Mr Eirth. He had not assisted with a tank clean in the Blackshop but was aware that there had been blockages in the Blackshop. 2. Mr Seaman attended the toolbox talk conducted by Mr Berdyshevski at 6.00am on the day of the incident. He became aware that the tank was to be cleaned and that Mr Tanner was to turn up to do the job that day. A request was made that he and Mr Eirth assist Mr Mehta in setting up the equipment and the materials for the tank clean. He understood that Mr Mehta was to be the confined space rescue person. Mr Seaman recalled organising a pallet with a dust extractor or fan, a jackhammer, various tools and power cables. He used a forklift to obtain a 44-gallon drum. He brought a couple of pallets of drums to the roller door at the back of the Blackshop. He assisted in setting up the lighting at the top of the tank and the extraction fan which was to be placed at the top. 3. Mr Seaman brought a ladder to the area adjacent to the side hatch. 4. Mr Seaman returned to the Blackshop and found Mr Mehta at the side hatch. When he looked at the side hatch there were two bolts remaining and Mr Mehta was trying to remove the bolt closest to him. Mr Mehta asked Mr Seaman to hold the side hatch in position while he removed the bolt. Mr Mehta asked for help in assessing the material inside the side hatch. Mr Seaman manipulated the lid far enough for Mr Mehta to look inside the tank to make his assessment of the material in it. The side hatch was then left hanging by one bolt. Mr Seaman asked if there was anything else he could do and since there was not, he moved on. 5. While at another part of the site, Mr Seaman was approached by a worker known as "Prince" who told Mr Seaman and Mr Eirth to go to the Blackshop. Mr Seaman saw Mr Diallo talking through the open side hatch. He saw Mr Diallo lift his leg up and put it inside the side hatch and then saw him be ejected out of the side hatch and onto the ground. Mr Diallo was in extreme pain and his leg was broken. Mr Seaman then went up the ladder to the opening of the side hatch and looked in. He saw Mr Mehta was in the ink underneath the anchor blade and Mr Tanner was up against the wall of the tank being pinned by the anchor blade. Both were yelling at him to turn the power off. Mr Seaman passed some tools to Mr Mehta to assist him in digging himself out of the material. 6. In cross-examination Mr Seaman was taken to photographs at PX 2, Tab 66. The photograph at p 386 showed the side hatch pivoted on one bolt. Mr Seaman said that he recalled the bolt being higher up on the flange. When he left the side hatch hanging down, it obstructed over half of the access through the side hatch. 7. Mr Seaman was taken in cross-examination to his Record of Interview dated 22 March 2018 (DX 3). He was asked some general questions about JSAs, auditing and spot checking, and the training he had in identifying potential hazards. Mr Scott Eirth 1. Mr Eirth was employed by DIC as a Maintenance Manager. He worked as part of the Buddco maintenance team. He was involved in fixing breakdowns and servicing machinery to keep the factory running. As a maintenance fitter he had been involved with the problem of the blockages in tank. He recalled a subcontractor being brought in to clean out the tank. He had never played any role in the cleanout but had done tidying up afterwards. Mr Eirth had no confined space training. He had never had any role in electrical isolation of the tank. He gave the following evidence (Tcpt 221/20-24): "Q. Were you ever aware of any circumstances where, when that hatch had been taken off, there was a need to have the tank continue to have electricity running or power running to it? A. Not when the hatch is off, no. It should be isolated." 1. Mr Eirth attended the toolbox talk on the morning of 7 December 2017. Mr Berdyshevski asked Mr Mehta to be the spotter for the clean out of the tank and Mr Mehta, Mr Eirth and Mr Seaman were asked to set up the equipment for Mr Tanner. Mr Eirth and Mr Seaman took an exhaust fan and a light from the workshop down to the Blackshop. They did not set them up, they just left them there. Mr Eirth saw Mr Tanner at the Buddco workshop. He said hello but did not discuss the job with him. Mr Eirth did not see Mr Tanner in the Blackshop that morning. 2. Mr Eirth was at another part of the site when Prince approached him and asked him to come to the Blackshop. When he arrived, Mr Eirth heard screams coming from the tank. He saw Mr Diallo arrive. Mr Eirth went upstairs and tried to press all the E-stops he could, but they did not do anything to isolate the tank. He had no knowledge of how to isolate the tank. He had never seen anyone do it. 3. When he went back to the floor of the Blackshop he saw Mr Diallo on the floor in a fair bit of pain. He did not see inside the tank. Later in the morning Mr Eirth was involved with the rescue personnel in lifting the motor and the gearbox from the top of the tank. 4. Mr Eirth was cross-examined in relation to a Record of Interview dated 1 March 2018 (DX 7). 5. In the Record of Interview Mr Eirth said that he had never seen anyone work on equipment without it being isolated. Mr Aaron Pfeiffer 1. Mr Pfeiffer worked for DIC between 2017 and 2021 as the Production Manager. He reported to Mr Roy. Mr Pfeiffer was not involved in any discussions about the cleanout of the tank. He was not involved in any of the planning for that task. He was not aware that the cleanout was to occur on 7 December 2017. Mr Mamadou Diallo 1. Mr Diallo was not called to give oral evidence but an edited version of his Record of Interview dated 29 November 2019 was tendered (PX 13). Mr Diallo was employed by DIC as a Production Operative. He recalled being called to the Blackshop on 7 December 2019. He saw the two men trapped in the tank. 2. He started to get into the tank to help the two trapped men but the mixer started again after about two or three seconds. It knocked his foot and cut his leg. Mr Diallo freed himself and jumped out of the tank. He suffered great pain in his leg. Mr Damien Coad 1. Mr Coad was called as a witness by the defendant. He had been employed as a Fitter and Machinist by Buddco at the DIC site. He did maintenance work and project work. He reported to Mr Budd and Mr Berdyshevski. He had had prior contact with Mr Tanner. 2. Mr Coad had carried out an induction for Mr Tanner when he first came to the site. He was shown a Confined Space Entry Permit dated 2 December 2016 (PX 1, Tab 32). The person entering the confined space was Mr Tanner. Mr Coad had signed the document to permit the work to be done. 3. Mr Coad had also previously done work with Mr Craig Tanner, when Mr Coad was the standby person assisting Mr Tanner. On this occasion he and Mr Tanner completed the JSA to identify the tasks to be performed and to go through the procedure for the confined space work. Once Mr Tanner and Mr Coad had completed the Confined Space Entry Permit, they made contact with Mr Graham, the electrician. Mr Graham came along and isolated the board by pulling out the fuses and putting a lock on the main switch. When the isolation of the power was completed, this section of the JSA was ticked off. Once the confined space paperwork was filled out, it was taken to Mr Budd or Mr Berdyshevski for sign off to say that all procedures had been taken and that entry could take place. 4. At some stage the side hatch had to be opened. Air was blown in through the top of the tank through the top hatch to clear the atmosphere in the tank. The side hatch was opened "after the completion of all paperwork and the sign off from management" (Tcpt 323/2). After the paperwork was completed and there was a sign off from management, the side hatch would be unbolted and completely removed and stored against the wall. 5. Mr Coad was shown the photograph at PX 2, Tab 65, which depicted the side hatch swung out of the way and held up with rope attached to a pipe. He had not seen anything like that before. That was not the way he did the work with Mr Tanner on the previous occasion. 6. Having worked with Mr Tanner previously, Mr Coad said that his impression was that he was competent in his attention to safety and detail (Tcpt 325/35). 7. Mr Coad had an involvement with updating procedures after the incident. 8. Mr Coad confirmed in cross-examination that after completion of the JSA and completion of the Confined Space Entry Permit, and before any further step was taken in relation to the tank, steps were taken to arrange for the isolation of all energy to the tank. 9. Mr Coad said that the tank was not isolated when it was opened up to be vented, but it was isolated in order to provide access to the interior of the tank. The tank was vented by removing the bolts from the side hatch door and then relocating the door with a bolt at the top and a bolt at the bottom to allow air flow from the tank but not enough space for a person to get in (Tcpt 327/45). He said that there was only about a three or four inch gap to allow for venting. When the side hatch was taken off for this purpose, there was still electrical energy connected to the tank. He said that the tank would be isolated before any work was actually done inside the tank. 10. In cross-examination Mr Coad said that when he had assisted Mr Tanner on previous occasions there was no written procedure for the tank cleaning at the DIC site. He said it was a case of filling in the JSA and there was no standard procedure (Tcpt 333/35). He confirmed in cross-examination that the side hatch door would always be undone before the isolation (Tcpt 332/4). Mr Evert Van Oeveren 1. A statement by Mr Van Oeveren was admitted into evidence (PX 4). Mr Van Oeveren worked at the DIC site between 1988 and 2008 as the Engineering and Maintenance Manager. He was a qualified mechanical engineer. As early as 2003 there were problems with sediment blocking the tank. To deal with this Mr Van Oeveren commissioned work on an agitator for the tank so that the agitator would slowly stir the ink and prevent it from settling. The agitator was a U-shaped anchor blade rotating on a central shaft. The electric motor that powered the agitator was located on the top of the tank. Mr Van Oeveren attached to his statement a detailed drawing of the anchor blade which he commissioned. He also annotated photographs of the Blackshop to indicate the tank and various other pieces of equipment. Evidence of SafeWork NSW Inspector Mr Prasad De Silva 1. Mr Prasad De Silva was a State Inspector who was part of the engineering team with SafeWork NSW. He held the degrees of Bachelor of Engineering and a Masters of Management. On 18 December 2017 he attended the DIC premises with Inspector Simurina and Mr Phillip Roy. Inspector De Silva expressed the view, and recorded in his notebook, that interlocking of the side hatch was not practicable. 2. In cross-examination Inspector De Silva said that it was part of his task to assist SafeWork NSW by providing technical advice or technical expertise in relation to the operation of machines. The purpose of his attendance at the site was to assist Inspector Simurina in determining whether or not there had been compliance with Improvement Notices. 3. He acknowledged that he told the inspectors not to require an interlocking device to be fitted. He took the view that because maintenance had to be done, an interlocking device was not appropriate. Inspector De Silva confirmed that it was still his view that interlocking was not practicable. Documentary Evidence Company Information 1. Buddco was incorporated in 2009. The sole director since 2012 has been Mr Josh Budd (PX 1, Tab 1). At the date of the incident Mr Budd was the Managing Director. Mr Berdyshevski was the Engineering Manager and reported directly to Mr Budd. Mr Coad (fitter and turner), Mr Mehta (fitter and turner) and Mr Seaman (trainee mechanical engineer) reported directly to Mr Berdyshevski (PX 1, Tab 2). Contracts Between Parties on Site 1. DIC and Buddco entered into a written agreement dated 9 September 2009 by which DIC appointed Buddco for five years to supply labour only for the design, construction, installation, commissioning, maintenance and servicing of ink manufacturing plant and associated equipment (PX 1, Tab 3). By a letter dated 4 August 2014 that agreement was extended to run from 9 September 2014 for a further period of five years (PX 1, Tab 4). 2. By an undated letter RJB agreed to provide electrical labour services to DIC. All labour rates and materials were to be agreed between the parties (PX 1, Tab 5). Drawings of the Tank and the Site 1. Exhibit PX 1, Tab 8 was a drawing of the tank. The U-shaped anchor blade can be seen, as well as the motor and the gearbox on top of the tank. 2. The prosecutor also tendered a Blackshop flow diagram (PX 1, Tab 9). 3. A plan of the DIC site was tendered (PX 1, Tab 10). The Blackshop is indicated in the top left of the plan. Immediately to the left of the Blackshop is the area where Buddco had its office and workshop. 4. The modification of the tank to introduce the U-shaped blade and to install automatic mixing was the subject of a Scope of Works dated 10 August 2012 (PX 1, Tab 11). Blackshop Tank Cleaning Before Incident 1. The prosecutor tendered documentation regarding several occasions prior to 2017 when the tank was cleaned by a contractor. The first record of this cleaning was dated 27 January 2011, when the tank was cleaned with solvent (PX 1, Tab 12). 2. A document created on 6 June 2012 recorded that the tank needed cleaning as it was full of hard pigment at the bottom (PX 1, Tab 13). A document created on 13 June 2012 recorded that Mr Eirth carried out the task of "put door back on to holding tank for production" (PX 11, Tab 14). 3. On 10 January 2013 a record was made that Mr Graham had modified the controls on the tank in the Blackshop (PX 1, Tab 15). 4. On 15 January 2013 Mr Graham was again engaged to install a new piece of equipment on the tank (PX 1, Tab 16). 5. The tank was cleaned out on 22 April 2014 by a business known as "Dry Ice Tech" (PX 1, Tab 17). The job was invoiced to Buddco. Mr Tanner was the person who actually did this work. 6. A further invoice was raised on 21 January 2015 by Dry Ice Tech (PX 1, Tab 18), directed to Buddco, for confined space work to the tank. Again, Mr Tanner did this work. 7. A document dated 2 March 2016 recorded that the tank was inspected and cleaned out. 500 kg of hard pigment was removed (PX 1, Tab 19). Mr Mehta and Mr Pretorius, both part of the Buddco crew, were involved in this job. 8. Buddco created a document dated 30 June 2016 which said: "Get two offsite confined space guys to clean out black holding tank, build-up on top of the blades" (PX 1, Tab 26). The job was recorded as completed on 15 August 2016. 9. The tank was again cleaned out by Mr Tanner on 5 July 2016. He sent an invoice on that date (PX 1, Tab 22). The prosecutor also tendered a JSA for that date, apparently signed by Mr Tanner (PX 1, Tab 21). 10. Buddco sent a 6-page invoice no. 1908 to DIC dated 29 July 2016. Much of the invoice related to parts and equipment provided by Buddco for other machinery at the DIC site. One of the entries related to "industrial cleaning of holding tank in Blackshop" (PX 1, Tab 23). 11. Buddco created a document dated 3 August 2016 relating to unblocking the tank. Mr Eirth was nominated as being involved (PX 1, Tab 24). 12. Mr Tanner invoiced Buddco for cleaning out the tank on 23 August 2016 (PX 1, Tab 25). 13. Buddco sent a tax invoice to DIC dated 31 August 2016. One of the many items was: "Industrial cleaning of holding tank in Blackshop x 1 standby man 8 hours x 1" (PX 1, Tab 27). 14. The prosecutor tendered a JSA for tank cleaning created by Mr Tanner and dated 12 September 2016. This related to the "red tank", not the Blackshop tank (PX 1, Tab 28). 15. Buddco created a document dated 16 November 2016 relating to the job of "Unblock line near the pump still no good holding tank is blocked". Mr Mehta created this document (PX 1, Tab 30). 16. Buddco created a document dated 16 November 2016 for the task "Unblock Blackshop holding tank, remove six T piece, tank is still block [sic] inside with hard pigment". Mr Mehta and Mr Eirth were nominated on this document (PX 1, Tab 31). 17. The prosecutor tendered a DIC Confined Space Entry Permit dated 2 December 2016. The person entering the confined space was Mr Craig Tanner and the standby person was Mr Michael Tanner (PX 1, Tab 32). The box for isolation of, inter alia, electrical services, was ticked. Buddco authorised this work by the signature of Mr Coad (PX 1, Tab 32). 18. The prosecutor tendered a JSA for "tank cleanup" dated 2 December 2016. This was signed by Mr Craig Tanner and by Mr Michael Tanner (PX 1, Tab 33). 19. Mr Tanner invoiced Buddco on 2 December 2016 for industrial cleaning of the Blackshop tank and provision of a standby man (PX 1, Tab 34). 20. Buddco invoiced DIC on 22 December 2016. This invoice included an item of "industrial cleaning of holding tank in Blackshop x 1 standby man for confined space x 1" (PX 1, Tab 35). 21. Buddco tendered a JSA signed by Mr Tanner and dated 18 April 2017 for the job of "dry ice blasting" (PX 1, Tab 37). Documents Leading up to the Incident 1. On 13 November 2017 Mr Packham sent an email to Mr Furlong, Mr Berdyshevski and Mr Shu advising that there were ongoing blockages in the Blackshop tank. The tank was now "at 830 kg and a visual inspection says we have a problem of needing to clean". Mr Packham sent another email on 14 November 2017 confirming that the Blackshop stirrer blade was not broken and that the tank should be cleaned out "sooner rather than later". He said "We have some 800 kg to dig out" (PX 1, Tab 38). 2. On 14 November 2017 Mr Furlong sent an email to Mr Berdyshevski and Mr Roy, with a copy to Mr Budd and Mr Pfeiffer on the subject of "Shut down work". Mr Furlong said that the Blackshop tank had to be cleaned out. Mr Berdyshevski replied on the same date asking Mr Furlong whether the tank could be made available on a Saturday rather than during a shutdown (PX 1, Tab 38). 3. On 16 November 2017 Mr Berdyshevski sent an email to Mr Packham and Mr Furlong, with a copy to Mr Budd, Mr Roy and Mr Shu. He said that the first opportunity for a cleaner to get into the Blackshop tank would be Saturday, 25 November. Mr Furlong sent an email in reply on the same date saying that he had no problem with that date. Mr Berdyshevski sent an email on the same date asking Mr Roy whether he had a preference as there were a lot of cleaning costs in that month. Mr Roy sent an email on the same date acknowledging that there were a lot of costs, but saying that if it was going to affect production it would need to be resolved (PX 1, Tab 38). 4. On 16 November 2017 Mr Roy sent an email to Mr Furlong, Mr Berdyshevski and Mr Packham, with a copy to Mr Budd and Mr Shu. The subject was "Blackshop holding tank cleaning". The email referred to planning a time for the cleanout and said: "PS Ensure closed space, and all safety lockouts are employed!" (PX 1, Tab 38) 1. On 14 November 2017 Mr Berdyshevski sent an email to Mr Tanner, with a copy to Mr Budd. He said: "Hi Craig, It's that dreadful time again when the Blackshop tank is in need of cleaning. We were hoping we could book you in in the near future to do the job. What are your thoughts?" 1. Mr Tanner said that he could do the job and asked when a suitable day would be (PX 1, Tab 39). 2. Mr Mehta created a document on 1 December 2017 relating to the need to unblock and clean the Blackshop holding tank (PX 1, Tab 41). Documents Created on the Day of the Incident 1. At 6.13am on 7 December 2017 Mr Mehta made an entry in the AMPRO Report for the following job description: "Holding tank is block [sic], open up and make tank ready for Craig" (PX 1, Tab 6). 2. On 7 December 2017 Mr Tanner arrived at the DIC site and signed the Visitor Sign In Sheet at 7.30am, indicating that he was visiting the Blackshop (PX 1, Tab 40). 3. A Confined Space Entry Permit on Buddco letterhead was partly completed on 7 December 2017 (PX 1, Tab 7). This is the document which is required to be filled out in consultation between the person entering the confined space and the standby person. I infer that most of it was filled out by Mr Tanner. On the first page, the standby person is said to be "Yitan". This must have been written by Mr Tanner, as it is not the correct spelling of Mr Mehta's first name, which is Yatin. 4. The location of the task was the Blackshop and the description of the task was "tank clean". 5. The second box on the first page was headed "Risk Control Measures". It dealt with "Isolation". There were ticks placed alongside isolation of "mechanical/electrical drives" and "hydraulic/electric/gas/power". Against the phrase "locks and/or tags have been affixed to isolation points", a circle had been placed around the word "Yes". The fact is that there was no isolation of the electrical drive to the anchor blade and no locks or tags had been affixed to isolation points. The only possible isolation point which would have a lock affixed was inside the locked control cabinet, which could only be opened by Mr Graham with his key. 6. In a box headed "Atmosphere" there was a handwritten recording of 20.9% oxygen and 0% flammable airborne contaminants. Mr Mehta did not do a gas reading inside the confined space and nor did any other DIC or Buddco person. These entries must have been written by Mr Tanner, and he must have been the person who did the gas test inside the confined space. 7. At the foot of the first page the "Authority To Enter" box has been left unsigned and undated. This accords with the evidence concerning the Buddco procedure, which was that after a JSA and a Confined Space Entry Permit for the work in the confined space had been completed by both workers involved, it had to be taken to Mr Berdyshevski for him to sign off and give authority to enter the confined space. 8. On the second page of the Confined Space Entry Permit, Mr Tanner has written his name and the date of 7/12 and the time of 8.30. Mr Mehta wrote his name immediately underneath, by writing his first name Yatin. He also put the date of 7/12 and a time of 8.30. These two names, together with the date and time, are under a box headed "Entry". Immediately above that are the words: "I have been advised of and understand the risk control measures and precautions to be observed with the entry and tasks in the confined space". 1. I infer that Mr Mehta simply wrote his name under that of Mr Tanner, but I find that he had not even discussed the risk control measures (which were incorrectly stated on the first page of the Confined Space Entry Permit) with Mr Tanner. I accept the evidence of Mr Mehta that he was still doing his setting up work and had not had a meeting with Mr Tanner to discuss hazards and control measures. 2. No JSA for the tank cleaning task was ever found. 3. Two photographs were retrieved from Mr Tanner's mobile phone. The first (PX 1, Tab 40, p 115) is a photograph which Mr Tanner took of himself with the tank immediately behind him. Mr Tanner is wearing white overalls, safety glasses and has yellow earmuffs draped around his neck. It appears that the open hatch is immediately behind Mr Tanner's left shoulder. 4. The second photograph (PX 1, Tab 40, p 116) has been taken looking through the open side hatch into the interior of the tank. The shaft of the anchor blade can be seen as well as the funnel arrangement and material which I take to be ink pigment or sludge. Buddco Work Health and Safety Material 1. In an email dated 30 May 2014 from Ms Lisa Reid to Mr Budd and others, on the topic of "Policies Revised" (PX 1, Tab 44), the following was said: "We have updated our confined space policy to ensure that it is the responsibility of the licensed contractor to provide the permit to work etc. Originally we had a permit included in the policy but believe that we do not have the expertise (outside of our maintenance team) to be asking our managers/supervisors on site to complete these and the contractor who is licensed to enter confined spaces should be able to provide the information. Basically we are putting the onus back on them." 1. The Buddco Workplace Health and Safety Management Plan was dated 1 August 2014 (PX 1, Tab 45). It was a plan specifically for operations at the DIC site. Page 30 was headed "Isolation Tagout and Lock Out of Equipment". It said: "All equipment must have a means of adequate isolation of that equipment and a means of 'proving' isolation of that equipment. Hazardous energy must be identified and controlled by release of that energy. The following energy sources may be but not limited to: • Electrical … Risk Assessments, Job Safety Analysis, and Safe Work Method Statements are to be prepared prior to commencing work on equipment that contains stored energy. Isolation, Lockout and Tagout procedures are to be planned and implemented when carrying out these isolations. The steps taken for Isolation and Tagout procedures are to be recorded on the risk assessment, JSA or SWMS. Equipment must be verified a [sic] being 'de-energised' prior to commencing work on the equipment". 1. Buddco had a record of audits carried out on Safe Work Method Statements (SWMSs) and JSAs (PX 1, Tab 46). This record showed that from time to time audits were carried out in relation to employees and in relation to safety documents. 2. Buddco had an Employee WHS Induction Manual dated July 2015 (PX 1, Tab 47). Page 19 of the WHS Manual dealt with isolation procedure for mechanical equipment through lockout and tagout. It commenced: "Each year, many workers are injured or killed by the uncontrolled release of hazardous energy. Many of these types of accidents could have been prevented by proper lockout/tagout procedures which ensure that equipment is kept from being set in motion and endangering workers during maintenance or repair. To assist staff understand the use of lockout/tagout, a set of guidelines have been prepared." 1. After defining lockout and tagout, the document had a sub-heading "When Should You Lock or Tag Out?". It said: "Lockout/tagout is necessary whenever you are performing service or maintenance around any machine where you or your colleagues could be injured by unexpected startup of the equipment or release of stored energy. Some jobs for which lockout/tagout should be used are: • When you must remove or bypass a guard or other safety device. • When you must place any part of your body where you could be caught by moving machinery. …" 1. The document said that energy isolation and lockout/tagout were only to be applied by trained employees authorised to perform service or maintenance. Isolation of services had to be conducted only by an expert such as an electrician. It also said: "Isolation of equipment requiring maintenance or repair by an external contractor (e.g. dust collection, air conditioning) shall be performed by Maintenance Supervisor and they must exchange lockout/tagout information with the contractor." 1. Page 20 of the WHS Manual was headed "Ten Steps to Lockout/Tagout of Hazardous Energy". It said: "1. Think, plan and check: Identify all parts of any systems that need to be shut down. Find the switches, valves or other devices that need to be locked out. Follow whatever procedure is correct for the shutdown of equipment so that you don't endanger anyone. 2. Communicate: Tell staff affected by the lockout/tagout that you will be locking out the equipment and why." 1. Page 20 of the WHS Manual also included the steps of locating all power sources, neutralising all power at its source, locking out all power sources and verifying that all equipment is isolated. It required each worker to have a personal lock to be used for lockout/tagout. 2. On p 21 of the WHS Manual there was a heading "If you must temporarily reactivate equipment you are working on". It said: "• Remove unnecessary tools from the work area and ensure everyone is clear from the equipment. • Remove the lockout/tagout devices and re-energise the system. • As soon as the energy is no longer needed, isolate the equipment and re-apply lockout/tagout. …" 1. Page 22 of the WHS Manual set out a flow chart for the 10 steps for lockout procedures. 2. Buddco had a Procedure for Confined Space Entry dated 16 July 2015 (PX 1, Tab 48). It had been prepared by, inter alia, Mr Berdyshevski, Mr Coad and Mr Mehta. 3. The Procedure applied to all persons working for or contracted by Buddco. The scope included work by Buddco staff and work by contractors to Buddco (PX 1, Tab 48, p 206). Part 2 of the Procedure (PX 1, Tab 48, pp 209-210) dealt with "Entry into Confined Spaces by Buddco Contractors". After stating that contractors had to have nationally recognised confined space training and that the contractor had to have a certified standby person, Part 2 said: "Buddco will be responsible for: 1. Isolation, locking out and danger/warning tagging of hazardous services provided to the confined space. 2. Isolation, locking out and tagging out of hazardous services in the confined space that will present a hazard to the work being carried out in the confined space. 3. Communication with/to the contractor on what isolations, locking out and tagging procedures have taken place." 1. Part 2 of the Procedure also said that Buddco was responsible for "reviewing the risk assessment and confined space entry permit prior to the commencement of work in the particular confined space by the contractor". 2. Part 2 of the Procedure also listed the matters for which the contractor was responsible. The Procedure did not state that the contractor was responsible for isolation, locking out and tagging out of hazardous services provided to the confined space. This was a responsibility fairly and squarely placed on Buddco. 3. The Procedure required the Confined Space Entry Permit and the associated Risk Assessment to be completed by the contractor performing the work. The Permit then needed to be signed off by the Buddco Site Supervisor. Only then would the contractor be allowed to commence work. 4. Part of the Buddco Procedure for Confined Space Entry was a proforma Confined Space Entry Permit (PX 1, Tab 49). A document in this form was partly completed by Mr Tanner and Mr Mehta as referred to above. 5. Buddco had a Workplace Health and Safety Risk Register dated 1 December 2016 (PX 1, Tab 50). On a page headed "Work Area: Factory Areas" (PX 1, Tab 50, p 222) the Register dealt with tasks undertaken by Buddco at the DIC site involving "maintenance of plant and equipment" and "isolation of equipment (so that work may be carried out on that equipment)". The controls included "isolation of equipment" and "a system of Lockout/Tagout procedures". Personnel and staff were to be trained in the use of Isolation/Lockout procedures and were required to "plan isolations prior to commencing the tasks". Further, staff were required to "prove equipment is inoperable or dead after isolation". 6. Buddco had a "Workplace Health and Safety Consultative Statement" dated 2016-2017 (PX 1, Tab 51). This Statement recorded the agreement between Buddco management and Buddco employees on the methods to be employed in the workplace for consultation on health and safety matters. These methods included toolbox team meetings, workplace inspections carried out by Buddco, reviews of SWMSs, reviews of JSAs and documents including the Buddco Employee WHS Induction Manual. 7. The Workplace Health and Safety Consultative Statement was signed by, inter alia, Mr Budd, Mr Eirth, Mr Berdyshevski, Mr Coad, Mr Mehta and Mr Graham. DIC Work Health and Safety Material 1. DIC had a Quarterly Factory Safety Inspection Checklist (PX 1, Tab 53) and a Contractor Induction Manual (PX 1, Tab 54). 2. DIC had its own Confined Spaces Procedure dated May 2014 (PX 1, Tab 56). This stated that DIC did not permit any of their employees to enter or work in a confined space on any DIC site. Confined spaces were only to be entered by contractors holding a recognised confined space permit, and there had to be a certified standby person with the contractor. 3. DIC also had a Workplace Health and Safety Manual (PX 1, Tab 57). Training and Qualifications 1. The prosecutor tendered the following training documents: 1. Lockout Procedures for Mr Graham and Mr Mehta dated 10 March 2014 (PX 1, Tab 58). 2. A Confined Space Standby Card for Mr Mehta indicating that he completed his training on 30 June 2015 (PX 1, Tab 59). 3. DIC Training Records for Mr Berdyshevski, Mr Graham, Mr Mehta and Mr Tanner (PX 2, Tab 61). 4. Buddco Employee Training and Competency record for Mr Mehta (PX 2, Tab 62). Photographs 1. The prosecutor tendered a number of photographs which speak for themselves. The photographs fell into the following categories: 1. Two photographs retrieved from Mr Tanner's mobile phone and referred to above (PX 2, Tab 63). 2. Photographs of the inside of the Blackshop (PX 2, Tab 64). 3. Three photographs provided by NSW Ambulance of Mr Tanner trapped in the tank, with the bottom of his boots showing (PX 2, Tab 65). 4. Various photographs taken by a WorkCover inspector (PX 2, Tabs 66, 67, 68 and 70). 5. A diagram of the agitator drawn by Mr Van Oeveren (PX 2, Tab 69). Industry Guidance Material Australian Standard AS 2865-2009 Confined Spaces 1. The Standard (PX 2, Tab 71) says that it outlines "the minimum requirements for establishing a safe system for entry and the conduct of tasks in or on a confined space" (PX 2, Tab 71, p 403). 2. The objective of the Standard is "to provide designers, manufacturers, suppliers, modifiers and users of plant equipment and services that contain confined spaces with the means to reduce the risks to health and safety of those working in or near confined spaces" (PX 2, Tab 71, p 405). 3. Section 1.5 of the Standard contains definitions. Section 1.5.8 says: "Entry (to a confined space) When a person's head or upper body is within the boundary of the confined space. NOTE: Inserting an arm for the purpose of atmospheric testing is not considered as entry to a confined space." (PX 2, Tab 71, p 407) 1. Section 2.9 of the Standard deals with documentation. Section 2.9.1 says that documentation should be established to at least: outline the system for hazard/risk assessments and risk control; set out confined space entry requirements; and detail safe systems of work (PX 2, Tab 71, pp 413-414). 2. Section 3.1.3 of the Standard deals with task-related hazards and other occupational hazards. These include: "(m) Entrapment from the operation of moving equipment" (PX 2, Tab 71, pp 415-416) 1. Section 3.4 of the Standard deals with risk control measures. Risks should be eliminated, or if this is not possible, minimised by the implementation of appropriate risk control measures. The Standard incorporates the well-known hierarchy of risk control measures in s 3.4.2 (PX 2, Tab 71, p 421). 2. Section 3.4.5 of the Standard deals with isolation requirements. Prior to any person entering a confined space, all hazardous services should be isolated to prevent "the activation or energizing in any way of equipment or services that could pose a risk to the health or safety of persons within the confined space" (PX 2, Tab 71, p 422). 3. Section 3.4.6 of the Standard deals with isolation factors and says: "It may be necessary to withdraw a confined space from service before it is prepared for entry. … Positive steps should be taken to achieve the following: … (b) De-energization and lockout, or if lockout is not feasible then tag-out, or both lockout and tag-out, of machinery, mixers, agitators and other equipment containing moving parts in the confined space. This may require additional isolation, blocking or de-energizing of the machinery itself to guard against the release of stored energy (eg springs)". (PX 2, Tab 71, p 422) 1. Section 3.4.8 of the Standard deals with methods of isolation from moving parts. It says: "Before entry is permitted to any confined space that in itself can move, or in which agitators, fans or other moving parts that might pose a risk to persons are present, the possibility of movement should be prevented by using one of the methods described below… Procedures for entering the confined space should be as follows: (a) The person entering a confined space or a competent person authorized in writing should place a lock or tag, or both, on the open circuit breaker or open isolating switch supplying electric power to equipment with hazardous moving parts. This is to indicate that a person is in a confined space and that such isolation should not be removed until all persons have left the confined space. When a lock is used, the key should be kept in the possession of the person making entry or the competent person. Spare keys should not be accessible except in an emergency. … (e) Where the locking or tagging is undertaken by a competent person authorized in writing, all persons entering the confined space should verify, or have it verified to them, that isolation is effective prior to their entry." (PX 2, Tab 71, p 423) WorkCover NSW, Confined Spaces Code of Practice, December 2011 1. This Code (PX 2, Tab 72) is an approved Code of Practice under s 274 of the Act. It applies to persons conducting a business or undertaking who have management or control of a confined space (PX 2, Tab 72, p 464). Section 5.5 of the Code deals with isolation. It says that all potentially hazardous services should be isolated prior to any person entering the confined space. Isolation should be undertaken to prevent the activation or energising of machinery in the confined space (PX 2, Tab 72, p 483). This section says that before entry is permitted to any confined space in which moving parts that may pose a risk to workers are present, the possibility of movement should be "eliminated". The equipment should be de-energised and machinery should be locked out and tagged out (PX 2, Tab 72, p 485). Australian/New Zealand Standard AS/NZ 4024.1503: 2014 Safety of Machinery 1. Part 1602 of the Australian/New Zealand Standard AS/NZ 4024.1503: 2014 Safety of Machinery dated 30 June 2014 (PX 2, Tab 73, p 608) deals with interlocking devices associated with guards. Part 1603 of the Standard deals with interlocks and guards for the prevention of unexpected start-up (PX 2, Tab 73, p 680). It specifies designed-in means aimed at preventing unexpected machinery start-up to allow safe human interventions in danger zones. The Standard applies to unexpected start-up from electrical power. Machines must be provided with means intended for isolation and energy dissipation (PX 2, Tab 73, p 686). Isolation devices shall be capable of being locked or otherwise secured in the "isolated" position (PX 2, Tab 73, p 687). 2. Part 1604 of the Standard deals with design of controls, interlocks and guarding and emergency stops (PX 2, Tab 73, p 702). Machines must be provided with a means of permitting them to be locked in the off (isolated) position, for example by padlocks. When so locked, remote as well as local closing shall be prevented (PX 2, Tab 73, p 729). Devices for switching off for prevention of unexpected start-up must be provided (PX 2, Tab 73, p 730). WorkCover NSW, Managing the Risks of Plant in the Workplace Code of Practice, July 2014 1. This Code (PX 2, Tab 74) is an approved Code of Practice under s 274 of the Act. Section 4 of the Code deals with specific control measures. Section 4.1 says that: "A guard is a physical or other barrier that can perform several functions, including preventing contact with moving parts or controlling access to dangerous areas of plant" (PX 2, Tab 74, p 755). An example given of a means of guarding plant is "interlocked physical barriers". An interlock guard is connected to a plant's operational controls so that the plant is prevented from operating until the guard is closed (PX 2, Tab 74, p 756). Safe Work Australia Code of Practice, How to Manage Work Health and Safety Risks, December 2011 1. This Code (PX 2, Tab 75) is an approved Code of Practice under s 274 of the Act. Section 4.1 of the Code sets out in diagrammatic form the hierarchy of risk control. The highest level of protection and the highest level of reliability of control measures is: "Level 1 Eliminate the Hazards". 2. Below Level 1 is Level 2 which specifies: "Substitute the hazard with something safer. Isolate the hazard from people. Reduce risks through engineering controls." 1. Below Level 2 is Level 3 which provides: "Reduce exposure to the hazard using administrative actions. Use personal protective equipment." 1. Level 3 in the hierarchy provides the lowest level of health and safety protection and the lowest level of reliability of control measures. Work Health and Safety Regulation 2017 1. Part 4.3 of the Work Health and Safety Regulation (the Regulation) deals with confined spaces. Clause 66 of the Regulation provides that "a person conducting a business or undertaking must manage, in accordance with Part 3.1, risks to health and safety associated with a confined space at a workplace including risks associated with entering, working in, or in the vicinity of the confined space (including a risk of a person inadvertently entering the confined space)". 2. Clause 5 of the Regulation contains the following definition: "'Entry', by a person into a confined space, means the person's head or upper body is in the confined space or within the boundary of the confined space." 1. The reference to Part 3.1 is a reference to the hierarchy of control measures. Clause 36 of the Regulation provides as follows: "36 Hierarchy of control measures (1) This clause applies if it is not reasonably practicable for a duty holder to eliminate risks to health and safety. (2) A duty holder, in minimising risks to health and safety, must implement risk control measures in accordance with this clause. (3) The duty holder must minimise risks, so far as is reasonably practicable, by doing 1 or more of the following— (a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk, (b) isolating the hazard from any person exposed to it, (c) implementing engineering controls. (4) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by implementing administrative controls. (5) If a risk then remains, the duty holder must minimise the remaining risk, so far as is reasonably practicable, by ensuring the provision and use of suitable personal protective equipment. Note— A combination of the controls set out in this clause may be used to minimise risks, so far as is reasonably practicable, if a single control is not sufficient for the purpose." 1. Other clauses in Part 4.3 deal with a Confined Space Entry Permit, signage, communication and safety in monitoring, atmosphere, flammable gases and vapours, fire and explosion, emergency procedures, information training and instruction for workers. Medical 1. The prosecutor tendered Discharge Summaries for Mr Mehta (PX 2, Tab 76) and Mr Mamadou Diallo (PX 2, Tab 77). The prosecutor also tendered an Autopsy Report from the Coroner in relation to Mr Tanner (PX 2, Tab 78). In the absence of any expert biomechanical evidence, I am unwilling to draw any conclusions or inferences from the matters recorded in that report. Post-Incident Remedial Measures 1. The prosecutor tendered a number of documents created by Buddco after the incident. A new Job Safety Analysis form was created (PX 2, Tab 79). Under the heading "Isolation of Energy Source" three steps were set out which required a yes or no answer. The steps are: "Have you identified any energy source requiring isolation? Have you barricaded the area or displayed the adequate isolation signage? Have you isolated the equipment and filled out isolation procedure?" 1. On 14 December 2017 Mr Johns of DIC sent an email to Mr Budd and Mr Roy in relation to confined space work (PX 2, Tab 80). He said: "Josh, Prior to any future confined space work being carried out on DIC equipment, I am requesting that Buddco put the following in place: 1. A Standard Operating Procedure be written for the cleaning of tanks. 2. A Job Safety Analysis becomes a part of the SOP. 3. Buddco are to provide these to DIC for review prior to commencing any work. 4. Buddco adopt a policy that power is isolated from all tank equipment, prior to any inspection hatch or cover plate being removed, and at no time should an open tank have powered equipment or equipment able to be activated to cause a dangerous environment. Please provide this information for review by Roger and Phil." 1. On 15 December 2017 Mr Johns of DIC sent out a general email across the company (PX 2, Tab 81). It urged DIC supervisors and managers to call their teams together on at least a weekly basis to review hazards and safety measures. 2. On 15 December 2017 Mr Burns of RJB sent a letter to Mr Roy of DIC (PX 2, Tab 82). Mr Burns confirmed that the lock off mechanism supplying power to the mixer and the tank had been repaired and was in operating order. He also confirmed that the power to the tank agitator motor was locked off and tagged and the wiring was disconnected from the contactor. Photos of that work accompanied the letter. 3. On 25 January 2018 Mr Johns of DIC sent an email to Mr Roy and others dealing with confined space procedure (PX 2, Tab 83). He said: "My requirements are: 1. Under no circumstances is a tank hatch to be removed whilst power is live to an internal stirrer, or in all cases where power is live to a tank with any internal equipment, or external equipment influencing the internal space of the tank, the tank hatch or any other means of entry to the tank must be sealed closed to ensure entry by any person is impossible." 1. A new document dated 1 February 2018 titled "BUDDCO PROCEDURE NO 2 Confined Space Entry" was prepared by Mr Berdyshevski, Mr Pretorius, Mr Coad, Mr Mehta and Mr Anthony (PX 2, Tab 84). Part 2 dealt with entry into confined spaces by Buddco contractors. It said: "Buddco will be responsible for: 1. Isolation, locking out and danger/warning tagging of hazardous services provided to the confined space. 2. Isolation, locking out and tagging out of hazardous services and operations in the confined space that will present a hazard to the work being carried out in the confined space. 3. Communication with/to the contractor on what isolations, locking out and tagging procedures have taken place." 1. A Confined Space Entry Permit was created to accompany the new procedure (PX 2, Tab 85). The first matter dealt with on the permit was "isolation". 2. Buddco created a new procedure known as Buddco Procedure No 5 Machinery Isolation Procedures (Lock Out and Danger Tag Procedures) 1 June 2018 (PX 2, Tab 87). The purpose of the procedure was to document how Buddco would isolate operation or machinery to ensure that it is safe to inspect, maintain or enter so that work may be carried out (PX 2, Tab 87, p 860). Section 8 of the new procedure is as follows: "8. Who Applies Lock Out and Danger Tag Procedures: Where Buddco has Control of Site and/or Equipment: Isolations: The isolations and lock out and danger tag procedures will be applied by ALL authorised Buddco personnel as nominated by Buddco to carry out a particular isolation and lock out. The steps taken for isolation are to be described and recorded in the Buddco isolation form." (PX 2, Tab 87, pp 862) The new form is at PX 2, Tab 88. 1. Buddco also created Buddco Procedure No 6 Buddco Tank Cleaning Procedures (DIC Auburn site) dated 1 June 2018 (PX 2, Tab 89). The purpose of the Procedure was to detail Buddco requirements for any tank cleaning work at the DIC Auburn site. It contained the following: "Responsibilities: Buddco Managers and Supervisors: • Ensure that the Buddco Tank Cleaning Procedures (DIC Auburn Site) are adhered to by Buddco employees and Buddco contractors. • Ensure that a written risk assessment (Safe Work Method Statement (SWMS) / Job Safety Analysis (JSA)/ SWMS (High Risk Construction Work)) is completed for any work where there is tank cleaning to be carried out. • Ensure that a written risk assessment, Safe Work Method Statement / JSA and associated Buddco Procedures are applied to carry out any tank cleaning work in CONSULTATION between the Site Principal (DIC), Buddco employees, Buddco contractors and any other parties who may be involved in a task. • Ensure that there is CONSULATION between Buddco, Buddco Contractors and the Site Principal in conducting any tank cleaning tasks. • Ensure that the Buddco documentation completed by Buddco Contractors is acceptable to allow the contractor to work on the site (i.e. Contractor Permit to Work). • Ensure the contents of documentation completed by Buddco employees is suitable for the work to be carried out. • Assist Buddco Employees, as necessary, in preparation of the written risk assessment, SWMS/JSA and in implementing other identified Buddco Procedures and Documentation needed for the task. • Assist Buddco Contractors, as necessary, in preparation of a written risk assessment, SWMS/JSA and in implementing other identified Buddco Procedures and Documentation for contractor controlled tasks. • Ensure that Buddco employees and/or Buddco Contractors complete all necessary SWMS/JSA/Risk Assessments and other Permits prior to the commencement of any work. • Buddco management is to consult with Site Principal to ensure all site WHS requirements are complied with in accordance with site requirements. • Ensure that Buddco Employees and Buddco Contractors have the appropriate High­Risk Work Licence and/or necessary training to perform the work involving the cleaning of tanks (i.e. Scaffold Licence, Forklift Licence, and EWP Licence). • Ensure that Buddco employees perform or confirm any necessary isolations have been completed as necessary, to make equipment safe and inoperable prior to the commencement of any work in accordance with the requirements in the risk assessment/SWMS/JSA and any applicable Permits." (PX 2, Tab 89, pp 868-869) 1. Under the heading "Procedures" part of the work to be carried out by Buddco staff was: "• Isolations: Prior to commencing work, it is to be demonstrated to all persons involved in the task, what isolations have been made and that the equipment is inoperative. If this is appropriate to the job. The demonstration is to be given by the person(s) who made the isolations. Work must not commence until this demonstration is given." (PX 2, Tab 89, p 870) 1. The new Procedure also provided that the contractor's "person in charge of job" is to have a meeting with all staff who are assigned to the job and discuss programming and management of the job, safety isolations and the process to be employed for the job. Any Buddco staff assigned to assist the contractor will attend this meeting (PX 2, Tab 89, p 871). Buddco staff will ensure safety isolations for the job have been completed (PX 2, Tab 89, p 871). 2. The new Procedure provided that control measures were to be selected in accordance with the hierarchy of hazards control, with "elimination" as the highest level of control (PX 2, Tab 89, p 872). Expert Evidence Mr Joseph Simurina 1. Mr Simurina is an Assistant State Inspector employed in the Health and Safety Design Directorate of SafeWork NSW. He is part of the engineering team which provides technical advice in relation to plant. 2. At the request of Inspector Ball, Mr Simurina provided a Technical Report dated 30 October 2018 (PX 17). In his "Executive Summary" Mr Simurina said: "It is concluded that the plant involved in the incident had control measures in place for isolating energy sources to the holding tank. Persons would be exposed to a risk of serious injury or death due to entanglement and/or crushing if those persons entered the tank prior to isolating all energy sources, and the weight of the contents of the tanks, including the workers and their equipment, exceed approximately 900 kg, whereby the operation of the holding tank stirrer would automatically start." 1. One of the objectives of the Technical Report was to identify control measures that may have been used to control the health and safety risks associated with the incident. Mr Simurina visited the site of the incident on 8 December 2017, 18 December 2017, 26 April 2018, 3 May 2018 and 16 May 2018. The Technical Report set out the observations made of the Blackshop by Mr Simurina and provided photographs and diagrams of the equipment in the Blackshop. 2. In par 24 of the Technical Report Mr Simurina said: "When the holding tank stirrer selector switch is set to AUTO (Automatic) mode and the ink entering the holding tank reaches 900 kg, the holding tank stirrer is automatically actuated and spins for approximately 1 minute 20 seconds. It then turns off and remains off for approximately 28 minutes. The ON/OFF cycle continues indefinitely so long as the weight inside the holding tank does not fall below 875 kg or the overload protection HT- OL does not trip." 1. Mr Simurina observed the testing of the load cells on the tank conducted on 26 April 2018 by Australian Weighing Equipment Pty Ltd. The light on the weight indicator turned "on" when a simulated load on the tank reached 900 kg. The light turned "off" when the simulated load dropped below 875 kg. 2. Mr Simurina identified the relevant Codes of Practice and legislation governing the confined space work to be done in the tank. His ultimate conclusion is recorded in the Executive Summary quoted above. 3. Mr Simurina provided an Expert Report dated 19 September 2019 (PX 18). This report reproduced many of the observations and photographs from the Technical Report. 4. In par 92 of this Expert Report Mr Simurina said: "Isolation, energy dissipation and lock out during machine shutdown ensures the highest level of safety when carrying out tasks that do not require the machine to remain connected to its power supply." 1. In par 97 of the Expert Report Mr Simurina said: "In my opinion, an electrical interlock fitted to the side access hatch of the holding tank to electrically disconnect power to the holding tank stirrer motor could have prevented the stirrer from unexpected start while workers were in the holding tank. In my opinion, in this case, the holding tank stirrer was not isolated and had an interlock been fitted the incident may not have occurred." 1. In par 100 of the Expert Report Mr Simurina said: "However, confined space entry permits are an administrative control and their effectiveness relies on human behaviour. In the hierarchy of control this would be a low-level control measure ie the least effective in managing risks. The use of an electrical interlock on the side access hatch on the other hand would be an engineering control and a higher level control measure as its effectiveness would not rely on human behaviour. In my opinion, it was reasonably practicable for the side access hatch to be interlocked." 1. Mr Simurina provided a Supplementary Expert Report dated 29 April 2020 (PX19). His conclusions expressed in the "Executive Summary" were: 1. It was reasonably practicable for Buddco to ensure the tank was de-energised and isolated prior to permitting entry into the confined space. 2. Fitting an interlocking device to the side hatch to electrically isolate the tank motor when the side hatch was opened was reasonably practicable. 3. The estimate cost in Type 4 operating device which provides the highest level of safety is estimated at less than $1,500 plus an additional $800 for labour, if engaging an external contractor. 1. Mr Simurina provided an Additional Supplementary Expert Report dated 27 April 2021. This was in response to the report of Dr Nedved, the expert commissioned by the defendant. I will discuss this report, which was essentially evidence in reply, after dealing with the evidence of Dr Nedved. 2. Mr Simurina was cross-examined. He acknowledged that two Improvement Notices were issued to DIC and that he was the person who certified that DIC had complied with them. That meant that DIC was able to recommence using the tank. Mr Simurina acknowledged that the question of interlocking switches was not something raised in the Technical Report, nor was it one of the requirements of the Improvement Notices issued to DIC. He acknowledged that DIC was never told that it could not use the machine unless an interlocking device was installed on the side hatch. Dr Milos Nedved 1. Dr Milos Nedved provided a report dated 14 December 2020 (DX 11). Dr Nedved said that the side hatch of the tank was an integral part of the tank and that its function was only as an access point and not a guard. Dr Nedved pointed out that there is no legislative requirement, or requirement in a Code of Practice for confined spaces, requiring a safety interlock switch to be fitted. This is something which Mr Simurina had also acknowledged. 2. Dr Nedved said that all hazards would be eliminated or controlled if the Buddco administrative controls (being the Confined Space Entry Procedure, the Confined Space Entry Permit and the appropriate JSA) were applied in full. 3. Dr Nedved said that no risk to health and safety for those in the vicinity of the tank arises when the side hatch is removed. 4. The report of Mr Simurina in reply (PX 20) responded to these opinions. Mr Simurina did not change his previously expressed views as a result of the report of Dr Nedved. Mr Simurina did say (par 61) that although following a Code of Practice would achieve compliance with the health and safety duties of the Act in most cases "it may not cover all hazards or risks that may arise with the specific work being undertaken". 5. Mr Simurina said (par 62): "It is the duty holder's obligation to understand the work being undertaken, the people carrying out the work and regularly ask themselves and the workers simple questions such as: (a) Given what I do, what could go wrong? (b) How wrong can it go? (c) What are the consequences of it going wrong? (d) How can I stop it going wrong?" 1. In cross-examination Dr Nedved acknowledged that it was critical for Buddco to identify the reasonably foreseeable hazards that could arise in relation to both the confined spaces worker and the confined spaces standby worker (Tcpt 355/10). Dr Nedved acknowledged that there was a potential, once the side hatch was either partially or fully opened, that if a person put part of their body inside the confined space, and the tank had not been isolated from electrical power, the mechanical hazard still existed. However, he said that the Buddco procedures, if followed in full, would not permit this to happen (Tcpt 356/35). Dr Nedved said that disconnecting the power was an engineering control, as was putting a lock on the switch (Tcpt 356/50). 2. Dr Nedved was asked whether he agreed from his experience that one of the most significant causes of incidents was workers not following administrative controls. He said: "Yes, it happens very frequently. But I expressed my opinion about Buddco's procedure, because there were three signatures needed and the contractor was supposed to be part of that entire process, so that potential for not following the procedure was absolutely minimum. Unfortunately, it happened, yes, but - -". (Tcpt 358/13-19) 1. Dr Nedved acknowledged that if the isolation of the hazard occurred before any opening of the side hatch, this eliminated the potential failure of the administrative control (Tcpt 358/24). Dr Nedved agreed that the isolation of the mechanical hazard had to take place before removing the side hatch, but there would be no hazard if it was only partly opened to enable the taking of an atmospheric sample (Tcpt 358/45). 2. Dr Nedved was asked whether, if the Buddco procedure had stated that the first step was to isolate before taking any of the bolts off the side hatch, that would have eliminated the risk. He agreed that it would have eliminated the risk (Tcpt 359/45). 3. Dr Nedved was asked whether, if the lid of the side hatch was tied up and out of the way, a hazard existed that workers could be exposed to, either through deliberate or inadvertent conduct. His answer was: "It needed to be considered how likely it is that it could happen, and in my opinion, the probability of something happening was very, very low." (Tcpt 363/25) 1. Dr Nedved was asked whether a simple way to exclude that low possibility or low probability was to ensure that the mechanical hazard created by the rotating anchor blade was isolated before anyone could put the hatch lid in the position shown in the photograph. He agreed that that was one possibility, "but it is necessary to analyse to what extent this additional strategies [sic] are absolutely necessary or not absolutely necessary" (Tcpt 363/30). 2. Dr Nedved said that he would not blame anybody for this incident, "because I am of the opinion that what happened could not have been envisaged" (Tcpt 367/30). He did agree that one could always envisage that workers could accidently or inadvertently enter a piece of plant (Tcpt 367/34). Dr Nedved said that he knew this happened, and that workers sometimes cut corners so they could complete a job earlier and go home earlier (Tcpt 367/40). 3. Dr Nedved agreed that an electrical interlocking device was an engineering control which could have been fitted to the side hatch (Tcpt 369/20). Dr Nedved said that while this was an additional safety procedure, and one could always think of a number of additional safety procedures, such procedures are designed "on the basis of the past operational experience" (Tcpt 370/36). He said that the existing procedures "provided for adequate level of safety" (Tcpt 370/46). Findings of Fact: Agreed Facts 1. The Agreed Facts are set out in PX 5 and PX 7 as follows: "AUTHORITY TO BRING PROCEEDINGS 1. SafeWork NSW, being the regulator, as defined by section 4 of the Work Health and Safety Act 2011 (the Act), is empowered under section 230(1)(a) of the Act to institute proceedings in this matter. BACKGROUND Parties 2. At all material times, DIC Australia Pty Limited (ACN 000 079 550) (DIC) conducted a business or undertaking which involved the manufacture of ink products for the printing industry (the business). 3. At all relevant times, Buddco Pty Ltd (ACN 137 885 931) (Buddco), under an agreement with DIC dated 9 September 2009, conducted a business or undertaking which included supplying labour for designing, constructing, installing, commissioning, maintaining and servicing all DIC ink manufacturing plant and associated equipment, located at the premises. 4. At all material times, Buddco employed approximately 7 employees. 5. At all material times, the sole director of Buddco was Mr Josh Budd (Mr Budd). Mr Budd had overall responsibility for managing the business and the services provided to DIC under the agreement. 6. At all material times, RJB Electrical Pty Ltd (RJB) conducted a business or undertaking that included providing electrical services to DIC at the premises. Workers 7. At all relevant times, Yatin Mehta (Mr Mehta) was employed by Buddco as a fitter and turner. 8. On the day of the incident, Mr Mehta was directed to prepare the area around the ink holding tank for the clean out, which involved preparatory work including the laying of cardboard, cordoning off the area and supply of ink drums for collection of waste, and to assist Mr Tanner as a standby person or spotter. 9. Mr Mehta was qualified to perform the role, having undertaken confined space training. Mr Mehta held a Confined Space Standby certificate indicating that his training had been completed on 30 June 2015. 10. At all material times, Mamadou Diallo (Mr Diallo) was employed by DIC as a production operative. The plant involved in the incident 11. The incident occurred in a part of the premises identified as 'the Blackshop'. 12. A number of items of plant were used in the Blackshop to produce black ink, including the ink holding tank that was involved in the incident. 13. The ink holding tank was located towards the back end of the Blackshop, and was constructed of steel and cylindrical in shape. 14. The ink holding tank measured approximately 4.5 metres x 2.8 metres and was positioned about 1 metre off the floor on three legs. 15. The ink holding tank protruded up and through a mezzanine floor in the Blackshop. 16. The ink holding tank was fitted with two hatches: a side hatch and a top hatch. The side hatch was secured by bolts. 17. The diameter of the side hatch opening measured 0.65 metres x 0.65 metres. 18. The ink holding tank blade was fitted with an agitator assembly, which included a U-shaped metal anchor blade, a gearbox and a motor. 19. The purpose of the agitator was to agitate the mixed raw material while it was being held in the ink holding tank to prevent the material from settling and hardening on the bottom of the tank. 20. The agitator could not prevent the build-up of residue material that accumulated on the bottom of the tank over time. 21. When build-up occurred, the mixed raw material hardened into a clay like consistency and was unable to be pumped to the mill for final processing, which caused the mill and production to shut down. Processes were then used to clean the tank. These processes required a person to enter the tank with a jackhammer to break up the hardened material. 22. The agitator itself was able to be operated in two modes: manual and automatic. The lead up to the incident 23. There had been ongoing problems with blockages affecting the operation of the ink holding tank and mill in the weeks preceding the incident. 24. A cleaning process involving the use of a solvent was used in the days before the incident in an attempt to 'flush' residue ink in the ink holding tank, but without effect. 25. The flushing process was used to clean the tank but was never completely successful. 26. Emails between DIC and Buddco workers also indicate that the maintenance issue was brought to the attention of Buddco in about mid-November 2017. 27. On 13 November 2017, Steve Packham (Mr Packham), DIC Technical Services Manager, sent an email to Andrew Furlong (Mr Furlong), DIC Production Supervisor, and George Berdyshevski (Mr Berdyshevski), Buddco Engineering Manager, in which he stated: 'We have ongoing blockages. The ink holding tank is now at 830kg and a visual inspection says we have a problem of needing to clean … We are going to inspect the mixing tank stirrer blade … I fear the cause is bead hardness rather than mixer/ink holding tank use. We have to face a cleaning of the ink holding tank …' 28. On 14 November 2017, Mr Packham sent another email to Mr Packham, Mr Furlong and Mr Berdyshevski in which he stated: 'Thanks for confirming today the black shop stirrer is not broken and the stirring pots side walls are clear. Phil is aware of the need for a ink holding tank clean out. I think it is best to arrange sooner rather than later. We have some 800kg to dig out.' 29. Further emails were sent between Mr Packham, Mr Furlong and Mr Berdyshevski about scheduling the work and arranging a date and time for when Buddco could take possession of the tank from DIC. 30. On 14 November 2017, Mr Berdyshevski sent an email to Mr Tanner, engaging his services for the tank clean and scheduling a date. 31. On 16 November 2017, emails were sent between Mr Roy, Mr Berdyshevski, Mr Furlong, Mr Packham and Mr Budd regarding the cost and need for the clean. 32. After several date changes, the date for cleaning the tank was eventually fixed for 7 December 2017. The day of the incident 33. A toolbox talk took place on the morning of the incident at about 6:00am before Mr Tanner attended the site. 34. Mr Mehta was informed that a contractor was coming in to clean the ink holding tank and was directed by Mr Berdyshevski to assist as the standby person or spotter. He was also directed to prepare the area and was told that he would be assisted in that task by Mr Scott Eirth (Mr Eirth), a DIC fitter and machinist, and Mr Phillip Seaman (Mr Seaman), a Buddco trades assistant. 35. Mr Berdyshevski stated to Mr Mehta, Mr Eirth and Mr Seaman that the preparation needed to be done 'before' Mr Tanner 'came in'. Preparation of the area 36. Following the toolbox talk, Mr Mehta attended to his normal duties before making his way to the Blackshop. 37. A short time later, Mr Mehta completed a Job Safety Analysis (JSA) form for the preparation work that he was about to complete. 38. The JSA form had been developed by DIC and provided to Buddco and was required to be completed for any non-repetitive maintenance work that was undertaken at the site. 39. The form required workers to describe the job and answer a series of yes/no questions in relation to the topics of training/competence, isolation of energy source, manual handling hazards, personal protective equipment, hazardous substances, work permits and other hazards. 40. The second part of the document required workers to fill in a table, outlining the sequence of task steps and the corresponding hazards/risk identified and control measures required for those steps. 41. The document also contained space for sign off by a manager. 42. Mr Mehta commenced preparing the area by laying out cardboard on the factory floor in the Blackshop. Mr Seaman assisted Mr Mehta with a forklift to bring 44 gallon drums closer to the ink holding tank in preparation for the clean. 43. On 7 December 2017, at approximately 7:30am, Mr Tanner arrived at the premises and signed-in on the 'sign-in register'. 44. Shortly after, Mr Tanner met with Mr Berdyshevski in his office to discuss the job and Mr Berdyshevski informed Mr Tanner that Mr Mehta was to perform the role of standby person. 45. Mr Berdyshevski then provided Mr Tanner with a Confined Space Entry Permit for completion and indicated that a JSA would also need to be completed. 46. Mr Tanner left Mr Berdyshevski's office and headed to the Blackshop. 47. Mr Mehta saw Mr Tanner in the Blackshop filling out some paperwork. 48. Mr Mehta had a brief conversation with Mr Tanner about the weather, however they did not discuss the work that was to be performed. 49. At some stage Mr Tanner partly completed the Confined Space Entry Permit that he received from Mr Berdyshevski. 50. The entry permit was a two-page pro forma. The first page contained fields for describing the 'Location of Task' and 'Description of Task'. It also contained 'Risk Control Measures' in the form of checks relating to 'Isolation', 'Atmosphere', 'Hot Work', 'Personal Protective Equipment', 'Other Precautions', 'Emergency Response' and 'Stand-by Persons'. 51. The last field on the page was headed 'Authority to Enter'. 52. The second page of the document included a table for listing 'Persons required to enter confined space' and a field headed 'Cancellation of Written Authority'. 53. The 'Authority to Enter' on the first page of the document was not completed. 54. The second page of the document listed the following persons as 'Persons required to enter confined space': Name Date Time Craig Tanner 7/12 8:30 Yatin 7/12 8:30 55. Mr Mehta does not recall seeing the first or second pages of the document. However, he confirmed that the entry on the second page, 'Yatin, 7/12, 8:30', was in his own handwriting. He stated in that regard: 'I would have just copied the time and date from the entry above and have no specific memory of when I wrote my name and put the time and date next it.' 56. Mr Mehta also stated that he and Mr Tanner had not got to the point of discussing the job or obtaining authorisation to enter the tank. 57. The entry permit recorded that locks and/or tags had been affixed to isolation points by circling 'yes' to this question on the form. 58. The entry permit also confirmed that an emergency response procedure was in place. 59. Mr Mehta expected to have a discussion in relation to these procedures and also expected that he and Mr Tanner would have obtained approval from Mr Berdyshevski or Mr Budd before commencing the task. THE INCIDENT 60. Mr Mehta only became aware that Mr Tanner was in the tank when he heard screams from within the tank. 61. Mr Mehta observed Mr Tanner trapped between the agitator blade and the wall of the tank. Mr Mehta also observed that the agitator blade had stopped at this point. SYSTEMS OF WORK PRIOR TO THE INCIDENT 62. Buddco had a Confined Space Entry procedure. GUIDANCE MATERIAL Code of Practice: Confined Spaces 63. The Safe Work Australia, Confined Spaces Code of Practice (February 2016) (the Confined Code) is an approved code under section 274 of the Act and applies to persons conducting a business or undertaking who have management or control of a confined space, and to designers, manufacturers or suppliers of plant or structures that include, or are intended to include, a confined space. The Confined Code provides practical guidance on how to meet the requirements under the Work Health and Safety Regulations 2011 in relation to work carried out in confined spaces. It focuses on the minimisation, if not the elimination, of risks to health and safety when carrying out work in confined spaces. 64. The Confined Code addresses the identification and management of risks associated with working in confined spaces and contains the following guidance on the nature of the relevant risk: 'Confined spaces pose dangers because they are usually not designed to be areas where people work … The hazards are not always obvious and may change from one entry into the confined space to the next … … Confined spaces are commonly found in vats, tanks, pits, pipes, ducts, flues, chimneys, silos, containers, pressure vessels, underground sewers, wet or dry wells, shafts, trenches, tunnels or other similar enclosed or partially enclosed structures ... … 3.1 What hazards are associated with a confined space? … Mechanical hazards Exposure to mechanical hazards associated with plant may result in entanglement, crushing, cutting, piercing or shearing of parts of a person's body. Sources of mechanical hazards include plant such as augers, agitators, blenders, mixers and stirrers. … 5.5 Isolation All potentially hazardous services should be isolated prior to any person entering the confined space. Isolate to prevent: … • the activation or energising of machinery in the confined space • the activation of plant or services outside the confined space that could adversely affect the space (for example heating or refrigerating methods) • the release of any stored or potential energy in plant • the inadvertent use of electrical equipment. … Before entry is permitted to any confined space that can move, or in which agitators, fans or other moving parts that may pose a risk to workers are present, the possibility of movement should be eliminated. Equipment or devices with stored energy, including hydraulic, pneumatic, electrical, chemical, mechanical, thermal or other types of energy, should be reduced to a zero energy condition so that no energy is left in devices and systems that could cause injury or illness.' Australian Standard: Confined Spaces 65. The Australian Standard, Confined Spaces (4 September 2009) (Confined Standard) outlines the minimum standards for establishing a safe system for entry and the conduct of tasks in or on a confined space. The Confined Standard emphasises responsibilities for safety and sets out steps that need to be taken to eliminate or control risks that may arise during confined space operations. It also requires that all persons involved in the entry of a confined space be trained, assessed as competent, and instructed on the hazards and the risk control measures to be followed. 66. The Confined Standard makes express reference to the following risk: '(m) entrapment from the operation of moving equipment, e.g., being trapped by augers, or crushed by rotating or moving parts such as conveyor belts.' 67. The Standard also contains the following guidance on the need to isolate plant: '3.4.5 Isolation requirements Prior to any person entering a confined space, all potentially hazardous services (including all process services) normally connected to that space shall, where it is possible to do so, be isolated in order to prevent – … (b) The activation or energising in any way of equipment or services that could pose a risk to the health or safety of persons within the confined space. 3.4.6 Isolation factors It may be necessary to withdraw a confined space from service before it is prepared for entry. Procedures should be in place to advise all person who may be involved with the repair, maintenance or operation of the confined space of the withdrawal of the confined space Positive steps should be taken to achieve the following: … De-energisation and lockout, or if lockout is not feasible then tag-out, or both lockout and tag-out, of machinery, mixers, agitators or other equipment containing moving parts in the confined space. This may require additional isolation, blocking or de-energising of the machinery itself to guard against the release of stored energy…' Work Health and Safety Regulation 68. Regulation 66(1) of the Work Health and Safety Regulation 2017 (the Regulation) states: 'A person conducting a business or undertaking must manage, in accordance with Part 3.1, risks to health and safety associated with a confined space at a workplace including risks associated with entering, working in, on or in the vicinity of the confined space (including a risk of a person inadvertently entering the confined space).' 69. Regulation 70 specifically states that a person conducting a business or undertaking must, so far as is reasonably practicable, eliminate any risk associated with work in a confined space in either of the following circumstances: 'a) the introduction of any substance or condition into the space from or by any plant or services connected to the space, b) the activation or energising in any way of any plant or services connected to the space.' 70. Regulation 74 provides that a that a person conducting a business or undertaking must, inter alia, establish emergency procedures in relation to confined space work. 71. Regulation 76 states that a person conducting a business or undertaking must ensure that relevant workers are provided with suitable and adequate information, training and instruction in relation to: 'a) the nature of all hazards relating to a confined space, b) the need for, and the appropriate use of, control measures to control risks to health and safety associated with those hazards, c) the selection, fit, use, wearing, testing, storage and maintenance of any personal protective equipment, d) the contents of any confined space entry permit that may be issued in relation to work carried out by the workers in a confined space, (e) emergency procedures.'" Additional Findings of Fact 1. The court has been greatly assisted by the diligence of all counsel in preparing documents setting out the additional facts which should be found from the evidence. The prosecutor's additional facts are set out in MFI 7 and the defendant's additional facts are set out in MFI 8. Both documents contain detailed references to the transcript and the documentary evidence. 2. There was really no dispute between the parties concerning the credibility of any witnesses. Rather, the dispute concerned inferences to be drawn from facts established, and a debate about the expert evidence. The oral submissions of both counsel focussed upon the legal issues in the case and the expert evidence. As a result I will set out my findings of fact before dealing with the submissions made for both sides, and my findings in relation to the expert evidence. 3. Counsel for the prosecutor commenced his oral submissions as follows (Tcpt 386/16-26): "MAGEE: Your Honour has a substantial amount of both documentary evidence and witness evidence. In terms of the lay witness evidence, your Honour, there's not a great deal of dispute as to the factual circumstances that led to the incident or the background circumstances. The significant factual dispute appears to be the circumstances of how Mr Tanner came to be inside the tank. Your Honour, I'd submit that the lay witnesses certainly sought to give evidence to the best of their recollection, and I don't raise any issues in terms of the credit findings in terms of those witnesses. There are some minor differences between their recall as to certain events, but I don't think that their [sic] material, in the overall scheme of things, your Honour." 1. There was really no challenge to the credibility of any witness in cross-examination (an observation which implies no criticism whatsoever of the way counsel for both parties ran the case). There were discrepancies between the present recollection of some of the prosecution witnesses and their recollection at a much earlier point in time when they had been formally interviewed. Counsel for the defendant took up those matters in cross-examination, and where there is any discrepancy between the oral evidence of a witness and what they said in a much earlier statement, I prefer the version given earlier in time ie the version in their Records of Interview. 2. In oral submissions, counsel for the defendant made no criticism of the credibility of any witness, and moved straight to the legal issues in the case. 3. I make factual findings in terms of every paragraph of MFI 7 and every paragraph of MFI 8, except for pars 52 and 60 in MFI 8, for reasons discussed below. I cannot improve upon the way in which the additional facts were expressed by counsel in their documents, so I reproduce those documents below. Prosecutor's Additional Facts (MFI 7) "Performance of the Task 1. The task of the cleaning out of the black ink holding tank in the Blackshop at the premises (Tank) was a non—routine maintenance task (Task) that was undertaken by Buddco Pty Ltd (Buddco) as part of the services it performed under its Maintenance Agreement with DIC Australia Pty Ltd (DIC). PX1 Tab 4 2. Buddco utilised workers engaged or caused to be engaged by it to undertake preparatory work associated with the Task including the opening of the top hatch of the Tank to provide ventilation and lighting; the supply of ink drums for collection of waste; the provision of tools; the removal of the bolts securing the lid of the side hatch; the opening and removal of the lid of the side hatch of the Tank. T100.45-50, T101.1- 50, T102.1-43, T122.30-50, 123.1-14, T127.34-49, T128.1-49, T129.1-50. 3. Buddco utilised workers engaged or caused to be engaged by it to undertake the role of Confined Spaces Standby person while workers were undertaking the cleaning tasks inside the Tank. T100.44-49, T124.9-12 4. Buddco utilised the services of electricians provided by RJB Electrical Engineering Pty Ltd (RJB) to undertake the task of the de-energisation and electrical isolation of the Motor Control Centre that provided electrical energy to the motor which drove the agitator assembly, including the U -shaped metal anchor blade, inside the Tank. PX1 Tab 5, T162.50, T163.1-2 & 20-24. 5. Mr Robert Graham (Mr Graham) was a qualified electrician, who was employed by RG Services Pty Ltd (RGS). Mr Graham, through RGS was subcontracted by RJB to provide electrical services at the DIC premises. PX1 Tab 5, T162.50, T163.1-2 & 20- 24. 6. Mr Graham was directed in the undertaking of his duties by Buddco and worked at the DIC Premises as part of the Buddco maintenance and engineering team. PX1 Tab 5, T162.50, T163.1-2 & 20-24. 7. The Task had been performed by contractors engaged by Buddco from 2012 until the date of the Incident when sediment build up in the Tank affected black ink production. T29.25-28, T29.41-49, T30.1-24 8. The performance of the Task was one of the most difficult jobs undertaken by Buddco at the DIC Site. T98.38 Mr Tanner 9. Craig Tanner (Mr Tanner) was a 42-year-old sole trader trading under the name 'Complete Blasting Solutions'. PX1 Tabs 22,25 & 34. 10. Mr Tanner provided a plant cleaning service and was engaged by Buddco as a subcontractor to clean the inside of the Tank. T98.27-46, PX1 Tab 39. 11. On the prior occasions that Mr Tanner had undertaken the Task he had complied with directions given by Buddco to complete a JSA and a Confined Spaces Entry Permit. Mr Tanner had complied with the control measures that were put in place by Buddco in relation to the Task. T113.40-47, T114.10-20 12. Mr Berdyshevski did not have any concerns that Mr Tanner would not comply with safety standards required by Buddco. T.114.14-20 13. Mr Coad, who had performed the role of Confined Spaces Standby Person did not have any concerns that Mr Tanner would undertake the Task unsafely while Mr Coad was assisting him. T332.40-50, T333.1-12 Operation of the Ink Holding Tank 14. The process of manufacturing ink involved processing raw materials in the Onslow mixer, before transferring the mixture to the Tank and then to the Mill for final processing. T13.4-50, T14.1-2, PX1 T9 15. The purpose of the Tank was to allow DIC to mill two batches of product at once. In practice, that was achieved by adding a second batch of raw materials from the Onslow mixer to the Tank, while the first batch was being milled. T13.4-50, T14.1-2, PX1 Tab 9 16. The Tank was able to hold approximately two batches of mixed raw materials. T13.38-44 17. The Agitator assembly was commissioned and fitted to the top of the Tank in about 2003 after the factory started producing a form of ink that 'settled' more readily at the bottom of the Tank than previous products. PX 4- Statement of Mr Van Oeveren paragraph [17] 18. When set to automatic mode, the agitator was activated automatically when the product (ink) held in the Tank reached a certain weight. As at the date of the Incident, the weight was set at 900kg. PX18 paragraph [46] 19. When activated in automatic mode, the agitator spun for approximately 1 minute and 20 seconds every 28 minutes (the on/off cycle). Once activated, the on/off cycle would continue indefinitely so long as the weight inside the ink holding tank did not fall below 875kg or the plant's overload protection switch was not tripped. PX18 paragraph [46] 20. When set to manual mode, the agitator was activated by pressing a green 'start' button. The agitator would only activate in this mode if the product (ink) held in the Tank reached a certain weight. As at the date of the incident, the weight was set at 900kg. PX18 paragraph [47] 21. Once activated in the manual mode, the agitator would spin indefinitely so long as the weight inside the ink holding tank did not fall below 875kg or the plant's overload protection switch was not tripped. PX18 paragraph [46] 22. When activated in either mode, the anchor blade spun at a slow or a walking pace. PX 4- Statement of Mr Van Oeveren paragraph [22] Buddco's systems for preparation for the task 23. Buddco had not developed, implemented and enforced a documented safe work procedure for cleaning the Tank which set out the steps that workers were required to undertake when carrying out the task. T90.48-50, T90.1, PX 2 Tabs 80 & 89 24. Buddco had not developed, implemented and enforced a documented safe work procedure for cleaning the ink holding tank that required that the Tank be isolated from all forms of energy prior to workers commencing to take the preparatory steps that were required to be undertaken to carry out the task. T90.48-50, T90.1, PX 2 Tabs 80 & 89 Mechanisms for isolating power to the incoming tank 25. As at the date of the Incident, controls for isolating power to the Onslow mixer and the Tank were inside an orange electrical cabinet in the Blackshop known as the 'Blackshop mixer Motor Control Centre' or on the outside of an orange electrical cabinet identified as the 'Main Switchboard'. PX18 paragraph [22], T180.44-47 26. The main switchboard was located near the entrance to the Blackshop on the right hand-wall. It was fitted with a large exterior switch labelled 'main switch'. This switch was not able to be physically locked, it could be used to electrically isolate power to the entire Blackshop factory, including both the onslow mixer and the ink holding tank, if placed in the isolation (off) position. PX18 paragraph [22] 27. The Main Switchboard also featured a lever labelled 'CSF2 Onslow Mixer'. This lever, which was fitted with a broken locking mechanism, could be used to isolate the power to the Blackshop mixer Motor Control Centre, so as to isolate power to both the Tank and Onslow mixer. The locking mechanism previously accommodated the use of a lock, but was broken at the time of the Incident. T184.42-50, T185.1-12 28. The Blackshop mixer Motor Control Centre was located on the mezzanine level behind the Onslow mixer. The exterior controls on the control centre included various buttons, including buttons for activating the agitator in automatic and manual modes. However, the buttons did not include an exterior isolating point for isolating the Tank. PX18 paragraph [32], T180.44-50 29. The only way to isolate the Tank from the Blackshop mixer Motor Control Centre was to isolate the circuit breaker or disconnect the ink holding tank motor contactor, both of which was located inside the locked electrical cabinet housing the control centre. This method of isolation could only be performed by an electrician who had access to the key to the cabinet. PX18 paragraph [93] 30. There was no other way to specifically isolate the power to the Tank. PX18 paragraph [93] 31. There were several red emergency stops located in the Blackshop, however none of the stops related to the operation of the Tank. T185.35-40 Prior occasions when the task had been performed 32. Mr Tanner had undertaken the Task of cleaning out the Tank on a number of occasions prior to the date of the Incident. 33. No formal training was provided to Mr Tanner in Buddco's Confined Spaces Entry Procedure or its Isolation Procedure for locking out mechanical Equipment. T93.5-22, T91.46-49, T92.1-3 34. On the first occasion that Mr Tanner attended at the DIC Site to undertake the Task he was met by Mr Graham on the mezzanine level of the Blackshop. Mr Graham undertook the electrical de-energisation and isolation of power to the Tank in Mr Tanner's presence and put his lock on the mechanism within the Motor Control Centre. Mr Tanner also put his lock on the hasp. T186.9-39 35. There was no set procedure that determined what stage in the preparation for the Task that Mr Graham would be contacted to undertake the electrical de-energisation and isolation of power to the Tank. T169.35-42 36. On some occasions electrical de-energisation would take place before any work had been undertaken in relation to the Tank. On other occasions electrical de-energisation and isolation of power to the Tank took place after the side hatch had been opened. T169.49-50, T170.1-6, 37. On at least one occasion while the Tank was in 'Manual Mode' Mr Graham pressed the 'start button' that operated the agitator assembly inside the Tank, to turn the anchor blade to a position where it was not blocking the entry to the side hatch, in circumstances where the side hatch had been removed. On that occasion electrical de-energisation and isolation of power to the Tank took place after the anchor blade had been moved. T169.49-50, T170.1-50,T180.1-5 38. There was no set procedure that determined who was required to contact Mr Graham to undertake the electrical de-energisation and isolation of power to the Tank as part of the Task. Generally, if there was a requirement for Mr Graham to attend to undertake the electrical de-energisation and isolation of power to the Tank he would be contacted by Mr Berdyshevski. T169.35-42 39. On an occasion when Mr Coad performed the role of Confined Spaces Standby person and Mr Tanner was performing the Task of cleaning the Tank, all the bolts that held the side hatch door in place were removed, the door was manually moved and the door was then relocated so that it was held partially open by two bolts. T327.42-50, T328.1-7 40. During the undertaking of this task of the removal of the bolts that held the side hatch in place the motor that drove the Agitator assembly for the Tank remained electrically energised and isolated. This task of opening the door to the side hatch was performed on the day prior to Mr Tanner attending to undertake the Task. T328.12-14, T329.32- 39 41. On occasions when Mr Coad was performing the role of Confined Spaces Standby person he would contact the electrician, Mr Roberts, directly by mobile phone to request that he attend to the electrical isolation of the Tank. This step was always taken after the door to the side hatch had already been opened. T330.37-38, T332.4-5 Day of the Incident 42. Prior to the date of the Incident Mr Mehta had not been involved in any work relating to the Task. T122.18-20 43. Prior to the date of the Incident Mr Mehta had not performed the Confined Spaces Standby Person before in relation to the Task. T125.27-32 44. The Confined Spaces Standby Person role being performed by Mr Metha on the date of the Incident included passing tools and equipment to the person who entered the Tank and assisting in any rescue should the person working in the Tank get into difficulty. T125.15-24 45. Mr Graham, who was present at the toolbox talk, was not specifically directed or asked to perform any tasks in relation to the tank clean. Mr Berdyshevski did not give Mr Graham any specific direction or instructions about when de-energisation and isolation of the Tank would be required to be undertaken. T189.37-50, T1901-7 46. After the Toolbox talk finished on 7 December 2017, at 6:13 Mr Metha created a 'Job Details' entry into the AMPRO Report system, in which he recorded the Job Description as 'Holding Tank is block, open up and make tank ready for Craig'. T126.1-50, T127.1- 13 47. Prior to Mr Metha, Mr Eirth and Mr Seaman commencing work in respect of, or in relation to the preparation steps for the cleaning of the inside of the Tank, the Tank was not electrically de-energised and isolated from all energy sources. T130.45-50, T131.1-8 48. Mr Graham was not contacted by anyone, prior to the work commencing to prepare the Tank for cleaning, to undertake the steps required to electrically de-energise and isolate the motor that drove the Agitator assembly for the Tank. T190.18-20 49. Mr Metha undertook the task of loosening and removing the bolts that held the side hatch in place. Prior to commencing that task Mr Metha did not take any steps to arrange for the electrical isolation of the Tank. This task was undertaken by Mr Metha while the motor that drove the Agitator assembly was still electrically energised. T130.45-50 50. Mr Metha had not been provided with any training or information as to how the Tank in the Blackshop could be electrically isolated. T131.19-21 51. Mr Metha understood that he was to contact Mr Berdyshevski to have Mr Berdyshevski contact Mr Graham to have the Tank electrically isolated. T131.23-34 52. Mr Eirth and Mr Seaman removed the Tank's top hatch and set up a fan and lighting. T205.24-35 53. Mr Seaman brought a ladder into the Blackshop that that access could be reached to the entrance to the side hatch of the Tank. T206.3-8 54. Mr Seaman assisted Mr Metha with the removal of bolts from the side hatch. Mr Seaman held the hatch in position while Mr Metha removed the second last bolt from the side hatch. T208.34-41 55. Mr Seaman then manipulated the lid of the side hatch far enough for Mr Metha to be able to look inside Tank. T208.43-50, 56. Mr Metha then looked inside the side hatch and made an assessment of the material inside the Tank. T209.1-6 57. Mr Seaman then let the lid of the side hatch hang where it landed – while it was being held with a single bolt. T209.1-6 Steps taken by Mr Tanner in preparation for undertaking the Task 58. On 6 December 2017 Mr Tanner sent an SMS to a friend with the message 'I am in a tank tomorrow. My worst nightmare. See how I pull up. Let you know tiger'. PX1 Tab 43 59. Mr Tanner arrived at the DIC premises at approximately 7:30 AM on 7 December 2017. PX1 Tab 40 60. Mr Tanner proceeded to Mr Berdyshevski's office after his arrival. T104.26-28 61. Prior to leaving Mr Berdyshevski's office Mr Tanner informed Mr Berdyshevski that he was going to go to the Blackshop and assess the job prior to completing the confined Spaces Entry Permit and a JSA and returning them to Mr Berdyshevski. T104.31-45 62. Mr Metha saw that Mr Tanner had a gas detector and helped Mr Tanner move the lid of the side hatch a bit so that Mr Tanner could check the gases inside the Tank. At that time the Tank had not been isolated from electrical energy. T139.15-50, T140.1- 34 63. At approximately 8:29 AM on 7 December 2017 Mr Tanner took a photograph using his mobile phone of himself with the Tank side access hatch visible in the background. PX1 Tab 43 64. At approximately 8:29 AM on 7 December 2017 Mr Tanner took a photograph using his mobile phone of the view inside the Tank through the side access hatch. PX1 Tab 43 The Incident 65. While Mr Tanner was in the ink holding tank, the agitator activated and Mr Tanner's leg became trapped between the side of the Tank and the anchor blade. PX2 Tab 78 66. After becoming aware that Mr Tanner was inside the Tank, Mr Mehta started calling for people to help and then entered the tank to assist Mr Tanner. T144.40-41,T145.1- 6 67. Mr Metha entered the Tank through the side hatch. T144.46-47. 68. While Mr Metha was inside the Tank assisting Mr Tanner the anchor blade of the Agitator assembly commenced to turn. T145.12-17 69. Mr Mehta slipped over and his left leg became stuck under the agitator blade. Mr Mehta was in a sitting position, face up. T145.29-30, PX 2 Tab 63 70. Mr Tanner was next to Mr Mehta in the Tank at the time and was helping to keep his body up as he was leaning on Mr Mehta. T145.9-10, PX 2 Tab 63 71. Mamadou Diallo was a Production Operative employed by DIC. He was undertaking work in a part of the DIC Premises known as the 'Yellowshop'. PX13 72. Mr Diallo left the Yellowshop and went to the Blackshop. PX13 73. Mr Diallo climbed up the ladder to the side hatch of the Tank and looked inside the Tank and saw Mr Tanner and Mr Mehta. PX13 74. Mr Mehta asked Mr Diallo to come inside the Tank to assist him. PX13 75. Mr Seaman attended at the Blackshop and observed Mr Diallo was standing on the steps of the ladder at the side hatch and speaking to the persons inside the Tank. T210.18-30 76. Mr Eirth attended at the Blackshop and observed that Mr Diallo was already present and had climbed up the ladder leading to the side hatch. T225.24-32 77. Mr Diallo started to climb into the ink holding tank at which time Mr Seaman said to Mr Diallo 'Do have your confined space'. Mr Diallo replied 'yes'. PX13 78. Mr Diallo placed his hands on the handles above the side hatch and put his right leg through the hatch opening. As he did this, Mr Diallo observed the agitator blade commenced to turn. PX13, T210.24-28 79. The agitator blade hit Mr Diallo's right leg, and cut his leg and knocked him around the Tank. PX13, T210.24-28 80. Mr Diallo was able to free his leg from the ink holding tank and fell backwards in pain. PX13 81. Mr Seaman then assessed Mr Diallo.T210.33-36 82. Mr Seaman then climbed up the ladder leading to the side hatch and looked inside the tank and saw Mr Mehta. Mr Mehta spoke to Mr Seaman and asked him to turn the power off to the Tank. T210.38-50, T211.1-8 83. Mr Seaman climbed down the ladder and he and Mr Lay pressed the isolate button which was on a pillar near the ink holding tank. T211.12-15 84. Mr Seaman climbed up the ladder leading to the side hatch on the Tank again and had a further conversation with Mr Mehta and handed him some tools so he could free himself. However, Mr Mehta indicated to Mr Seaman that he was not able to free himself using the tools. T211.21-27 85. Mr Eirth went upstairs to the mezzanine level and started pressing every emergency stop button he could see. T225.34-47 86. Mr Eirth then left the Blackshop and went to Mr Berdyshevski's office and told him that there was an someone stuck in the Tank and to contact emergency services. T226.17-18 87. Mr Eirth and Mr Berdyshevski then went to the Blackshop. T107.7-11 88. At approximately 8:48 AM on 7 December 2017 Mr Berdyshevski made a telephone call to '000' to emergency services. T107.7-8 89. Mr Graham attended the Blackshop after receiving a telephone call from Mr Eirth asking him to 'come quick' to isolate the ink holding tank. T190.22-30 90. While Mr Berdyshevski was on the phone to emergency services, he saw Mr Graham. Mr Graham stated that he had not been called to isolate the Tank as yet. Mr Berdyshevski then asked him to isolate the Tank. T107.32-39 91. When Mr Graham arrived at the Blackshop, he went up to the mezzanine level and isolated the Tank by isolating the circuit breaker and disconnecting the motor cables inside the Blackshop mixer control centre. T191.3-6, T193.10-21 92. Subsequently, Mr Graham returned to the motor control centre and put a locking mechanism (padlock and hasp) on the circuit breaker. T192.13-39 93. At approximately 8:53 AM on 7 December 2017 NSW Police and Ambulances officers arrived at the DIC premises. PX2, Tab 78 94. After the arrival of NSW Police and Ambulance officers Mr Graham went to the Main Distribution Board on the ground floor and physically removed the fuses from the CFS2 Onslow mixer unit. T193.20-21" Defendant's Additional Facts (MFI 8) "Parties 1. Buddco undertook general preventative maintenance at the DIC site at Auburn. This work included plant maintenance work, breakdowns of plant and equipment and additional project work. Buddco supplied an engineering team and engineering manager: T9.18 – 47 2. Buddco was not involved in the design, commissioning or modification of the ink holding tank. Buddco was engaged by DIC from 2009 after all modifications had been made: PX4 Tab 104, PX1 Tab 3 3. Buddco was not entitled to undertake any preventative maintenance work on the ink holding tank without approval from DIC: T61.20-48 4. Buddco would not be asked to do electrical work. Electrical work includes rewiring a power board, or installing emergency stops into the power board or machinery: T55.10-20 Workers 5. Craig Tanner (Mr Tanner) was a contractor who has previously been engaged to complete the cleaning of the ink holding tank. Mr Tanner was an employee of another contractor when he first cleaned the ink holding tank, but later became a sole trader: T320.10 – 32 6. When Mr Tanner began operating as a sole trader, he completed an induction. This induction covered all the various permits and requirements for the DIC Auburn site: T320.34 - 44, PX1 Tab 20, PX1 Tab 56, PX3 Tab 99 Q21 7. Mr Tanner completed the cleaning of the ink holding tank between four and six occasions prior to December 2017. Mr Tanner completed both the JSA and Confined Spaces Entry permits as required: T229.22-26, T198.34-50, PX1 Tab 32 and 33 8. On the first occasion that Mr Tanner was on site, Mr Graham explained to Mr Tanner the electrical isolation procedure for the ink holding tank. This occurred on the mezzanine floor. Mr Graham demonstrated how the isolation would occur by switching off the circuit breaker, applying padlocks and removing wires from the electrical contactors: T113.5, T186.9-39 9. Mr Tanner had previously followed the Buddco safety procedures, including the procedure for isolating the ink holding tank. He was ordinarily competent and diligent in observing safety procedures: T113.49-114.20, T325.35-37, T332.41 – 333.12, PX3 Tab 99 Q2 and 3 10. Mr Mehta had received training about how to complete a Confined Space Entry Permit as part of his confined space training. Mr Mehta was involved in audits conducted by Buddco which address issues such as the completion of permits: T133.26-47 The plant involved in the incident 11. The top hatch was approximately 1.8 metres above the mezzanine. It was covered by a lid that could be lifted off. A ladder would be required to access the top hatch to remove the lid: T18.29 – 18.36 12. A fan is used to flush out atmospheric contaminants to obtain a breathable atmosphere within the ink holding tank. The fan was normally placed over the top hatch and air pushed from the top of the tank through the bottom: T18.50 – T19.15 13. The side access hatch cover could only be removed if all the bolts that held the hatch on were taken out: T21.13 – T21.16 14. The side access hatch cover could be pivoted or moved to allow ventilation by removing all the bolts bar one and swinging the door to the side of the hatch: T329.8-19 Preparation of the area 15. One of Mr Mehta's roles in preparing for the cleaning of the ink holding tank was collecting tools. However, Mr Mehta did not obtain a shovel or jackhammer for use in the cleaning of the ink holding tank: T128.33 – 41 16. Mr Eirth and Mr Seaman assisted Mr Mehta by obtaining an extraction fan, a light and power cables. These items were left on the mezzanine level: T205.14 – 29 17. Mr Seaman used a forklift to obtain 44 gallon drums. He placed the drums at the roller door entrance to the black shop: T205.5-12 18. The top hatch of the ink holding tank was opened by Mr Eirth: T205. 19. There was a discussion between Mr Tanner and Mr Mehta about the need to complete paperwork in connection with the cleaning of the ink holding tank: T132.45 20. Mr Tanner presented Mr Mehta with a copy of the Confined Space Entry Permit. Mr Mehta wrote his name on the second page of the permit. This occurred when Mr Mehta was preparing the area outside the ink holding tank: T134.34 – 135.29 21. Mr Tanner did not approach Mr Mehta to discuss the JSA or formulate an emergency plan as required by the JSA: T151.10 – 152.21 22. Attempts were made to locate a JSA but they were unsuccessful: T48.30 – 49.34 23. An inference can be drawn that Mr Tanner did not complete, or start to fill out a JSA: [21] and [22] above 24. There is a need to open the top hatch and loosen all the bolts at the bottom: T127. This allowed for ventilation of the ink holding tank: T327.42 – 328. 25. Mr Mehta loosened the bolts around the outside of the side and removed bolts so that the access hatch lid could be moved to the side, without being completely open: T130.1-40, T139.22-50 26. Mr Mehta left a single bolt in the side access hatch cover: T208.34 – 209.6 27. After the bolts were loosened with some removed the side access hatch was not in a position so that someone could enter the ink holding tank: T152.44 - 49 28. After Mr Mehta had loosened the bolts on the ink holding tank, Mr Tanner went outside the black shop. He told Mr Mehta that he was going to complete the paperwork required to complete the cleaning task. Mr Mehta began putting barrier tape near the roller door of the black shop: T143.10 - 40 29. Mr Mehta did not expect any work to be completed inside the tank until a Job Safety Analysis has been completed: T155.32-37 THE INCIDENT 30. The side access hatch cover was hanging on one bolt. The hatch cover was swung away from the access hatch and tied to a pipe with rope: T22.4 – 22.8, T22.47 – 23.11 31. Mr Mehta did not tie up the side access hatch cover with the rope: T147.7-8 32. Mr Seaman did not tie the side access hatch cover with the rope: T209.3-14, T212.15 33. Mr Eirth did not tie the side access hatch cover with the rope: T223.19 – 50 34. Mr Tanner took photographs on his mobile phone which displayed that side access hatch cover in a position consistent with the rope having already been tied to it: PX2, Tab 63 35. It can be inferred that it was Mr Tanner who opened the moved the [sic] access hatch cover and tied a rope to it: [30] – [34] above 36. The use of a rope to tie the side access hatch cover to a support was not consistent with the usual practice of opening the hatch: T323.34-42 37. If the hatch cover was not tied with a rope: a. it would rotate downwards and partially block the side access hatch: T62.4-20 b. it would swing down and close the entrance to the access hatch: T147.10-16 c. over half the side access hatch would be covered by the hatch cover: T212-18 d. it would completely restrict entry to the ink holding tank: T324.6-12 e. there would not be a sufficient gap for a person to look in or put a gas meter in: 147.10-16 38. When Mr Mehta heard Mr Tanner screaming and went to the ink holding tank the side access hatch was open sufficient for a person to access: T152.36-39 39. Mr Tanner did not seek authorisation from Mr Berdyshevski or Mr Budd prior to opening the access hatch or entering the ink holding tank: T111.47-112 40. The JSA completed by Mr Mehta with respect to the preparatory work required for the cleaning of the ink holding tank was lost in the course of him being trapped in the ink holding tank, rescued and receiving medical attention: T159.9-37, PX3 Tab 99 Q2 SYSTEMS OF WORK PRIOR TO THE INCIDENT 41. DIC completed an audit of the Buddco safety procedures in 2015. DIC had no complaint about the documentation, policies and procedures reviewed during that audit: T61.7 - 18 42. A Job Safety Analysis (JSA) document was employed for any maintenance-based activity on site. It was not limited to a specific task but applied to any task that was to be conducted by a maintenance person or contractor on site. The purpose of the JSA was to give the contractor the ability to review the activity they were doing and identify risks. The JSA would direct attention to tasks that may require a further permit. All contractors, subcontractors and Buddco staff were required to complete the JSA document: T36.4 – T36.25, PX3, Tab 99 Q2 43. All members of the Buddco engineering team involved in the cleaning of the ink holding on 7 December 2017 were aware of the requirement to complete a JSA: T213.5-30 (Seaman), T230.1-38 (Eirth), T199.26-30 (Graham), T155.11 – 28 (Mehta), T96.7 – 18, T110.28 – 41 (Berdyshevski), T321.45 (Coad). 44. The JSA is a job safety method statement. It is a risk assessment and a safe work method statement. By completing the form and answering the questions a contractor will have completed a safe work method statement: T56.15-42 45. The task of cleaning the ink holding tank required completion of two forms, the JSA and a Confined Space Entry Permit: T56.43-49 46. The completion of the Confined Space Entry permit is to confirm that the stipulated steps have been completed and ensure that it is safe to enter the ink holding tank: T58.30-45 47. The person who would be completing the activity of cleaning the ink holding tank was required to complete the JSA. The JSA and Confined Space Permit was to be completed in concert with Mr Mehta who was acting as the stand-by person for the activity of cleaning the ink holding tank: T114.21-50, PX3, Tab 99 Q1, 2 and 3 48. Completion of the JSA and Confined Space Entry Permit for the task of cleaning the ink holding tanks required both Mr Tanner and Mr Mehta to jointly identify: a. risks that may arise when completing the task, b. the assistance the standby person will provide, c. an appropriate emergency plan T114.40-50 49. Both the JSA and Confined Space Entry Permit identified electrical isolation as a step that must be completed before an activity was undertaken: T58.48-59.8, T111.4-6 50. Isolation is to occur as part of completing the JSA: T333.25 – 31, PX3 Tab 99 Q34 51. The ink holding tank was isolated by Robert Graham. To effect the isolation, Mr Graham would turn off a circuit breaker, and remove the wires from the bottom of the electrical contactors. Following isolation, Mr Graham and the contractor or employee who was entering the ink holding tank would each place a padlock on the circuit breaker: T59.10-26, T156.41-157, T1832.16 -183, T331.26-28 52. Prior to December 2017, the isolation procedure was followed consistently by Buddco employees and contractors: T200.4-18, T230.40-231.10. I decline to make this proposed finding for reasons set out below. 53. The JSA includes a lock-out tag-out procedure that requires the device supplying the power source to a machine, lock it out and put a tag on it before testing the machine to see if it is isolated: T199.40-200.2 54. Mr Graham is the only person with access to the motor control cabinet: T189.47-49, T198.6-23 55. Where a contractor was engaged to complete the cleaning of the ink holding tank, the contractor is the person responsible for arranging Mr Graham to complete the isolation of the ink holding tank. Isolation was always to be completed by Mr Graham and the contractor who was engaged to clean the ink holding tank: T63.47-64, T113.40-114.2 56. Buddco employees and contractors, including Mr Tanner, were provided with individual locks for the purpose of participating in the isolating procedure: T231.41 – 47, PX3 Tab 99 Q 35 - 37 57. Following completion of the JSA and Confined Space Permit, whomever is completing the activity must obtain authorisation from Buddco before entering the ink holding tank: T57.1-4, T111.8-10. 58. A Buddco supervisor is required to sign off the JSA and Confined Space Permit to confirm that the procedure has been followed and that there are no outstanding safety issues. Generally, the supervisors responsible for sign off were generally Josh Budd or George Berdyshevski: T111.12-41, PX3 Tab 99 Q3 and Q20 59. As part of the authorisation procedure, the Buddco supervisor will run tests on the motor control centre to ensure that the ink holding tank is electrically isolated: T113.21 60. The side access hatch cover would be unbolted and completely removed to allow for access after the completion of the JSA and Confined Space Entry Permit, and authorisation was obtained from a Buddco supervisor: T322.47-323.2. I decline to make this proposed finding for reasons set out below. 61. When the side access hatch cover was removed to allow access it was completely removed by lifting it by the handles. It was placed against a wall: T147.22 – 39, T323.4-15 62. Proper completion of JSAs was audited or spot checked by Buddco supervisors: T213.46-214.29" Submissions for the Prosecutor 1. The prosecutor accepted that the appropriate propositions of law were those set out at pars 17- 41 of my previous decision in SafeWork NSW v Arkwood (Gloucester) Pty Ltd [2022] NSWDC 89. 2. The prosecutor submitted that the significant factual dispute appeared to be the circumstances of how Mr Tanner came to be inside the tank. The prosecutor indicated that there were no credit problems with any of the witnesses and that any minor differences between their recall as to certain events did not matter. 3. The prosecutor submitted that the principal object of the Act was protecting workers from harm through the elimination of risk. A PCBU is required to provide the highest level of protection against harm. Once there was an ability of workers to access the internal elements of the tank, while the tank was still energised, the mechanical hazard presented by the anchor blade was present and gave rise to the risk. Pursuant to s 17 of the Act Buddco was required to eliminate the risks that arose from that hazard, so far as was reasonably practicable. If it could not eliminate the risks then it was obliged to minimise the risks, so far as was reasonably practicable. 4. The prosecutor submitted that the de-energisation and isolation of electrical energy to the tank, before work commenced on the task, was a measure that would have eliminated the risk and provided a higher level of protection against harm to workers undertaking the task. Buddco owed a duty to both Mr Tanner and Mr Mehta, who were workers engaged or caused to be engaged by Buddco in relation to the cleaning of the tank. 5. The prosecutor submitted that the court must look at the general hazard posed by the agitator assembly in the tank, and not focus on the particular circumstances in which a specific injury arose on the day of the incident. 6. The prosecutor submitted that Buddco undertook the cleaning of the tank. The court was referred to the contractual documents and the background documents, including those setting out the internal mechanism of the agitator assembly and anchor blade. 7. The prosecutor accepted that Mr Tanner had, at least from July 2016, undertaken the task of cleaning the inside of the tank. Mr Tanner underwent a contractor induction on 6 July 2016 that was provided by DIC. This dealt with the requirements of obtaining work permits, and also dealt with lockout and tag out in respect of electrical work. The prosecutor accepted that on prior occasions Mr Tanner had completed a JSA for the relevant task. The prosecutor accepted that when Mr Tanner was engaged by Buddco, he was aware of the requirements to complete both the JSA and a Confined Spaces Entry Permit document. 8. The prosecutor submitted that the court could not find that Mr Tanner deliberately entered the tank in circumstances where he was aware that the tank had not been de-energised and isolated from electrical energy. There was evidence that Mr Tanner was cognisant of the hazards and the risks. 9. The tank was taken out of operation on 6 December 2017, to allow it to cool so that the work of cleaning out the tank could be undertaken on 7 December 2017. The prosecutor submitted that the significance of this was that, as at 6.00am on 7 December 2017, there was no operational requirement for the tank to be energised. 10. The prosecutor submitted that at the toolbox talk conducted by Mr Berdyshevski on the morning of the incident, there was no plan developed or discussed for the de-energisation and isolation of the tank. There was no discussion with Mr Mehta about the requirement to isolate the tank. Mr Mehta had not been involved in the task of undertaking the preparation for the tank cleanout before 7 December 2017. He had not performed the role of a confined spaces standby person before that date. There was no direction or instruction to Mr Mehta as to what his role was, if any, in relation to the arrangements for the de-energisation and isolation of the tank. 11. Mr Graham was also at the toolbox meeting, but there was no discussion as to when Mr Graham was to take steps to isolate the tank, nor was there any discussion as to who was to contact Mr Graham to undertake the isolation. There was no discussion of a requirement to report to anyone that isolation had been completed. There was no discussion about who was to check the isolation. 12. The prosecutor submitted that Mr Mehta undertook the task of loosening and removing the bolts that held the side hatch in place, at a time when no steps had been taken to arrange for the electrical isolation of the tank. The motor that drove the agitator assembly was still electrically energised at that time. Mr Mehta was not provided with any training or information as to how the tank in the Blackshop could be electrically isolated. There was no set procedure on the day to state when Mr Graham would become involved in the isolation. 13. The prosecutor submitted that Mr Coad said in evidence that on a different occasion when he performed the role of confined spaces standby person, when Mr Tanner was to perform the cleaning of the tank, all of the bolts that held the side hatch in place had been removed. Mr Coad said that as the confined spaces standby person, he contacted Mr Graham to request the electrical isolation of the tank. That step, according to Mr Coad, was taken after the door to the side hatch had already been opened. The prosecutor submitted that this showed that there was no consistent system for when the side hatch door would be removed or when the isolation would be done. 14. The prosecutor submitted that once the side hatch bolts had been removed, and access could be obtained to the inside of the tank, the mechanical hazard relating to the anchor blade existed and exposed persons to the general risk of suffering death or serious injury if they either, deliberately or inadvertently, placed parts of their body inside the tank or got into the tank. 15. The prosecutor submitted that Buddco did not have a sequential, step by step system for undertaking the task. Buddco was responsible for ensuring the de-energisation and isolation of the tank. The prosecutor referred to Buddco Procedure No 2 Confined Space Entry dated 16 July 2015 (PX 1, Tab 48). Once the isolation was done by Buddco, that had to be communicated to the contractor. 16. The prosecutor also referred to the Buddco Work Health and Safety Management Plan (PX 1, Tab 45, p 148). Buddco had an obligation to verify that equipment was de-energised prior to work commencing on the equipment. The prosecutor submitted that Buddco should have taken the step of de-energising the electrical energy to the tank prior to any work commencing, and in particular, prior to removing the bolts to the side hatch. 17. The prosecutor referred to the guidance documents which are summarised above. It was not in contest that all of these documents were applicable to the confined space work involved in cleaning out the tank. The prosecutor submitted that these documents showed that the hazard and the risk was one which the defendant knew about, or ought to have known about, as at the date of the incident. 18. The prosecutor submitted that many aspects of the evidence of Dr Nedved supported the position of the prosecutor. Dr Nedved conceded that it was part of Buddco's duty to identify the reasonably foreseeable hazards that could give rise to the risk. Dr Nedved agreed that the isolation of the mechanical hazard should take place before any steps were taken to open or remove the side hatch on the tank. Dr Nedved agreed that if the first step was to isolate the tank before any of the bolts were taken off the side hatch, that would have eliminated the risk. 19. The prosecutor submitted that Dr Nedved had essentially relied upon Buddco's administrative controls as being the appropriate controls. However, Dr Nedved did say that appropriate administrative controls would include the preparation of a Safe Work Procedure which set out each of the steps of the task in sequence. Such a document would set out the hazards identified, the risk which arose from each hazard and the control measures for each hazard (Tcpt 401/25-45). 20. The prosecutor pointed out that Dr Nedved had agreed that one could always envisage that workers would accidentally or inadvertently enter a piece of plant. Dr Nedved said from his experience that this happens all the time. 21. The prosecutor pointed out that Dr Nedved agreed that the hazard could be eliminated by specifying that the anchor blade was isolated prior to anybody allowing the tank to be opened. Dr Nedved said that this was one possible solution, but not a necessary solution (Tcpt 403/40). However, he agreed that this was a reasonably practicable solution. 22. The prosecutor directed attention to the steps taken by Buddco and DIC after the incident. The procedures were updated so as to provide that under no circumstances was a tank hatch to be removed while power was live to an internal stirrer. 23. The prosecutor returned to deal with Dr Nedved, submitting that Dr Nedved conceded that there was a residual hazard if the administrative procedures were not followed in full. 24. The prosecutor submitted that whether the incident arose from inadvertence or from a deliberate act, the isolation of the tank before the side hatch was removed would have eliminated the hazard and the risk. It was not just Mr Tanner who was exposed to the risk, but also Mr Mehta, who was to pass equipment and tools to the man working inside the tank. He too would have been exposed to the hazard because the tank remained energised and the anchor blade could move. 25. The prosecutor submitted that an interlocking device fitted to the side hatch was a reasonably practicable measure which should have been taken. It was a higher order measure in the hierarchy of risk controls, as it was an engineering control and not an administrative control. The Supplementary Expert Report of Mr Simurina showed that it was reasonably practicable to install an interlock at no great cost. Such a control did not rely on human behaviour, whereas an administrative control depended on such behaviour. The prosecutor submitted that Mr Simurina was not significantly challenged on both the reasonable practicability and the cost of an interlock being fitted to the side hatch. The prosecutor submitted that Dr Nedved had conceded that regardless of whether the side hatch was a guard or an access point, the fitting of an interlock device was something that could reasonably practicably be done. 26. The prosecutor accepted that Inspector De Silva did not require the fitting of an interlocking device. However, he pointed out that Inspector De Silva only had a short attendance at the site, and that his view was not in the nature of a considered expert opinion such as that provided by Mr Simurina. In any event, Dr Nedved accepted that the fitting of an interlock device was a reasonably practicable step that could have been taken. 27. The prosecutor submitted that the court could not find on the evidence that Mr Tanner entered the tank deliberately, knowing that it had not been isolated. Mr Tanner had complied on previous occasions with appropriate practice in relation to isolation. The evidence of Mr Coad, who had previously worked with Mr Tanner, was that he had complied with procedures. Similarly, Mr Berdyshevski gave evidence that he did not have any concerns that Mr Tanner would not comply with safe procedures. 28. The prosecutor set out in submissions a hypothesis as to how Mr Tanner came to be inside the tank (Tcpt 418). As I have indicated above, I am unwilling to draw any conclusions or inferences from the matters recorded in the autopsy report, in the absence of any expert biomechanical evidence. 29. However, the prosecutor submitted that the circumstances of how Mr Tanner came to be in the tank were not determinative (Tcpt 420/1). The isolation of the tank prior to opening the side hatch, or the fitting of an interlocking device, would have meant that even if Mr Tanner entered the tank deliberately or inadvertently, he would not have been exposed to the hazard and the risk, because the tank would have been isolated from electrical energy (Tcpt 420/10). Submissions for the Defendant 1. Counsel for the defendant commenced his submissions by drawing attention to the meaning of the word "Entry" in the Australian Standard (PX 2, Tab 71, p 407). This has been reproduced above. The same definition occurs in cl 5 of the Regulation. Counsel submitted that the relevant question was not whether or not the side hatch was open, but whether it was open so as to allow entry. Counsel submitted that this was the risk with which the defendant was charged. 2. Counsel for the defendant also drew attention to s 3.4.8 of the Standard (PX 2, Tab 71, p 423). It was the person entering the confined space who should place a lock or tag on an open circuit breaker. Counsel submitted that the inference was that the person who was going to do the work and go into the confined space should take part in the isolation process. It was submitted that this was consistent with the evidence given by Mr Graham that on a previous occasion he had demonstrated to Mr Tanner how the isolation was done. 3. Counsel for the defendant drew attention to the evidence of Mr Coad, who said that the isolation should be done while the confined space contractor and the standby person are jointly creating the JSA. 4. Counsel for the defendant submitted that there was never a conversation between Mr Tanner and Mr Mehta about creation of the JSA for the cleaning work. The Confined Space Entry Permit was only partly completed. 5. Counsel for the defendant submitted that while it was Mr Mehta who removed the bolts from the side hatch, it was Mr Tanner who opened the side hatch so as to allow for entry. Counsel submitted that it was Mr Tanner who placed the rope tying the side hatch up to the piping, so as to obtain full entry through the side hatch. Mr Mehta, Mr Seaman and Mr Eirth did not do this, and the only possible person who could have was Mr Tanner. Counsel pointed to the photograph taken by Mr Tanner on his phone, which showed the open side hatch. After taking that photo Mr Tanner went back to his vehicle and put his phone and wallet into the vehicle. He then went back to the tank. There was still no conversation with Mr Mehta as to how the work was to be done. The next thing Mr Mehta was aware of was Mr Tanner being trapped inside the tank. 6. Counsel for the defendant advanced a theory, based upon the injuries sustained by Mr Tanner, as to how his body was oriented when he entered the tank (Tcpt 429). The ultimate submission was that Mr Tanner had deliberately entered the tank by putting his legs in first. Again, I say that I am unwilling to draw any conclusions or inferences from the matters recorded in the autopsy report, in the absence of any expert biomechanical evidence. 7. Counsel for the defendant submitted that the actions of Mr Tanner were not foreseeable (Tcpt 429/50). Counsel submitted that Mr Tanner consciously disobeyed the confined space procedure by deliberately getting into the tank without having written authority to do so (Tcpt 431/16-35). 8. Counsel for the defendant criticised par 13(a) of the Amended Summons, saying that it was "well beyond the scope of para 12 being the risk" (Tcpt 432/30). Counsel submitted that the defendant was not charged with access being the risk, but the risk was entering. Once again counsel pointed to the Australian Standard and the evidence of Mr Coad, and submitted that the person who was going into the tank should be present when the isolation of the tank occurs. 9. In relation to par 13(b) of the Amended Summons, counsel for the defendant indicated that there was no dispute that interlocking devices work and are common. However, there was no evidence of any request ever being made of DIC by Buddco and there was no evidence of what would have happened if Buddco had requested DIC to install an interlocking device on its own tank (Tcpt 433/10). Counsel also pointed to the Technical Report of Mr Simurina (PX 17) and drew attention to the fact that there was no reference to a need for an interlocking device to be installed in that report. 10. Counsel for the defendant was critical of the prosecution case in relation to other subpars of par 13 of the Amended Summons. He pointed out that the phrase "the task" was not defined in the pleading but submitted that it must be one relating to entering the confined space. However, it is clear enough that the "task" is "the task of cleaning the ink holding tank" – see par 13(d) of the Amended Summons. Paragraph 5 of the Amended Summons also speaks of "the work" being "clean out the ink holding tank". 11. Counsel for the defendant submitted that when par 13(d)(vi) of the Amended Summons says that one of the six requirements of an appropriate safe work procedure is "the hatch of the ink holding tank not be opened until the steps above have been completed", this must mean "open so as to allow entry" (Tcpt 437/1). Consideration of the Expert Evidence 1. Mr Simurina and Dr Nedved agreed on a large number of matters. There was no dispute between the two experts concerning the following propositions, which I find to have been established by the evidence: 1. The plant involved in the incident had control measures in place for isolating energy sources to the tank. These required Mr Graham to be summoned to the Blackshop, where he would unlock the cabinet with his key, disconnect the power to the tank, and remove the wires as an extra precaution. 2. Persons would be exposed to a risk of serious injury or death due to entanglement and/or crushing if those persons entered the tank prior to isolating all energy sources, and the weight of the contents of the tank, plus the workers and their equipment, exceeded approximately 900 kg. 3. When the tank stirrer selector switch was set to automatic mode, and the weight reached 900 kg, the tank anchor blade was automatically actuated and would spin for 1 minute and 20 seconds. It then turned off and remained off for approximately 28 minutes. 4. Isolation of electrical power during machine shutdown ensures the highest level of safety when carrying out tasks that do not require the machine to remain connected to its power supply. Disconnecting and isolating the power was an engineering control. 5. It was possible to fit an electrical interlock to the side hatch of the tank to electrically disconnect power to the tank stirrer motor, if the side hatch was opened and the power was still connected. 6. The use of an electrical interlock on the side hatch would be an engineering control, which was a higher level control in the hierarchy of measures. Its effectiveness did not rely on human behaviour. 7. It was reasonably practicable for the side hatch to be fitted with an electrical interlock device. 8. There is no legislative requirement, or requirement in any Code of Practice for confined spaces, requiring a safety interlock switch to be fitted. 9. JSAs and Confined Space Entry Permits are administrative control measures and their effectiveness relies on human behaviour. 10. It is well-known in industry that incidents happen because workers do not follow administrative controls. 11. It could always be envisaged that workers could accidentally or inadvertently enter a piece of plant. 12. In the hierarchy of control measures, administrative controls are a lower level control measure. As such, they are the least effective level of managing risks. 13. If the Buddco administrative controls (the appropriate JSA and the Confined Space Entry Permit) were carried out in full by the workers, the hazard would be controlled. In other words, if the isolation step in the JSA had been taken, then power to the tank would have been disconnected and the anchor blade could not have moved. 14. If the first step was to isolate the equipment before taking any bolts off the side hatch, that would have eliminated the risk. 15. If a person put part of their body inside the confined space once the side hatch was partially or fully opened, and the tank had not been isolated from electrical power, there was a potential mechanical hazard. Consideration of Submissions: How Mr Tanner Came to be Inside the Tank 1. I have indicated above that I do not accept either theory advanced by counsel, based upon the autopsy findings and the photographs of Mr Tanner inside the tank, to come to a conclusion as to whether he entered deliberately or inadvertently. 2. However, I do find that any entry into the tank by Mr Tanner was inadvertent and not deliberate. I make that finding for the following reasons: 1. Mr Tanner was a qualified and experienced operator in confined spaces. 2. Mr Tanner had done this particular job at the DIC site several times before, without incident. 3. Mr Tanner had been shown on one occasion, by Mr Graham, how the isolation of the tank was carried out ie by Mr Graham unlocking the cabinet, turning off the power to the tank and removing the wires. On that occasion both Mr Graham and Mr Tanner put their locks on the power switch inside the cabinet. 4. No-one from Buddco or DIC had any concerns or qualms about the commitment of Mr Tanner to safety, based upon his previous performance. 5. The entry of Mr Tanner into the tank occurred at a point long before he would have entered in the normal course of events. 6. Mr Tanner and Mr Mehta had not discussed how they were going to do the work, they had not started to prepare a JSA for the tank cleaning task and they had not discussed a rescue or emergency plan. 7. Mr Mehta had not even finished his setting up work which would have to be completed before the JSA and the Confined Space Entry Permit were taken to Mr Berdyshevski to obtain authority to enter the tank. 8. The Confined Space Entry Permit had only been partly completed by Mr Tanner and had been left in his truck. It had not been discussed with Mr Mehta and Mr Mehta had not been part of filling it out, apart from writing his name on the document. 9. No contact had been made with Mr Graham by any person at the site to ask him to isolate the tank. 10. Calling Mr Graham to the tank was the only way in which the tank could be isolated. There could be no thought in anyone's mind that, in the absence of Mr Graham attending at the tank, the tank was properly isolated. 11. There were no tools and no equipment close by which Mr Tanner could have used to even commence the job of cleaning out the tank. 1. In all those circumstances, the only possible inference to be drawn is that part of Mr Tanner's body inadvertently entered the tank, thus increasing the weight above the level where the automatic function actuated, which caused the anchor blade to rotate. The movement of the anchor blade trapped Mr Tanner in the tank. 2. I am not prepared to engage in speculation as to whether he entered head-first or feet-first, or whether he simply looked or reached inside the tank and was then dragged further into it. All of the evidence points to Mr Tanner coming to be inside the tank through inadvertence rather than through any deliberate decision. 3. Counsel for the defendant submitted that the entry of Mr Tanner into the tank, or his presence in it, was not foreseeable. The expert evidence shows that failure to follow administrative controls is not unknown in industry generally. As recited above, PCBUs must have regard not only for the ideal worker, but also for one who is careless, inattentive or inadvertent. Defendants must conduct industrial operations on the basis that inadvertent acts will occur and they must be guarded against to the fullest extent practicable. 4. The particular risk of inadvertent entry into a confined space is recognised by cl 66 of the Regulation which requires a PCBU to manage risks to health and safety associated with a confined space at a workplace "including the risk of a person inadvertently entering the confined space". 5. In the light of the conclusions expressed above, I reject the submission of counsel for the defendant that this incident was not foreseeable. I find that this is an incident where a worker was careless or inadvertent in carrying out a task. It was not an incident where there was a deliberate and unforeseeable flouting of safety rules in the workplace: Orr v Hunter Quarries at [342]. Consideration of Submissions: "Entry" 1. As recited above, counsel for the defendant drew attention to the meaning of the word "Enter" in the Australian Standard and the definition of "Enter" in cl 5 of the Regulation. Both define entry by a person into a confined space to mean "the person's head or upper body is in the confined space or within the boundary of the confined space". The particular risk pleaded in par 12 of the Amended Summons was the risk of workers suffering serious injury or death "as a result of entering a confined space" when the anchor blade had not been electrically isolated. 2. I do not read the use of the word "entering" in par 5 of the Amended Summons as requiring the prosecutor to prove that Buddco was somehow responsible for the side hatch being open to the extent that Mr Tanner could place his head or upper body within the boundary of the confined space. Buddco has not been charged with a breach of the Australian Standard or with a breach of the Regulation. Rather, the Australian Standard and the Regulation are matters to be taken into account as guidance material. 3. The risk pleaded in par 12 of the Amended Summons is not to be confined by reference to the definition of the word "Entry" in the Australian Standard or the Regulation. Further, cl 66 of the Regulation, in any event, contemplates that entry into a confined space might be inadvertent. Clause 66 requires risks of a confined space to be managed in relation to the person entering the confined space either deliberately or inadvertently. 4. Mr Mehta was the Buddco employee who removed most of the bolts from the side hatch. I find that while he did not swing it fully open, and that was done later by Mr Tanner, the removal of most of the bolts while the tank was connected to the electricity supply meant that, if the side hatch was further opened by simply swinging it upwards on the remaining bolt, part of a person's body could then (deliberately or inadvertently) enter the confined space. Consideration of Element 1 – Whether the Defendant Owed a Duty 1. It was not in contest that the defendant was a person conducting a business or undertaking, which owed a health and safety duty under s 19(1) of the Act. 2. I am satisfied beyond reasonable doubt that the defendant owed a health and safety duty. Consideration of Element 2 – Whether the Defendant Failed to Comply with the Health and Safety Duty 1. Section 19(1) of the Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable the health and safety of persons carrying out work activities. Section 17 of the Act provides that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. The Risk 1. As recited above, the word "risk" is not defined in the Act. Risk should not be interpretated in a complicated fashion. The risk is pleaded in par 12 of the Amended Summons as follows: "12. The risk was a risk of workers, in particular Mr Tanner and Mr Mehta, suffering serious injury or death as a consequence of being crushed and/or entangled and/or cut as a result of entering a confined space, namely the holding tank, fitted with moving mechanical parts, namely, a rotating anchor blade, which had not been electrically isolated (the risk)." Reasonably Practicable – Section 18 1. The phrase "reasonably practicable" is defined in s 18 of the Act. It requires the court to take into account and weigh up all relevant matters, including those listed in subpars (a)-(e) in s 18. The Likelihood of the Risk Occurring – Section 18(a) 1. Once the side hatch was removed, if a person entered or partly entered the tank, whether deliberately or inadvertently, the anchor blade could rotate without warning. There was already a considerable weight of material in the tank which had to be removed. Once the overall weight in the tank, as measured by the load cells, exceeded 900 kg, the anchor blade would start and rotate, while the tank was still connected to electrical power. 2. There was thus a significant risk that a person could become entrapped by the anchor blade if they entered the confined space of the tank, whether deliberately or inadvertently. The Degree of Harm that Might Result from the Risk – Section 18(b) 1. It is obvious that death or serious injury could result from a person becoming entrapped between the anchor blade and the wall of the tank, or becoming entrapped in the material in the bottom of the tank, if pinned by the anchor blade. What the Defendant Knew or Ought Reasonably to Have Known – Section 18(c) 1. Buddco had actual knowledge of the general hazard constituted by a failure to isolate mechanical equipment, particularly mechanical devices within a confined space. 2. Buddco had a Confined Space Entry Permit (PX 1, Tab 48) which said that: "Buddco will be responsible for… isolating, locking out, and danger/warning tagging of hazardous services provided to the confined space". 3. Buddco's existing procedure, involving the completion of a JSA and a Confined Space Entry Permit listed a step in relation to isolation of electricity. 4. All of these matters show that Buddco knew about the hazard or the risk. 5. Buddco ought reasonably to have known about ways of eliminating or minimising the risk. Its own JSA and Confined Space Entry Permit was an attempt to minimise the risk. As an administrative control, the existing Buddco procedure could not have eliminated the risk. This is because administrative controls are only effective if followed by workers. 6. Further, Buddco ought reasonably to have known about ways of eliminating or minimising the risk from the guidance material summarised above. Availability and Suitability of Ways to Eliminate or Minimise the Risk – Section 18(d) 1. The fitting of an interlock device to the side hatch was an available, suitable and reasonably practicable way of eliminating the risk. This is established by the evidence of both Mr Simurina and Dr Nedved. 2. The creation of a step-by-step SWMS or Operating Procedure for the task of cleaning the tank, which mandated that the side hatch not be removed until isolation had been achieved, was an available, suitable and reasonably practicable means of minimising the risk. The Cost Associated with Available Ways of Eliminating or Minimising the Risk – Section 18(e) 1. The cost of fitting an interlock device to the side hatch was modest. In any event, that was a cost which would be borne by DIC. All Buddco could do was to point out the risk to DIC and request it to fit an interlock device to the side hatch. Thus, the cost would not have been borne by Buddco. 2. The cost of creating a step-by-step Operating Procedure was not in evidence, but it was part of the job of Mr Berdyshevski and other employees of Buddco to review safety matters and, if necessary, re-draft written procedures. There would not have been any additional cost to Buddco in doing so. 3. None of the reasonably practicable steps pleaded in the Amended Summons would have imposed a burden upon Buddco which was other than minimal. Reasonably Practicable – As Pleaded 1. Paragraph 13 of the Amended Summons pleads that the defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers in that it failed to take one or more of the measures pleaded in the subpars of par 13. Paragraph 13 alleges that each of the measures was reasonably practicable to eliminate the risk, or alternatively minimise the risk if it was not reasonably practicable to eliminate the risk. Subparagraphs 13(e) and 13(g) were abandoned during closing submissions by counsel for the prosecutor. Isolation – Paragraph 13(a) of the Amended Summons 1. The measure pleaded in par 13(a) of the Amended Summons is as follows: "Ensure that the ink holding tank was de-energised and isolated from all energy sources prior to permitting any work in respect of, or in relation to, the cleaning of the inside of the holding tank to commence, including any work which permitted persons to be able to access the inside of the holding tank." 1. I regard this as a statement of the aim to be achieved by an appropriate health and safety measure. Paragraph 13(a) does not set out any particular step which should have been taken by Buddco. Rather, it is a statement concerning the obligation of Buddco to isolate the tank prior to permitting persons to be able to access the inside of the tank. I find that Buddco did have such an obligation, both as a matter of law and in its own safety documentation. 2. I find that Buddco failed to discharge its obligation to isolate the tank as pleaded in par 13(a) of the Amended Summons. To demonstrate why that is so I will analyse the evidence concerning the steps Buddco did take to perform its obligation to isolate the tank. Buddco Steps to Isolate the Tank 1. I will examine the evidence to ascertain: 1. Who had the obligation to isolate the tank, according to Buddco. 2. When in the process the isolation of the tank had to occur. 1. Mr Roy said that as a general rule if the contractor had been hired to clean the tank, the contractor was the one who would ensure that isolation had been done (see par 68 above). 2. Mr Berdyshevski was asked to recall when, during the process, the side hatch should be opened. He said that it should be opened "right before entry" (see par 80 above). 3. Mr Berdyshevski acknowledged that the Buddco Employee Induction Manual (PX 1, Tab 47) and the Buddco Confined Space Entry Permit (PX 1, Tab 48) stated that Buddco was responsible for electrical isolation (see pars 82 and 83 above). 4. Mr Berdyshevski was asked whether there was any specific practice in relation to when the side hatch removal would occur. He said that after the barricades were put in place the side hatch could be opened. However, he said that in relation to these answers he was "just guessing" (see par 86 above). 5. If the Engineering Manager of Buddco was "just guessing" as to when isolation had to occur, or when the side hatch would be removed, this demonstrates that Buddco did not have a clear step-by-step procedure for determining when isolation would occur, and whether or not it should occur before the side hatch was removed. If the Engineering Manager was "just guessing" then it is small wonder that the fitters who reported to him, and the confined spaces standby person, did not have a consistent and coherent guide to what should occur and in what order. 6. Mr Berdyshevski said in his Record of Interview that it was the responsibility of Mr Tanner to ask someone to come and do the isolation (see par 92 above). 7. Mr Mehta said that he understood that the tank had to be isolated before the side hatch was opened. He had not been provided with any training or information as to how the tank could be isolated (see par 100 above). 8. In his Record of Interview, Mr Mehta said that to his understanding the tank was required to be isolated before the testing of the gases inside the tank took place (see par 105 above). 9. Also in his Record of Interview, Mr Mehta said that the tank had to be isolated before the side hatch was opened, because then it is not a confined space anymore and it is not safe because there is an access point to the confined space (see par 115 above). 10. Mr Graham, who had worked with Mr Tanner on previous occasions, said that it was never Mr Tanner who called him to ask for the isolation to be done. It was always someone else who called (see par 128 above). 11. Mr Eirth said that when the side hatch was off, the tank should be already isolated (see par 137 above). 12. Mr Coad said that after completion of the JSA and completion of the Confined Space Entry Permit, and before any further steps were taken in relation to the tank, the isolation had to occur (see par 153 above). 13. Mr Coad said that the tank was not isolated when it was opened up to be vented, but it was isolated in order to provide access to the interior of the tank (see par 154 above). 14. Mr Coad confirmed in cross-examination that the side hatch would always be undone before the isolation occurred (see par 155 above). 15. DIC saw it as the responsibility of Buddco to arrange for isolation and safety lockouts (see par 191 above). 16. The Buddco Workplace Health and Safety Management Plan (PX 1, Tab 45) said that equipment had to be de-energised prior to commencing work on the equipment (see par 208 above). 17. The Buddco WHS Induction Manual (PX 1, Tab 47) said that lockout/tag out should occur when a guard or other safety device was removed or bypassed or when a person placed any part of their body where it could be caught by moving machinery (see par 211 above). 18. The Buddco Confined Space Entry Permit (PX 1, Tab 48) said that Buddco was responsible for isolation of hazardous services provided to the confined space and that Buddco had to communicate to the contractor what isolations had taken place (see par 218 above). Further, this document did not place the obligation to isolate upon the contractor (see par 220 above). 19. The JSA for tank cleaning done on 6 July 2016 (PX 1, Tab 21) listed the "Sequence of Task Steps" as: "Vent tank/open tank Power leads Tank clean/entry Noise". 1. This JSA does not state when isolation was to take place. 2. The JSA for tank cleaning done on 12 September 2016 lists the "Sequence of Task Steps" to be: "Tank vented Tank isolated Tank cleaned". 1. This JSA clearly indicates that the side hatch was opened before the tank was isolated. 2. The JSA for tank cleaning done on 2 December 2016 listed the "Sequence of Task Steps" as: "Vent tank Install fan/light Clean tank". 1. This JSA made no mention of isolation as a task step, and certainly did not indicate when isolation was to occur ie before or after the side hatch was opened. 2. The JSA for dry ice blasting performed on 18 April 2017 does not list isolation as a task step, and does not list opening or venting the tank as a task step. 3. It can be seen from the above summary that within Buddco there were differing views as to whether the contractor had responsibility for the isolation, or whether Buddco had such responsibility. Further, the evidence shows that there was no set practice as to when isolation would occur, and in the summary above, different employees had different views as to whether or not the tank should be isolated before the side hatch was removed for any purpose. Some thought that it should be isolated before the side hatch was removed at all, some thought that it did not need to be isolated when the side hatch was opened for the limited purpose of testing the atmosphere inside the tank, and some thought that it did not have to be isolated when the side hatch was completely removed, so that, if necessary, the blade could be moved by electrical power if it was found to be blocking the access to the tank when the side hatch was removed. 4. It is for these reasons that I decline to make a finding in terms of par 52 of the defendant's Additional Facts document (MFI 8). When all the evidence is taken into account, it is clear that prior to December 2017, the isolation procedure was not followed consistently by Buddco employees and contractors. Indeed, there was no step-by-step procedure to be followed. 5. It is also for these reasons that I decline to make a finding in terms of par 60 of MFI 8. There was no coherent procedure to tell employees and contractors when the side hatch should be unbolted and completely removed. In particular, there was no step-by-step procedure telling employees and contractors when isolation should occur in relation to unbolting and removal of the side hatch. 6. I find that the step pleaded in par 13(a) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken. Interlocking Device – Paragraph 13(b) of the Amended Summons 1. Paragraph 13(b) of the Amended Summons pleads that the step which should have been taken by Buddco was: "Requesting that DIC install an interlocking device on the ink holding tank hatch which de-energised the tank when the hatch was open." 1. Mr Simurina and Dr Nedved were in agreement that interlocking devices are engineering controls which eliminate a risk. The power to the interior of the tank would have been automatically shut off by an interlocking device if one had been fitted to the side hatch. The obligation under the Act is to provide the highest level of protection, and this is done by eliminating risk (if that is reasonably practicable) rather than minimising risk. 2. However, as pointed out by counsel for the defendant, the tank was not owned by Buddco, it was owned by DIC. All Buddco could do would be to request DIC to install an interlocking device on the tank side hatch. There was no direct evidence what the attitude of DIC would have been to such a request. DIC could have said "No" or it could have said "The tank is old, we do not want to use it for much longer, so we will not spend any money". Given that DIC had passed the tank cleaning work onto Buddco entirely, the response of DIC could well have been: "You are entirely responsible for safety during work on the tank so you take appropriate precautions". 3. All that having been said, making a request of DIC to install an interlocking device was a reasonably practicable measure which Buddco could have taken. Whether it would have had the practical result of eliminating the risk, really falls to be considered in relation to Element 3 of the offence, which is discussed below. 4. I find that the step pleaded in par 13(b) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken. Engineering Controls – Paragraph 13(c) of the Amended Summons 1. Paragraph 13(c) of the Amended Summons pleads that Buddco should have requested DIC to install four particularised engineering controls. Those controls are pleaded as follows: "i. which permitted workers undertaking tasks that required entry into the ink holding tank to isolate the tank from all forms of energy; and/or ii. which permitted the locking out and tagging out of the means of energizing the operating systems by workers undertaking tasks that required entry into the ink holding tank; and/or iii. to alert workers when the operating systems, including moving mechanical parts, had not been electrically isolated; and/or iv. which permitted the operating systems, including moving mechanical parts, to be deactivated by means of an emergency stop." 1. Engineering control (i) as pleaded is a statement of an aim to be achieved, rather than a particular engineering control which could or should have been employed. 2. Engineering control (ii) refers to locking out and tagging out of the electrical power to the tank. Buddco already had such a measure in place, which involved Mr Graham being called to open up the cabinet, shut the circuit breaker, put a lock on the circuit breaker and pull the wires out. Engineering control (ii) does not seek to add to the existing system of locking out and tagging out, which if followed by workers, was adequate to isolate the tank, and which in the past had appropriately isolated the tank. The flaw in the system was not that there was no means of locking out and tagging out the electricity, but there was no coherent system for mandating that such isolation occurred at a particular point in the process. 3. Engineering control (iii) was not the subject of any evidence. The prosecution did not call evidence of any device which should have been installed to alert workers when the tank had not been electrically isolated. 4. Engineering control (iv) was the subject of evidence. When the two men became trapped in the tank, workers in the Blackshop tried to find an emergency stop which would isolate the electrical power to the tank. While there were a number of E-stops in the Blackshop, none of them isolated the power to the tank. Such E-stops were installed after the event. 5. However, the installation of E-stops does not eliminate or minimise the risk. The need to hit an E-stop and cut off the power to the tank would only arise after the risk has materialised, and someone is trapped inside the tank by the anchor blade. In other words, engineering control (iv), while desirable, is not a means of eliminating or minimising the risk. At best, it might reduce the injuries suffered after the risk has materialised. 6. I find that the prosecution has not established its case in relation to par 13(c) of the Amended Summons. Safe Work Procedure – Paragraph 13(d) of the Amended Summons 1. Paragraph 13(d) of the Amended Summons pleads that Buddco should have taken the following steps: "d. develop, implement and enforce a safe work procedure for the task of cleaning the ink holding tank which set out the minimum steps that workers were required to undertake when carrying out the task, including a requirement that: i. a Job Safety Analysis (JSA) be prepared prior to commencing the task; ii. a Confined Space Entry Permit be completed prior to commencing the task; iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken; iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank; v. workers consult and obtain approval from Buddco before commencing the work; vi. the hatch of the ink holding tank not be opened until the steps above have been completed." 1. Buddco did have a procedure requiring the two workers involved in tank cleaning to complete a JSA and a Confined Space Entry Permit. Buddco already had in place a procedure requiring approval from Buddco, and consideration of the JSA and the Confined Space Entry Permit, before work in the tank was authorised. The crucial matters pleaded in par 13(d) of the Amended Summons, and missing from the existing Buddco procedure, were that: 1. Buddco did not provide detailed guidance on the specific isolations required and how they were to be undertaken. 2. Buddco did not mandate that the side hatch of the tank should not be opened until isolation had been completed. 1. The summary above of the differing interpretations within Buddco on these crucial matters, demonstrates that the use of a generic JSA, and the absence of a step-by-step procedure, was inadequate to minimise the risk. As Mr Roy said, the whole point of a JSA is to allow whoever is doing the activity to go through a series of steps. It is in effect a Safe Work Method Statement (see par 67 above). 2. The evidence shows that it was Buddco which, through its workers, opened the side hatch of the tank at a time when Buddco had not carried out its own obligations to isolate the tank. 3. As recognised by some of the Buddco workers, the isolation should have occurred before the side hatch was opened for any purpose. As soon as the side hatch was opened, even partially, there was an access point to the confined space. The risk then existed. 4. As Dr Nedved pointed out, it is not unknown in an industry, in fact it is a common experience, for workers to take shortcuts. This means that administrative controls are only as good as the scrupulous attention paid by workers to observing the controls. However, in this case I find that the JSA procedure was inadequate, in that it did not set out a step-by-step procedure for the inherently dangerous task of opening the tank and cleaning it. 5. For all we will ever know, Mr Tanner may well have assumed that the tank was electrically isolated, because the side hatch was partially opened by Buddco. The evidence of Mr Graham shows that it was never Mr Tanner who called him to come and isolate the tank on previous occasions, which means that it must have always been a Buddco person. This would accord with the Buddco written procedures, which placed the obligation to isolate the tank upon Buddco itself. 6. If on the day of the incident the tank had been isolated by Buddco before the side hatch was opened to any degree, this tragic incident would never have occurred. 7. I find that the step pleaded in par 13(d) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken. Instruction and Supervision – Paragraph 13(f) of the Amended Summons 1. Paragraph 13(f) of the Amended Summons pleads that Buddco should have provided adequate instructions and supervision to workers performing the work, including information as to how the task was to be performed in accordance with the improved procedure pleaded in par 13(d) of the Amended Summons. 2. It stands to reason that if there was to be a new step-by-step procedure, and an imperative that the tank be isolated before the side hatch was opened at all, then there should have been adequate instruction and supervision in such improved procedure. 3. I find that the step pleaded in par 13(f) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken. Conclusion on Element 2 1. I find that the prosecution has proved the case pleaded in subpars 13 (a), (b),(d) and (f) of the Amended Summons, I am satisfied beyond a reasonable doubt that the defendant failed to comply with its health and safety duty. Consideration of Element 3 – Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury 1. The relevant question on causation is not whether the failures of the defendant were the cause of the death of Mr Tanner and the injuries to Mr Mehta, but whether the act or omission of the defendant was a substantial or significant cause of the workers being exposed to the risk of injury – Bulga Underground Operations at [127], [130]. 2. That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers – Bulga Underground Operations at [129]-[130]. 3. The Court of Criminal Appeal recently considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established. 4. The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the court did so is best expressed by Simpson AJA at [2] as follows: "I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd ('GCE') gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld." 1. Justice Walton agreed with the conclusion reached by Justice Cavanagh saying at [12]: "I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised." 1. Justice Cavanagh set out the principles in relation to causation at [229]-[235] as follows: "229 In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person. 230 As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed. 231 It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause. 232 Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause. 233 This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk. 234 Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof). 235 In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk." 1. The conclusion reached by Justice Cavanagh was expressed at [241]-[243] as follows: "241 The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work. 242 It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown. 243 In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work." 1. As set out above, I have found that the defendant breached its health and safety duty by failing to take the measures pleaded in subpars 13 (a), (b), (d) and (f) of the Amended Summons. 2. In relation to par 13(a) of the Amended Summons, the failure of Buddco to isolate the tank before the side hatch was opened was clearly a substantial cause of the workers being exposed to the risk. If the tank was isolated before the hatch was moved or removed, the anchor blade could not have spun and the risk would not have been present. 3. In relation to par 13(b) of the Amended Summons, a request to DIC to install an interlocking device may or may not have led to DIC installing the device. However, when DIC had handed complete control of the confined space work in relation to the tank to Buddco, there was no prospect of an appropriate interlock device being installed unless Buddco drew this to the attention of DIC. The failure to do this was a significant or substantial cause of the risk to which the workers were exposed. 4. There is material in the evidence which suggests that if Buddco had requested that DIC install an interlocking device on the side hatch, such advice would most likely have been accepted. 5. The agreement between DIC and Buddco (PX 1, Tab 3) obliged Buddco in cl 6(a) to comply with all applicable legislation in relation to the provision of the services. In cl 6(b) Buddco was obliged to obey all reasonable directions given by DIC "in respect of the safety and maintenance/repairs of equipment". In cl 6(d) Buddco was obliged to comply with all relevant occupational health and safety and compliance legislation. This of course included its duties under the Act. By cl 6(e) Buddco had to ensure that DIC was informed of any reason which may cause Buddco to not carry out its duties in a safe and lawful manner. 6. The finding has already been made above that Buddco was obliged to take the reasonably practicable step of requesting DIC to install an interlock on the tank side hatch. Buddco should have come to the view that it could not comply with the obligation to carry out its duties in a safe and lawful manner if it failed to draw that to the attention of DIC. 7. The DIC Workplace Health and Safety Manual (PX 1, Tab 57) stated in s 1.0 that DIC was "vitally concerned with the safety of all of its employees". It was "a fundamental requirement of the Company that its business be conducted safely". 8. Also in s 1.0, under the heading "Safe Working Conditions", DIC made specific reference to safety guards, interlock systems and isolation systems being appropriate. 9. In s 1.0, under the heading "Safe Working Methods", DIC stated that "safest possible methods of work will be devised taking into account the advice of specialists". DIC had already appointed Buddco as the "specialist" to carry out confined space work. This suggests that DIC would have taken into account any advice given by Buddco requesting the installation of an interlocking device on the tank side hatch. 10. In s 2.0 the key objectives of DIC's workplace health and safety system were stated. These included: "• Ensuring guards and safety devices are in place, before and during and after use. • Management at all levels ensuring that proper and safe systems of work are in operation. • Ensuring the safest possible methods of work will be devised taking into account the advice of specialists and employees' representatives." 1. Section 10.0 of the DIC Workplace Health and Safety Manual dealt with "Risk Control & Hazard Identification". The section referred to identifying hazards, risk assessment and the hierarchy of control, with elimination of a hazard being "our first choice". The evidence shows that installation of an interlocking device on the tank side hatch was the only step which could have been taken to eliminate the risk of workers becoming entrapped in the tank if electricity had not first been isolated before the tank was opened. 2. Given these policies of DIC, I find that if Buddco had taken the reasonably practicable step of requesting DIC to install an interlocking device on the tank side hatch, DIC would have taken that advice and installed the interlock. The failure by Buddco to request that DIC install the interlock was thus a substantial or significant cause of Mr Tanner and Mr Mehta being exposed to the risk of injury. 3. In relation to the failure to have an appropriate step-by-step procedure for isolating the tank, and providing adequate instructions and supervision to workers performing the task under that improved regime, such failure was a significant or substantial cause of Mr Tanner and Mr Mehta being exposed to the risk. The confused and confusing approach of Buddco towards isolating the tank (including who was to do this and when it was to be done) were in my view the main cause of the workers being exposed to the risk. When Buddco was in charge of the whole process, and had control of the operation such that it could mandate how it was performed, a failure to provide and enforce an appropriate step-by-step procedure was a significant or substantial cause of the risk being in existence. 4. Had there been an appropriate procedure, which was reinforced by appropriate training and/or supervision, then the risk would have been minimised. As it was, the uncertain and ill-defined Buddco procedure was a direct cause of the workers being exposed to the risk posed by the anchor blade automatically activating, because the tank had not been electrically isolated before the side hatch was opened. Conclusion on Element 3 1. I am satisfied beyond a reasonable doubt that the breach of duty by the defendant exposed workers to a risk of death or serious injury. Conclusion 1. I find that the defendant Buddco Pty Ltd committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 (NSW) because: 1. The defendant owed the workers named in the Amended Summons dated 23 June 2020 a health and safety duty under s 19(1) of the Act. 2. The defendant failed to comply with that duty. 3. The breach of duty by the defendant exposed the workers to a risk of death or serious injury. 1. I find the offence set out in the Amended Summons dated 23 June 2020 proved beyond a reasonable doubt. 2. I will hear the parties on sentence. Orders 1. The orders of the court are: 1. The elements set out in the Amended Summons dated 23 June 2020 have been proved beyond reasonable doubt. 2. I find the defendant Buddco Pty Ltd guilty. 3. The matter will be listed for a Sentence Hearing on a date convenient to the parties. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2022