Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Malone v Shaw Aiton Australia Pty Ltd [2003] NSWIRComm 359 PROSECUTOR Inspector Barry Malone PARTIES : DEFENDANT Shaw Aiton Australia Pty Ltd FILE NUMBER: IRC4605 of 2002 CORAM: Peterson J CATCHWORDS : Occupational health and safety - Plea of guilty - Employee suffering fatal fall injuries - Maintenance worker working within air gas/heater of standard design with design defect - Quantification of penalty - Principle of parity - Penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 s15(1) Inspector Malone v Delta Electricity [2003] NSWIRComm 212, 10 July 2003, unreported CASES CITED : Lowe v The Queen (1984) 154 CLR 606 Warman International Ltd v WorkCover Authority of New South Wales (1988) 80 IR 326 HEARING DATES: 10/20/2003 DATE OF JUDGMENT: 10/24/2003 PROSECUTOR Mr G M Galluzzo of counsel SOLICITOR WorkCover Authority of New South Wales SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr B D Hodgkinson SC with Mr G Wilson of counsel SOLICITOR Leitch Hasson Dent SYDNEY. JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 24 OCTOBER 2003 Matter No. IRC4605 of 2002 INSPECTOR BARRY MALONE v SHAW AITON AUSTRALIA PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 The defendant, Shaw Aiton Australia Pty Ltd, is charged with an offence under s15(1) of the Occupational Health and Safety Act 1983 ('the OHS Act') arising out of circumstances which led to the death of an employee, Clive Thomas Beynon, at Mt Piper Power Station on 17 October 2000. A plea of guilty has been entered. 2 The defendant contracted with Delta Electricity, the operator of Mt Piper Power Station, to undertake work which included repairs to the No. 1 boiler and air/gas heater B1 at Mt Piper. Mr Beynon was employed as a maintenance worker on the site and suffered fatal injuries when he fell from a catwalk/walkway within the gas/air heater. 3 Delta Electricity was the subject of a prosecution which led to a judgment of the Commission in Court Session given on 10 July 2003 [2003] NSWIRComm 212, unreported. In the present proceedings, the prosecutor and the defendant have agreed that findings of fact made by the Commission in that matter, relevant to the present case, may be accepted and relied upon. This has facilitated the hearing of the matter against the present defendant. 4 The Commission was provided in evidence with an agreed statement of facts which included the following: 6(g) At approximately 1:15pm on 17 October 2000 Clive Beynon and others recommenced work at level 4 of the gas/air heater B1. This involved gaining access to inside the heater by the access door. Directly inside the access door is a catwalk/walkway with a grid type floor. The catwalk is 480mm wide. (h) Once inside the heater Clive Beynon recommenced work which was positioning 900mm x 900mm x 30mm steel shoes into position to the underside of the rotor in the airheaters. (i) To carry out this task, a sliding cradle was constructed out of metal and positioned below the bulkhead ceiling; the metal plate was then positioned on top of the cradle and slid along until it was in position to be installed. (j) This operation required 3 people. At the time Stephen Esgat, an employee of the defendant, was positioned on the outside to push the plate along the cradle. Whilst another employee of the defendant, John Buckley was located inside to lever the plate in position. (k) Clive Beynon was inside the access door and proceeding along the catwalk right of the access door to gain access to the area above. (l) Clive Beynon whilst working lost his footing falling to his death some 8 metres below the walkway/catwalk. (m) The walkway/catwalk to the inside perimeter to the gas/air heater did not comply with AS 1657.1992 'Fix Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation' in that: a. The clear width of platforms and walkways must be not less than 600mm wide. (The walkway was 480mm wide). b. Midrails were not provided and the toe board was 60mm high above the platform. (n) Inside the gas/air heater a scaffold had been erected by employees of the Defendant. (o) The scaffolding erected to the inside of the air/gas heater did not comply with AS/NZS 4576.1995 'Guidelines for Scaffolding' in that: a. Edge protection was inadequate in that it was fibre rope and not pulled rope. (Fibre rope and wire rope are unacceptable materials to be used as handrails). b. In some locations the rope handrails were 400mm away from the working platform. (Handrails to be no further than 100mm away from the working platform). c. In some locations (high scaffold) no edge protection was provided. d. Access to the scaffold was unsatisfactory in that the workers had to climb to the top of the walkway handrail, step across a void of approximately 450mm x 350mm to gain access to the scaffold. (p) As part of the defendant's tender for the maintenance contract to Delta Electricity, the defendant indicated that it intended to engage a specialist rigging sub-contractor "Rebel Scaffolding" to attend to the scaffolding requirements for the works. In erecting the scaffolding in the air/gas heater the defendant did not engage a specialist rigging sub-contractor but used its own employees. (q) The scaffolders who constructed the scaffold have left the employ of Shaw Aiton Australia Pty Ltd and the company was not able to identify who actually constructed the scaffold. (r) No adequate risk assessment was obtained for the journey to and from the air/gas heater unit for the purposes of performing maintenance of the air/gas heater unit. (s) No adequate work method statement for journeying to and from the air/gas heater unit whilst performing maintenance of the air/gas heater unit was provided for persons not employed by the defendant. (t) The defendant failed to provide or maintain a safe system of work for the performance of maintenance in relation to the air heater unit situated at the Mount Piper Power Station. (u) The defendant failed to ensure that employees not be allowed onto unsecured scaffolding when performing or journeying to or from performing maintenance to the air heater unit. (v) the defendant failed to ensure that the scaffolding erected to the inside of the air heater unit complied with Australian Standards - AS/NZS 4576.1995 'Guidelines for Scaffolding' in particular: a. Edge protection was inadequate or not provided. b. Rope handrails were too far away from the working platform. c. Access to Scaffold was unsatisfactory. 22. The defendant failed to ensure that the walkway to the inside perimeter of the air heater unit complied with Australian Standard AS 1657.1992 'Fixed Platforms, Walkways, Stairways and Ladders', in particular: b. Walkway was too narrow. c. Mid-rails and toe boards were not provide or inadequate. 23. The defendant failed to provide adequate instructions, training and supervision to employees performing maintenance to the air heater unit include (sic - including) safe journeying to and from the air heater unit. 5 Paragraphs 6(v) and 22 in the Agreed Facts seem to me to have reduced significance given the findings I made in the Delta Electricity matter and the fact that the scaffolding referred to was not a matter which affected the exposure of Mr Beynon to the risk of injury. The prosecutor agreed with that position. 6 In Delta Electricity the following was stated: 27 It was accepted in the proceedings that the faulty scaffolding work was not connected with the risk to safety attendant upon Mr Beynon at the point of his accident. To the extent that he was exposed to risk, that flowed from the absence of a protective structure which might have ensured he would not have been able to fall from the walkway. . . . . 30 The tragic consequences in that respect seem to me, so far as the evidence suggests, to have arisen from what is essentially a design defect in the equipment which left it providing a space between the walkway and the rotating duct through which a person, caused to fall by whatever means, was able to fall through. The existence of such a design defect does not absolve the defendant in any way, as its plea of guilty properly accepts. Nevertheless, the objective seriousness, the nature and quality, of the offence involved in the failure to anticipate the possibility of a latent design defect coming to bear in circumstances such as these, seems to me to be not of a high order. I do not consider, on the evidence, it correct to say this risk to safety was readily foreseeable. The confusion between hindsight and foreseeability is a matter to which due care must also be given. In this respect I attribute some, but little, weight to Mr Saladine's evidence of WorkCover inspections of these installations at Mt Piper while under construction, and of direct recollection of such an inspection during maintenance at Bayswater. 7 Mr Galluzzo, for the prosecutor, accepted the conclusions in Delta Electricity on the matter of foreseeability were appropriate here. 8 The defendant's case, put by Mr Hodgkinson SC, who appeared with Mr Wilson of counsel, consisted of statements made by Simon Chivers, the Managing Director of the defendant, and Danny William Salfus, the Occupational Health and Safety Manager of the defendant. Mr Chivers' evidence shows that the defendant, a subsidiary of the Shaw Group of Louisiana, USA, specialises in maintenance and construction works in the power sector and, to a lesser extent, in heavy process and chemical industries. Work is undertaken in Australia and New Zealand but primarily at present in New South Wales. The defendant has worked in the power industry in Australia since 1955 and has not in that context suffered any serious workplace injuries. Those statements also detail the response of the defendant to the accident, particularly in terms of the review of the assessment of dangers on site. 9 In performing the work at Mt Piper, the defendant engaged the services of a recognised expert in this equipment and one of the most experienced supervisors in the industry for this type of work. The air heater was a Rothemuller, widely used around the world and in the newer New South Wales power stations at Eraring, Bayswater and Mt Piper. A safety audit had been conducted by the defendant's Assurance Manager and Mt Piper's own Safety Manager one week before this accident. 10 Consistently with what was found in Delta Electricity, it is clear from this evidence that despite what was a proactive approach to safety, observations of the workplace, including the walkway from which Mr Beynon fell, did not identify the risk to safety involved in the structure of the walkway should a person on it happen to fall. 11 Upon the occurrence of the accident, the defendant's Operations Manager was sent to Mt Piper to assess the situation and report back what actions were necessary. The International Safety Manager, Roy Greenslade, of Shaw Stone and Webster in Milton Keynes, UK and the Global Head of Safety for the Shaw Group, and Danny Oubre, of Shaw Group Inc in Baton Rouge, Louisiana, immediately came to Australia to give assistance wherever possible to a team in Australia and the family of Clive Beynon. Financial assistance, including the payment of all funeral related costs, was provided to Mrs Beynon. 12 Immediately following the accident, the defendant worked with Delta Electricity in designing and installing a revised handrail system at Mt Piper that overcame the problem in the air heater. The defendant was later engaged by Macquarie Generation to modify the four units at Bayswater Power Station in the Hunter Valley. 13 Significantly, a complete review of the safety management system was conducted by Mr Greenslade and others. The extensive material tendered in evidence satisfies me that this has been a genuine attempt by the defendant to achieve advancements in its safety systems and performance to reflect a motivation which, as Mr Salfus put it: ". . . . at all levels of management has since Clive's death, been one of 'never again' ". 14 Mr Hodgkinson referred me to the observations of Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610.9 where his Honour said in relation to the principle of parity in sentencing: Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. (See also Warman International Ltd v WorkCover Authority of New South Wales (1988) 80 IR 326 at 340.5). 15 Whilst, as Mr Hodgkinson submitted, parity does not call for an identicalness of penalty, there does not seem to me to be any basis upon which I could distinguish the present case, on the matter of penalty, from that concerning Delta Electricity. In both cases, the defendants have had no prior convictions; entered pleas of guilty at an early time and cooperated with the WorkCover Authority, including the disseminating of information throughout the power industry about the risks attendant upon the structure of the German-built air heater. While the charge in the Delta Electricity matter was brought under s16 and that in the present case relates to the defendant's employee and is thus brought under s15, the nature of the duties imposed and the maximum penalty in both cases is the same. 16 I also consider that the level of culpability of the defendant is no different from that of Delta Electricity. Both the operator of Mt Piper, Delta Electricity, and the contractor undertaking work there, Shaw Aiton, were utilising and working upon equipment in a standard form of construction which involved a design defect. It is essentially the failure to cater for the risk created by that defect which underpins the prosecution in each case. 17 In those circumstances, I would consider that the penalty in each matter should be the same. I therefore assess penalty at $125,000 but reduce it by the maximum available of 35% having regard to the early plea of guilty, the absence of prior convictions, the response to the accident, and the contrition shown by the defendant, particularly in the context of its assistance to the family of the deceased employee. Accordingly, I convict the defendant of the offence with which it is charged and fine it $81,500 with a moiety of penalty to the WorkCover Authority of New South Wales. The defendant shall pay the prosecutor's costs, as agreed or, if necessary, as assessed by the court. 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.