Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Charles v Worth Recycling Pty Limited [2002] NSWIRComm 157 PROSECUTOR Inspector Stephen Charles PARTIES : DEFENDANT Worth Recycling Pty Limited FILE NUMBER: IRC4148 of 2001 CORAM: Peterson J CATCHWORDS : Prosecution under s16(1) of the OHS Act - plea of not guilty - removal of tanks once containing diesel - use of oxy-acetylene equipment to remove nuts instead of manual removal - whether subcontractor complying with work plan - absence of hot work permit - conflicting evidence - case not made out beyond reasonable doubt. LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : WorkCover Authority of New South Wales (Inspector McKenzie) v Waste Recycling & Processing Services of New South Wales [2000] NSWIRComm 218 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 HEARING DATES: 03/20/2002; 03/21/2002 DATE OF JUDGMENT: 07/10/2002 PROSECUTOR Mr P J Newall of counsel SOLICITOR Price Waterhouse Coopers Legal SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr J V Murphy of counsel SOLICITOR Verekers Solicitors SYDNEY. JUDGMENT: - 30 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 10 JULY 2002 Matter No IRC4148 of 2001 INSPECTOR STEPHEN CHARLES v WORTH RECYCLING PTY LTD Prosecution under s.16(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 Inspector Charles, an Inspector with the WorkCover Authority of New South Wales (Prosecutor) has commenced a prosecution against Worth Recycling Pty Ltd (Defendant) in respect of an alleged breach of s16(1) of the Occupational Health and Safety Act 1983 ("the Act"). The Defendant entered a plea of not guilty and, in the event liability is established, relies on the defence provided by s53 of the Act. The charge is as follows: It is alleged that the Defendant, Worth Recycling Pty Limited ACN 001 630 306, an employer, breached Section 16(1) of the Occupational Health and Safety Act 1983 on 24 June 1999 at premises located at the No. 2 Diesel Locomotive Workshop site at BHP Steelworks, Five Islands Road, Port Kembla in the State of New South Wales ("the premises"), in that it failed to ensure that persons not in its employment, in particular John Gabriel Rodrigues, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work. In particular, the Defendant failed to ensure a system of work that was safe and without risks to health in respect of the removal of diesel storage tanks and the disconnection of related pipes and flanges at the premises ("the removal operation"). In particular, the Defendant failed to: (a) conduct an adequate risk assessment prior to the removal operation being carried out; (b) adequately assess the contents of the tanks and pipes prior to the removal operation commencing; (c) ensure that the tanks and pipes did not contain flammable substances prior to the removal operation commencing; (d) ensure that flammable substances in the tanks and pipes were not exposed to an ignition source during the removal operation; (e) provide adequate information and instructions to John Gabriel Rodrigues to enable him to carry out the removal operation safely. 2 Section 16(1) prescribes that "Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". In the present matter the Defendant is an employer and the place at which the relevant offence alleged against it occurred was the Defendant's place of work, it being contracted by BHP to perform particular work at that site. The persons to be described hereafter, Mr Rodrigues and Mr Caires, were persons not in the Defendant's employment. Accordingly, the alleged offence is raised under the appropriate statutory provision subject, of course, to the prosecution making out the offence. 3 The prosecution case consists, apart from documentary material, of the oral evidence of Inspector Milligan, who actually investigated the incident; Mr Rodrigues who, through his business, J R Specialised Welding, subcontracted the work from the Defendant; and Wilson Caires, a welder/ boilermaker in the employ of J R Specialised Welding. 4 The Defendant was contracted by BHP to remove to another location two diesel storage tanks approximately 2.7 metres in diameter and 7.1 metres in height. The tanks were situated inside a low concrete wall, referred to as a bund, which contained some water puddled around the tank with diesel fuel visible on its surface. The tanks were connected by substantial pipe work with gate valves. The pipe work and gate valves were attached to the tanks with bolts and nuts. The Defendant subcontracted the disconnection of the pipe work to J R Specialised Welding. It also contracted Brambles to supply a crane and truck to lift and transport the tanks away. 5 The Defendant was advised by BHP that the tanks had been disused for approximately two years; they had been drained of diesel fuel but that there would be some diesel sludge in the base of the tanks. 6 Mr John Vincent, the relevant person on behalf of the Defendant, obtained from BHP an Authority To Work Permit (ATW) and a related Rail Safety Permit to enable an adjacent rail line to be closed for the purposes of the operation. Although Mr Vincent was very familiar with the requirements for Hot Work permits in relation to oxy-acetylene use, no such permit was sought by him from BHP nor, I would infer, required by BHP. 7 Mr Vincent's position in this regard was simply that no hot work had been intended to occur and that he had stipulated that the disconnection work was to be done manually by use of spanners. 8 Mr Vincent testified that he prepared a job safety analysis ("JSA") which, amongst other things, adverted to the need to have a site meeting with J R Welding Specialists to discuss the job. It also provided for a meeting with J R Welding Specialists on the morning of the work to finalise job procedures and provided, of particular relevance, the following: · Outside pipe work to be disconnected from tanks. · Check to ensure no diesel in pipe work. · Check if any sludge in tanks prior to lifting. 9 Regrettably, the job safety analysis did not specify the particular method required to be employed for the removal of the bolts. 10 Mr Rodrigues testified that the JSA was created after the accident, although this was not mentioned in his interview with Inspector Milligan. 11 Mr Rodrigues' record of interview recorded that he met Mr Vincent at the work site. He continued: 9.1 Then we went to No.2 Diesel Workshop. We got to that site and I was introduced to a BHP Supervisor by John Vincent, I can't recall the BHP person's name. We discussed the arrangements for the job of removing the storage tanks. I asked what was inside the tanks and the pipework. The BHP Supervisor said "It's diesel storage and they haven't been used for years. There is a bit of sludge on the bottom of the tanks. From there John Vincent said were (sic) going to do this job next Thursday. I'm getting Brambles cranes and riggers or dog-men in to do the job and I need you to remove the pipes and fittings to free the tanks for removal. We will do the job on Thursday. Will you be here at 7.30am.: I said 'Yes'. On Thursday morning I went to the No.2 Diesel Workshop site in BHP near the Sinter Plant. I arrived onsite with Wilson Caires my boilermaker. I arrived in our truck, Wilson drove. We had our oxy-acetylene and ladder and safety harness, I am aware of BHP's working at height requirements. I am a licensed plumber-gasfitter as well as a boilermaker. We arrived there about 7.30am we waited until 8am. I asked the BHP Supervisor if the job was to be done on this date. I waited and later I phoned John Vincent. I left a message stating that I was waiting and he arrived about 8.40am. He hadn't given me any paperwork. When he arrived he conferred with the BHP supervisor. He asked me if I had started work. I said, "I'm waiting for the BHP paperwork. I am familiar with the BHP standards for work commencement. He said "I've got the paperwork, were (sic) ready to go. Then I said to Wilson "Get the oxy and bring it down here. John Vincent said, "The cranes will be here in half an hour." Then Wilson came down from the truck with the oxy-acetylene hoses leaving the trolley on the truck. John Vincent told me to cut the bolts on the pipe flanges. I said to John Vincent "What is inside the pipes" that was on Monday 22 June 1999. On the Thursday 24.6.1999 Wilson asked John Vincent "Is there anything inside the tanks and pipes." Vincent replied "No there's nothing inside the pipework, just a bit of sludge inside the bottom of the tanks." 12 In his oral evidence he said that Mr Vincent said to him: "This is the tanks that is going to be cut, removed and taken to coke ovens and we would like to use these tanks at coke ovens because, at the moment, they have not used it for many years, and it has been sitting there". (sic) Q. You said then that Mr Vincent said to you, you used the word "cut" in your answer? A. That's right, yes. Q. You're quite clear in your mind that is a word Mr Vincent used? A. Yes, it was. That is when I asked him, I said, "What's in the tanks?" Q. Why did you ask him that? A. Because every time when you go and cut into bolts and things like that you have to make sure what you are cutting. Q. Why do you have to know what you're cutting? A. Because that is the procedure. You know, when you start cutting anything, you have to know what you are cutting, what is in it, what was in it. . . . A. He said, "It's all empty. They have not used it for a long time" and I said to him, "Okay". I said, "I would like to speak to one of the BHP that is in charge here that knows more about it. I just need to make sure, that's all" and then he said to me, "All right, if that is what you want, let's go." So we went to the site office and there was this guy on the computer and he introduced me to him. He said, "This is the bloke". Q. Do you recall his name now? A. No. Q. All right, go on. Did you speak to the guy? A. Yes, I said, "Could you – I am actually removing these tanks, cutting these tanks. Could you come up and tell me more about what is in it?", so he said, "Yes, sure", so he got up and he come outside with John Vincent and we stood there and he says that the pipe has been cleaned and the tanks, there is nothing inside of the tank. There was most probably a little bit of sludge on the bottom of the tank. . . . Q. Now, on that day, 21 June, did John Vincent say to you at any time, "These bolts are to be removed manually"? A. No, That is why I had the oxy on the back of the truck. What he told me was these things, was, "tomorrow make sure you bring safety harness and ladder and oxy set. The ladder was to climb up to the tank to hook the thing and the safety harness was to hook yourself while you are up on top there. Q. You understood the job to involve cutting bolts at the top of the tank as well as at the bottom? A. No, on the top. The reason why I had the ladder was only to hook the crane so I could get up there. Q. Now, on that day, 21 June, the Monday, were you shown a job safety analysis or anything like that? A. Nothing. Q. Were you shown any paperwork at all? A. No. Q. Now you have worked for BHP before, have you? A. Yes. Q. Do you have any understanding of what is required by way of paperwork by BHP? A. Yes. Q. Did you set about getting that paperwork from BHP yourself for this job? A. No, because John said he was going to get all the paperwork all ready for Thursday. 13 As to the day of the accident, Mr Rodrigues' evidence included the following: Q. So you say that John Vincent arrived at about a quarter to nine. When he got there, did he say anything to you? A. No, he was too busy with the BHP bloke. He was the guy that puts the flags on the railways, so he was doing all his paperwork and all that sort of stuff. Q. Did you have any conversation with John Vincent at all that morning? A. When John Vincent come back and he went past me, but he was too busy with the other fellow and while he was walking he said, "Have you started to go yet?". I said, "No", I said, "The paperwork first" and he said, "I have got all the paperwork" and he said, "All right?". I asked him three times, "Are you sure everything is Okay?" and he said, "Yes". Q. Did he show you the paperwork? A. He went like that with his hands (indicated). Q. For the record the witness is holding up his arms at arms' length and holding something. You saw some papers in his hand, did you? A. Yes, he had the papers in his hand and he was walking while he was talking to me because he was following the fellow, the BHP bloke. . . . Q. What did you understand the paperwork to be? A. Paperwork, before you started work at BHP you have got to have work authority and you have all the procedures, clearances and all sorts of stuff. Q. Is there any particular paperwork to do with doing welding or cutting work? A. Yes, it has got a hot permit, so if you're doing any hot work, you have got to have that. Q. And what you were going to do was for the moment hot work? A. That's right. Q. And when you were asking Vincent about the paperwork-- A. That was everything which, when I asked him at least three times, he was actually walking and then he turned, "Yes, yes, you heard what the BHP bloke – you heard what the BHP fellow said." Q. That is what Vincent said? A. Yes. Q. So did you then commence work? A. Yes. I said to Wilson, I said, "Get the oxy off the truck" and brought it down. Q. When you said that, where were you? A. I was next to the actual – talking to John and Wilson was in front of me and I said to Wilson to pick up the oxy under the hose. Q. When you said that to Wilson Caires, do you remember where John Vincent was at that time? A. Yes, he was past, behind the truck, because I had the truck facing forward and he was talking with the other fellow. Q. Did Wilson Caires get the oxy gear? A. Yes. Q. And did you see him do that or were you looking somewhere else? A. I was with him. Q. You were with – A. Wilson. First Wilson was supposed to be doing all the cutting but because John Vincent said that the crane would be here in half an hour and the truck was, so I said, "Because I have got experience of demolition", I said, "Give it to me, I will do it." Q. Why did you do it? A. Faster. Q. You're faster? A. Yes, experienced. Q. So you got into the bund presumably and – A. Yes, started. Q. And started on the job and what was the first bit of work that you did? A. I got the goggles – I had the glasses, safety glasses. I was lucky I even put the goggles on because usually if it is only a couple of cuts you may use your glasses, so I put the goggles on top of my glasses. I put the big gloves on, boilermaker gloves, and when I went into the bund, it was full of water, had about so much water (indicated). HIS HONOUR: Q. Showing about three inches? A. Maybe two inches. NEWALL: Q. Of water? A. Yes. Q. So what did you do about that? A. They had these timbers on the floor, those timbers they use, woods to hold the train so it doesn't move back or forward and you put it behind the wheel. HIS HONOUR: Q. Like chocks? A. Yes, so I grabbed that and I asked Wilson to pass me more so I could put it on the floor in case, so I wouldn't get my boots too wet and that is what I stood on and then I started cutting. I have got all the bolts from the bottom. I started from and then after, when I started cutting then I started cutting the bolts, I started from the bottom of the flange and then went up and then a bit of sludge started coming out and a bit of fire started so I said to Wilson, I said, "Wilson, go and get me a fire extinguisher". I said, "I don't know how much sludge or whatever it was is in here." All the time being, John Vincent was beside me on my right side. Q. Was he in the bund? A. No, he was outside. Q. You could see him? A. Yes, he was next to me, most probably four metres, like I was in the bund here (indicated). He was just beside and when he saw the – he is watching me when he saw the fire, so John Vincent went right around the bund and he stood on the other side. Q. And he did that before or after the fire? A. After the fire. The fire started and Wilson went to get the thing and he went around and just stood on the other side. Q. Could you still see him where he went and stood? A. Yes, I did, because if you face up like that (indicated) you can actually see the other side. Q. Do you remember if he was looking at you or looking some other way? A. He was on the mobile phone. Q. Do you know what he was doing on the mobile phone? A. No. Q. Did you have any conversation with John Vincent? A. Yes, after the sludge started coming out and I stopped what I was doing and I went around and I spoke to him and I said, "John, you should ring the truck to suck this water and this sludge because you don't know how much sludge is in there." Q. And what did he say? A. "Oh, you reckon?" and I said, "Yes." I said, "I don't reckon. Just do it now. You don't know how much, you know, when you start going and it catches fire." So he says, "All right" so he got on the phone and he rang up. Q. At that stage, had the sludge already caught fire or not, do you remember? A. Yes. Q. It already had? A. Just a bit where the flange is, not actually on the bottom. It was just where the flange is, just a bit of flame and that is when I asked Wilson to go and get the fire extinguisher. Q. So you say that you said to Vincent, "You should go for a truck to pump it out", that is the water and sludge, words like that? A. Yes. Q. Did he do anything like that? A. He looked at me like, "You reckon?" and I said, "Yes. I don't reckon. Just do it". Q. What happened then? A. He got on the phone and he rang up the truck. Q. And did he say something to you about that? A. No, that was it. Q. Did he tell you that he had rung for a truck? A. No, I was there next to him. Q. You heard what he was saying? A. He said, "Can you get a truck here?" Q. What did you then do? Did you do some more work or not? A. Then what I done is, I went to the – back where the job was and I started carrying on cutting the bolts. Wilson tried to undo some bolts, but all the bolts were all rusty and thing so I just carried on cutting and when I finished cutting the first tank, I moved to the next tank and some there had sludge on the bottom too started coming out so there was quite a bit there. 14 This evidence raises a number of significant matters: · The prior suggestion that the work was to be cut which, if so, would necessarily involve an oxy torch. · The suggestion that work did not start until the paperwork was waved at Mr Rodrigues and then oxy cutting commenced immediately. · The idea that Mr Caires used a spanner subsequent to the commencement of oxy cutting. · The suggestion that, given the fire occurred on the cutting of the last bolt, that all bolts had been cut by oxy torch. 15 Mr Rodrigues also said that Mr Vincent collected him from hospital and they went to BHP to meet with an employee of BHP, Dennis Stone. In the car on the way there Mr Vincent said to him: A. "We'd better be careful because this is on the news" and he said he has got a lot of work for me, we have just got to work together, so- Q. What did you understand him to mean about that? A. Just that to stick together and he said he has got all this work for me, meaning, I don't know. 16 He said Mr Vincent later gave him a lift home and, when dropping him off, said: A. . . . "Look, I'm going to go home and write a JSA and so we have to present this to BHP in the meeting" and I said, "All right". Anyway, he went home and done that so the next day when we went to BHP to a meeting, he picked me up from my workshop and he had, I went in his car and he had this JSA that he typed the night before. Q. How did you know he typed it the night before? A. Because he told me and he said to me, "Have a look at it. What do you think about it?" (JSA document shown.) Yes, that is the one. So he gave me this. He said, "What do you think about it?" and I said, "It doesn't say anything about oxy, you know" and he says, "Oh well, you know, we" – what do you call it - "I've got all this work for you" and all this sort of thing, so I thought, "Oh well, if I am going to get work out of it, I will just go with it". So when I went to BHP we sat down and he gave this to the guys who were there in the meeting and he passed it to - I don't know who is in charge there anyway and they looked at it and they said, "Yes, but it doesn't say anything about oxy", you know what I mean, and they says, "This is no good" and they just threw the paper on the table and that was it so I had to get up and draw a picture on the wall how it happened, what I was doing at the time and how the valve collapsed and I got sprayed." 17 Later he gave this evidence: Q. Now, have you had any further discussion with John Vincent since that meeting? A. Yes, he - actually he rang me and he says, "The WorkCover is going to come and see you, is going to ask you questions." Q. Is that all he said? A. He said, "Don't forget, I have got all this work lined up for you. There is so much work there for you that you won't even be able to handle". 18 He then referred to making a statement to Inspector Milligan and then gave this evidence: Q. Did you have any discussion with John Vincent since that time that you made that statement? A. Yes. Q. How did that happen? A. That is - he knew which day when the WorkCover was going to come and see me so he rang me up on the afternoon and then he wanted to come and see me and the next day I made an appointment to come and see me (as said) and then he asked me questions. I said, "I told them what happened." He said, "All right." Then he rang me again, "Has the WorkCover contacted you?" He says, "I want to come and see you", so he come and saw me in the office and he was really concerned what I said and all the thing and I said, "Look, I tell you what", I grabbed that (indicated). Q. When you say, "that", you mean the statement, Ex 6? A. I said, "Here, don't ask me any more. This is what I said to them", you know, and he got up off his chair and he stood and he just walked out and since then I have not seen him. Q. You said in your earlier evidence that he said to you several times, "I have got all this work for you." A. That's right. Q. Did you do any more work for Worth? A. No – sorry, actually I rang him up last year and I said, "Hey, John, it's me," He goes, "Oh well" and I said, "Listen, where is this work? When is that going to be done because those tanks went to BHP coke ovens to be installed and there was a lot of work to be done" and he says, "Oh, actually BHP didn't want you to do it and I got somebody else to do it" and that was it, so I don't bother ringing him up any more. Q. Has he rung you since that day? A. Sorry? Q. Has he spoken to you since that day? A. No. 19 In cross-examination he agreed that he was presently suing the Defendant for negligence, seeking damages in respect of the burns that he received. 20 He said that he had been an approved contractor to work on the BHP site and at the date of the accident was an approved subcontractor. He said he had done induction training in BHP. He said "The very first one was in 1990 - I have been in BHP all my life. That is where I have been doing all my work with the company." He spoke of having done a number of other inductions including safety inductions into particular areas of work. He agreed that one of the main objectives of those inductions was to ensure the maintenance of safety at work and that he was aware that BHP is extremely conscious about safety of employees, contractors and subcontractors. He said in relation to BHP "It is number 1 priority, yes." He agreed that he knew that unless one complies with BHP's safety requirements one is not permitted to work on site. He understood the ATW Permit was necessary to perform work on site and that hot work such as the use of an oxy-acetylene torch required a BHP hazardous work clearance. He was also aware that the hazardous work clearance would set out the particular precautions that were required to be observed on each job involving hot work. His evidence on that matter continued: Q. You have just told his Honour that your understanding was that the hazardous work clearance sets out the particular precautions that are required to be observed in the performance of a job involving hot work, for example? A. That's right. Q. Did you ask Mr Vincent to show you the hazardous work clearance for this job? A. He just said quickly, he was walking, he said, "Look, I've got all the paperwork and the crane will be here" and that was it and I asked him three times, and that was it. Q. What did you ask him three times? A. I said, I asked him, "Are you sure it's all right to start cutting and everything is clear?" I said, "Are you sure it's all right to start cutting?" I asked him three times. . . . . Q. You knew that the hazardous work clearance would contain specific precautions that you, as the person doing the work, were required to observe? A. Actually, I was not – actually, he asked for two blokes so because the other blokes were busy, I went there so it is not that he hired me for the day as – 21 Later he was asked: Q. Did you ever ask to see and I do not mean waving in front of your face, to see, read and examine the hazardous work clearance for this job? A. No. Q. Why not? A. Because John said he would do all the paper work. Q. I understand that's your evidence but you accept this document, the hazardous work clearance will contain specific precautions that you in doing the work have to observe. That is your evidence is it not? A. That's right. Q. Mr Vincent saying to you that he will take care of the paper work gives you no information at all as to the specific precautions that you believed would have to be observed by you, that is true, is it not? A. Yes. Q. Why didn't you ask Mr Vincent to show you the hazardous work clearance so you could understand in your mind what specific precautions you had to observe in doing this job? A. Like I said before, he said "Don't worry about the paper work, I'll look after that. You just cut the bolts and the crane and the truck will take it away." 22 He was then asked about the marking on the tank in large black lettering "DIESEL FUEL". He said: A. I can't recall seeing that. It was a rush thing. Q. Did you walk around and have a look? A. I just came up on the other side and saw the whole picture, that's it. 23 He was aware that diesel fuel had been stored but the tanks were not used for many years and that there would be a little bit of sludge in the tank. He knew diesel fuel was a flammable liquid and his evidence continued: Q. You knew that diesel sludge was a flammable substance? A. Yes, for it to explode was under pressure. Because there were flanges, he asked to use the oxy. Cutting flanges, there's no pressure involved and that is where you cut the bolts. Q. Are you saying you thought it was safe to use an oxy-acetylene torch to cut the bolts from the flanges even if the tanks and pipes contained diesel fuel? A. No, that's what he asked for and that's what he got. Q. Did you consider that to be safe? A. I did. I looked at it and said "If there's a little bit of sludge can I cut the bolts because it is the flange it won't explode." Q. What I want to suggest to you is you were instructed by Mr Vincent on the Monday and on the Thursday again, the day you did the work to remove the bolts manually and to not use oxy-acetylene? A. I'm sorry, you're wrong. Q. You deny that do you? A. Yes. Q. What I want to suggest to you, you and your off-sider commenced removing the bolts manually using a spanner and you only utilised the oxy-acetylene for the last four bolts because they were stuck? A. That's correct. We cut the bolts to make sure it was clear and then we couldn't remove the bolts and there was nothing. When I started to use the oxy, that's when it started coming out. 24 The witness was also cross-examined at length about his using the oxy torch in a bund which had water lying in it and diesel fuel floating on the surface. He was aware that using an oxy torch produces sparks as well as pieces of molten metal dropping off and his evidence continued: Q. You knew what you were doing was inherently unsafe don't you? A. It was safe and sort of, it depends how much diesel was inside the tank. If you get a full tank load of course it's dangerous but because there was a bit of sludge, like the man said, I didn't see any problem. Q. You certainly did not go to Mr Vincent at any stage and say "There's a danger here there could be a fire and someone might get injured", you didn't say that, did you? A. Yes I went around the front and said "Vince there's more than you think of sludge inside the tank. You better get a truck to come and suck it out," and he said "You reckon?" and I said "Yeah, go ahead and do it." . . . Q. When you said that, was it your concern to do the work the way you were doing it might start a fire? A. That's right. It depends when you went to the other tank and you have this diesel coming out you don't know how much is in the other one. Before I reached the other tank I asked him to get the pump to suck it out. . . . . Q. But then on your evidence you continued to use the oxy-acetylene before he had pumped out the sludge and the diesel from the bund? A. That's right. 25 Later, his evidence was: Q. Let us deal with that. After this flared up or the flame, however you described it, you then noticed diesel had leaked from the tank into the bund, that's right isn't it? A. Yes, the diesel came out from the flange. Q. After the flare up flame? A. Yes, because the gasket was rubber and from the heat – Q. You cut all the bolts off this flange? A. Yes, and you leave the top one. When I did the top one it expands and that's when the diesel came out. Q. Would you look at photograph number 7. That is the flange where you were working where there was a flare up? A. Yes. Q. After you cut the bolts on that flange there was a leakage of diesel into the bund from that flange? A. Yes, that was the last bolt. When they started cutting the bolts on the bottom and the gasket, because it's rubber, that's what created a bit of fire. Q. After the fire there was a leakage of diesel into the bund? A. That's when I told John to get the truck. I moved to the other side where there's no diesel. Q. Looking at photograph number 7 you notice in the foreground there are two bolts sitting on the wall of the bund? A. Yes. Q. Have those bolts been cut with oxy-acetylene or removed by spanner? A. Removed by spanner I think. Q. Do you see two other bolts on the other side? A. Yes. Q. Do you recall how many bolts in total were holding that flange together? A. No. Q. Do we take it then a number of these bolts were removed by spanner by (before) the oxy-acetylene was used? A. I can't remember exactly. I'm not sure if it was before I started cutting or when the oil came out that we tried to do it by hand. The important one was to remove where the tank is to get rid of the tank and remove the other stuff. Q. After this flare up and after there had been leaking of diesel you moved to the other side of this tank? A. Yes. 26 His evidence continued: Q. How long was it between when you cut the bolts off the flange in photo number 7 until the accident occurred where the diesel flared up and burnt you. How long in time? A. Time? Q. Yes. A. I didn't actually time it myself. Q. To the best of your memory now, how long was it? A. When I done the first tank then I moved to the other tank, you're looking most probably, I don't know, by the time I had all that cut it was about 20 minutes. Q. So, for that entire 20 minutes, as far as you knew, diesel could have been leaking out of that first flange, that is true, isn't it? A. That's right, yes. Q. And you had asked that the bund be pumped out to get rid of that diesel? A. That's right. Q. Because you saw it as a safety hazard? A. That's right. Q. But you continued to work using the oxy-acetylene until the last job you did, which was working on the flange you can see in photo number 2? A. I was using the oxy on the other tank, I wasn't on diesel yet. Q. As far as you knew the pipe leading down to that flange could have been full of diesel, you just didn't know, did you? A. The pipe had all emptied, everything is supposed to be all empty. Q. You knew that it was not empty because it had been leaking from the very first set of bolts you removed? A. I had cut all the bolts from the pipes and there was no leak at all. Q. There was a leak coming from the very first set of bolts you removed, wasn't there? A. That's right. Q. So you did not know whether there was going to be a leak from any other set of bolts you removed? A. That was why I was careful every time I cut it, I had my face out of the way. Q. So you were holding the torch away from your face? A. Of course. You're not going to put it in your face, you've got to hold it and warm up the job where you are cutting. Q. And you kept your face turned away? A. No, you don't do that. Q. What did you just tell us, because I must have misunderstood? A. When you are cutting there's a lot of ways you have of cutting. You've got flanges, you can start cutting from the bottom or from the top. If you start from the bottom, when you are cutting the top, the top bolt is holding the pressure. When you cut the top off, that's when the flange comes apart, so when I was cutting I was always careful because I have seen that little bit of diesel coming out of the tank and you have to be careful. Q. The reason you have to be careful was that in your mind there was a very real possibility that the pipe work which you were working on contained diesel? A. You never know. Q. It is more than "never know"; there was a very real possibility that there was diesel in that pipeline? A. When I cut that one on the first flange I knew there was something in there, they told me there was a little bit of thing, so when I started cutting the other ones, the flanges, there was nothing in it. Q. But you have already just said "you never know" and what I am suggesting to you is that you were concerned? A. Of course. Everything you do when you go to work, you've always got to have that thing of "What happens if this happens? What happens if that happens?" Q. You were concerned that this last area that you were working on may have contained diesel inside the pipe work? A. Not - well, yeah, it could have had a bit of diesel inside. Q. Despite your knowledge or your belief that there could have been some diesel inside, you continued to use oxy-acetylene? A. That's right. 27 Mr Rodrigues disputed in cross-examination that his evidence, which was not referred to in his statement to Inspector Milligan in 1999, that Mr Vincent asked on his arrival at the work site "Have you started cutting yet?" was a concoction based on what he had read in Mr Caires' statement. He also disputed that the majority of bolts were removed manually and oxy-acetylene was only used with some difficult nuts at the end. He said: "We were supposed to use the oxy and we tried to do some with the spanners and it didn't work, so we carried on with the oxy." 28 Mr Caires' evidence was in part vague and, I consider, unreliable in some respects. His answers in relation to certain matters left me with a real uncertainty on certain issues. For example, he was cross-examined about his feeling some concern to protect Mr Rodrigues in the interview with Inspector Milligan. The evidence was: Q: When you gave the interview to the WorkCover Inspector back in July 1999, you were concerned to protect your boss, Mr Rodrigues, weren't you? A. Not really. Q. You were concerned to lay the blame for the accident on Mr Vincent, weren't you? A. Not really, no. Q. I want to suggest to you that you gave answers to the WorkCover inspector which were designed to protect Mr Rodrigues and blame Mr Vincent. That's true, isn't it? A. No, not that I can remember, no. Q. Do you deny that or do you say you can't remember? A. I can't remember but I doubt it. I can't remember. We'll leave it at that. Q. I want to suggest to you if what I put to you is true or indeed if it isn't true, you would remember one way or the other? A. I don't know what you're getting at. Q. I beg your pardon? A. I don't know what you're getting at. Q. What I'm getting is you deliberately lied to the WorkCover inspector to protect your boss and blame Mr Vincent? A. No. Q. You say you didn't or do you say you don't remember? A. I say I don't remember but I doubt it, no. I don't remember doing that at all. 29 As to the suggestion that Mr Vincent on arriving at the site had said "Have you started cutting yet?", a comment which in context would seem inherently to have contemplated oxy-acetylene use, his evidence was: Q. You have said in your statement to WorkCover and again today that when Mr Vincent arrived at the site the first thing that happened, as I understand your evidence, was he said, "Have you started cutting yet?"? A. That's correct, yes. Q. That isn't true, is it? A. Yes, it is. Q. You have a clear recollection of that being said? A. Not 100 per cent but I'm pretty sure. To me it was just another job. When I go to another job I don't look at every little detail. To me it was another day at work. To me, best I can remember, yes, that's what happened. Q. But it is quite possible he said, "Have you started yet?"? A. It could be possible but I'm 90 per cent sure he said, "Have you started cutting?" Q. It is quite possible he didn't use the word "cutting" at all? A. I'm pretty sure he did. Q. You are not certain, are you? A. Well, certain and not certain. 30 It is to be remembered that the question alleged against Mr Vincent "Have you started cutting yet?" occurred originally (that is, in 1999) only in Mr Caires' record of interview. Mr Rodrigues did not make any reference to the statement in his interview in 1999. He remembered the comment when giving evidence in 2002 but contended that he had not read Mr Caires' statement. Mr Caires then introduced a level of uncertainty about the comment having been made in terms which Mr Vincent denies. 31 Mr Caires' record of interview contained the following: A.11.1 On the 24th June 1999 a Thursday I commenced work at 7am my normal starting time. John Rodrigues my boss and I loaded the equipment oxy-acetylene, ladder; my tools, John's tools and we drove to BHP No.2 Diesel Locomotive Workshop. We arrived there about 7.30-8am. We waited until a person named John who works for Worth Recycling arrived. When John arrived he said to J. R. "have youse started cutting yet." J.R said, "I'm waiting for the paper work." John said, "It's already to go, everything's okay. J.R. said "Are the tanks empty." John said, "Yes, they have been drained." J.R. asked me to get the oxy torch and hoses from the truck. I left the trolley on the truck and wound the hoses out sufficient to where we had to cut. I tried to undo the nuts of the bolts at the pipe flanges but the nuts wouldn't shift so we had to use the oxy-acetylene to cut the nuts off. There were bolts on some of the flanges that didn't have nuts on them because there was a thread in the flange hole. J.R. continued to cut the nuts off the flange bolts with the oxy-acetylene and continued to do so. The last one that he was cutting was in between the two Diesel Fuel Storage Tanks. Just prior to him cutting the last bolt, he was cutting a bolt at the flange where there was a gauge mounted on the southern side of the western tank, there being two tanks which were both painted blue. Some diesel fuel leaked out of the bottom of the bottom part of the flange face and actually caught alight and J. R. told me to go and get a fire extinguisher from the Loco Workshop. I obtained the fire extinguisher but didn't have to use it because the flame had gone out. There wasn't much of a flame anyway. About 9 o'clock J. R. was cutting the last bolt of the flange of the pipe closest to the western tank. I was standing on the outside of the bund on the southern side about 4 or 4.5 metres from J.R. My attention was drawn to diesel fuel spilling onto my work trousers and a mass of flame where John was between the two storage tanks." 32 There is a serious degree of inconsistency in the evidence. 33 Mr Rodrigues claimed that he asked Mr Vincent three times whether the relevant permits had been obtained and said that they were waved towards him by Mr Vincent, yet he did not examine the hazardous work clearance permit which he knew was necessary and which he also knew would specify the particulars steps to be undertaken in performing the work, if oxy-acetylene was to be used. 34 Mr Rodrigues virtually demanded that a truck with a pump be obtained to suck out the greater than expected amount of sludge in the base of the tank. This could only be made necessary by an inspection with the access covers removed but both Mr Rodrigues and Mr Caires claimed that they removed neither of them prior to the accident. The evidence of Messrs Rodrigues and Caires was that they removed no bolts manually yet bolts for the manhole covers are clearly evident in the photographs tendered with the nuts reattached to them. This can only be consistent with manual removal. 35 In cross-examination, Mr Caires was taken to some photographs showing an access cover of the tank. His evidence about this continued: Q. You removed those bolts and removed the cover? A. Yes. Q. How did you do that? A. I think with ring spanners, shifters. Q. Do you recall Mr Vincent at one stage providing you and Mr Rodrigues with a pneumatic tool - A. I don't recall that. Q. Let me finish the question - for you to use to remove the bolts? A. No, I don't. I can't remember that. Q. Do you recall Mr Rodrigues actually removing the bolts from the access cover using that tool? A. No, I can't remember. Q. I want to suggest to you that the access covers on both tanks were removed using BHP's pneumatic tool before the accident occurred to Mr Rodrigues? A. I can't remember perfectly, but I don't think so, no. 36 As to the timing of the removal of the access covers, Mr Caires' evidence went this way: Q. I want to suggest to you the accident occurred while Mr Rodrigues was cutting the last bolts that needed to be removed? A. I think he was. I'm pretty sure he was, yes. Q. If he was cutting the last bolts to be removed, it must follow that the access covers had been removed before then, mustn't it? A. Why's that? Q. Because you had to remove the access covers as part of the job, didn't you? A. Not that I know of, no. Q. Why were they removed? A. I think, if I can remember correctly, they were removed after the accident to see how much diesel was in it, if I can remember correctly. Q. We know you were instructed by Mr Rodrigues after the accident had occurred to do nothing? A. That's correct, yes. Q. If you were so instructed you would have obeyed that instruction, wouldn't you? A. I would have, yes. Q. That means you would not have removed the access covers after the accident? A. That's correct. Q. So it follows from that that the accident covers must have been removed before the accident? A. No, I am pretty sure I took them off afterwards, I think. 37 Again, the awareness of the amount of sludge in the tank suggests this evidence must be wrong as to the timing. 38 In his record of interview he had said that "John said "Isolate the area and do nothing until I get back" so that's what I did. The flame extinguished itself without me having to use the extinguisher. I turned the valves off for the oxy-acetylene hoses." There was no further comment about events thereafter. 39 The photographic evidence shows only four bolts on one flange which had been cut by use of an oxy torch but relatively many more appear to have been manually removed. 40 Mr Rodrigues claims that Mr Vincent sought, in effect, to entice him to cover up the facts with WorkCover in return for a body of future contracting work. This was denied strongly by Mr Vincent. There was no evidence that Mr Rodrigues ever sought this work. I find myself unable to accept one version here over the other. 41 Mr Vincent is claimed by Mr Rodrigues to have embarked upon a deliberate course of undertaking hot work, that is using an oxy-acetylene torch from which possibility of ignition arose, which they both knew to require a particular permit, but without such permit. There is a degree of unreality about that very proposition. 42 Another inconsistency arose in Mr Rodrigues' evidence between the evidence of his request that the bund be pumped out (it contained water floating on the surface of which was diesel fuel which had dropped from the filler flange) but his continuing to undertake the cutting work without the diesel-affected water having been removed. His evidence was that a red-hot bolt dropped into the water would not ignite the fuel; despite this view, the accuracy of which I doubt, he sought to have the bund pumped out. This could not have been solely by reasons of the nuisance value of the water, because of his working on wooden pieces to raise him out of it. 43 Mr Vincent prepared a management incident report shortly after the incident which made no reference to the performance of hot work without authorisation. The report suggested the reason for the incident was the failure to check properly the contents of the pipe before undertaking the work. In the light of the report I have carefully considered whether the evidence of Mr Vincent lacks veracity; I have concluded overall, having regard also to his evidence generally and his demeanour, that it does not. 44 There are two aspects of the case which I find quite incredible. The first is that according to the scenario contended for by Mr Rodrigues, the course followed by Mr Vincent would have put at risk, quite unnecessarily, and for no apparent reason, the ability of the Defendant to continue to perform work in the BHP complex, work which constituted sixty percent of the business of Worth, and ninety percent of Worth's Wollongong area work, for which Mr Vincent was responsible. Second is that the work of removing bolts holding flanges together on pipe work connected to two large diesel storage tanks would be undertaken utilising oxy-acetylene cutting equipment. I do not have before me any scientific evidence as to the flammability or ignition point for diesel but the evidence establishes both Messrs Vincent and Rodrigues were well aware that diesel was contained or likely to be contained in both the sludge and the tank and in the pipes themselves. 45 I am not able to accept the prosecution evidence as establishing beyond reasonable doubt that Mr Vincent made the comment alleged against him: "Have you started cutting yet?". Equally, I am not prepared to accept the evidence which suggests that Mr Vincent was standing by during the course of Mr Rodrigues' use of the oxy-acetylene torch to cut the nuts off. I am not able to conclude that the majority of nuts were cut by the use of an oxy torch when the photographic evidence appears to be in conflict with the oral evidence in that regard. I do not accept that Mr Vincent requested that the oxy-acetylene equipment be brought to the site for the purpose of this job. 46 Another feature of the evidence in the prosecution case which has caused me concern is the allegation by Mr Rodrigues that Mr Vincent suggested to him they should cover each other in their dealings with WorkCover and, in return, Mr Vincent would ensure Mr Rodrigues obtained plenty of work. There seemed to me to be a glaring deficiency in this allegation: it was devoid of content. There is no suggestion Mr Rodrigues rejected the alleged approach out of hand and, I think critically, it was not discussed further between the two as one would think it would have to have been. In any event, how they might have covered up in some way an unauthorised hot work incident involving flames and burn injuries was not ventured into. I find this allegation has not been established beyond reasonable doubt. 47 I find it impossible to accept, on the evidence, that Mr Vincent and Mr Rodrigues, both of whom were very experienced in BHP work and safety procedures and, in particular, in requirements with respect to a hazardous work clearance for hot work and in circumstances where Mr Vincent would be putting at risk the very great proportion of his company's business in Wollongong, deliberately set about to undertake what was in essence a minor task by an improper course. When one adds to this scenario the proposition that hot work would be undertaken in relation to diesel storage tanks in which there was known to be diesel sludge, the doubt which arises in respect of the matter is simply increased. 48 In the course of argument it became reasonably clear that it was only particular (d) that provided any vulnerability for the Defendant. That particular concerns a failure "to ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". 49 I was referred by counsel for the prosecutor to the judgment of Walton J in WorkCover Authority of New South Wales (Inspector McKenzie) v Waste Recycling & Processing Services of New South Wales [2000] NSWIRComm 218, a case with some similar features to the present one. In describing the detriment to safety found in that case, Walton J said: 73 Having regard to the charges laid against the defendant, the statement of agreed facts and the evidence and submissions of the prosecutor and the defendant, I consider the detriment to the safety occasioned by the defendant in this matter to be as follows: 1. The defendant failed to identify, and thereby failed to advise, the contractor, Z & F Welding, (and its employees) at the point of engagement (including at the tendering stage) or at any later stage, up to and including the performance of work associated with the incident, that the waste oil tank contained materials other than waste oil which were differently constituted to waste oil (including C1 materials as disclosed in the evidence) so as to substantially increase the volatility of such materials and the risk of ignition and explosion in the circumstances of the work contracted to perform. 2. The defendant failed to adopt a procedure as to the receival and storage of waste oils and other materials stored nearby which would ensure that the contents of the waste oil tank would not be contaminated by such other materials as would increase significantly the risk of ignition and explosion (in the circumstances where the defendant would require welding work to be performed upon the waste oil tank). 3. The deficiency related both to the procedure adopted per se and the defendant's failure to properly supervise the work of its contractor in carrying out the existing procedures properly. The defendant failed to lay down procedures by which "hot work" (as described in the evidence in the proceedings) might be performed safely. 74 As to the first of these considerations, I consider that it was incumbent upon the defendant to properly investigate the contents of the tank so as to ascertain whether there were aspects of the contents which it should bring to the attention of the contractor as representing an additional or unusual danger in carrying out the welding work. 75 . . . . 76 I agree with the submission put by the prosecutor that whilst the defendant did not know specifically the requirements for the performance of "hot work", the defendant did know that welding activity was to be undertaken on the tank where some impurities other than waste oil were located. 77 It is simply not the point, as was argued by the defendant, that the defendant may have relied upon the expert opinion of a contractor (namely Z & F Welding) when that contractor was not advised of the true nature of the work to be performed at the Belrose premises. The contractor was advised incorrectly as to the contents of the tank and not advised as to the potential danger arising from the impurities in that tank. The contractor was, therefore, not sufficiently provided with information which may have enabled the contractor to form an appropriate judgement, based on its expert knowledge and skills. 50 It will be seen readily that there are clear points of distinction between that matter and this. Hot work was there planned and there occurred, there was a failure to identify and advise the contents of the tank and a failure to properly supervise the work. None of these elements arise in the present case, in which on my view, the likely scenario is the hot work was undertaken ad hoc, contrary to plan, in circumstances known to involve risk; supervision is not a feature of the particulars. 51 Despite these findings, regard must be had to the absolute nature of the liability imposed by s16(1) of the Act. In one sense it may readily be seen that the Defendant did not ensure relevant safety. However, the matter may not be viewed quite so simplistically. The lack of safety engendered in the circumstances must result from a relevant failure by the Defendant. The principles relevant to that matter were stated by Fisher P in Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 in a minority judgment in an appeal before the Commission in Court Session. The later judgment of the Commission in Court Session in State Rail Authority of New South Wales v Dawson (McMahon DP, Hill and Hungerford JJ) (1990) 37 IR 110 adopted the principles as expounded by Fisher P and noted that on the point of principle, the majority in Cullen did not differ as the following extract from SRA v Dawson demonstrates: In terms of the relevant principles, although a contrary conclusion was reached on the facts, Fisher P in Cullen observed at 210-211; "In circumstances where is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged. . . . I consider that this safety code should be viewed in the light of the Industrial Commission's practical experience of industrial circumstances. The deceased was well trained by experience over many years and by qualification to both work at and supervise tree lopping. Neither qualifications nor experience were seriously challenged in the evidence, indeed, the evidence established the deceased's responsible behaviour and experience as a qualified linesman in this precise work. The employer was entitled to rely upon these qualities. The case against the employer is not strengthened by suggested reliance on ever higher levels of supervision. The case against the Defendant is not proved beyond reasonable doubt if there remains an acceptable hypothesis reasonably consistent with the innocence of the Defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach. I consider that on the evidence and for these reasons, the prosecution has not made out its case to the exclusion of reasonable doubt. Were it necessary to do so, I would also accept, this time on the basis of probabilities, that a probable cause of the events alleged, the unforeseeable and unanticipated conduct of a properly trained and experienced supervisor supervened to remove from the employer the ability to control the happenings of the day which the employer otherwise would have had. The absence of information to the employer about the supervisor's casual acts of negligence, including the abandonment of a number of safety measures it was his duty to put in place, made it impractical for the employer to make further provision. My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control". (Our italics.) The decisions in Cullen point up the not unusual difficulties which arise in determining cases of this nature where the ingredients of the offence for breach of statutory duty impose a strict liability, as does s15. It seems to us that the distinction between the majority and minority judgment in Cullen does not relate in any way to a different view of the relevant principles, but rather to the result of their application to the particular facts. There is nothing in the majority judgment to detract from the observations of Fisher P as to the onus and standard of proof required of the prosecution in criminal proceedings. We respectfully agree with his Honour's observations in that respect. (Ibid at p.123-124). 52 In the present matter, I find that the Defendant established a process for undertaking the relevant work which did not involve the prospect of ignition creating a relevant detriment to safety. The incident about which this matter revolves occurred when Mr Rodrigues employed his unanticipated use of the oxy torch. Whether this might properly be described as a casual act on his part or not, it obviously involved a deliberate act. In this respect, I consider the Defendant was entitled to rely not only upon his instructions regarding the performance of the work but also upon Mr Rodrigues' ability and understanding of the work processes at BHP to perform the work in an appropriate fashion. In the circumstances, I consider the Defendant did not fail in the relevant sense to take steps to ensure that work was to be carried out in an appropriately safe fashion. Like Fisher P in Cullen, were it necessary to do so, I would express the view that the unforeseeable and unanticipated conduct of Mr Rodrigues supervened to remove the ability to control the happenings of the day. 53 Accordingly, were it necessary I would find the defence pursuant to s53 of the Act to the effect that the commission of the offence was due to causes over which the Defendant had no control and against the happening of which it was impractical for the person to make provision, was made out. However, upon the reasoning in Cullen I consider that the Defendant is entitled to a finding of not guilty. I order accordingly. 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.