Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd, t/as Boral Asphalt (No 2) [2000] NSWIRComm 245 PROSECUTOR WorkCover Authority of New South Wales (Inspector Peter Hannan) PARTIES : DEFENDANT Bitupave Limited, trading as Boral Asphalt FILE NUMBER: IRC 5867 and 5868 of 1996 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecutions for breach of statutory duty - Pleas of not guilty - Employees operating a bitumen spray tanker on road sealing operations - Unsafe system of work - Failure to instruct and train - Ignition of a flammable cloud of vapour - Explosion - Fireball - Serious burn injuries to employee - Offences found proven and verdicts of guilty entered - Assessment of penalty - Objective seriousness - Subjective features in mitigation - Maximum penalty - Principle of totality applied - Fines imposed, with moiety to prosecutor - Costs allowed to prosecutor LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) s 53 Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Pearce v The Queen (1998) 194 CLR 610 CASES CITED : Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd, t/as Boral Asphalt (No 1) (2000) 98 IR 246 WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd (No 2) (1999) 96 IR 24 WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (2000) 96 IR 45 WorkCover Authority of New South Wales (Inspector Dawson) v Waugh (1995) 59 IR 89 HEARING DATES: 10/04/2000 DATE OF JUDGMENT: 12/05/2000 PROSECUTOR Mr D J Brezniak of counsel Solicitor: Mr B Whitehead WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr J B Simpkins of counsel Solicitor: Mr A J Morrissey Murphy & Moloney with Pryor Tzannes & Wallis JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Tuesday, 5 December 2000 Matter No IRC 5867 of 1996 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PETER HANNAN) v BITUPAVE LIMITED, TRADING AS BORAL ASPHALT Prosecution pursuant to s 15(1) of the Occupational Health and Safety Act 1983. Matter No IRC 5868 of 1996 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PETER HANNAN) v BITUPAVE LIMITED, TRADING AS BORAL ASPHALT Prosecution pursuant to s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT (on penalty and costs) [2000] NSWIRComm 245 1 On 6 April 2000 I gave judgment in the matters of prosecutions of Bitupave Limited, trading as Boral Asphalt by Peter Hannan, an inspector of the WorkCover Authority of New South Wales, for two breaches of s 15(1) of the Occupational Health and Safety Act 1983 occurring on 17 November 1994 at Blackneys Road, Stokers Siding in the State: see (2000) 98 IR 246. I found the offences proven as charged and adjourned the matters until 4 October 2000 to hear submissions on penalty and costs. Having now heard the parties, this judgment deals with those issues. 2 As to what occurred on the date of the accident, I stated in para 5 of the judgment (98 IR at p 247) as follows : The prosecutions arose out of an incident occurring at about 5 pm on 17 November 1994 at Blackneys Road, Stokers Siding near Murwillumbah in the State during the use by the defendant of a tanker truck to spray bitumen onto road surfaces in the course of road sealing operations. Two of the defendant's employees, Kevin James Newton and Henry Wayne Anolek, were working on the tanker and had sprayed bitumen onto parts of Blackneys Road and to an adjacent cul-de-sac; the tanker was parked at the end of the cul-de-sac opposite a private residence when Mr Newton, who was assisting Mr Anolek as the driver in the operation, proceeded to measure the quantity of bitumen remaining in the tanker and for that purpose he mounted the top of the vehicle. What then occurred, as the prosecutor's counsel (Mr Brezniak ) described in his opening submissions, was that: "the dipstick was under the hatch in a container and he had to lift the hatch, push in the dipstick and measure the amount of bitumen in the tank. He closed the lid and apparently moved to leave the top of the tanker to go to the rear when he was enveloped in a very large explosion which apparently involved the ignition of an inflammable gas which had come out of the tank". Mr Newton was hospitalised after the incident for quite some time from the severe burns sustained by him and for which he suffered permanent injuries requiring skin grafts. However, it seems that Mr Newton returned to work for the defendant on 30 January 1995 and performed yard duties. Initially, he worked a limited day but his hours gradually increased until he was declared fit to resume full duties. 3 The two charges, which were heard together, alleged the defendant breached s 15(1) in failing "to ensure the health safety and welfare at work of all its employees" contrary to the statutory requirement. The breach particularised in the first charge (Matter No IRC 5867 of 1996) claimed the failure was "to provide a system of work that was safe and without risks to health in respect of measuring the contents of the bitumen tank on a bitumen spray tanker"; the second charge (Matter No IRC 5868 of 1996) was particularised as the failure "to provide such information, instruction, training and supervision of its employees as may have been necessary to ensure their health and safety at work in respect of measuring the contents of the bitumen tank on the bitumen spray tanker". The defendant pleaded not guilty to each charge and the proceedings, which were vigorously contested by both parties, involved 13 days of hearing during which the prosecution called 8 witnesses, including an expert witness, and the defendant relied upon an expert witness in answer to the technical evidence led for the prosecution. 4 It is relevant for present purposes to note that counsel for the defendant, Mr J B Simpkins (now of senior counsel), and as recorded in para 9 of the earlier judgment (98 IR at p 249), did not challenge the immediate circumstances leading to the incident nor the occurrence of the incident itself. The defence was based essentially on the proposition that the prosecutor had not made out to the requisite standard of proof beyond reasonable doubt that the detriment to the employees' safety was caused by any act or omission of the defendant, that is, there was no causal connection; in any event, counsel relied on the defence available under s 53 of the Occupational Health and Safety Act in that no steps were capable of being taken by the defendant to avoid the risk unless the existence and nature thereof were known or able to be known. Here, so counsel submitted, the risk was something only able to be known upon reviewing matters of scientific debate and coming to a particular view about them so that it was impracticable for the defendant to identify and attend to any such risk. The circumstances of the offences, as to which I have said there was little challenge, were specified in para 6 of the earlier judgment by reference to what the prosecutor said in an affidavit, as follows (98 IR at pp 247-248) : On 17 November 1994 (the date of accident) in the course of their employment, Newton and another worker employed by the defendant as a driver, carried out bitumen sealing operations at Blackneys Road, Stokers Siding, via Murwillumbah, New South Wales. Bitumen was sprayed to the road surface from a bitumen spray tanker owned and operated by the defendant. Two coats of bitumen had been applied to Blackneys Road and one coat to a private driveway connected to Blackneys Road. At intervals during the bitumen spraying operation the practice of "purging the lines" to remove bitumen residue from the spray lines is carried out by forcing a cutter solution through the spray lines with the bitumen pump at a pressure of approximately 50 psi. The cutter used in this operation was known as Mexcut B. Prior to spraying a second coat of bitumen on the private driveway, Newton and his co-worker purged the lines with approximately 5 to 10 litres of Mexcut B. Following the purging of the lines Newton's co-worker suggested that Newton measure the contents of the tanker to check the remaining quantity of bitumen. In order to carry out the measurement of the remaining bitumen, Newton climbed up an access ladder at the rear of the tanker and opened the top hatch lid. He then withdrew a brass dipstick and recorded the dip measurement. He put the dipstick back in place and closed the top hatch lid, locking it tightly in place by hand. He stood up and prepared to walk to the rear access ladder when an explosion and fire occurred causing him to suffer burns. He ran towards the rear of the tanker and jumped to the ground. Workers from Tweed Heads Shire Council engaged in the roadwork activities immediately poured water over Newton's burns. Newton was conveyed by ambulance to Murwillumbah Hospital then transferred to the Burns Unit at Royal Brisbane Hospital for treatment of serious burns to approximately 40% of his body. 5 As to the first charge relating to the system of work, the following findings were made in para 109 of the judgment after a review of the evidence (98 IR at p 300) : On the whole of the evidence, I am satisfied beyond a reasonable doubt the existence at the relevant time on 17 November 1994 at Blackneys Road, Stokers Siding of a detriment to the safety of the defendant's employees, particularly Mr Newton, operating the bitumen spray tanker by reason of an unsafe system of work. That unsafe system involved the opening of the hatch on top of the tanker, shortly after the cleaning of the spray bars with cutter and the flowback of cutter into the tank, so as to enable the contents of the tank to be measured with a dipstick thereby enabling the release through the open hatch, assisted by the chimney effect, of a flammable vapour cloud which engulfed Mr Newton. Although the source of ignition was uncertain, the offence was complete as soon as the flammable vapour cloud existed on the top of the tank causing a potential hazard to a person, such as Mr Newton, in that position. The ignition of the fireball by some means, likely to have been an electrical fault on the tanker or the activation of contaminated pyrophoric material, was merely the causa causans of the fireball whereas the detriment to safety in breach of s 15 of the Occupational Health and Safety Act was the causa sine qua non being the system of work so permitting the opening of the hatch in such circumstances. 6 The causal nexus between the breach and the detriment to safety, and also relevant in an assessment of the nature and quality of the defendant's culpability, may be readily seen from the findings made in para 110 of the judgment (98 IR at p 300) in rejecting the s 53 defence, that is : As to the s 53 defence, my view in the circumstances of this case is that it cannot be separated from the conduct of the defendant in laying down the system of work. After the fireball occurred the defendant took steps to remedy the identified detriment to safety - the measuring of the contents of the tank by use of the dipstick through the open hatch was to occur before cleaning of the spray bars, dipsticks were to be located outside the hatch, hatch seals were to be checked when the hatch was opened and the hatch lid was to be lowered slowly and not dropped; all areas around the bitumen tanker to be declared mandatory non-smoking areas and the tanker was to be signed as "flammable liquid transport". Those measures, as Dr Green suggested, would have avoided the present risk to safety and they were all reasonably within the control of the defendant to implement. I am well satisfied that the defendant failed to establish that it was impracticable for it to so provide. The s 53 defence must fail. 7 The instruction and training charge, the second charge, was essentially directed to the claim that the employee concerned did not receive from the defendant any appropriate direction in his task apart from being provided with the safety booklet to read. I concluded in this respect as para 115 of the judgment (98 IR at p 301) as follows : The essential element of this charge was the failure by the defendant to instruct and train employees to the extent necessary to ensure their health and safety in the measuring of the contents of the bitumen tank. Having in mind the identified detriment to safety here, the evidence of Mr Anolek and Mr Newton satisfied me beyond doubt that such instruction and training did not occur. In a very real sense, my view is that the defendant was simply unaware of the risk involved to its employees and, so, did not provide appropriate instruction and training to avoid such risk. It was well within its power and control to do so. The defendant, in my view, did not make out the s 53 defence to this charge. 8 During the hearing on liability, Mr Simpkins submitted that because the same acts and omissions were relied upon for each charge then the prosecutor was only able to succeed, if at all, on one of the charges but not both. That submission was rejected, for the reasons then given at paras 84-88 of the earlier judgment (98 IR at pp 291-293), and I concluded "that the two charges … relate to separate and distinct acts or omissions and, so, are capable of constituting two offences against s 15(1)". Notwithstanding that finding, I accept that the two offences concerned the single incident of the fireball explosion and they arose out of the same factual circumstances with some elements common to both. However, the acts or omissions constituting each charge were relevantly different in that the nature of each failure was separate and distinct so as to constitute two contraventions of the statute. As counsel for the prosecutor, Mr D J Brezniak , correctly put in his opening submissions on the defendant's liability, the two charges related to "a somewhat different but factually identical set of circumstances of proof". For the present purpose of penalty, of course, the fact the offences were committed in common circumstances will properly enable the application in sentencing of the principle of totality. I would intend to so proceed. 9 It was common ground, and with which I agree, that the maximum penalty for each offence under the Occupational Health and Safety Act at the time it was committed on 17 November 1994, and having in mind that the charges were initiated by summons filed on 4 November 1996, was $500,000: see WorkCover Authority of New South Wales (Inspector May) v Swift Placements Pty Ltd (No 2) (1999) 96 IR 24 at pp 25-28 per Marks J and WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd t/as Drake Industrial (2000) 96 IR 45 at pp 49-53 per Hungerford J. 10 It was agreed also between the parties that the defendant had only one prior conviction for a breach of occupational health and safety legislation being an offence against s 15(1) of the Occupational Health and Safety Act for which the Chief Industrial Magistrate on 3 August 1999 imposed a fine of $5,000. 11 In minimisation of penalty, Mr Simpkins called three witnesses and relied on an affidavit, not subject to cross-examination, sworn by the defendant's supervisor of spray/seal operations for the area where the subject incident occurred. Counsel tendered into evidence an amount of material covering design and equipment modifications made to the defendant's spray tanker fleet to upgrade safety, amendments made to standard operating procedures for the dipping of bitumen tanks and the introduction by the defendant of a six-step safety management plan (directed in particular at systems of work and the training, information and instruction provided to employees for working with hot bitumen and engaged on spray seal operations). The investigation conducted by the defendant after the accident, together with the specific training given to employees as to proper and safe work systems with spray tankers, was detailed also. Mr Simpkins relied on a letter from the parents of the injured worker, Mr Newton, in which they acknowledged the financial support in accommodating them in Brisbane on various occasions during the period of their son's hospitalisation and in which they commented: We thank Boral for all the support we received due to this unfortunate accident and were glad to see that Kevin received the best medical attention that we could have expected. A medical report dated 15 May 1995 from Dr Michael Muller, the general and burn surgeon who treated Mr Newton, was put into evidence by Mr Simpkins . It referred to the nature and extent of Mr Newton's injuries and the treatment given to him, counselling received by him for psychological problems following the accident and difficulties met in returning to the work site, such as situation avoidance with hot bitumen tankers. Dr Muller gave the following prognosis: The patient is physically fit to retain ( sic ) to work and in fact has done so. It is likely that my patient will not have any permanent loss of efficient use of hands, arms or legs. He will have an altered cosmetic appearance to a mild extent particularly of the left posterior thigh. It will be some time before a final opinion as to permanent loss can be put forward. 12 The first witness was Wesley Patrick Martini, the defendant's Spray Manager for the Hunter Region and responsible for the maintenance programme designed to ensure the tanker fleet was either maintained or upgraded to a level in conformity with the Dangerous Goods Act 1975 following the amendments to that Act in 1998 to include bitumen sprayers. Specifically, Mr Martini's role, as he said, was "to ensure there was a programme in place through risk assessment processes to ensure over a progressive period that the entire fleet met the code. That date set down by the national panel was 2003". He said that the majority of the defendant's bitumen spray tankers now met the national code and he referred to a schedule detailing for each vehicle its condition, modifications made and proposed action; the estimated cost of such action taken was stated for each vehicle. Of particular relevance, Mr Martini gave the following evidence concerning modifications to tanker spray bars and the hatch area: Those spray bars are older technology spray bars dating back to the early 1970's. There are a number of limitations associated with the use of these bars including having to blow the bars and suck them back after each spray run. We have put in place a programme to progressively upgrade the sprayer standards to a new one which allows more efficiency in the field and also reduces significantly the requirement to flush or blow bars. The newer type bars can be sucked back which is evacuating any hot bitumen in the lines without the need to blow the bars and as a consequence now the only time we have to flush the bars is at the end of the day after spraying work has been completed. … The sprayers that currently have a dipstick located in the hatch area we were looking to investigate the feasibility and practicality of relocating the hatch where possible or putting in place a composite hatch where we have a smaller opening in the hatch but that will be subject to those hatches and the structures of the tanks being able to accept those modifications and will comply with the local and Dangerous Goods Act requirements. As to the impact of the findings made in the recent judgment in this matter upon existing programmes for the upgrading of spray tankers, Mr Martini gave this evidence: Q. Can you tell his Honour how that judgment has impacted upon the progress of existing programs? A. As I said earlier, the original timetable for upgrading was set for the twelfth month of 2003. As a consequence of the judgment we have accelerated that program to comply with the Dangerous Goods Act as well as the requirements of the judgment by the twelfth month of 2001. We have some restrictions in terms of capacity in order to get these upgrades done. This allows us enough time for the capital process to be followed, approvals granted and equipment for necessary work. Q. You told us about changes to plant and equipment that will be made and have been made and had been accelerated. Has anything occurred in the context of revised procedures or revised training provided to employees within Bitupave consequent upon the judgment? A. There are a number of initiatives underway prior to the judgment being handed down in terms of risk assessment and handling of dangerous goods and a considerable amount of training had been commenced or undertaken. Since the judgment was handed down we have issued several operating procedures to all spray employees, including casuals and contractors involved with the businesses. We held a small seminar for spray seal employees at Terrigal on 8 September this year and at that seminar we discussed in detail the Lismore incident and some other unrelated incidents which happened in the last few years and a number of people who investigated that talked to the group about the risks associated with them and the consequences of the judgment. As part of that we have issued folders to each employee which are controlled and which have several operating procedures in them, and the spray seal improvement team is re-reviewing all those procedures and a meeting has been set down for next week to complete that. The folders are controlled, centrally controlled, and each employee has to sign for them so we know who has them and as procedures are updated and upgraded we then know who has them, so we can retrieve the old one and replace them. Mr Martini emphasised that although written amendments were not made to operating procedures until August 2000, particularly in respect of tanks being dipped before and not after the bars were blown, in fact "all of the employees were retrained in that procedure much sooner than that. It is just that was when the last revision was released." It was Mr Martini's understanding that the critical incident report prepared shortly after the incident in November 1994 "was circulated widely and discussed in detail by spray managers at that time". 13 The second witness was Peter Edward Smith, a director of BFP Engineering which manufactured bitumen spraying units for the defendant and had done so from about 1989. Mr Smith's evidence focused upon the design of spray tankers and by reference to the dipstick being located underneath the hatch area. Relevantly, he gave the following evidence: Q. Do you agree with this proposition that dipping should be taken prior to flushing to ensure that no person is in the hatch area when flushing is undertaken? A. Yes. … Q. Why? A. It is a safer way of doing it rather than after flushing. Q. Why is it safer? A. Because of the kerosene vapours that might be on top of the tank at the time. 14 The third and final witness called by Mr Simpkins was Toni May Smith who was the defendant's Occupational Health and Safety Officer, a position she had held for about 3 years. Ms Smith's evidence dealt with the six-step safety management plan which she described in the following way : The six-step safety plan is an occupational management system which enables us to manage the safety in the workplace. It consists of six major components, the first being the demonstration of management commitment and the acceptance of incident reporting, recording and monitoring. The third component is risk assessment and the introduction of control strategies for identifying hazards, and we concentrate on safe behaviour and we have a program in place for addressing that with heavy emphasis on ongoing training and individual management systems, and we also have a complete standard on operating procedures to ensure our methods of work. Specifically as to training, information and instruction, Ms Smith gave this evidence: In what we have just discussed are the management systems we have in place to ensure safety. For safety there are two aspects, firstly work processes that we have to put in place and then we have to ensure that our employees are trained and given information and instruction in those management systems so that they are actually achieving what they set out to do. What we have here is the list of some of the training initiatives which have been generated to address specific safety issues in that workplace. In 1997 all spray seal operators were trained by the RTA in a specific course which they designed for the safe operations of bitumen sprayers. The Australian Asphalt Paving Association has a course specifically targeted at the safe handling of bitumen. We have sent all of our employees through that. There is currently a code of practice for the occupational health and safety induction and one section has an induction we must give our employees which relates specifically to the hazards through their work. We have specifically identified the hazards of some of the issues coming out of this incident. There was a training process in August 1999 and that procedure for the boil out and flush out bitumen and tankers were actually identified as a training initiative, and was undertaken in depots. They reviewed the procedure. It was a spray seal seminar and the employees attended that. The dangers relating to this incident were discussed. We noted that the employees have conducted their risk assessment and although it specifically related to having procedures in place for boiling and flushing, they have answered in the affirmative. We see that all employees participate in tool box and safety measures. We mention that there is a safety newsletter distributed to each depot each month just for discussion at their tool box meeting and we also relay various safety issues through that newsletter every month. It makes reference to the structured safety committees we have in place throughout New South Wales. We have a high level of awareness in our depot facilities in bitumen burns. We regularly check that all our employees are carrying on their person a bitumen burns card which is an instruction on the treatment of bitumen burns in the event of treatment in an emergency. Also through our safety newsletter, back in October 1998, an instruction was given on the appropriate personal protective equipment that should be worn whilst handling hot materials and that was circulated to all employees and all Boral Asphalt vehicles, including crew trucks carry a set of materials on safety data sheets which are sources of information provided by the manufacturers of various products and in the information that is contained it contains information on the safe handling and use of that product, any personal protective equipment we have recommended for use with that product, and they are available to all employees. 15 The affidavit earlier referred to as relied upon by Mr Simpkins was sworn by William Franklin Brown, the defendant's supervisor in the area where the incident occurred in November 1994. Mr Brown had for some years before been the driver/operator of the spray tanker concerned and he said that "during this period of time I did not experience any problems with the vehicle or its spraying unit". He was a member of the investigation committee appointed to enquire into the occurrence with Mr Graham Skidmore, the defendant's then Occupational Health and Safety Adviser. It was from that investigation Mr Skidmore prepared the critical incident report making recommendations in relation to the operation of bitumen spraying plant and which were the subject of detailed consideration earlier in these proceedings - see paras 7, 35, 36 and 37 of the judgment (98 IR at pp 249, 263-266). Mr Brown made the modifications to the hatch cover following the incident to enable the tank to be dipped without the need to remove the cover and who repaired the hatch lid seal with packing to enable proper sealing so as to avoid metal-to-metal contact. Mr Brown indicated also that Mr Newton returned to work on 30 January 1995 and performed yard duties; initially, Mr Newton worked a limited day but his hours gradually increased until he was declared fit and resumed duties. 16 Mr Brezniak for present purposes relied upon the evidence admitted in the first part of the proceedings concerning liability, but added nine coloured photographs of Mr Newton showing the burn injuries sustained by him to significant areas of his body. 17 Mr Brezniak directed his submissions to the conclusion that a penalty should be imposed on the defendant at least at the mid-point of the range for each offence, although, as counsel said, "there is room for contention it would be for the Court to impose above the mid-range and that submission is made in view of the objective nature of the breach involved here". Counsel starkly described the occurrence - "What you had were two men - one man and then another on top of the tanker, above a volatile mixture where the existing protocols say it is clearly dangerous to do so, with the necessary predictable volatile gases from the tanker when the hatch is opened." In putting, on the evidence, that the risks to safety were readily foreseeable in a situation where one "might be staggered there have not been accidents of this kind before", Mr Brezniak drew the conclusion that the volatile gas which formed on top of the tanker was enough to cause a major incident if any spark came in contact with it. After referring to the earlier findings made as to liability, Mr Brezniak summarised, in order to assess an appropriate penalty, the nature of the seriousness involved to safety in this way: The volatility of the compound in the tank, given the introduction of the solvent, was not ever seriously questioned in these proceedings and it follows that there was always the need for great care. There was always the risk and your Honour refers in the judgment to the need only to establish that the method of work was of a kind which created the risk of injury and it actually then is not what brings the prosecution. It is those circumstances that create the risk of accident and your Honour's remarks following these proceedings, given the way these proceedings went, being a scientific argument about the precise elements in the chain of causation. This is a clear case where conviction follows the events in question. The defendant chose to contest and in the event the proceedings were of an extended kind. The defendant deserves credit for its co-operation with the investigation which took place and there seems to have been no lack of it, and of course modifications to the tanker were made outside … the preview of any officer from WorkCover. The defendant deserves the credit for taking steps of seeking to improve safety and making the necessary modifications but it is not a case where there has been any contrition. It is not a case where there has been an early plea. It is a case where the defendant faced the conviction after defending the proceedings. As to the factors referred to above which were subjective to the defendant, Mr Brezniak accepted their relevance in assessing penalty but put they were "necessarily subsidiary to the nature and quality of the offence". Finally, and by reference to the injuries sustained by Mr Newton, counsel submitted that a penalty should be fixed "as reflecting the community's view that offences of this kind should be properly punished and punished in a way which will attract considerations of deterrence to others in industry". 18 Mr Simpkins described each of the offences in qualitative terms as "a low range offence" for the reason that the nature and extent of the defendant's departure from an acceptable standard of safety was, viewed objectively, a departure "which could not be described as a significant departure" having in mind "the complexities of trying to work out the nature and extent of the risk within the tank". After submitting that what occurred was not common or not a risk which was self-evident in the industry, and certainly not self-evident to the defendant, Mr Simpkins shortly put the thrust of the defendant's plea in the following way: The point we make is there were no indicators that in our submission would have alerted the defendant to the existence of some flammable vapour within the tanker which could escape if there was any incorrect order of dipping and blowing unless there was some scientific consultation. That is not to suggest that the procedure which was used was the correct procedure. The point I make is when one is assessing the objective seriousness of the departure it is relevant to have regard to the fact in order to determine the risk one needs to understand the scientific debate. Your Honour heard from two eminent scientists different views on the matter. But it does not excuse us as your Honour has held, but it permits us to look at the objective seriousness. Objectively looking at the seriousness of it, it is not a risk evident from prior incidents. It had not occurred before. … … The submission we put is subjectively there was no appreciation of the risk and objectively, as your Honour found, there should have been something more done. The departure from the appropriate standard is not a great departure given the lack of any prior incidents concerning this equipment, given the lack of any knowledge within the industry that one could readily obtain of the nature of the risk in order to address it. Mr Simpkins had earlier put, correctly in my view, that "no one suggests spraying bitumen with these tankers is an exercise which is completely safe. There are risks and the question is how much." Counsel submitted that in light of the scientific debate between the two expert witnesses any failure by the defendant in seeking out and recognising the risk was "understandable" and "objectively should be reflected in a penalty which is appropriate having regard to the difficulty of determining the risk and addressing it". As to the action taken by the defendant to remedy the risks to safety found to have existed, Mr Simpkins put : Beyond that immediate response your Honour has heard today of the very detailed plan of action that Bitupave has undertaken over the past number of years not only to equip itself better to comply with its obligations under the Occupational Health & Safety legislation but also the Dangerous Goods Act, your Honour has heard from the evidence given this morning of the significant steps undertaken over the last couple of years to devote considerable sums of money to replacing old equipment or to upgrade them so they were of a type that meant the dipping could occur separately from the opening of the hatch thereby rendering the plant and equipment safer in operation to employees. Considerable expense and care and attention has been devoted to the review of that programme. It is a risk which stems from a combination of the two steps, blowing the bars and following that the opening of the hatch. It is not a necessary consequence of your Honour's judgment there would be a need to re-configure the tank to separate the dipping from the hatch. But what Bitupave has done is it is incurring substantial expense in upgrading its blowing to achieve that objective. It has made considerable progress already and there will be further expenditure over the next year which would upgrade the fleet completely. Your Honour knows the practical requirement for compliance with the Dangerous Goods legislation is these upgrades be completed by 2003, but they will be completed a year or two before that. … So Bitupave is a defendant that not only through the evidence of Ms Smith is being a responsibly safe employer, but one which has implemented and maintains and supervises proper programmes and steps for safe working and your Honour has heard about the safe operation manual and the revisions made to that to ensure the procedure is varied to remove the risk that your Honour has found existed. The change your Honour has heard about is reflected in practice which has been adopted now for quite some time within Bitupave. Beyond that, Bitupave has undertaken this process of upgrading and altering the configuration to separate out the dipping from the hatch to further reduce the risk of an incident like this happening again. Where that separation is not capable, these vehicles will be retired or replaced as your Honour has heard. 19 I am immediately able to say that the present offences involve, I think, most serious detriments to safety. In general terms, I accept the thrust of Mr Brezniak's submission as to the objective seriousness of the breaches; on the evidence, the endeavour by Mr Simpkins to minimise the seriousness by reliance upon the scientific debate to show there were no indicators which would have alerted the defendant to the existence of relevant risks was not, in my opinion of the evidence, capable of being sustained. It was manifest from the evidence that the handling of bitumen, particularly at high temperatures, was risky and hazardous - it was necessary for certain precautionary measures and procedures to be observed but that was not done. It is apt in this respect to repeat what has been said by this Court in very many cases in this area that an employer needs to be pro-active and with a positive obligation to fully inform itself so as to ensure a safe work environment: see, for example, WorkCover Authority of New South Wales (Inspector Dawson) v Waugh (1995) 59 IR 89 at p 100. As recorded in para 97 of the judgment, the prosecution's expert witness, Dr Green, identified the detriments to safety in a manner consistent with the lay evidence in the proceedings and I made the following comment (98 IR at p 297) : … that Mr Newton suffered injury because he was required to open the hatch to dip the bitumen tank; the opening of the hatch allowed a mixture of fuel and air to flow out of the hatch, exacerbated by the chimney effect, to form a flammable vapour cloud on top of the tanker which was subsequently ignited to form the fireball. Dr Green added that the Mexcut B sucked back into the tank, instead of being returned to the outside storage bottles, provided additional vapour in the tank of a volatile nature as the Mexcut B had not completely mixed with the bitumen to reach a state of equilibrium before the hatch was opened. Then, as to the reasonable foreseeability of the risks to safety, reference was made by me in the judgment in paras 105 and 106 to this effect (98 IR at p 299) : The defendant's Safety Handbook noted that "kerosene vapours are highly flammable and explosive" so that "during 'cutting' operations all flames and sources of sparks … must be eliminated". The Code of Practice produced by the Australian Institute of Petroleum, as Dr Green acknowledged, attended to the hazards arising during the handling of bitumen and related products due to the high temperatures involved, the flammable nature of the products and possible presence of toxic materials or vapours; the guidelines set out in the Code were intended to eliminate potential hazards. I have set out earlier in these reasons relevant extracts from the Code and I do not repeat them. Suffice it to say that those extracts have, in my view, direct relevance for present purposes. For instance, in dealing with sources of ignition the Code referred to the need to avoid through-drafts of fresh air in tank vapour spaces by keeping hatches closed so that the self-heating and possible auto-ignition of carbonaceous deposits may not occur. As to the blending of cutters with bitumen, the Code noted the main danger as including the risk of fire or explosion so that during blending no source of ignition should be permitted within a distance of 15 metres of the operation. In noting that cleaning of pump hoses and tank pipework will be required after discharge of bitumen (eg blowing the bars), the Code stated that "cleaning solvents should not be discharged into bitumen storage tanks … a separate solvent storage facility should be established". As to access to bitumen tank tops, the Code said that such access by personnel "should be strictly regulated at all times … avoided as far as is reasonably practicable, during product movements into or out of the tank concerned" and should be prohibited "during the blending of cutback". I affirm for present purposes the views thus expressed; the risks here were readily and reasonably foreseeable. 20 As to the system of work charge, in para 109 the specific unsafe system of work was identified (98 IR at p 300) as involving "the opening of the hatch on top of the tanker, shortly after the cleaning of the spray bars with cutter and the flowback of cutter into the tank, so as to enable the contents of the tank to be measured with a dipstick thereby enabling the release through the open hatch, assisted by the chimney effect, of a flammable vapour cloud which engulfed Mr Newton." As to the instruction and training charge, the conclusion was reached in para 115 of the judgment (98 IR at p 301) that the defendant's failure was not to instruct and train employees to the extent necessary "in the measuring of the contents of the bitumen tank". The conclusion was then reached in para 115, on the whole of the evidence, that "in a very real sense … the defendant was simply unaware of the risk involved to its employees". I affirm that view. 21 As was remarked by a Full Bench of the Court in Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 339, "the approach to the determination of penalty in cases such as these is now well settled". That view was amplified in quite some detail by another Full Bench in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at pp 449-456 and again in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at pp 472-476. I have for myself reviewed what their Honours said in those cases and would, of course, propose to proceed here accordingly. I need only emphasise what the Full Bench concluded in Lawrenson Diecasting v WorkCover Authority (90 IR at p 475), namely, that "the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. … subjective factors … must play a subsidiary role in the determination of penalty to the gravity of the offence itself. … the presence of the subjective factors referred to (which must be kept in mind to mitigate seriousness or exculpate the offender) should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence". I would only add in this concise overview of the proper approach to follow in sentencing what the Full Bench said in Warman International v WorkCover Authority (80 IR at p 339) that "the level of penalty must, on the one hand, compel attention to occupational health and safety risks in order to ensure that persons are not exposed to such risks at their workplaces but, on the other, must not be oppressively high". 22 It should be acknowledged in the instant case, in favour of the defendant, that it took prompt action following the incident in November 1994 to itself investigate what had occurred and implemented remedial action consistent with the recommendations contained in the critical incident report prepared by Mr Skidmore and Mr Brown. The evidence here of Mr Martini and Ms Smith satisfied me the defendant was seriously committed to appropriate modifications to its spray tanker fleet and had implemented work procedures to obviate safety risks. Further, and as acknowledged by Mr Brezniak , the defendant co-operated fully with the investigating authorities in respect of the November 1994 incident and, importantly, it has only one prior conviction for breach of occupational health and safety legislation. Those subjective considerations must result in a reasonable reduction of what the penalty would otherwise be based on the objective nature of the breaches. 23 Having in mind the findings earlier made, together with the submissions and further evidence heard in this part of the proceedings as set out above, I assess the culpability of the defendant in terms of the nature and quality of each of the subject offences within the second quartile of the available range of penalty. For the system of work charge, I would assess such an amount at $250,000; and, for the instruction and training charge, I would assess such amount at $125,000. The resultant total for both offences would, therefore, be $375,000. However, I accept the submissions of both Mr Brezniak and Mr Simpkins that it is appropriate in this case to apply the principle of totality in sentencing. That principle was succinctly stated by the Full Court in WorkCover Authority v Waugh (59 IR at p 100) as allowing the Court "to avoid a straightforward arithmetical addition of sentences appropriate to each individual offence where the offences are similar, thus avoiding doubling of the penalty by enabling the judge to consider a single overall penalty which includes the circumstances of a second or further offence". The principle was referred to by McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at pp 623-624, as follows : To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. … To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality: Mill v The Queen (1988) 166 CLR 59. Applying the principle of totality, my view is that an appropriate total or cumulative sentence for both offences would be an amount of $300,000. I would allow a further reduction in sentence in the sum of $45,000 in recognition of the features subjective to the defendant. The resultant amount of $255,000 I would apportion as to $170,000 for the system of work charge and $85,000 for the instruction and training charge. 24 In relation to costs, Mr Brezniak sought an order that the defendant pay the prosecutor's costs. Mr Simpkins did not oppose the making of such an order and I will do so. The prosecutor should have a moiety of the fines. Orders For the reasons set out above, I make the following orders - Matter No IRC 5867 of 1996 (the system of work charge): The defendant is found guilty of the offence charged and a verdict is entered accordingly. The defendant is convicted and is fined an amount of $170,000, with a moiety thereof to the prosecutor. Matter No IRC 5868 of 1996 (the instruction and training charge): The defendant is found guilty of the offence charged and a verdict is entered accordingly. The defendant is convicted and is fined an amount of $85,000 with a moiety thereof to the prosecutor. The defendant is ordered to pay the prosecutor's costs of the proceedings in an amount as agreed or assessed. ______________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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