Industrial Relations Commission of New South Wales in Court Session CITATION : WCA v Heggies Bulkhaul Limited. [2000] NSWIRComm 95 PROSECUTION: WorkCover Authority of New South Wales PARTIES : DEFENDANT: Heggies Bulkhaul Limited FILE NUMBER: IRC 6714, 6715 & 6716 of 1998 CORAM: Maidment J CATCHWORDS : Alleged failure to ensure safety of persons not in employment, alleged failure to ensure health and safety and welfare at work of all employees, alleged failure to provide a safe system of work. LEGISLATION CITED : Occupational Health & Safety Act 1983; s 16(1) 15(1) HEARING DATES: 05/08/2000; 05/09/2000; 05/10/2000; 05/11/2000 DATE OF JUDGMENT: 06/14/2000 PROSECUTOR: Mr P Skinner of counsel SOLICITOR: Mr N A Correy MORAY & AGNEW Solicitors LEGAL REPRESENTATIVES: DEFENDANT: Mr B Hodgkinson of counsel SOLICITOR: Mr S Boatswain DUNHILL MADDEN BUTLER JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MAIDMENT J DATE: 14 JUNE 2000 Matter No. IRC98/6714 WorkCover Authority of New South Wales (Inspector MacKenzie) v Heggies Bulkhaul Limited. Prosecution under s.16(1) of the Occupational Health & Safety Act 1983. Matter No. IRC98/6715 WorkCover Authority of New South Wales (Inspector MacKenzie) v Heggies Bulkhaul Limited. Prosecution under s.15(1) of the Occupational Health & Safety Act 1983. Matter No. IRC98/6716 WorkCover Authority of New South Wales (Inspector MacKenzie) v Heggies Bulkhaul Limited. Prosecution under s.15(1) of the Occupational Health & Safety Act 1983. JUDGMENT 1 Waste Services New South Wales ("Waste Services"), which at all material times owned and conducted a waste transfer station at Crozier Road Belrose, entered into a contractual arrangement with Heggies Bulkhaul Ltd ("Heggies") whereby Heggies operated the station. Under the arrangement Heggies was not responsible for maintenance of any plant provided by Waste Services. 2 As a result of an accident which occurred at the site on 24 December, 1996 Heggies faces one prosecution under s.16 of the Occupational Health & Safety Act 1983 ("the Act") and two under s.15. The charges are contested. 3 As I understand the evidence the site is surrounded by a perimeter fence, entry being gained via gates which are proximate to a weighbridge. Traffic is directed either to the putrescent waste area or to the non putrescent waste area. 4 Heggies had the responsibility to provide manning at the weighbridge entrance to the site, to direct traffic on the site and to control the on-site disposal of waste. To this end Heggies employed weighbridge operators, upper level personnel and a site supervisor. 5 Waste sump oil was collected from the public at the upper level of a large two storey structure where it was poured into a filler chute and descended by force of gravity along a fill pipe into a 5,000 litre tank which was located on an elevated platform under the concrete floor of the upper level. The tank was equipped with a breather pipe and emptied by gravity to a truck positioned under the platform. 6 The waste sump oil tank and associated plant, which were in place prior to Heggies becoming the operator of the transfer station, were owned by Waste Services. The function of Heggies in relation to the tank was confined to controlling the pouring of waste material into the filler chute. The tank was periodically emptied by contractors to Waste Services. 7 In 1995, at the request of Waste Services, WorkCover Authority of New South Wales ("WCA") conducted a safety survey of the premises as a result of which certain remedial work was required of Waste Services including the relocation of a metal ladder which was affixed to the waste sump oil tank. Heggies was neither provided with the WCA report nor informed of it until after the accident. 8 On about 2 December, 1996 Murray Neil Russell, a Waste Services project engineer, accompanied Zeljko Brescic, the proprietor of Z&F Welding Pty Ltd ("Z & F Welding"), around areas of the site upon which Z & F Welding's services might be utilised on some of the remedial work. Z & F Welding successfully proffered a quote to Waste Services. Heggies had neither involvement in nor knowledge of the arrangements being made between Waste Services and Z & F Welding. 9 Mr Russell thereafter informed the weighbridge operator and Edward Kerewaro, Heggies' site supervisor, that Z & F Welding would be coming onto the site and directed them to allow access. 10 Mr Russell's evidence is that in a brief phone conversation he said to Mr Kerewaro words to the effect that a welding contractor would be on site "doing some work on the kick bars, handrails, some work on the waste oil tank". Mr Kerewaro recollects that Mr Russell had said that Mr Brescic was going do some work which included the relocation of the ladder on the tank, he said his only understanding of the work to be performed on 24 December was that "they would be doing some work on the steps leading up from the manoeuvring area to the transfer station and the recycling, steel recycling area". 11 Mr Kerewaro's evidence was that, leaving aside environmental matters, he was subject to directions from Mr Littler, Waste Services's site manager. Mr Littler, who considered himself to have had the management/overseeing of the day to day operation of Heggies, had not been involved in dealings with Z & F Welding as that was Mr Russell's responsibility. Consequently he had not given any advice to Heggies as to the activities of Z & F Welding. 12 Mr Brescic and Robert Suman, an employee of Z & F Welding, commenced their work on the site, but not in relation to the waste sump oil tank, on or about 21 December. 13 On Christmas Eve Mr Suman arrived at about 7.00am to commence the work necessary to relocate the ladder on the waste sump oil tank, he disconnected the ladder and placed it in the new position designated for it, meanwhile Mr Brescic arrived and, whilst he was either preparing to arc weld or welding, the tank exploded. Mr Brescic and Mr Suman each received severe burns. 14 Expert evidence during WCA's case is that the most likely cause of the explosion was the ignition of a mixture of fuel vapour and air in the head space of the tank by a hot spot caused by welding on the tank. 15 Analysis of residue in the tank disclosed the presence of various volatile materials in the oil such as benzene, acetone and toluene. The likely sources of volatile substances were said to be: 1. used oils from old cars which are likely to contain small quantities of petrol due to worn out piston rings, 2. oils stored in cans already containing petrol where the petrol would dissolve in the oil and not evaporate as the containers are closed. 3. oils mixed with thinners and solvents from various applications such as cleaning etc, 4. petrol, solvents, thinners etc being accidentally dumped into the tank - a possibility that can not be ruled out. 16 I should point out that the expert opinion as to the likely sources of volatile substances was theoretical. 17 Evidence called by Mr Hodgkinson, counsel for Heggies, is to the effect that sump oil from a one to two year old petrol driven car is likely to contain up to 1% petrol and that higher levels are to be expected in older cars. Other evidence is that such levels are sufficient to have created a vapour volume in the head space of the tank which would form an explosive mixture with air. The evidence of Robert David Pearson, a chemist employed by WCA, is to the effect that had the oil in the tank contained 0.5% petrol, it would have been ample to generate an explosive vapour mixture in the head space. 18 The prosecutions are based upon two crucial allegations the first being that want of safety arose as Heggies had failed to ensure that substances other than waste oil, such as thinners, were not disposed of into the "Waste Oil Tank". As the evidence is that waste sump oil from a one to two year old car would be likely to contain up to 1% petrol and that 0.5% would have been sufficient to have created an explosive vapour mixture within the tank this allegation is groundless. 19 It is clear from the evidence that the waste sump oil in the tank would of have had a component of petrol sufficient to ignite, at an ambient temperature one would expect at Belrose in December, upon coming into contact with an ignition source. The evidence does not suggest that the addition of thinners, petrol or kerosene to used sump oil would enhance its existing likelihood of ignition. 20 Consistent with my experience of WCA practice these proceedings were not commenced until the two years limitation period had almost expired. The accident occurred on 24 December 1996, the summonses were not filed until 18 December 1998. The summonses allege the commission of offences on 24 December 1996 and in any event, as pointed out by Mr Hodgkinson, cannot, by force of the two year limitation period, sustain prosecutions as to acts or omissions occurring prior to 18 December 1996. The evidence does not disclose that any substances were placed in the tank between 18 and 24 December 1996, it certainly does not disclose that substances other than waste sump oil were introduced to the tank during that period. 21 The gist of the second crucial allegation is that unspecified employees of Heggies were put at risk, as were Messrs Brescic and Suman, as a consequence of Heggies' failure to provide a system of work for the carrying out of hot work by Z & F Welding. 22 As to the alleged danger to Heggies employees Mr Skinner, counsel for WCA, submitted that an employee could have been working in the explosion zone. 23 The evidence does not disclose any requirement for Heggies employees to have attended to their duties on or proximate to the platform upon which the tank was located. The 1995 WCA safety survey disclosed no hazards arising from the means of disposing of waste sump oil via the tank. The evidence in these proceedings does not suggest that the method was inherently hazardous nor does it suggest that the tank and associated plant were unsuited to the purpose of receiving and storing waste sump oil. 24 Nonetheless Mr Skinner submitted that the evidence is that collection of sump oil in a 5,000 litre tank is inherently dangerous, he did not point to any supportive evidence. The submission is not only inconsistent with the evidence but also unsustainable, many flammable and volatile substances are contained in tanks of smaller and greater capacity than 5,000 litres without inherent danger arising from that mere fact. Petrol tankers and motor mower fuel tanks provide ready examples. It is the introduction of an ignition point which creates risk assuming the presence of an explosive vapour mix. In this case no relevant ignition point existed during the day to day disposal of waste sump oil. The day to day conduct of Heggies' undertaking of collecting waste sump oil has not been shown to have been hazardous. I should add that I am at a loss to comprehend any connection between the submission and the particularisation of the allegations. 25 It was not until the activities of Z & F Welding introduced an ignition point that safety was compromised. Heggies had neither specific knowledge of nor control over the activities of Z & F Welding. 26 The allegation that Heggies failed to provide a system of work for the carrying out of hot work in a hazardous area that was safe and without risk to health is not to the point as there is no causal connection between any such failure and the danger which arose upon Z & F Welding introducing an ignition point. As Heggies was unaware that Z & F Welding was proposing to apply a weld to the tank any Heggies' system of performing such work would not have been made known to Z & F Welding. THE SUMMONSES 27 Each summons alleges the commission of an offence on 24 December 1996, the allegations are paraphrased as follows: 6714 of 1998 28 This s.16(1) prosecution crucially alleges that Heggies failed to ensure that persons not in its employment, namely Messrs Brescic and Suman, were not exposed to risks arising from the conduct of its undertaking. The critical allegations are that: 1. Heggies had failed to ensure that substances other than waste oil, such as thinners, were not disposed of into the "Waste Oil Tank", and 2. On the said date Heggies failed to ensure that persons not in its employment working in the vicinity of the "Waste Oil Tank" were not exposed to risks arising from the conduct of its undertaking at its place of work in that it failed to provide a system of work for the carrying out of hot work in a hazardous area that was safe and without risk to health. 29 Allegation 1 fails for the following reasons. The waste oil tank was intended for sump oil disposal. The evidence does not disclose that, assuming substances other than sump oil such as thinners had been introduced to the tank, any danger arose from the pouring of such substances into the filler chute which led to the tank. The presence of such substances would have made no difference as sufficient petrol to have created an explosive vapour mixture would have been present as a component of the sump oil. In any event their is no causal connection between the presence of the vapour mixture and the danger which arose upon the introduction of an ignition point. 30 Allegation 2 fails as the carrying out of hot work did not arise from the conduct of Heggies' undertaking. That work arose from the conduct of Waste Services' undertaking as opposed to that of Heggies. The hot work was not within the control of Heggies the employees of whom had been directed by Waste Services, the owner of the site who employed its own site manager, to allow site access to Z & F Welding in order that Z & F Welding might perform the work it had contracted with Waste Services to perform. Heggies did not have control over the tank or of any work which might be performed on or in the vicinity of the tank and underneath the upper level concrete floor. 6715 of 1998 31 This s.15(1) prosecution crucially alleges that Heggies failed to ensure the health and safety and welfare at work of all of its employees in that it failed to maintain a place of work under its control in a condition that was safe and without risk. The critical allegation is that: 1. Heggies had failed to ensure that substances other than waste oil, such as thinners, were not disposed of into the "Waste Oil Tank". 32 This prosecution fails upon the findings recorded above as to allegation 1 in 6714 of 1998. 6716 of 1998 33 This s.15(1) prosecution crucially alleges that Heggies failed to ensure the health and safety and welfare at work of all of its employees in that it failed to provide a system of work in relation to the disposal of waste products which was safe and without risk. The critical allegation is that: 1. On the said date Heggies failed to ensure that persons in its employment working in the vicinity of the "Waste Oil Tank" were not exposed to risks arising from the conduct of its undertaking at its place of work in that it failed to provide a system of work for the carrying out of hot work in a hazardous area that was safe and without risk to health. 34 This prosecution fails upon the reasons above recorded as to allegation 2 in 6714 of 1998. 35 Additionally it has not been proved that employees of Heggies had been working in the vicinity of the tank on the said date or at any other time. CONCLUSION 36 I find the defendant not guilty of any of the three offences alleged and dismiss each summons. In the absence of agreement I will hear the parties as to costs. 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.