Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hoare v Visy Pulp and Paper Pty Ltd [2012] NSWIRComm 29 Hearing dates: 2 April 2012 Decision date: 17 April 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: (a)the defendant, Visy Pulp and Paper Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Further Amended Application for Order to which it entered a plea of guilty; (b)the defendant is fined the sum of $170,000 with half that sum to be paid to the prosecutor by way of moiety; (c)the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - two employees sprayed with corrosive liquid and steam - employees receive extensive chemical thermal burns - guilty plea entered to Further Amended Application for Order - employer's detailed safety system not applied in several aspects - prior record results in higher penalty regime being applied - serious injuries indicative of risk - objectively serious offence established- general and specific deterrence considered - numerous subjective factors considered - early plea leads to substantial discount in penalty - penalty imposed Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1l; (2010) 239 CLR 531 Orkopoulos v R [2009] NSWCCA 213 Veen v R (No 2) (1988) 164 CLR 465 Category: Principal judgment Parties: Inspector Brett Hoare v Visy Pulp and Paper Pty Ltd Representation: C Magee of counsel (Prosecutor) P Skinner of counsel (Defendant) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Ashurst Australia (Defendant) File Number(s): IRC 2048 of 2009 Judgment 1Visy Pulp and Paper Pty Ltd ("Visy") has, since approximately 2001, operated a significant business producing paper product used in cardboard manufacture at premises located at Tumut. In mid-February 2008, two employees of Visy, Mr Colin Peachey and Mr Gert De Wet, received serious chemical/thermal burn injuries in the course of their employment at the Tumut factory. In December 2009, Inspector Brett Hoare commenced proceedings in the Court alleging that Visy had breached the provisions of s 8(1) of the Occupational Health and Safety Act, 2000 ("the Act"). 2As has occurred with many other cases, the prosecution involving Visy became entangled in the ongoing process of clarifying the effect of the High Court's decision in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531. The case then awaited, firstly, proceedings before the Full Court of the Industrial Court and then decisions in the Court of Appeal. Following the decision in Kirk the prosecutor moved by way of Notice of Motion to amend the Application for Order, a move clearly designed to overcome any problems that may have arisen from the decision of the High Court. In mid-November 2011, the parties were able to inform the Court that differences between them had been resolved and that, without objection, a further Amended Application for Order would be filed and Visy would enter a plea of guilty to that further Amended Application for Order. 3The further Amended Application for Order, to which Visy entered its plea of guilty, particularised the offence in the following way: The particulars of the risk are that: (a)The health and safety of the employees of the defendant was put at risk of injury of chemical and/or thermal burns from exposure to hot steam and hot caustic splash from a chemical substance known as 'black liquor', being ejected from the low level feed system. The particulars of the acts or omissions in failing to eliminate the risk are that: (b)The defendant failed to provide and maintain a safe system of work for the replacement of a seal around an inspection hatch on the twin screw chip meter within the fibreline ("the seal") at the premises in that it failed to undertake measures as follows: i.ensuring that employees were provided with and that there was adequate supervision to ensure that: (a)employees completed a risk assessment and/or a Job Safety and Environmental Analysis WorkSheet (as required by its documented procedures), prior to the commencement of the task of replacing the seal; and (b)employees complied with the documented Job Safety and Environment Analysis ("JSEA") documents, in particular 'Replacing Gland Packing/Seals', whilst undertaking the task of replacing the seal; ii.ensuring that employees complied with procedures for obtaining 'work permits', including electrical and isolation permits and 'isolation and lockout' procedures and that there was adequate supervision to ensure that employees complied with its 'work permit' and 'isolation and lockout' procedures prior to work commencing on replacing the seal; iii.ensuring that the low level feeder system was fully shut down and isolated (including ensuring that the chip tube was drained of chips and black liquor) prior to employees being permitted to commence work on the task of replacing the seal; iv.ensuring that the status of the shut down of the equipment and the isolation procedures were correctly communicated between the DCS Operator and Mr Peachey and Mr De Wet prior to their undertaking the task of replacement of the seal. (c)The defendant failed to provide instruction, information and training to employees working in the fibreline section of the premises in relation to maintenance shutdown and/or isolation procedures that ensured that: i.Mr Peachey and Mr De Wet were provided with instruction in relation to the system for replacing the gasket on the door of the chip meter of the fibreline section prior to the commencement of the task of replacing the seal; ii.(Mr De Wet was provided with training in the requirements of the 'JSEA Worksheet - Replace Gland Packing/Seals' prior to the commencement of the task of replacing the seal; iii.Mr Peachey was provided with information regarding hazards and associated risks relating to the fibreline area, and in particular of hot caustic splash; iv.Mr Peachey and Mr De Wet were provided with instruction and information regarding the status of the isolation procedure and the further steps in the isolation procedures for the fibreline that were required to be undertaken prior to it being safe to undertake work on or in the vicinity of the door of the chip meter; v.Mr De Wet understood his and others' respective roles in relation to the task of the isolation of the chip feed system of the fibreline including ensuring that Mr De Wet understood he should undertake the role of a field operator and open the chip tube drain valve as part of the task of the isolation of the chip feed system of the fibreline; vi.In circumstances where Mr Peachey had no received competency training for work in the fibreline, Mr Peachey understood he should not undertake the task of repairing the gasket on the door of the chip meter, and to await the arrival of a designated maintenance fitter; vii.Mr Peachey and Mr D Wet were provided with direct verbal instruction that they should not commence work on the replacement of the gasket on the door of the chip meter until a written work permit had been issued and received for the task. (d)The defendant failed to ensure and provide adequate supervision to ensure that its employees, and in particular Colin Dale Peachey and Gert Christoffel De Wet, wore appropriate personal protective equipment when working on or in the vicinity of the open instruction hatch of the twin screw chip meter of the fibreline, in that it failed to undertake measures including that they wore face shields, gloves and a chemical suit to protect them from injury from hot steam and hot caustic splash. As a result of the defendant's failures and omissions employees and in particular, Colin Dale Peachey and Gert Christoffel De Wet, were placed at risk of injury and suffered serious injuries. 4At the hearing on sentence the prosecutor relied upon a lengthy Agreed Statement of Facts with the following documents annexed: (a)numerous photographs of the chip bin machinery, including the inspection door of the chip meter and the surrounding machinery in the factory area; (b)a factual inspection report prepared by Inspector Hoare; (c)a diagram of the Fibreline and surrounding operations; (d)a 2006 extract of a Chemwatch Material Safety Data Sheet entitled "Chemical product and company identification" dealing with heavy black liquor identified as a "corrosive liquid"; (e)a risk register for the Tumut factory dealing with the Digester Fibreline indicating that there was a hazard of hot caustic splash associated with black liquor sampling of the digester as well as with the cleaning of chip tube blockages; (f)a job safety environmental analysis worksheet for Visy Pulp Paper Mill No 9 referring to replacing gland packing/seals and chip pump tube blockages; (g)a Visy investigation report of the incident on 12 February 2008 prepared for Visy by Mr Iain Harris, General Manager, Operations Development and dated 16 April 2008; (h)a Visy isolation lockout procedure dated December 2005; (i)a Visy access/work permit procedure dated December 2005; (j)a schematic diagram of the Fibreline; (k)a hazard identification, risk assessment and control procedure in operation prior to the accident and dated 2003, together with a JSEA and a HAZOP study regarding Visy at Tumut dated July 2004; and (l)a prior convictions record showing that Visy had two prior convictions: a 2004 conviction in the Chief Industrial Magistrate's Court for a breach of s 8(1) incurring a penalty of $10,000; and, a 2011 conviction in the Industrial Court for a breach of s 8(2) of the Act incurring a penalty of $145,000. The Agreed Statement of Facts appears as an annexure to this judgment. 5The evidence for the defendant was contained in an extensive affidavit affirmed by Mr Richard Turner, the director, Safety and Sustainability for Visy Industries Pty Ltd. That affidavit annexed numerous documents dealing with the Visy Group and the Group's approach to safety as well as particular features and developments of the safety systems for the defendant's Tumut plant. Mr Turner reported to the Chief Operating officer of Visy Industries and as director, Safety and Sustainability and he was responsible for defining strategic direction in safety for the businesses within Australia, New Zealand and South East Asia. 6Mr Turner explained that Visy was a member of the Visy Group of companies. The defendant company produced more than 1.4 million tonnes of packing paper nationally with the Tumut site being one of the company's major manufacturing sites producing approximately 640,000 tonnes of unbleached craft paper per year. The Tumut site had been operational since 2001 and had undergone a major expansion and upgrade in 2008/2009. The three main processes at the Tumut plant were explained. The defendant company employed approximately 850 people nationally (including permanent contractors) with approximately 220 being employed at the Tumut site. As at February 2009 there were 135 employees at the Tumut site. 7Mr Turner stated Visy's approach to health and safety management systems, emphasising the fact that Visy had in place a comprehensive and integrated HSE management system based on a risk management approach. The previous safety manual had been replaced since the accident at Tumut. It was said that the new management system comprised 13 management standards, including: risk and change management; incident management; competency and training; and, contractors, suppliers and partners. The management standards established performance requirements to be complied with at each Visy site although additional standards could be introduced at particular sites to meet local problems. The management standards had been supported by codes of practice that had been developed over two years with input from each Visy division. The Tumut site had fully implemented the code of practice for isolation and lockout, together with training on the permit to work system. 8Visy had an approach whereby responsibility for ensuring safety was integrated throughout the organisation so that every employee and contractor was responsible for ensuring their own safety and the safety of others. A number of safety professionals provided support and advice for managers and employees as well as managing risk profiles and implementing strategic safety initiatives. Each division of the Visy Group had a national safety manager who reported directly to Mr Turner. At each site there were site-specific safety professionals reporting to national safety managers. Safety officers and senior management at the Tumut site met fortnightly for a safety management forum where issues were discussed, including safety leadership, corporate changes and safety KPIs. Visy professionals also attended an annual national conference to discuss common issues and upcoming initiatives. In 2011 approximately 50 safety professionals attended this conference at a cost of approximately $80,000. 9At Tumut, as well as using the Visy safety policy and management system, site-specific safety documents had been developed that complied with State legislation. The Tumut site safety management system was accredited under AS/NZS 4801 and had been first accredited in 2003. The means of achieving and maintaining accreditation were explained. Details were provided of the defendant's risk management approach and the use of: the risk register; the hazard and operability study (HAZOP); risk assessments; work instructions; job safety and environmental analysis (JSEA); training and induction; the role of managers and supervisors; PPE standards; safety representatives and safety committee; audit processes; maintenance management systems; communication with workers about safety issues; and, emergency response and first aid. 10It was noted that, at the time of the incident, a JSEA was in operation for replacing the Gland Packing Seals and for chip pump tube blockages. Training in relation to this document was provided at the induction of employees. Since the accident in February 2008 and with the implementation of a new code of practice regarding isolation and lockout, information on the JSEA was included in the new training package. An online training module for the JSEA was introduced to the Tumut site in July 2011 with enrolments commencing in 2012. After the accident, the JSEA for unblocking the feed system was reviewed: the task for replacing the gasket or gland seals no longer existed as the new system did not require the task to be performed as there were no hatches on the plant. 11The Tumut site had minimum PPE standards for the general site and general PPE and safety clothing was provided to employees when they commenced at the site. Task or hazard specific PPE (such as chemical suits) were provided to individual employees when required for a task or because of the area in which the employee was required to work. The defendant used only approved PPE that complied with relevant Australian Standards. Prior to introducing new PPE at Tumut, the equipment was trialled by operators to ensure its suitability for the site. At Tumut there was a dedicated 24-hour PPE store facility available. Also, there were satellite stores of commonly used PPE in particular areas. 12Both the Visy Group and the defendant arranged a number of internal an external audits in relation to their operations. At Tumut there was an annual internal audit of the site safety management system conducted by a safety professional from another Visy site. There was also a surveillance audit performed annually and a full system audit performed triennially by an outside consultant and tested against Australian Standards and the 13 Visy safety management standards. As well as the formal audit procedures, supervisors and managers conducted weekly housekeeping inspections and routine audits were undertaken by the Safety Committee on various sections of the site. 13Prior to 2003, the defendant company introduced an asset management system at a cost of approximately $10m. The software system managed the life cycle of items of plant and equipment at Tumut, including the planning of commissioning, preventative maintenance and repair and overhaul of equipment. In addition, since approximately 2009, the defendant company had engaged expert paramedics to assist and advise local doctors and hospitals in relation to risks associated with particular activities. An example was provided relating to a shutdown in April 2009 concerning a chemical flush of the recovery boiler at Tumut. The defendant engaged an expert paramedic to be on site with specialist treatment equipment while that work was being undertaken. A consultant was also engaged to brief local hospitals and doctors on the risks involved in the process and appropriate treatment for injuries. At the time of the accident in February 2008 the defendant had 24 trained first aid attendants on site. Since the accident there were now 40 persons trained in first aid with 13 being occupational first aid attendants. 14In relation to the accident, the defendant placed on record how it acknowledged and deeply regretted the accident and the impact on Mr Peachey and Mr De Wet and their families. From Mr Turner's own experience and from information received from company managers at the Tumut site he was aware that the accident had a profound effect on all personnel at the plant. The company had entered a plea of guilty in relation to the accident and had undertaken various measures in an attempt to prevent any similar recurrence. Mr Turner gave evidence of actions taken immediately after the accident as well as a raft of post-incident measures, including: an investigation; a review of blockage issues; a review of the valve system engineering changes to the hatch; a review of the feed system; a review and reinforcement of restrictive access to particular areas; area inductions for the digester/Fibreline; a review of JSEA procedures; a review and reinforcement of PPE requirements; the use of isolation and lockout and work permits; and, communication with workers about safety issues and other changes to the safety system. 15It was noted that immediately after the caustic splash of black liquor, both Mr Peachey and Mr De Wet were able to attend an emergency eye wash/shower station located in the mill area. They remained under the shower station until removed by ambulance officers. At that time bottled water was used by employees to continue the decontamination and cooling process. The occupational first aider was notified of the accident and attended the scene and provided first aid to Mr Peachey and Mr De Wet. Two ambulances were called to attend the site and the weighbridge operator was notified of their pending arrival. Two guards were dispatched to the weighbridge to meet the ambulances and escort them to the Fibreline. The scene at the accident was secured and barricaded until WorkCover had been notified. 16Immediately following the accident contact was made with the families of Mr Peachey and Mr De Wet and staff members collected Mr De Wet's wife and transported her to the hospital. Arrangements were made for the families of both Mr Peachey and Mr De Wet to be flown from Tumut to Sydney on a private charter to be with the men. Accommodation was provided by the company for the families so that they could remain in Sydney during treatment administered to Mr Peachey and Mr De Wet. Accommodation was also provided for the families while the two men received outpatient treatment. The defendant covered all food and expenses and a car and driver was provided to collect Mrs Peachey and Mrs De Wet to transfer them to and from the hospital while treatment was in progress. An allowance was paid to Mrs Peachey and Mrs De Wet to assist in reducing financial disadvantage while staying in Sydney and being away from their own work commitments. Counselling was arranged for the two men and their families by a private Sydney counsellor. The defendant's company support team was convened, with 24-hour contact details so that the two men and their families could contact the company at any time if assistance was required. 17The owner of Visy Industries, Mr Richard Pratt, attended the Concord Hospital Burns Unit during the treatment of the two men and personally supported the families and offered any assistance needed. Senior management visited the two men. The defendant company arranged for a psychologist to attend the site to meet with any persons involved or affected by the incident. A chartered flight was arranged for a psychologist from Melbourne to fly directly to Tumut and brief all personnel on the shift and the oncoming shift at the time of the accident. One-on-one counselling was also made available to all personnel. With family approval, regular email updates from the general manger at Tumut were forwarded to all on-site personnel to keep colleagues informed of the progress of the two men. Upon their return home, the company continued to provide rehabilitation assistance to Mr Peachey and De Wet, including the installation of ceiling fans in Mr De Wet's premises and provided rowing machines to both men for rehabilitation purposes. 18The defendant undertook a comprehensive investigation of the accident to find its other causes and any improvements that could be made. The completed investigation report by the defendant was provided to WorkCover to assist in its investigation. Immediately after the accident, the hatch that was open during the work was locked to prevent it from being opened and the keys were provided only to the area manager. Subsequently, the hatch was welded shut to prevent it from being opened and procedures were modified so that blockages could be cleared without obtaining access to the internals of the plant. 19A review was undertaken of the feed system involving the equipment supplier. The defendant was given the option of retaining the old plant and introducing a new piece of plant to supplement the old plant but it was determined that, for safety, the old system was to be decommissioned completely and a single system was to be built for the digester. In approximately July 2009 the plant involved in the accident was decommissioned and replacement plant was commissioned. The replacement plant did not have the hatch configuration. The plant was located in a more isolated area, rather than being near a walkway, in order to prevent incidental exposure to the plant. The replacement plant was installed at a cost of approximately $2m. The new feed system was much simpler than the previous design and eliminated the strainer and high-pressure equipment in the original design. This in turn eliminated feed system blockages. A review of JSEA procedures that had been undertaken immediately after the accident later became obsolete because the new feed system did not require opening or unblocking the system. 20It was stated that, since the beginning of operations at the Tumut plant, the defendant company had provided financial support to the local community. The Chairman of Visy through the Pratt foundation had contributed in excess of $500,000 to community projects over the past 10 years either directly to recipients or via the community foundation for the Tumut region. It had previously been announced that the Pratt foundation would contribute $100,000 per year to community projects for the Tumut region. The Pratt Foundation also matched dollar for dollar any contribution to charities made by Visy employees. 21The defendant company stated that it fully co-operated with the investigation conducted by WorkCover and all correspondence and questions were responded to promptly. The defendant had a good working relationship with WorkCover and regularly invited Inspectors to attend the Tumut site, especially when major shutdowns were to occur to ensure that they were aware of activities on the site, the systems adopted by the company to manage safety and the work being undertaken. Prior to shutdowns, the defendant provided a copy of the major shutdown schedules to the local WorkCover Inspectors. In approximately 2009 the company worked with WorkCover to develop a safety management system for contractors in the forestry industry. This involved the company trialling an audit tool developed by WorkCover and providing feedback on that audit tool. The defendant actively participated in industry forums and participated in "the Forest Industry Council"; the Australasian Pulp and Paper Industry Technical Association"; the Black Liquor Recovery Boiler Advisory Committee; and, the Local Emergency Management Committee. Mr Turner was not required for cross-examination. DELIBERATION 22In submissions, the prosecutor categorised the offence as "very serious" and "an objectively serious" offence where the potential risk of significant injury was not a remote possibility. The risk was known and foreseeable and had been identified by the defendant prior to the accident in its documented system., The defendant's submissions did not specifically accept or contest the seriousness of the breach but relied upon a number of factors as mitigating the objective seriousness of the offence. 23In relation to the injuries received, the Court accepts the following summary from the prosecutor's written submissions (being a reproduction of the relevant agreed facts): 21.As a result of the exposure to the risk, Mr Peachey suffered chemical/thermal burns to his face, neck, back, left hand, right arm and hand and lower left thigh. Mr Peachey underwent a skin graft to his right arm and was required to wear a half torso burns pressure suit. Mr Peachey had to travel to be treated at the burns unit at Concord Hospital in Sydney and underwent specialist treatment. Mr Peachey required approximately 2 months off work and was certified fit for suitable duties from 14 April 2008. Mr Peachey was certified fit for pre-injury duties from 9 July 2012. He has since returned to work in a full time role with the defendant. 22.As a result of the exposure to the risk, Mr De Wet suffered chemical/thermal burns to his face, neck, chest, abdomen, and posterior trunk, both forearms, hands and both legs. Mr De Wet underwent multiple skin grafts on his body and was required to wear a full torso burns pressure suit. Mr De Wet had to travel to be treated at the burns unit at Concord Hospital in Sydney and (had) undergone specialist treatment. Mr De Wet was certified fit to undertake restricted duties from 23 June 2008. Mr De Wet has since returned to work in a full time operational role with the defendant and commenced in a new role on 9 September 2010 24It has long been recognised that there can be a serious breach of the Act even though nobody has been injured. Where there are injuries the nature of those injuries provides, at least, evidence of the potential seriousness of the risk. In this particular case, there can be no doubt from the nature of the injuries actually received that the risk of being sprayed by hot steam and black liquor meant that there was a risk of most serious and possibly life-threatening injury. 25The prosecutor submitted that there were a number of measures that the defendant failed to take at the time of the accident to ensure a safe system of work. Those matters were identified as follows: * there was a failure to ensure that employees (including the two men) completed a risk assessment or JSEA work sheet as required by documented procedures prior to commencing the task of replacing the seal; * the system of work required that, prior to a shutdown for clearing blockages, a JSEA was to be conducted by identifying and assessing hazards and risks prior to the issue of a permit before the shutdown commenced. The defendant had a pro forma JSEA work sheet for cleaning blockages and replacing seals. In relation to relacing seals, the JSEA identified steps in the task, the relevant hazards and risks involved, especially in respect of the isolation of plant and exposure to black liquor. It also stated that a number of permits were required to undertake the task, including electrical and isolation permits; * prior to commencing the task, workers involved with shutdowns were required to communicate by radio to ensure the shutdown had been effected and completed; * the defendant did not ensure that the two men were provided with and were complying with the JSEA work sheet for replacing seals; * no risk assessment was undertaken or JSEA prepared by Mr Peachey, Mr Zolio or anyone else regarding the isolation of equipment prior to commencing or during maintenance tasks on the day of the accident. Mr Zolio said there had not been any discussions regarding hazards and associated risks as he believed that Mr De Wet knew the procedures and that Mr Peachey knew how to change a gasket and was not required to perform isolation. Mr Peachey said he had not seen a copy of the pro forma JSEA for replacing seals and did not believe it needed to be completed for the standard task he was undertaking. He had been trained in the JSEA and associated procedures; * there was a failure to ensure that work permits, including isolation permits were obtained prior to commencing work on replacing the seal. No work permit had been issued to the two men prior to commencing work on the chip meter door. Neither of the men were aware whether electrical or isolation permits had been issued or a work permit issued at the time of the accident. There was a failure to supervise the two men to ensure they complied with the procedures for obtaining work permits, including electrical and isolation permits and isolation lockout procedures prior to commencing work on replacing the seals; * at the time of commencing the work, both men believed that the plant had already been shut down. Mr De Wet said the chip meter door was open and nothing was coming out and he understood that the plant was isolated. He was not aware of whether all isolation procedures had been implemented prior to the accident. Because the chip meter door was open, Mr Peachey believed that the plant was mechanically isolated and there was no product in the vessel. He believed that the shutdown of the low level feed system was finished prior to the accident because the chip meter was not turning and the door was open. He believed that he had been given the go-ahead by Mr Zolio to commence the task. He was not aware whether electrical or isolation permits had been issued. The DCS operator, Mr Carmody, said that no isolation checklist had been completed on the day because they were still undertaking the "flushing of the system"; * the defendant failed to ensure that the low level feeder was fully shutdown and isolated prior to the two men being permitted to commence work on replacing the seal; * there was a failure to ensure that the status of the shutdown of the equipment and the isolation procedures were correctly communicated between the DCS operator and the two men prior to undertaking the replacement of the seal. In relation to these matters, it was submitted that the measures identified were reasonably practical for the defendant to have taken to eliminate the risks and that they could have been easily implemented and were not time consuming or prohibitively expensive. 26In relation to information, instruction and training, the prosecutor submitted that the two men had not received task specific training in relation to replacing the gasket on the door to the chip meter prior to the day in question and that was not a task generally part of their normal role. Mr De Wet had not been trained in the requirements of the JSEA work sheet for replacing seals but had been trained in relation to work permit procedures and isolation and lockout procedures. He had also received training regarding hazards and risks of working in the Fibreline area and in July 2007, he had been assessed as competent on the Fibreline. Mr Peachey had been trained in the requirements of the JSEA work sheet for replacing seals but said it was unnecessary to complete this document on this day because the task was considered to be standard. Mr Peachey had been trained in relation to work permit procedures relating to isolation and lockout procedures but failed to have regard to those procedures prior to commencing the work. 27Mr Peachey had not seen the risk register document and could not recall receiving information regarding the hazards and associated risks of working in the Fibreline area and in particular, hot caustic splash. He had not been provided with competency training for undertaking work in the Fibreline. Mr Zolio said that, while Mr Peachey was not trained in the Fibreline, he was authorised to undertake and supervise maintenance tasks on the Fibreline. It was submitted that, in those circumstances, Mr Peachey should have been instructed not to undertake the repair of the gasket on the chip meter door but was to await the arrival of a designated maintenance fitter. 28It was submitted that, if the men had been provided with instruction and information regarding the status of the isolation procedure for the Fibreline required to be undertaken prior to the work or in the vicinity of the door of the chip meter, it would have eliminated or reduced the risk they faced. The same applied if they had been adequately informed and instructed as to their respective roles in relation to the isolation task. Mr De Wet should have been informed that he was to undertake the role of a field operator and open the drain valve as part of the task for the isolation of the chip feed system of the Fibreline. Both men should have been instructed not to commence work on the replacement of the gasket before a written work permit had been issued and received for the task. Similar submissions were made in relation to supervision. 29It was then submitted for the prosecutor that the risk associated with exposure to hot caustic splash when changing a seal on a chip meter door was foreseeable and had been identified in the documented system of the defendant prior to the accident. That system had provided control measures and the defendant should have been vigilant to guard against a known risk. There were a number of measures that should have been taken by the defendant to address this identified risk. The duty of the defendant was to be pro-active in ensuring the health and safety of its employees at their place of work. 30The defendant's submissions did not accept that there was an obvious or foreseeable risk to safety against which appropriate measures were not taken. The defendant had excellent and comprehensive safety systems although they broke down in this instance. The essential cause of the incident arose out of an unlikely and unforeseeable combination of factors, namely: * the isolation of the plant had not been complete, in particular, the chip tube valve had not been opened resulting in the chip tube remaining full of chips and black liquor; * a faulty non-return valve was allowing oxygen to mix with water in the chip tube resulting in the chips and black liquor backing up into the chip meter; * the two men believed that the plant had been shut down when they commenced the task. 31The defendant relied upon its own internal investigation report to submit that, despite the plant not having been shut down at the time the task was commenced, it was in fact the faulty non-return valve that resulted in the chips and black liquor backing up into the chip meter, thus resulting in the accident. This combination of events occurred against a detailed and comprehensive system of procedures to avoid the risk that ultimately eventuated in this accident. It had been accepted by the prosecutor that there was a detailed documented system addressing safety which involved the use of a JSEA, obtaining work permits, isolation and lockout procedures, instruction, training and supervision, the provision of PPE equipment, and, rescue and pre- injury mitigation procedures. 32The defendant submitted that the objective seriousness of the offence was also to be gauged against the following matters: * both men were experienced operators and Mr De Wet was experienced in shutdowns and maintenance in the Fibreline section; * Mr De Wet had been assessed as competent in areas, including Fibreline evaporators and the recovery boiler; * Mr De Wet had received training regarding hazards and associated risks of working in the Fibreline area; * the defendant had isolation and lockout procedures and work permit arrangements in operation. Mr De Wet had been trained in relation to the work permit procedure, isolation and lockout procedure and Mr Peachey had been trained in relation to work permit procedures, isolation and lockout procedures; * a JSEA was in operation for both cleaning the chip pump tube blockage and relacing packing seals; * Mr Peachey had been trained in the requirements of the JSEA work sheet relacing seals document but did not believe that it was required to be completed for the standard task he was undertaking; * the defendant's detailed safety management system included risk assessments being undertaken on tasks, plant and equipment through a documented process and also had in place a risk register identifying risks when working in the digester Fibreline area, including exposure to hot caustic splash. Having regard to these matters it was submitted that the detailed systems and procedures fell down here essentially because of human error in their application and because of an unusual combination of physical circumstances. 33Specific mention should be made of the defendant's reliance, in part, on the so-called faulty non-return valve in creating the back-up of chips and black liquor. The prosecutor correctly points out that the defendant's own report prepared by Mr Harris concluded that the valve was the wrong type for this process - it was not faulty and it should not have been used. The defendant can extract no comfort from this finding. Further, the evidence suggests that back-ups were not uncommon and procedures had been laid down to safely address such circumstances. It is the failure to follow these procedures that is the proper focus of these proceedings. 34The Court is unable to accept the thrust of the defendant's submissions as to the objective seriousness of this offence. In many respects it is a rehearsal of the discredited paper systems approach - paper systems are worthless unless they are promulgated and enforced. The many cases that come before the Court demonstrate that there are occasions when employees take shortcuts or sometimes simply ignore safety procedures but this is where the vigilance of the employer is required to take all reasonable steps to ensure that the procedures are followed. In this case, it is significant that the admittedly well-documented and comprehensive system fell down at a number of key points as reflected in the particulars (accepted by the defendant's plea of guilty). The Court accepts that there were foreseeable risks that had been identified by the defendant and that there were a number of measures easily available to address those matters. It is in those circumstances that the Court concludes that this was a serious breach. 35A significant difference between the parties also emerged in relation to the issue of general and specific deterrence. The defendant submitted that, because of its unusual facts, the applicability of this particular case was limited in relation to deterrence. It has long been held that both general and specific deterrence are matters that should normally be given some substantial weight in the sentencing process although there may be rare cases where an exceptional course might be adopted. In relation to general deterrence, this is not such a case. In many respects this is a classic example of a well-documented and comprehensive system of safety failing in several respects. As the Occupational Health and Safety jurisprudence has developed over a significant period of time, it is most unusual to find a defendant that has not addressed workplace safety or has little more than a pro forma skeletal safety system. Large operators, such as the present defendant, routinely spend significant sums on establishing a safe system of work having regard to the nature of their business undertaking and in having it promulgated and enforced amongst its workforce. This case is another reminder to those participating in all types of industry that they cannot simply rely upon a well-documented safety system. They must be ever vigilant in ensuring that system is complied with. 36In relation to specific deterrence the defendant submitted that, where the risk of re-offending was low or non-existent, then the Court may disregard specific deterrence and this was such a case. Mr Turner's affidavit was relied upon as setting out the new and detailed procedures adopted by the defendant and the remedial actions taken since the date of the offence. Not only had the specific risk been engineered out of the defendant's factory at great expense but immediate steps had been taken to lock and weld shut the plant involved and a comprehensive review of the valve system had been undertaken. Changes had been made to prevent ongoing issues in the short term, including the use of by-passes and a total new plant had been introduced at a cost of more than $2m. The many steps taken by the defendant as outlined in Mr Turner's affidavit established that the defendant was an organisation committed to health and safety with ongoing initiatives to improve its safety culture and performance. 37It must be accepted that, by opting to introduce new plant at considerable expense to the defendant whereby inspection doors were eliminated, the Court can be confident that this precise type of accident will not occur again. The efforts of the defendant in this regard should not be ignored but that is not the only consideration. The defendant operates in an industry where there are potentially numerous hazards and while it has gone to great lengths to address the risks associated with such an undertaking, it has now come before the Court for breaches on more than one occasion. That is not to suggest that the defendant does not have a relatively good safety record (a consideration when dealing with subjective factors) but the nature of its undertaking and the number of levels at which the system broke down as demonstrated by this case suggests that specific deterrence cannot be ignored. The Court is, however, of the view that, having regard to the numerous responses taken by the defendant following this accident, specific deterrence should play a reduced role in the setting of an appropriate penalty. 38Each party addressed the use that may properly be made of the conviction and penalty imposed by Backman J on the defendant in her October 2011 judgment. In that case her Honour was dealing with a breach that occurred some five months after the accident involving Mr Peachey and Mr De Wet. Clearly, that breach is not a prior offence elevating the level of penalty. However, the defendant had an earlier prior conviction, arising in 2002, in relation to which the Chief Industrial Magistrate imposed a penalty of $10,000. The maximum penalty available, therefore, remains $825,000 in relation to this offence. 39The prosecutor accepted that the later breach dealt with by Backman J could not result in a higher sentence in the present matter nor could it operate as an aggravating element (unless the considerations in Veen v R (No 2) (1988) 164 CLR 465 were met). It was submitted, however, that her Honour had extended considerable leniency to the defendant because of its good record and such leniency should not be available in the present proceedings. 40The defendant accepted the prosecution's legal analysis regarding an earlier conviction for a later offence and the fact that the later conviction could possibly be used to withhold leniency in an earlier matter. The defendant submitted that there was nothing about this case and the earlier case that would persuade the Court to withhold leniency in this case: the last offence was a fall risk on a different part of the plant. It was further argued that no particular leniency was demonstrated in the judgment of Backman J. It could not be accepted that subjective factors( properly raised that were common to both cases), could not be accepted in this case on the application of a double-counting approach: there was no relevant double counting. 41In resolving these issues it is to be noted that, although the later offence in time occurred at a different part of the plant and involved a fall risk, nevertheless, it was essentially a system failure breach where aspects of the defendant's safety systems were not complied with or enforced by the defendant. These matters indicate to the Court that the offence has some use in considering specific deterrence in the context of the defendant being unlikely to offend again. Here, five months after the accident involving Mr Peachey and Mr De Wet and the steps taken by the defendant, there was another systems failure. That event supports the view on specific deterrence expressed by the Court in [36]. 42The Court is not convinced, however, that this is a case where there will be some unwarranted double-counting or where leniency should be withheld. In particular, the Court, in taking into consideration various subjective factors is not necessarily engaged in allowing impermissible levels of leniency. That is the situation in the present case. 43The final issue raised by the defendant arose from a consideration of the approach of the Court of Criminal Appeal in Orkopoulos v R [2009] NSWCCA 213 where the Court stated at [99] that where an offence is abolished there may be circumstances where a nominal penalty is appropriate. The defendant drew attention to the fact that the Act had been repealed and replaced by a nationally harmonised approach to safety law that took a less strict approach to offences. While that description may be accepted in a general sense, it is also to be noted that overall penalties were significantly increased at the maximum level. Indeed, the defendant accepted that there was a "different emphasis" in the new legislation but that different emphasis falls short of abolition in the broadest sense. 44The Court accepts the prosecution's submission that there is insufficient material before it to conclude that the defendant would not have been proceeded against under the new legislation. The prosecutor may have faced a different onus provision under the new legislation but there are too many imponderables to conclude that no offence was committed. 45There are a number of subjective factors that need to be taken in account in mitigating the penalty to be imposed. Foremost amongst those considerations is the time when the guilty plea was entered. It has already been explained that this case was delayed while the ramifications of the High Court's judgment in Kirk were being clarified before the Full Court of this Court, the Court of Appeal and further in the High Court. The Court accepts the defendant's submission that the law was unsettled for some time but when it was clarified, the defendant moved quickly to abandon its Notice of Motion and to negotiate an appropriate plea with the prosecutor. Appropriately, the prosecutor has accepted that, in the circumstances, the defendant's plea is to be regarded as an early plea. The Court accepts that this is a case where it is appropriate for the defendant to receive a 25 per cent discount for its early plea. 46Notwithstanding the nature of this offence and other offences to which attention has been drawn, the defendant has, over the years, crafted and modified its safety systems to address the particular risks arising from the nature of its undertaking. Notwithstanding those breaches and having regard to the period of operation in this inherently dangerous industry, the defendant is to be regarded as having a relatively good safety record. This is certainly not a case where there had been a failure to address safety systems or particular risks: unfortunately, this was a case where the comprehensive safety system that had been developed by the defendant was not applied. In addition, the defendant undertook extensive remedial action to eliminate the risk identified in these proceedings. 47From the terms of Mr Turner's affidavit, the Court is satisfied that the defendant has accepted responsibility for this accident and has demonstrated remorse and contrition. That conclusion is also supported by not only the early plea but also in Mr Turner's detailed affidavit as to all the steps taken by the defendant to assist the two men and their families during their lengthy hospitalisation and rehabilitation. Further, the defendant undertook wide-ranging investigations and introduced numerous changes to its work and safety system, doing so at considerable cost. 48The evidence also demonstrates that the defendant has shown itself to be a good corporate citizen in its relationships with the community in which it operates and in the many ways in which it has supported that community. Importantly, as accepted by the prosecutor, there was co-operation with the WorkCover investigation, including providing WorkCover with the defendant's internal investigation. ORDERS 49Having regard to the above matters, the Court makes the following orders: (a)the defendant, Visy Pulp and Paper Pty Ltd, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act as particularised in the Further Amended Application for Order to which it entered a plea of guilty; (b)the defendant is fined the sum of $170,000 with half that sum to be paid to the prosecutor by way of moiety; (c)the defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1.At all material times the Prosecutor an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2.At all material times Visy Pulp and Paper Pty. Ltd. (ACN 086 513 144) was a corporation whose registered office is situated at Level 11, 2 Southbank Boulevard, Southbank in the State of Victoria ("the defendant"). Background 3.At all material times, Visy Pulp and Paper Pty. Ltd. ("Visy") was a corporation which undertook the business of producing kraft paper product, which is used in cardboard manufacture. Visy was registered with ASIC on 5 March 1999. 4.At all material times Visy conducted its business at premises located at 436 Gadara Road, Tumut in the State of New South Wales ('the mill') and was an employer. 5.Mr Colin Dale Peachey ("Mr Peachey") was employed by Visy as an Asset Development Engineer. Mr Peachey was 48 years old at the date of the incident. 6.Mr Peachey's position was part of the maintenance team at the mill. It was a senior position in the maintenance team. His duties involved managing and repairing rotable items of plant at the mill. This included the refurbishment of parts, reverse engineering of parts, measuring and recording dimensions of parts and components, and sourcing commercial supply of parts for the mill. Mr Peachey had qualifications as a fitter and machinist. Mr Peachey did not hold any professional engineering qualifications. 7.Mr Gert Christoffel De Wet ("Mr De Wet") was employed by Visy as a Process Engineer/Operator. He was 45 years old at the date of the incident. 8.Mr De Wet's position was part of the operations team at the mill. His duties involved control of plant processes in respect to various areas of the plant at the mill including the fibreline and recovery boiler. These duties also included monitoring of plant processes, taking and reading samples and maintaining, cleaning and general duties in respect to plant at the mill. Mr De Wet did not hold any professional engineering qualifications. Mr De Wet had been assessed as competent in areas including the Fibreline, Evaporators and the Recovery Boiler. Incident 9.On 12 February 2008 Mr Peachey and Mr De Wet suffered injuries whilst they were attending to maintenance of a piece of plant, a known as a 'twin screw chip meter' ('the chip meter'), which was part of the fibreline at the mill. 10.Mr Peachey was replacing a gasket seal on an inspection door of the chip meter. Mr De Wet was assisting with the process of replacing the gasket seal and the steps involved in shutting down the plant to allow the maintenance to occur. 11.Whilst undertaking the task, hot steam and black liquor, (a corrosive by product of the digestion process), were expelled from the open door of the chip meter causing serious chemical/thermal burn injuries to Mr Peachey and Mr De Wet. The Fibreline Plant at the Mill 12.The fibreline is part of the plant at the mill used for processing raw wood chip into pulp during the manufacture of kraft liner board. The fibreline includes the 'low level feeder system' and the digester. The low level feeder system feeds the digester with wood chips. The digester is a large silo type structure at the mill, and is part of a process that treats wood chips and breaks them down so that the fibre can be utilised in the manufacture of kraft paper. 13.The low level feeder system moves wood chips from the wood yard via a conveyor, feeder and chip gate to the chip bin. Steam is added to the chip bin to remove air from the wood chips to prevent the wood chips from floating once inside the digester. 14.The wood chips are then fed into the chip meter, and from the chip meter into the chip pump, via the chip tube. In the chip tube the wood chips come into first contact with black liquor, a corrosive bi-product of the digestion process. 15.The level of black liquor is maintained in the chip tube by maintaining an equal level of liquor in the liquor surge tank. Wood chips are then moved from the chip pump to the high pressure feeder by a combination of gravity and liquor circulation. The wood chips and liquor then move to the digester, via a top separator screw. 16.On occasions the low level feeder system can become blocked with wood chips. The system is designed to 'trip' in order to allow the unblocking process to occur. The low level feeder system can be shut down to undertake maintenance and to clear blockages. 17.A maintenance shut down is a complete system shut down where the system is mechanically isolated, repeatedly flushed with cold water and drained so equipment can be worked on. A blockage shutdown is a partial shut down which enables work to be undertaken on individual pieces of equipment. Valves are closed and water is added to the system in order to float blockages. Circumstances of the Incident 18.On 12 February 2008, a number of blockages, (at least four) occurred in the section of the fibreline at the mill, known as the low-level feeder system. 19.The blockages occurred in the 'chip tube'. Blockages in the 'chip tube' occurred from time to time during of the operation of the plant. 20.Mr De Wet had been working in the recovery boiler section of the mill when he was asked to attend the fibreline section to assist with clearing the blockages. 21.A number of 'operations' employees were involved in the task of clearing the blockages. These included Altair Zolio ("Mr Zolio") Operations Engineer, Mr De Wet, and Mr Mick Callan ("Mr Callan") Production Engineer, and Mr Shane Quinnel ("Mr Quinnel"). Mr Zolio was the senior Operations Engineer involved in the task. 22.Mr De Wet, Mr Callan and Mr Quinnel successfully cleared the blockages in the chip tube in the fibreline area. Mr Callan was an operator who was being supervised by Mr De Wet. Once the fibreline blockages were cleared, Mr De Wet intended to return to the DCS control room. He left Mr Callan in the fibreline basement area. 23.During the process of the clearing of the blockages the inspection door to the chip meter was opened to assess whether blockages had been cleared. However, the seal around the door had become damaged and was no longer providing an adequate seal to the door to the chip meter. 24.Mr Zolio attempted to run the system with the chip meter door closed but without the seal. 25.On 12 February 2008 Mr Peachey was located in the maintenance office, when he became aware from 'radio chatter' that the low-level feeder system was not operating. He proceeded to the control room at the mill to ascertain the reason for the low-level feeder system not operating and to ascertain whether any maintenance assistance was required. 26.On his way into the control room Mr Peachey passed by the chip meter and noticed that the gasket had failed on the inspection door. Mr Peachey determined the gasket that sealed the door needed to be replaced. 27.After speaking to Mr Zolio Mr Peachey put a call through to the maintenance section requesting that the appropriate gasket tape (teflon garlock tape) to repair the door be supplied to the chip meter. 28.Some time later Mr Peachey returned to be area of the plant where the chip meter was located and observed Mr Zolio was using a pipe to exert more pressure on the Chip meter door which was closed. Mr Peachey advised Mr Zolio to shut the plant down and to fit a new gasket. Mr Peachy left Mr Zolio to arrange for this to be done. 29.Mr De Wet had been located in the control room. Mr De Wet left the control room and took a radio to assist with the process. After leaving the control room, he passed the chip meter and observed Mr Zolio and Mr Peachey working on the chip meter door. Mr Peachey then left the area while 'operations' arranged to shut the plant down. 30.Mr Peachey subsequently returned to the chip meter. Mr Zolio and Mr De Wet were still at the location of the chip meter. The teflon garlock tape had been delivered to the location of the chip meter door. Mr Peachey determined to undertake the task of replacing the seal on the chip meter door. Whilst Mr Peachey was part of the maintenance department, it was not part of his ordinary duties to undertake regular maintenance work on plant in the fibreline. Mr De Wet remained at the chip meter to assist Mr Peachey in fitting the gasket to the chip meter door. 31.Mr Peachey and Mr De Wet were wearing long sleeve shirts, long trousers, boots, safety glasses, leather gloves and a hard hat. Neither Mr Peachey nor Mr De Wet were wearing a chemical suit. 32.Mr Zolio then left to go to the control room. 33.Mr Peachey stated that before Mr Zolio left Mr Zolio informed him that the plant was 'shut down' and ready for the installation of the new gasket. 34.Mr De Wet stated that before he left Mr Zolio gave the 'go-ahead' to commence fitting the gasket. 35.Mr Zolio was in the control room while the Digester Fibreline Operator, Mr Carmody, undertook the process of shutting down the plant to enable the maintenance to take place to the door. 36.The shutdown process requires isolation of the system and a work permit to be obtained prior to work commencing. Visy engineers estimate that complete shutdown takes approximately 15 - 20 minutes. 37.Visy had a Job Safety and Environment Analysis ("JSEA") documents in respect to 'Replacing Gland Packing/Seals' on plant in the fibreline and for 'chip pump tube blockages'. The JSEA in respect to 'Replacing Gland Packing/Seals' required a work permit to be obtained, and isolation of the system prior to work commencing. 38.The shutting down of the 'low level feeder system', involved several steps. These steps involved the digester fibreline operator, who was located in the control room, operating the process of the starting and stopping of the pumps and motors on the fibreline via a computer-generated workstation known as 'the DCS'. 39.It also involved operations engineers physically closing some valves to the plant and opening valves to empty the remaining wood chips and black liquor from the chip tube and other parts of the system. It also involved flushing the system with water to cool the system and flush the remaining wood chips and black liquor from the chip tube and other parts of the system. 40.Mr Zolio stated that he understood that Mr De Wet had remained at the low-level feeder system to assist with the steps involved in shutting down the plant, whilst Mr Peachey was waiting to change the gasket on the door. 41.Shortly after Mr Zolio left the area of the chip meter, Mr Peachey commenced to apply the new gasket to the door, with the assistance of Mr De Wet. 42.Mr Peachey and Mr De Wet had commenced work on the replacement seal before the shutdown was complete and before a work permit had been obtained. 43.At around the same time Mr Ben Thomas ("Mr Thomas"), a maintenance fitter, whose role generally involved performing general maintenance and breakdown repairs, was on his way to the fibreline to perform the work of replacing the seal on the twin screw chip meter, as directed. 44.Prior to commencing the task Mr Thomas was required to attend at the DCS control room to obtain a work permit, which was required for him to commence the task of replacing the seal. On his way to the control room he met a colleague, Mr Brad Baker, and stopped to discuss some other maintenance problems. 45.Whilst Mr De Wet and Mr Peachey were at the chip meter, Mr Callan, a Production Engineer, was located in the basement of the fibreline operating a 'cool water valve', which was required to be utilised as part of the process of shutting the plant down, and in particular in cooling and flushing the plant during clearing of the blockages to the chip tube. 46.Mr Carmody, DCS Operator, stated that at about 3:00pm on 12 February 2008, he was notified by Mr Zolio to commence the shutdown process in order that the leaking gasket on the chip meter door could be fixed. 47.Mr Carmody stated that he had shut down the feed system and was in the process of stopping the 'chip pump' when he attempted to contact Mr De Wet by radio to inform him that he was stopping the chip pump. Mr Carmody received an acknowledgement which he believed was Mr De Wet. 48.One of the next steps involved Mr. Carmody contacting one of the 'field operators' to open the 'chip tube and liquor surge tube' drain valve. The chip tube drain valve was designed to allow the chips and black liquor in the chip tube to be drained from the system. 49.Mr Carmody stated that he believed that Mr De Wet and Mr Callan were responsible for opening the 'chip tube and liquor surge tube' drain valve. He then radioed Mr De Wet to request that Mr De Wet shutdown and drain the chip tube and liquor surge tube. He got no answer. 50.Mr Zolio stated that he understood Mr De Wet would undertake the task of 'draining the chip tube'. 51.Mr De Wet believed that Mr Callan was the field operator who was to be responsible for opening the chip tube drain valve during the shutdown process. 52.Mr Callan stated that he had been taking instructions via the radio from Mr Carmody, the DCS operator. 53.Mr Callan stated that he did not receive any instruction to open the chip tube drain valve. He believed that it would have been Mr De Wet's responsibility to do so. 54.Mr Callan states that, whilst awaiting further instructions, he checked his phone at 3:02pm. He stated that the chip tube had not been drained at or after 3:02pm. 55.Due to the fact that the chip tube drain valve had not been opened, the chip tube remained full of chips and black liquor while Mr De Wet and Mr Peachey undertook the task of replacing the gasket on the door to the chip meter. 56.While Mr Peachey and Mr De Wet undertook the task of replacing the gasket on the door to the chip meter, a faulty non return valve was allowing oxygen to mix with water in the chip tube. The combination of the chip tube remaining full chips and black liquor and oxygen mixing with water in the chip tube resulted in chips and black liquor backing up into the chip meter. 57.This caused the black liquor, steam and woodchips to eject out of the inspection hatch and whilst Mr Peachey and Mr De Wet were still working on the door seal. 58.Mr Peachey was about to close the door when he and Mr De Wet were engulfed in the hot liquid consisting of black liquor, steam and woodchips from the chip meter. 59.Mr De Wet and Mr Peachey then managed to proceed to the safety shower located on the same level of the plant as the chip meter. They removed their clothing and put themselves under the water. Mr De Wet tried to call the control room on his radio, however could not do so as the skin on his hands was degloved. 60.As neither Mr Carmody nor Mr Zolio were able to contact Mr De Wet by radio from the control room, Mr Zolio left the control room to find out what was wrong. Mr Zolio went to the location of the chip meter. Upon arriving there he observed Mr De Wet and Mr Peachey under the emergency showers. 61.At about the same time Mr Thomas was proceeding through the fibreline area, when he found Mr Peachey and Mr De Wet in the safety shower. 62.An internal log on the DCS System in the control room in respect to the shut down for the task of repairing the chip meter door, indicated that less than seven minutes expired in the shut down process between the chip meter being confirmed as being shut down, instructions given to open the chip tube drain valve, and Mr Peachey and Mr De Wet being found in the emergency showers. 63.Following the incident it was found that the blockages in the system were occurring due to a faulty non-return valve, which was allowing oxygen to enter the fresh water system and causing disturbances to the feed system. Each time water was used to start up the feed system the chip pump cavitated, causing fluctuations in the chip tube level and creating a blockage. Injuries 64.Mr Peachey suffered chemical/thermal burns to his face, neck, back, left hand, right arm and hand and lower left thigh. Mr Peachey underwent a skin graft to his right arm, and was required to wear a half torso burns pressure suit. Mr Peachey had to travel to be treated at the burns unit at Concord Hospital in Sydney and underwent specialist treatment. Mr Peachey required approximately two months off work and was certified fit for suitable duties from 14 April 2008. Mr Peachey was certified fit for pre-injury duties from 9 July 2010. He has since returned to work in a full time role. 65.Mr De Wet suffered chemical/thermal burns to his face, neck, chest, abdomen, posterior trunk, both forearms, hands and both legs. . Mr De Wet underwent multiple skin grafts on his body and was required to wear a full torso burns pressure suit. Mr De Wet has had to travel to be treated at the burns unit at Concord Hospital in Sydney and has undergone specialist treatment. Mr De Wet was certified fit to undertake restricted duties from 23 June 2008. He has since returned to work in a full time operational role and commenced in a new role on 9 September 2010. Systems of Work prior to the Incident 66.At the time of the incident, Visy had a detailed OHS Management System. Part of that system included risk assessments being undertaken on tasks, plant and equipment through a documented process called HAZOP's. 67.Visy also had a risk register, which identified risks when working in the digester fibreline area, including exposure to "hot caustic splash". The control measures included the use of appropriate PPE and preparation of a JSEA. 68.Visy also had a documented system for 'isolation and lockout procedures' and 'access/work permit procedures'. 69.At the time of the incident Visy's permit procedure outlined responsibilities that included ensuring that a work permit, necessary documentation, work orders and JSEA were provided to the Production Engineer. The Production Engineer then identified the need for a permit and issued the permit, then undertook any necessary isolations. 70.Visy's system of work required that prior to a shutdown for clearing blockages a JSEA was required to be conducted identifying and assessing hazards and risks prior to the issue of a permit before shutdown commences. 71.Visy had a pro forma JSEA worksheet for the task of 'Clearing the Chip Pump tube blockages' and a pro forma JSEA worksheet for 'Replacing Gland Packings/Seals.' 72.The pro forma JSEA worksheet for 'Replacing Gland Packings/Seals.' identified the steps in that task, the relevant hazards and risks involved, and highlighted the risks involved in respect to isolation of plant and exposure to black liquor. 73.The pro forma JSEA Worksheet also stated that a number of permits were required to undertake this task, including electrical and isolation permits. 74.Prior to commencing the task workers involved with shutdowns were required to communicate with DCS via radio to ensure shutdown has been effected and completed. 75.The defendant did not take steps to ensure that Mr Peachey and Mr De Wet were provided with and were complying with the JSEA worksheet for 'Replacing Gland Packings/Seals'. 76.No risk assessment was undertaken or JSEA was prepared by Mr De Wet, Mr Peachey or Mr Zolio (or anyone else) in relation to the isolation of equipment prior to the commencement of, or during the maintenance tasks on the date of the incident. 77.Mr Zolio stated that there had been no discussion regarding hazards and associated risks of undertaking the task as he believed that Mr De Wet knew the procedures and that Mr Peachey knew how to change a gasket and was not required to perform the isolation. 78.Mr Peachey stated that he had not seen a copy of the pro forma JSEA worksheet for 'Replacing Gland Packings/Seals' document before and did not believe it needed to be completed for the standard task he was undertaking. He had however been trained in the JSEA and associated procedure 79.The defendant failed to ensure that work permits, including isolation permits were obtained prior to commencing work on the replacing the seal. 80.No Work Permit had been issued prior to Mr Peachey and Mr De Wet commencing work on replacing the seal on the chip meter door. 81.Neither Mr De Wet or Mr Peachey were aware of whether electrical or isolation permits had been issued or whether a Work permit had been issued at the time of the incident. 82.Mr Zolio stated no work permit had been issued because 'operations' were still in the process of shutting down the plant and were at the stage of draining the chip tube system. 83.At the time of commencing the task, both Mr De Wet and Mr Peachey believed that the plant had already been 'shut down'. 84.Mr De Wet stated that as the chip meter door was open and nothing was coming out of it, he understood that the plant was isolated. However, he was not aware of whether all the isolation procedures had been implemented prior to the incident. 85.Mr Peachey stated that as the chip meter door was open he believed that the plant was mechanically isolated and drained and had no product in the vessel. Mr Peachey stated that he believed that the shutdown of the low-level feed system was finished prior to the incident, because 'the chip meter was not turning and the door was open'. He stated that he believed he had been given the go-ahead to commence the task by Mr Zolio. 86.Mr Peachey stated that he was not aware whether electrical and isolation permits had been issued. 87.Mr Carmody stated that no 'isolation checklist' had been completed on the day of the incident because they were still undertaking the 'flushing' of the system. 88.Under the JSEA Worksheet in respect to 'blockages', persons working on the chip meter and chip tube were required to wear appropriate PPE, namely a full chemical suit. However, under the JSEA Worksheet in respect to 'Gland Packing/seals', persons replacing door seals were not subject to such a requirement, but were required to wear PPE such as face shield and gloves in addition to the site PPE requirements of long sleeves, long trousers, hard hat and hearing protection. Information, Training, Instruction and Supervision 89.Both Mr De Wet and Mr Peachey were experienced operators. Mr De Wet was experienced in shutdowns and maintenance in the fibreline section. However, Mr Peachey was not part of the maintenance team that regularly attended to maintenance tasks in the fibreline section. 90.Mr De Wet and Mr Peachey had not received task specific training in relation to the system for replacing the gasket on the door to the chip meter prior to commencing the task of replacing the seal.. The task was not one that was generally part of either Mr De Wet's or Mr Peachey's role. 91.Mr De Wet had not been trained in the requirements of the 'JSEA Worksheet -Replace Gland Packing/Seals'. He was however trained in relation to 'work permit procedure' and 'isolation and lockout' procedure. He had also received training regarding hazards and associated risks of working in the fibreline area, and had been assessed as competent on the fibreline in July 2007. 92.Mr Peachey had been trained in the requirements of the 'JSEA Worksheet -Replace Gland Packing/Seals'. However, he stated that it was not necessary to complete this document on this occasion as he considered the task to be a "standard" task. 93.Mr Peachey had been trained in relation to 'work permit' procedure and 'isolation and lockout' procedure. However he failed to have regard to these procedures prior to commencing work on the task. 94.Mr Peachey had not seen the 'risk register' document, as it was an 'operational' document. He could not recall receiving information regarding the hazards and associated risks relating to the fibreline area and, in particular, of hot caustic splash. He had not undertaken competency training for undertaking work in the fibreline. Mr Zolio stated that whilst he was not trained in the fibreline, he was authorised to undertake and supervise maintenance tasks on the fibreline. 95.There was a failure of supervision on the part of Mr Zolio to ensure that a risk assessment and JSEA worksheet was completed for the task. 96.Further, Mr Zolio failed to adequately discuss the hazards involved in undertaking the task or discuss and explain the isolation procedures that were required to be implemented prior to work being permitted to commence on repairing the gasket on the door of the chip meter. 97.Visy permitted work to commence on the replacement of the seal before the shutdown was completed and before permits were issued. 98.Mr Peachey and Mr De Wet were not provided with instruction and information regarding the status of the isolation procedure and the further steps that were required to be undertaken prior to it being safe to undertake work on or in the vicinity of the door of the chip meter. 99.The Operations Engineer, Mr Zolio, failed to supervise Mr Peachey and Mr De Wet to ensure that communication between the DCS Operator and workers guaranteed that work did not commence before isolation procedures were completed. 100.Visy also failed to ensure that Mr Peachey and Mr De Wet understood their and others respective roles in relation to the isolation of the plant and the maintenance of the plant. 101.Mr De Wet had not been instructed by Mr Zolio, or anyone else from the defendant, that he was required to undertake field operator duties and open the chip tube drain as part of the task of isolation of the chip feed system of the fibreline. 102.The Fibreline Operator in the Control Room was relying on Mr De Wet to undertake the role of a field operator and open the chip tube drain valve. Mr De Wet was unaware that he was required to perform that role. 103.Mr Zolio did not instruct Mr Peachey that he should not undertake the task of repairing the gasket on the chip meter door and to await the arrival of a designated maintenance fitter, whose role it was to undertake such tasks had been directed to undertake the task. 104.Nor did Mr Zolio or any one else on behalf of the Respondent direct Mr Peachey and Mr De Wet not to commence work on the replacement of the gasket on the door of the chip meter until they were provided with a written work permit for the task. 105.Neither Mr Peachy nor Mr De Wet were wearing chemical suits, face shields and protective gloves to protect them from the risk of injury from exposure to the known risk of 'hot caustic splash' as required by the JSEA, at that time they were undertaking the task. 106.Mr Zolio, in supervising, Mr Peachy and Mr De Wet did not direct or ensure that they were wearing chemical suits, face shields and protective gloves to protect them from the risk of injury from exposure to the known risk of 'hot caustic splash'. Steps taken following the Incident 107.Following the incident Improvement Notices were issued to review the procedures surrounding the task being undertaken at the time of the incident, and especially the shutdown of the chip meter for maintenance. The notices provided that: a.All maintenance was to be undertaken in a safe manner according to the manufacturers specifications; b.All relevant personal were to be trained in any changes to the system and training reiterated if no changes were identified. 108.Following the incident Visy conducted an internal investigation of the incident. 109.Following the incident a review of the JSEA was undertaken, resulting in the permanent closure of the doors attached to the chip meter. All relevant employees have been trained in this procedure. 110.Following the incident new entry procedures were introduced to restrict access to the fibreline system. 111.The oxygen dosage system has been reviewed under HAZOP, with the supplier of the non-return valve resulting in the installation of a stainless steel valve to replace the brass valve. 112.Procedures were modified so that blockages could be cleared without accessing the internal parts of the plant. 113.A requirement was introduced that chemical suits must be worn if any hatch on the system is to be opened. The suits are readily and easily available. 114.Plans were being made in the beginning of 2009 to replace the existing plant in July 2009. The new plant does not have the same door as the one involved in the incident. 115.The following supporting documentation is annexed: (a)12 colour photographs taken by Inspector Brett Hoare on 13 February 2010; (b)14 colour photographs taken by Inspector Craig Przibilla on 13 February 2010. (c)15 Photographs taken by Jeff Alcott, Visy Pulp and Paper Pty Ltd dated 12 February 2008; (d)17 Photographs taken by NSW Police; (e)Factual Inspection Report of Inspector Brett Hoare dated 27 February 2008; (f)Site Map, Tumut Visy Mill; (g)Chemical Product and Company Identification - Heavy Black Liquor; (h)Risk Register Tumut; (i)JSEA, Visy Pulp & Paper Mill No. 9 for 'Replace Gland Packing/Seals and 'Chip Pump Tube blockages"; (j)Visy Investigation Report for incident on 12 February 2008; (k)Visy VPP9-09-OP-049 Isolation Lockout Procedure; (l)Visy VPP9-09-9.4-OP-031 Access/Work Permit Procedure; (m)Schematic Diagram of the Fiberline - Visy 629 ADMT/ 24 h pulp of Pine, Kappa 90; (n)Hazard ID, Risk Assessment and Control Procedure, JSEA, Hazop dated July 2000 and Hazop dated 2004; (o)Prior convictions certificate. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2012