Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v Dowding & Mills (Australia) Pty Limited [2012] NSWIRComm 77 Hearing dates: 13 July 2012 Decision date: 19 July 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The defendant is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $80,000 with a moiety to the prosecutor. (3) The defendant shall pay the prosecutor's costs as agreed or assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 - Worker suffered injury when undertaking repairs to a stator motor - Task involved the performance of acid etching using phosphoric acid - Lack of training and supervision of worker - Worker suffered electric shock and burns to face from contact with phosphoric acid - Plea of guilty - Sentencing - Objective and subjective considerations - Penalty imposed - Costs Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000 Cases Cited: Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 Category: Principal judgment Parties: Inspector Pamela Estreich (Prosecutor) Dowding & Mills (Australia) Pty Limited (Defendant) Representation: Ms M McCarthy of counsel (Prosecutor) Mr I H Wallach of counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Henry Davis York Lawyers (Defendant) File Number(s): IRC 1303 of 2011 Judgment 1On 10 September 2009, Christopher McCloskey, a third year electrical fitter apprentice, was undertaking the task of acid etching on a stator motor using phosphoric acid at his employer's place of work at 9 Nelson Road, Cardiff. In circumstances that will be explained, Mr McCloskey received a slight electric shock, which caused Mr McCloskey to react in such a way that phosphoric acid came into contact with the right side of his face. Mr McCloskey subsequently underwent three operations to debride the area in which his face was burnt in order to undertake skin grafts. Fortunately, Mr McCloskey was able to return to light duties in January 2010 and full time duties in June 2010. Mr McCloskey remains in employment with the employer, Dowding & Mills (Australia) Pty Limited ("the defendant" or "Dowding & Mills"), the defendant in these proceedings. 2The defendant was prosecuted in relation to the incident by Inspector Pamela Estreich of the WorkCover Authority of New South Wales for contravening s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). Section 8(1) provides: 8 Duties of employers (1) Employees An employer must, so far as is reasonably practicable, ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following, so far as is reasonably practicable,: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 3The charge against the defendant in the amended application for order was in the following terms, namely, that the defendant: being an employer on 10 September 2009 at 9 Nelson Road, Cardiff in the State of New South Wales FAILED by its acts and omissions particularised below, to ensure the health, safety and welfare at work of all of its employees, and in particular Christopher McCloskey, contrary to section 8(1) of the Act. The particulars of the charge are: a) The risk was the risk of being burnt or otherwise injured as a result of coming into contact with phosphoric acid and of suffering an electric shock whilst working with an electrically powered welder. b) The defendant failed to undertake a risk assessment and provide a Work Instruction which required the employee to undertake a risk assessment for the task of Core Flux Testing which: i. identified the hazards associated with working with phosphoric acid and low voltage DC current; and ii. identified the means by which the hazards associated with working with phosphoric acid and low voltage DC current were to be eliminated or controlled. c) The defendant failed to provide to its employees information, in particular the Material Safety Data Sheet for phosphoric acid, relating to working with hazardous substances. d) The defendant failed to provide to its employees training to enable them to carry out work with phosphoric acid and low voltage DC current and in particular did not train employees in the conduct of a risk assessment in relation to that work. e) The defendant failed to provide supervision to employees undertaking work with phosphoric acid and low voltage DC current. f) As a result of the defendant's acts and omissions its employees, and in particular Christopher McCloskey, were exposed to the risk. 4The defendant pleaded guilty to the charge. This judgment deals with the question of sentence. Evidence 5There was tendered an agreed statement of facts annexed to which was: (a) Prior conviction report of Dowding & Mills (Australia) Pty Ltd dated 23 June 2011. (b) Factual Inspection Report of Inspector Lachlan O'Neill dated 8 December 2009. (c) Thirty six colour photographs. (d) Preliminary Workshop Incident Investigation dated 25 September 2009. (e) Dowding & Mills Work Instructions dated 12 October 2009. (f) Dowding & Mills Technical Report dated 12 March 2010. 6For the defendant an affidavit of Pauline Burton, the defendant's human resources manager, was tendered. Ms Burton was not required for cross-examination. Agreed Facts 7The defendant operated a workshop that undertook the repair and rebuilding of electrical motors. Situated in the workshop was a 'test bay', entry to which was restricted because of the dangers of high voltage. On the day of the incident Mr McCloskey was directed by his workshop manager, Paul Hyham to undertake acid etching on a stator motor that Mr McCloskey was in the process of repairing in the test bay. This process involved the application to affected areas of the motor of a cotton wool swab soaked in phosphoric acid in conjunction with a low DC electrical current. 8Mr McCloskey had not previously performed the task and had not received training in it. Mr Hyham told Mr McCloskey to speak to Benjamin Wrightson, an electrical fitter employed by the defendant, about how the task was to be performed. Mr Wrightson had undertaken the task of acid etching once about two weeks earlier, but had not done it before then for about ten years. Mr Wrightson had not received any training in the task of acid etching. Neither Mr Wrightson nor Mr McCloskey performed a risk assessment before carrying out the task. 9After a short conversation with Mr Wrightson, Mr McCloskey commenced the task of acid etching. The agreed statement of facts described what occurred: The work was being undertaken in the test bay area. Mr Wrightson set up the welder as well as the voltage and current on the welder. The welder was a Tungsten Inert Gas welding machine. The voltage was set 'right down' and the current was set at 13 Amps in the AC setting. The welder was earthed to the Stator using earth studs. Mr McCloskey 'manufactured' his own copper tong apparatus in order to hold the cotton wool that was to be soaked in phosphoric acid. The phosphoric acid was not diluted. The phosphoric acid was obtained from the dangerous goods shed at the premises. Mr McCloskey wrapped copper wire in electrical tape leaving about 60 mm bare copper out of the end like tongs. The copper tongues were clamped to the electrode lead of the welder and insulated. He then tipped phosphoric acid out of a 20 litre tub into half of a two litre milk bottle and placed that in the motor. Mr McCloskey then dipped a ball of cotton wool which was about the size of a tennis ball into the phosphoric acid so that the cotton wool was soaked. He then held the cotton wool on the core of the motor and rubbed it across the motor until the cotton wool had been 'eaten away'. He repeated the process several times over about a three hour period. 10Whilst undertaking the task, Mr McCloskey felt a tingling sensation in his right arm that he thought was an electrical shock. Mr Wrightson advised Mr McCloskey to wrap more electrical tape around the welder and to change his gloves. Mr McCloskey followed this advice. The agreed facts described what happened next: [Mr McCloskey] then recommenced the process and received another electrical shock which caused him to jerk and step back. This caused him to let go of the soaked cotton wool. When he pulled his arm away the ball of cotton wool soaked in phosphoric acid came into contact with the right side of his face. Mr McCloskey was given first aid treatment and taken to the local doctor where he received further treatment. He was told by the doctor to return to work. Later that day he attended hospital and was referred to the Burns Unit of Royal North Shore Hospital. He subsequently underwent three operations to debride the area in which his face was burnt in order to undertake skin grafts. Mr McCloskey had time off work and returned to full-time duties in June 2010 after undertaking a period of suitable duties. 11The agreed facts revealed that at the time of the incident Mr McCloskey was not being directly supervised and was performing the task alone. He had received no training in the work he was undertaking. He was wearing safety glasses, rubber gloves and long pants and sleeves. He had not been instructed to wear a facemask and was not wearing one. 12The agreed facts also revealed that: (a) The defendant's work instruction relating to core flux testing did not include any instructions concerning the safe use of phosphoric acid, the need to conduct a risk assessment before undertaking the task, the need to consult the material data safety sheet ("MSDS") or any other matter concerned with safely conducting the work. (b) Neither Mr Wrightson nor Mr McCloskey were provided with any MSDS in relation to phosphoric acid which would have both identified the risk of chemical burns in the event of contact with skin, and identified the need to wear protective equipment where there was a risk of exposure. (c) The use of an electric welding machine as the source of low AC current meant that dangerous levels of no load voltage were present. Further, phosphoric acid is a good conductor of electrical current. 13It was agreed that after the incident the defendant conducted an investigation into it. The investigation concluded that: (a) insufficient personal protective equipment was being used at the time and the use of a face shield in addition to standard eye protection would have provided sufficient protection against the risk of accidental contact with phosphoric acid. Further, it was concluded that Mr McCloskey was wearing insufficient or inappropriate hand and forearm protection. (b) the relevant work instruction did not require a risk assessment or job safety analysis to be undertaken or refer to a task specific safe work method statement. The work instruction that was in place did not refer to the need to undertake a risk assessment or refer to appropriate cautions, control measures or the need to consult the MSDS. (c) Mr McCloskey had not familiarised himself with the MSDS and therefore did not fully understand the nature of the handling attributes or first aid practices in relation to phosphoric acid in the case of skin contact. (d) Mr McCloskey had not been sufficiently trained to enable him to carry out the task of acid etching without supervision. He had received no formal training in the work. (e) there was a low level of supervision on the day of the incident - key supervisors or managers were not present in the workshop. 14It was also an agreed fact that: (a) After the incident Dowding & Mills ceased conducting acid etching and using phosphoric acid. Dowding & Mills put in place a system where a dedicated employee was assignedresponsibility for making sure that all training needs and improvements were being properly utilized. A training matrix and core skill competency assessment system was revitalized and updated. A complete review of all work instructions and occupational health and safety guidelines was commenced. (b) Dowding & Mills co-operated in the WorkCover Authority's investigation. (c) Dowding & Mills had no prior convictions. Defendant's evidence 15In her affidavit, Ms Burton deposed to the following matters: (a) the history of the defendant and the nature of its business which included electrical, instrument and mechanical services. The defendant has operated in Australia since 1946; (b) the defendant has over 255 employees working out of five branches across three States; (c) the circumstances of the incident of 10 September 2010; (d) the defendant's safety management system at the time of the incident with particular reference to the work instruction for core flux testing, risk assessment, material safety data sheets, internal audits, statistical analysis of non-conformances and external audits; (e) actions taken by the defendant since the incident; (f) cooperation with the WorkCover Authority; (g) plea of guilty; and (h) contrition. Consideration 16The maximum penalty in this case is $550,000, the defendant having no prior convictions. 17The charge identifies the risk in this case as one of being burnt or otherwise injured as a result of coming into contact with phosphoric acid and of receiving an electric shock whilst working with an electrically powered welder. 18Phosphoric acid is corrosive and very destructive of mucous membranes, respiratory tract, eyes and skin - in other words, a dangerous chemical that requires appropriate personal protective equipment to be worn by those handling the chemical. Persons working near exposed live conductors must wear approved rubber insulating gloves to avoid exposure to electric shock. Phosphoric acid is a good conductor of electricity. 19It is obvious that Mr McCloskey, an apprentice, was exposed to serious risks in circumstances where his employer: (a) failed to undertake an assessment of the risks associated with the task of core flux testing; (b) failed to provide Mr McCloskey with information related to working with phosphoric acid; (c) failed to provide Mr McCloskey with training to enable him to carry out work with phosphoric acid and low voltage DC current; and (d) failed to provide Mr McCloskey with supervision whilst he was working with phosphoric acid and low voltage DC current. 20Objectively, one would have to conclude the defendant's omissions were relatively serious. On the day of the incident, there was a lack of regard for what was required to enable Mr McCloskey to perform the work of acid etching safely. It is not suggested the lack of regard was deliberate by any means. But the incident did reveal a lax attitude to occupational health and safety by the defendant in connection with a hazardous undertaking, the consequence of which was serious chemical burns to the face of an apprentice. 21The seriousness of the offence is aggravated by the fact that Mr McCloskey, whilst still an apprentice and requiring appropriate supervision, had not performed the work of acid etching previously and a tradesman, who had no training in that work, was assigned to show Mr McCloskey what to do. 22If a risk was reasonably foreseeable, as opposed to unforeseeable or undetectable, and steps were not taken to avoid or mitigate the risk, then it logically reflects on the seriousness of the offence. It is not as though the risk in this matter was not reasonably foreseeable. The worker was using an electric welding machine as the source of low AC current, which meant that dangerous levels of no load voltage were present. In that situation, Mr McCloskey was using a pair of copper tongs (60mm of which were bare copper) clamped to the electrode lead of the welder to hold a ball of cotton wool the size of a tennis ball soaked in undiluted phosphoric acid (which is a good electrical conductor) without a face shield and without sufficient or appropriate hand and forearm protection. 23In those circumstances, it was reasonably foreseeable Mr McCloskey might receive an electric shock and/or come into contact with the phosphoric acid. As it was, both occurred. 24In gauging the seriousness of the offence it is relevant to have regard to whether the risk could easily have been prevented or avoided. In this case there were simple measures available that would have avoided the risk. Relatively straightforward measures that the defendant did not take, but could have taken, to avoid the risk were identified in the charge. In particular, if there had been proper training and supervision there was nothing to prevent Mr McCloskey being required to wear the necessary safety equipment. 25The seriousness of Mr McCloskey's facial injuries (shown in colour photographs) manifests the degree of seriousness of the relevant risk; he underwent three operations to debride the area in which his face was burnt in order to undertake skin grafts. 26Whilst the extent of the defendant's failures to ensure the safety of Mr McCloskey constitute a relatively serious contravention, the Court is prepared to accept that the contravention was a lapse on the defendant's part and not indicative of a general disregard of its obligations under the occupational health and safety laws. 27The defendant had in place a comprehensive management safety policy and safety management system at the time of the incident. Workers were required to follow relevant work instructions in performing their work. This requirement was introduced to employees at their induction and was regularly reinforced. At the time of the incident, the defendant had in place a formal system for conducting risk assessments for complex jobs. However, I note the work instruction regarding core flux testing had no provision for a risk assessment to be carried out and contained no safety instructions regarding the handling of phosphoric acid. 28The defendant did have a policy of making MSDSs available to employees using hazardous substances, but the MSDS regarding phosphoric acid was not made available to Mr McCloskey on the day of the incident. The defendant also had a system of internal and external safety audits and a system whereby non-conformance with safety systems was reported to relevant managers. 29These policies and systems indicate a company with a reasonably sophisticated approach to safety. However, it is apparent the systems broke down on 10 September 2009. 30General and specific deterrence are factors that need to be taken into account in the sentencing process. The purpose of the criminal law is to deter not only the offender, but also others who might consider breaking the law. Of course, the offences under the Act are absolute offences, and it might not be a question of a person giving consideration to contravening that Act. Nevertheless, an appropriately fixed penalty that has regard to the need for general deterrence remains relevant because it compels the attention of those responsible for workplace safety to the need to be proactive in ensuring safety, otherwise they may face severe penalties. 31As for specific deterrence, in the present case the defendant acted quickly and responsibly in taking steps to ensure there is no recurrence of what occurred in relation to Mr McCloskey. The experience of being prosecuted was, I think, a sobering one for the defendant and the chances of it re-offending are slight. Nevertheless, the defendant continues to operate its business which, from time to time, involves the use of hazardous plant or materials. A small element of specific deterrence in the penalty will serve to remind the defendant of its obligations to ensure safety. 32There are a number of subjective considerations. The first is the plea of guilty. The original charge was filed on 29 July 2011 and an amended charge was filed on 3 August 2011. Discussions ensued between the prosecutor and the defendant and on 12 April 2012 the defendant indicated it would enter a plea of guilty to a further amended charge. That further amended charge was filed on 19 April 2012. The further amended charge revised the particulars so that, for example, it was no longer alleged the defendant failed to provide personal protective equipment or failed to provide a work instruction for working with phosphoric acid and an electrical welder. The defendant entered a plea of guilty on being advised of the amendments to the charge. 33As Backman J observed in Inspector Stephen Cooper v Rail Infrastructure Corporation [2008] NSWIRComm 92 at [50]: ... [A]n assessment as to whether a plea of guilty has been entered at the first reasonable opportunity, or at the earliest opportunity, where the plea is a late plea, may be relevant to the utilitarian value of the plea. In recognising this, however, it is important to emphasise that where a plea of guilty has been entered at the first reasonable opportunity, it does not confer an entitlement to a discount of 25 per cent for the utilitarian value of the plea. A rationale for this is that the delay between the time an offence is first charged, and when the plea of guilty is entered to an amended, less serious, or different charge is less advantageous to the administration of justice. The Court will discount the penalty by 17.5 per cent. 34The Court notes that following the incident the defendant acted quickly in conducting what was a thorough investigation and determined to cease the task of acid etching at the premises. It also updated the core flux testing working instruction. Additional steps taken by the defendant to reinforce and improve its safety management system and commitment to safety, set out in the affidavit of Ms Burton, included the following: (a) hired a new Quality Environment Safety and Health (QESH) Manager (new position); (b) hired a consultant to conduct a gap analysis between the current the state of the SMS and third party health and safety accreditation to ISO18001 Occupational Health and Safety; (c) expanded the role of the Site Quality Coordinator to now include environment, health and safety (now called QESH Officer); (d) engaged SAI Global to do a first round audit for ISO18001 Occupational Health and Safety accreditation; (e) supported the QESH Manager and HR Manager in completing a Certificate IV in Occupational Health and Safety; (f) implemented an electronic Quality, Environment, Safety and Health Management System (Qudos); (g) conducted a complete rewrite of the Quality System to include health, safety and environmental elements; (h) changed the format of all work instructions to include a hazard section and also to have the hazard and safety sections at the start of document. Pictograms have been added to these sections as a visual aid; (i) created a section in the work instructions (7000 series) that deals specifically with safety issues e.g. Personal Protective Equipment, Safe Work Practices, and Hazardous Substance and Dangerous Goods Management; (j) audited all branches for storage and use of dangerous chemicals and significantly reduced the quantity of chemicals kept on the premises; (k) introduced the use of citric based chemicals to further reduce risk to employees; (l) introduced "Take 5's" which are a personal hazard assessment and identification tool that all workshop employees are required to complete on a daily basis; (m) expanded the employee induction to include a more extensive safety induction process; (n) ensured Branch QESH staff have and are currently undertaking formal health and safety training (Certificate IV in Occupational Health and Safety; (o) implemented monthly safety audits at all sites; (p) implemented a work organisation method, the LEAN 5S process (sort, set in order, standardise, shine, sustain) to improve housekeeping and therefore health and safety at all sites; (q) implemented daily pre-start meetings at all sites which all contain a specific safety component; (r) implemented a Company-wide rehabilitation and return to work policy and procedure manual; and (s) begun the roll-out of a Safe Behaviour Program to encourage all employees to be proactive in their own safety. 35It cannot be doubted the defendant took the incident seriously and should receive the benefit, in the assessment of penalty, for having put in place extensive measures to improve its safety system and to ensure there is no recurrence of the incident that led to Mr McCloskey's injuries. 36A further relevant subjective factor is that the defendant cooperated with the investigating authority: Crimes (Sentencing Procedure) Act 1999 ("CSP Act"), ss 21A(3)(m), 23. The prosecutor and also the Court accept that the defendant has shown remorse for the offence: CSP Act, s 21A(3)(i). Further, the defendant has no prior convictions in New South Wales: CSP Act, s 21A(3)(e). 37Having regard to the objective and subjective factors in this matter the Court determines that an appropriate penalty is $80,000. Orders 38The Court makes the following orders: (1) The defendant is convicted of an offence under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $80,000 with a moiety to the prosecutor. (3) The defendant shall pay the prosecutor's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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: 19 July 2012