WorkCover Authority of NSW v Transtank Pty Ltd [2014] NSWDC 288

District Court New South Wales

Medium Neutral Citation: WorkCover Authority of NSW v Transtank Pty Ltd [2014] NSWDC 288 Hearing dates: 24 October 2014 Decision date: 24 October 2014 Jurisdiction: Criminal Before: Curtis, J Decision: The defendant is fined Legislation Cited: Occupational Health and Safety Act 2000 Texts Cited: Australian Standard 2865 of 2009 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Transtank Pty Ltd (Defendant) Representation: Counsel: M Moir appeared for the Prosecutor W Thompson appeared for the Defendant

Solicitors: WorkCover Legal Group (Prosecutor) DLA Piper Australia (Defendant) File Number(s): 2013/197742

REMARKS ON SENTENCE 1. On 1 July 2011 at Parkes in the State of New South Wales Mr Graeme Newham and his son Jade Newham, employees of the defendant, Transtank Pty Ltd, were engaged in applying a flammable solvent to the interior of a storage tank manufactured by the defendant. The solvent was known as prep-wash and was highly flammable. 2. The work by Mr Graeme Newham inside the tank was illuminated by Mr Jade Newham holding a portable halogen light at the entrance to the tank. This light produced extreme heat and was not safe for its purpose. That circumstance was known to Mr Graeme Newham but he neither ceased work nor attempted to find a safer light. There was, predictably, an explosion and both Graeme and Jade Newham were seriously burned. 3. The defendant pleads guilty to a charge, that contrary to s 8(1) of the Occupational Health and Safety Act 2000 it failed to, so far as is reasonably practicable, ensure the health and safety of both employees. 4. The culpability of the defendant is moderate. The defendant's works were controlled by Mr Jason Powter who was the Operations Manager on the site. A Mr Anthony Hession, a production supervisor, answered to Mr Powter and Mr Amberge, a foreman, was directly responsible for the work of the Newhams. 5. Before the incident Mr Powter had recognised the need to devote more attention to Occupational Health and Safety and set in train enquiries, which would later lead to the appointment of Ms McCarthy as Occupational Health and Safety Manager. 6. The systems in place prior to the accident did not require preparation of a risk assessment of the particular job and in that respect the system was deficient. No risk assessment was carried out on the day of the accident. This was the fault of the foreman, Mr Amberge. 7. Mr Amberge was also at fault because the material data sheet upon the solvent clearly identified its dangerous inflammable nature. Mr Amberge pointed out to Mr Graeme Newham that there had been a recent delivery of the material and you would think that he, that is Mr Amberge, should have read the data sheet. Further, a copy of the data sheet was kept within the spraying booth where the work was carried out, and Mr Amberge should have known of its content. 8. There was a clear failure to supervise, and Mr Amberge should have prevented Mr Newham from entering the tank and conducting the work while a halogen light was illuminated. 9. Further dangers were caused by the electrical connections leading to the tank which created the possibility of ignition. 10. The work was in breach of Australian Standard 2865 of 2009 which identified the possibility of a concentration of flammable airborne contaminant within a confined space as a possible cause of injury from fire or explosion. 11. The standard at clause 3.4.44 provided that where an electrical apparatus is to be used in an explosive gas atmosphere the apparatus should comply with a further standard. Clause 3.4.45 of the standard provided that Where there was a potential for combustibles, portable electrical equipment should be intrinsically safe. . Clause 3.4.48 provided Where a flammable airborne contaminant might exist precaution should be taken to eliminate all sources of ignition. The standard could not have been clearer. 12. The ignition of flammable gases by electrical devices is a circumstance not uncommon in industry and the sentence should reflect a need for a general deterrent. 13. I accept that there is a very limited need for specific deterrence in this particular case because under the guidance of the newly employed Occupational Health and Safety Officer, Ms McCarthy, the defendant's system has been upgraded and such an event will, if that system is followed, never occur again. 14. There is a mitigating factor to some extent in that Mr Graeme Newham was in some respect the author of his own misfortune because he used a light which he knew to be unsafe. Nevertheless both Mr Jade Newham and Mr Graeme Newham have suffered severely and their suffering continues. It is necessary that there be an element of denunciation of the offence which brought upon those two men this unhappy circumstance. 15. In all the circumstances it seems to me an appropriate penalty would be $100,000. I discount this by 25% in consideration of the fact that the defendant pleaded guilty at the earliest reasonable opportunity and has cooperated with the authorities. 16. The defendant is fined $80,000 and is to pay the prosecutor's costs agreed in the sum of $20,000. I order that WorkCover be paid a moiety of the fine.