District Court New South Wales Medium Neutral Citation: SafeWork NSW v Grey Colt Pty Ltd [2019] NSWDC 68 Hearing dates: 7 December 2018 Date of orders: 22 March 2019 Decision date: 22 March 2019 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) The offender is convicted of both offences. (2) The appropriate fine for the s 32 offence is $30,000. The appropriate fine for the s 38 offence is $2,000. Both will be reduced by 25% to reflect the pleas of guilty. (3) I impose a fine of $22,500 for the s 32 offence. (4) I impose a fine of $1,500 for the s 38 offence. (5) I order that pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor. (6) The offender is to pay the prosecutor's costs in the sum of $35,000. Catchwords: CRIME – prosecution – work health & safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence SENTENCING PRINCIPLES – totality – remorse – contrition – appropriate penalty – rehabilitation COSTS – prosecution costs OTHER – leaking chemicals – contact with skin causing severe burns – failure to report incident Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 Cases Cited: Baumer v R (1998) 166 CLR 51 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Muldrock v The Queen [2011] HCA 39 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338 R v Wilkinson (No. 5) [2009] MSWSC 432 Category: Sentence Parties: SafeWork New South Wales (Prosecutor) Grey Colt Pty Ltd (Offender) Representation: Counsel: Mr D Chin appeared for the Prosecutor Mr M Heath appeared for the Offender Solicitors: SafeWork NSW Legal Services (Prosecutor) Bradley Allen Love Lawyers (Offender) File Number(s): 2018/253066 and 2018/253071 Publication restriction: None Judgment 1. On 8 October 2018 Grey Colt Pty Ltd (the offender) pleaded guilty to an offence contrary to s 32 of the Work Health and Safety Act 2011 (the Act), in that it failed to comply with the health and safety duty imposed upon it by s19(1) of the Act, namely, to ensure so far as is reasonably practicable the health and safety of workers while at work in its business or undertaking. The failure to do so exposed Mr Connor McIntyre (McIntyre) to a risk of death or serious injury. 2. This offence, in the case of a body corporate, carries the maximum penalty of $1,500,000. 3. Further on 8 October 2018 the offender pleaded guilty to an offence pursuant to s 38 of the Act, in that it had a duty to ensure that SafeWork NSW was notified of a notifiable incident immediately after the offender became aware of such an incident and that it failed to comply with that duty. 4. This offence, in the case of a body corporate, carries that maximum penalty of $50,000. 5. The prosecutor tendered an Agreed Statement of Facts and an Agreed Tender Bundle which forms the basis of the background set out below. 6. The offender tendered an affidavit of Anthony Wayne McDonald (McDonald) and of his wife, Cassandra Jane McDonald (Mrs McDonald). BACKGROUND 1. Grey Colt Pty Ltd (Grey Colt) was a registered corporation with its registered address at The Royal Hotel Queanbeyan, 85 Monaro Street, Queanbeyan. McDonald was the sole director of Grey Colt. 2. In about April 2016 Connor McIntyre (McIntyre) undertook one week's work experience as a kitchen hand at the premises which was organised by his school. He was 17 years of age. His duties included washing dishes, basic food preparation, kitchen duties and rubbish duties. Following the work experience, he was employed as a casual worker performing similar kitchen hand duties. 3. Grey Colt employed Damon Townsend (Townsend) as the general manager of the workplace, and he was responsible for the day-to-day running of the business and for inducting new staff to the bar area. 4. Megan Williams (Williams) was the executive chef and was responsible for the kitchen area, including supervising and inducting kitchen staff, overseeing menus, costs and pricing. 5. Grey Colt employed Biswas Karki (Karki) as a chef at the work place, and in the absence of Williams, Karki also acted as the supervisor in the kitchen area. 6. At all material times the offender engaged or caused to be engaged McIntyre as an employee. McIntyre was a worker for the purposes of s 7 of the Act 7. Townsend supervised Williams directly, who in turn supervised McIntyre. Townsend inducted McIntyre to the workplace at the time he commenced work experience. As part of his induction, Townsend instructed McIntyre to wear enclosed (non-canvas) shoes, jeans and a shirt for work in the kitchen. Latex gloves and an apron were also available for McIntyre to wear. 8. The offender influenced or directed McIntyre's activities in carrying out work on behalf of the defendant at the premises. 9. At all material times, including as at 1 July 2016, in the course of conducting the defendant's business or undertaking the offender used and/or stored hazardous chemicals in or near the kitchen of the premises including the following alkaline chemical products known as: 1. "Cater Clean Bleach" (manufactured by Pelikan Artline Pty Ltd); 2. "Machine Dishwash Liquid" (manufactured by Northfork Chemicals (Australia) Pty Ltd); 3. "Multiklean" (manufactured by Enviro Chemicals (Aust) Pty Ltd; and 4. "Oven & Grill Cleaner" (manufactured by Northfork Chemicals (Australia) Pty Ltd), 5. (the JRD chemicals). 1. On 1 July 2016, McIntyre was working in the business doing the duties of a kitchen hand which included cleaning and scrubbing the kitchen floor. 2. The chemicals used by the offender for cleaning in the kitchen were stored in 15 litre plastic containers under the kitchen bench (the kitchen bench) which was adjacent to the dishwashing machine. A hose was inserted into the lid of the containers. McIntyre's workstation was in the vicinity of the kitchen bench, the sink and the dishwasher. 3. The kitchen floor was cleaned on a nightly basis by using one of the JRD chemicals mixed with bleach and/or water. McIntyre's duties included cleaning up liquid spills and assisting with the scrubbing of the floor, and washing down the kitchen generally. OFFENDER'S DUTY UNDER S 19(1) OF THE ACT 1. At all material times, pursuant to s 19(1) of the Act, the offender owed a duty to ensure, so far as is practicable, the health and safety of workers, in particular McIntyre, while the workers were at work in the offender's business. 2. It was the risk of workers, in particular McIntyre, suffering serious injury, including chemical burns, by coming into contact with one of more hazardous chemicals, including any one or more of the JRD chemicals, in or near the kitchen. 3. The offender failed to take one or more of the following reasonably practicable measures to eliminate or alternatively minimise, if not possible to eliminate, the risks to the health and safety to workers. The offender; 1. failed to provide workers with appropriate personal protective equipment such as waterproof and chemical resistant footwear; 2. failed to ensure that appropriate personal protective equipment was used by workers for the purpose of carrying out any work in connection with cleaning up any spill, leak or accidental release of any hazardous chemicals including one or more of the JRD chemicals and/or any other unidentified liquid substance. 3. failed to provide or implement a system to identify any substance that had been spilled, leaked or accidentally released as constituting or potentially constituting one or more hazardous chemicals prior to directing workers, including McIntyre, to clean up the liquid on the kitchen floor; 4. failed to implement a spill containment system to contain any spill, leak or accidental release of any hazardous chemicals in or near the kitchen, in accordance with clause 357 of the Work Health and Safety Regulation 2011 (WHS Regulation), such as the use of dry sand, earth and/or other inert or absorbent materials (a spill containment system); 5. failed to develop and implement an emergency plan in response to any spill, leak or accidental release of hazardous materials in or near the kitchen, including appropriate first aid and medical responses to exposure to any one or more of the JRD chemicals (an emergency plan); 6. failed to ensure that all current Material Safety Data Sheets (MSDSs) for all hazardous chemicals used or stored in or near the kitchen were obtained from the manufacturer, importer or supplier were readily accessible to workers including McIntyre; 7. failed to provide workers, including McIntyre, with any information, training and/or instruction on any one of the following: 1. the nature of hazardous chemicals used and/or stored in the kitchen; 2. the risks of chemical burns and injuries; 3. the identifying or recognising characteristics of all the hazardous chemicals used or stored in the kitchen; 4. the content of the MSDSs, spill containment system and the emergency plan; 5. a requirement to wear appropriate personal protective equipment when working with or near any hazardous chemicals; 6. the appropriate and immediate first aid in the event of any physical contact with any of the hazardous chemicals 1. failure to provide any adequate supervision or workers including McIntyre when cleaning up any hazardous chemicals or unidentified liquid substance. 1. As a result of the offender's failures, a worker, namely McIntyre was exposed to a risk of a serious injury. 2. On 1 July 2016 McIntyre suffered third degree burns to both his feet as a consequence of his exposure to one or more hazardous chemicals in the kitchen (the injury). THE OFFENDER'S DUTY UNDER S 38(1) OF THE ACT 1. The 'notifiable incident' was a serious injury and/or a dangerous incident arising out of the conduct of the offender's business or undertaking in that, on 1 July 2016: 1. the injured worker, McIntyre was employed by the offender as a casual kitchen hand; 2. pursuant to such employment, McIntyre was working in the kitchen at the premises; 3. in the course of the offender's business or undertaking, the offender used and/or stored hazardous chemicals, the JRD chemicals, in or near the kitchen; 4. in the course of performing his duties as a kitchen hand in the kitchen of the premises, McIntyre was exposed to an escape, spillage or leaking of a hazardous alkaline chemical or combination of alkaline chemicals (the incident); and 5. As a consequence of the incident, McIntyre suffered a serious injury, namely third degree burns to both feet for which he required immediate treatment and skin graft the injury. 1. On 2 July 2016, the offender first became aware if the injury sustained by McIntyre when McIntyre send a text message to the offender's head chef Megan Williams, informing her of the injury. 2. The offender was also made aware of the injury through a series of text messages on and from 6 July 2016 between the sole director of the offender, McDonald and Elva Wright (Wright) (the mother of McIntyre). 3. By 4 July 2016, the offender was aware of the incident and the injury, and caused to be created an incident report in which it concluded that McIntyre sustained burns to his feet while he was in the dish scullery area of the kitchen on 1 July 2016, and that he underwent surgery to graft skin onto his feet. It further noted that "the cleaning fluid must have splashed into his boots and he did not stop working to check what was casing his pain". 4. The offender did not notify the regulator of the incident and injury until 23 August 2016, and as such failed to ensure that the Regulator was notified of the incident and/or injury immediately after becoming aware of it pursuant to s38 of the Act. THE INCIDENT 1. On 1 July 2016, McIntyre commenced work at 5.00pm, and had not experienced pain in his feet prior to that day. Upon arrival he put his apron on, signed in to the workplace, and entered the kitchen. He wore a black t-shirt, jeans, socks and ankle boots made of synthetic material. The boots were not water-resistant. 2. Upon entering the kitchen McIntyre noticed that the non-slip mat under the sink was wet, and McDonald instructed Williams to take it out of the kitchen. Williams then instructed McIntyre to mop the floor. He did so and noticed that the liquid on the floor was wet and had the appearance of water, and was odourless. He mopped the liquid substance from the floor, including the area in which the mat had been situated. 3. McIntyre observed that a bucket labelled "bleach" was near the sink and dishwasher. After completing the mopping up, he resumed his dishwashing and food preparation duties. 4. At about 8-9pm, McIntyre felt pain in his feet, but continued with his duties. In the course of cleaning the kitchen, McIntyre informed Karki that his feet were sore. They left the workplace at approximately 10.30pm. On the way home McIntyre complained to his mother, Wright, that his feet were hurting. 5. When McIntyre arrived home, he removed his shoes and socks and left them at the front of his house. He soaked his feet in a basin of cold water for about 10 minutes, and noticed that his feet had turned black. He was then transported to Queanbeyan Hospital at about 11.30pm. 6. The shoes and socks McIntyre had been wearing at the time of the incident remained on the veranda of his home for two weeks, and were not cleaned, thus preserving the state in which they were on the date of the incident. INJURIES 1. McIntyre's condition could not be diagnosed at Queanbeyan Hospital, and he was conveyed to Canberra Hospital. He was there, on 2 July 2016, diagnosed with full thickness (third degree) alkali burns to both his feet (the injuries). Testing of his feet returned a result of pH 9-10. 2. On 4 July 2016, McIntyre was transferred to Concord Hospital, where he underwent three surgeries for skin grafts, and he remained in Concord Hospital for one month continuously. He was ultimately discharged on 19 August 2016. CHEMICAL TESTING 1. On 14 July 2016, McDonald obtained a shoe and sock that McIntyre had been wearing and sent the sock to NSW Health Pathology for testing on 30 August 2016. It returned a pH result of pH 9.9. 2. On 31 August 2016, Inspector Baldwin took custody of the remaining shoe and sock, and a pair of jeans worn by McIntyre on the day of the incident. They were then transferred to Inspector Hyland for transport to TestSafe Thornleigh for chemical testing. The result of that test was pH 10.1. TestSafe further analysed the chemical composition of all the chemicals contained within the Grey Colt kitchen, and concluded that the damage to McIntyre's feet indicated exposure to a corrosive substance, his sock was impregnated with an alkaline material with a high pH, and his feet had been exposed to an alkaline liquid with a corrosive activity. They further concluded that one or more of the JRD Chemicals in the kitchen were prime candidates as the cause of McIntyre's injuries. 3. Thus it was in the premises that McIntyre sustained the injuries as a result of the incident, and by reason of the exposure to a hazardous alkaline chemical or combination of alkaline chemicals, which was likely to have been or to have included one or more of the JRD chemicals. FAILURE TO NOTIFY 1. On 2 July, McIntyre send a text message to Williams which read 'Hey chef, I can't work tomorrow, my feet are messed up and I'm in hospital.' 1. Later that day, he sent a further message that read 'Megan, I'm at the hospital with chemical burns on my feet, can you check or get someone to check to see if any of the chemicals are leaking at work and move them just to make sure.' 1. Further text messages were sent to Williams by McIntyre over the next few days. 2. On 4 July 2016, Townsend filled out a workers compensation form with identifying the incident and the injuries sustained by McIntyre. On that date the offender created an incident report which recorded that McIntyre had sustained burns to his feet whilst in the "dish scullery area of the kitchen" on 1 July 2016. It noted that McIntyre was to undergo surgery to his feet and that the offender concluded that "the cleaning fluid must have been splashed into his boots and he has not stopped working to check what was causing his pain." 3. Between 6 July 2016 and 23 August 2016, Wright, Townsend and Williams exchanged text messages referring the McIntyre's injuries and recovery. 4. On 23 August 2016, Wright telephoned SafeWork to inquire as to who was investigator of the incident. She was told that there was no record of the incident. Subsequently Inspector Clayton Baldwin telephoned Wright and took details of the incident. This was the first notification that SafeWork had received, and thus the offender had failed to report the injuries to SafeWork at any time. SYSTEMS OF WORK BEFORE THE INCIDENT 1. The offender did not have in place, or failed to implement, a system to identify any substance that had been spilled, leaked or accidentally released as being a substance that could potentially be a hazardous chemical, prior to directing kitchen staff such as McIntyre to clean up the substance in breach of the Regulation. 2. Nor did the offender inform McIntyre of the existence and contents of the MSDSs, or the dangerous nature of the JRD chemicals stored in the workplace in breach of the Regulation. 3. The offender did not have in place any spill containment system, such as the use of dry sand, earth and/or other inert or absorbent materials. 4. It did not have in place an emergency plan nor first aid measures appropriate for the nature of the work, nor did it have in place any system of checking if the control measures were appropriate in breach of the Regulation. 5. The offender did not provide McIntyre with any waterproof and chemical resistant footwear, such as rubber boots; and did not require him to wear such footwear when he was at work, in breach of the Regulation. 6. The offender failed to provide any or any effective information, training and instruction to McIntyre or any other people in the workplace, nor did it supervise him or others to the necessary extent to protect them from safety risks arising at the workplace. The offender also failed to prepare an effective emergency plan for the workplace, in breach of the Regulation. 7. The offender was made aware of the incident and injury on 4 July 2016, but failed to notify the Regulator of the incident and injury, and nor did it take any steps to ensure the Regulator was notified, in breach of section 38 of the Act. The first notification occurred on 23 August 2016, when the offender's mother, Wright notified the Regulator SYSTEMS OF WORK FOLLOWING THE INCIDENT 1. As at 1 July 2016, the offender had obtained from the JRD, the MSDSs for each of the JRD chemicals, and a copy of theses was kept in the kitchen area, the bar area and in Williams' office. The MDMSs disclosed the hazardous nature of the JRD chemicals. 2. Following the incident, SafeWork issued Improvement Notice 7-295147 to the offender to 'develop and maintain systems to ensure all notifiable incidents are notified to SafeWork NSW in the prescribed manner and time'. SafeWork directed that the offender must ensure that systems are in place to preserve any incident site so far as is reasonably practicable. 3. The offender appointed Safety Australia to work on its Work Health and Safety Policy after the incident. On 17 January 2017, an independent consultant performed a risk assessment at the workplace. All of their recommendations have been implemented. 4. Policies in relation to employee induction and safeguards were reviewed and updated. It is now a requirement that all staff be properly inducted with all appropriate knowledge in matters including health & safety, dress code and first aid before they commence employment. All staff are now required to wear water-repellent shoes, that must be closed toe and non-slip. Prior History 1. The offender has not previously appeared before the courts on health and safety matters. 2. CONCLUSIONS 3. I have had regard to the objectives set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) for the purpose of sentencing. Objective Seriousness of the Offence 1. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39 at [27]. 2. The following matters are relevant to the objective seriousness of an offence against occupational health and safety legislation: 1. The maximum penalty available under the relevant provision; 2. The obviousness or foreseeability of the risk; 3. The gravity of the risks to safety flowing from a breach; and 4. The availability and feasibility of measures to eliminate or control that risk. 1. The maximum penalty is $1,500,000 in the case of an offence committed by a body corporate. 2. The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R (1998) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed, and set the time limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70]. 3. The sentencing judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] MSWSC 432 at [61]. 4. The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor relative to the gravity of the offence: Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at [89]. The question of foreseeability of the risk is to be determined objectively. 5. The Court of Criminal Appeal has recently examined the sentencing process with regard to the Work Health and Safety Act 2011 in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96;93 NSWLR 338. His Honour Justice Basten at paragraph 34, under the heading 'Assessment of Risk' said: 'The sentencing judge commenced his consideration with the proposition that 'greater culpability attached to the failure to guard against an event the occurrence of which is extremely unlikely'. However the truth of that proposition depends upon other considerations including: (a) The potential consequences of the risk, which may be mild or catastrophic; (b) The availability of steps to lessen, minimise or remove the risk; and (c) Whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends on assessment of all those factors.' 1. Further at paragraph 42 his Honour continued: 'The culpability of the Respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon and overall evaluation of various factors, which may pull in different directions.' 1. The risk of serious injury was clearly foreseeable. The offender possessed MSDSs for each of the JRD chemicals. These MSDSs expressly identified the hazardous nature of such products and the need for precautions to be adopted with their use and handling. 2. I do not accept, however, that the risk was obvious. When the manager of the restaurant noticed there was a spillage of some sort on the floor of the kitchen his immediate concern was to have it cleaned up as it would constitute a slipping risk. The substance on the floor was clear and odourless. It could well have been water. 3. Following the incident, McDonald and his wife commenced their own investigation as to how McIntyre was injured. They took significant steps to have McIntyre's shoes and clothes tested privately. They went through their purchasing invoices to see if there had been any depletion of their stock of dish washing chemicals which might suggest it was leaking. They checked the lids on the chemicals stored in the kitchen to see if they were leaking. They were very proactive in trying to discover which substance was on the floor and where it came from. 4. By its pleas, the offender is taken to having admitted all the elements of the offence. I accept, however, that McDonald and his wife thought that by reporting the incident to their broker, for further reporting to their workers' compensation insurer, they had fulfilled their obligations. They now know that their conduct was not sufficient. McDonald accepts that this is an obligation he should have been aware of. MITIGATING FACTORS 1. Based on matters deposed to in the affidavit of McDonald and his wife, I accept that the offender has shown contrition and remorse. I accept that the offender has every chance of rehabilitation and is highly unlikely to reoffend. 2. The offender pleaded guilty at the first available opportunity and ought therefore be entitled to a 25% discount based on the utility of the plea. 3. I accept the offender is a good corporate citizen and employs over 30 staff. McDonald takes great pride in his restaurant and as a consequence of this incident has become a more vigilant employer. AGGRAVATING FACTORS 1. I have had regard to the Victim Impact Statement prepared by McIntyre. His injuries were severe, his recovery slow and painful. He continues to suffer physical and psychological symptoms, and his life has been significantly impacted by the injuries. COSTS 1. The offender is to pay the prosecutor's costs as agreed in the sum of $35,000. PENALTY 1. My orders are: 1. The offender is convicted of both offences. 2. The appropriate fine for the s 32 offence is $30,000. The appropriate fine for the s 38 offence is $2,000. Both will be reduced by 25% to reflect the pleas of guilty. 3. I impose a fine of $22,500 for the s 32 offence. 4. I impose a fine of $1,500 for the s 38 offence. 5. I order that pursuant to s 122(2) of the Fines Act 1996, 50% of the fine is to be paid to the prosecutor. 6. The offender is to pay the prosecutor's costs as agreed in the sum of $35,000. ********** 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: 22 March 2019