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NSW Crest

Industrial Relations Commission
New South Wales

Medium Neutral Citation:
Inspector Barber v Tegra Australia Pty Ltd [2012] NSWIRComm 67
Hearing dates:
18 June 2012
Decision date:
04 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 serious injury when working at a concrete batching plant - Uncontrolled release of cement powder during batching operations - Lack of breathing masks - Large quantity of cement dust inhaled by worker - Plea of guilty - Sentencing - Objective and subjective considerations - Penalty imposed - Costs
Legislation Cited:
Occupational Health and Safety Act 2000
Cases Cited:
Bruce Lloyd Dowling v Overtop Pty. Limited [1998] NSWIRComm 509; (1998) 86 IR 319
Capral Aluminum Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610.
Category:
Principal judgment
Parties:
Inspector Mark Barber (Prosecutor)
Tegra Australia Pty Ltd (Defendant)
Representation:
Mr C Magee of counsel (Prosecutor)
WorkCover Authority of New South Wales (Prosecutor)
Mr P Thompson, solicitor (Defendant)
Sparke Helmore Lawyers
File Number(s):
IRC 1733 of 2011

Judgment

1In an amended application for order the prosecutor, Inspector Mark Barber of the WorkCover Authority of New South Wales, alleged that Tegra Australia Pty Ltd ("the defendant") had contravened s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") in that, being an employer on 12 November 2009 at a concrete batching plant in Tumut, the defendant failed to ensure the health and safety at work of all of its employees and in particular, Christopher James Leake. The defendant pleaded guilty to the charge.

2Section 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 particulars of the charge were in the following terms:

Risk
The risk alleged is the exposure to or inhalation of cement dust from the uncontrolled discharge of cement powder from the GP cement powder and Flyash silos or the batching equipment during batching operations at the defendant's concrete batching plant ("the plant") at the premises.
Work
The work referred to is the performance of duties as a Batch Plant Operator including batching loads of concrete and attempting deal with an uncontrolled discharge of cement powder from silos and batching equipment during batching operations at the premises.

Acts and Omissions

1. The defendant failed to provide a safe system of work for the work in that the defendant failed to undertake the following measures:
a. have in place a Procedures Manual in relation to the batching operations which addressed the system of work to be adopted to deal with the circumstances of an uncontrolled discharge of cement from the plant during batching operations;
b. requiring that personal protective equipment such as face masks must be worn in the control room of the batching plant or in the immediate surrounds during batching operations to prevent the exposure to and the inhalation cement powder;
c. the provision of personal safety equipment such as breathing apparatus within the control room of the plant.
d. Have in place an emergency evacuation procedure in the event of an uncontrolled discharge of cement powder.

2. The defendant failed to ensure that a risk assessment, which identified the risk and the means by which the risk could be controlled, was undertaken before permitting employees to commence the work in that there was no risk assessment:
a. that identified the possible risk of an uncontrolled discharge of cement powder from the batching equipment during batching operations at the plant;
b. which assessed the control measures to be adopted to eliminate or reduce risk of an uncontrolled discharge of cement from the plant during batching operations;
c. which identified the control measures to be adopted to eliminate or reduce the risk of its employees being exposed to or inhaling cement dust from an uncontrolled discharge of cement powder from the plant during batching operations, such as the use of personal protective equipment such as face masks or breathing apparatus to be worn in the control room of the batching plant or in the immediate surrounds.

3. The defendant failed to ensure that its employees were instructed, trained and informed about the exposure to or inhalation of cement dust from an uncontrolled discharge of cement powder before permitting employees to commence the work and in particular the defendant failed to undertake the following measures:
a. providing information and training to its employees, and particular Mr Leake, in relation to the hazards of exposure to and the inhalation of cement powder;
b. providing information and training to its employees, and in particular Mr Leake, in relation to the Material Safety Data Sheet for the cement powder;
c. providing information and training to its employees, and in particular Mr Leake, in relation to the emergency procedures to be followed should there be an uncontrolled discharge of cement powder during batching operations such as:
i. employees were to evacuate the control room in the event of an uncontrolled discharge of cement powder;
ii. employees were to wear face masks or breathing apparatus;
d. providing information and training to its employees, and in particular Mr Leake, that personal protective equipment such as face masks or breathing apparatus must be worn in the control room of the batching plant or in the immediate surrounds to prevent the exposure to and the inhalation of cement powder;
e. erecting signage inside and outside of the control room informing employees of the requirement to wear personal protective equipment such as face masks during batching operations while in the control room and undertaking batching.

As a result of the acts and omissions of the defendant, Christopher James Leake was placed at risk of injury.

Evidence

4The prosecutor tendered a bundle of documents that included:

1. agreed statement of facts;

2. factual inspection report dated 9 May 2011;

3. eleven captioned photographs of the incident premises taken on 5 May 2011 AND 8 August 2011;

4. batching procedures document applicable as at 12 November 2009;

5. revised batching procedures - post 12 November 2009;

6. OH&S risk assessment worksheets - post 12 November 2009;

7. safety meeting minutes - Tumut plant 10 March 2010;

8. memo from Mick Williams dated 19 January 2010;

9. safety memo - Geoff Bunn (safety officer);

10. prior convictions record showing no prior convictions for the defendant.

5For the defendant, an affidavit of Geoffrey Lawrence Bunn was tendered. Mr Bunn is the defendant's group OH&S officer/quality control and process development manager. Mr Bunn was not required for cross-examination.

6On 12 November 2009, at approximately 4.45am, Mr Leake was seriously injured when he inhaled a large quantity of cement dust while performing his duties as a Batch Plant Operator at the concrete batching plant at Tumut operated by the defendant ("the plant"). The injuries occurred following the uncontrolled discharge of cement powder from the GP cement powder silos or the batching equipment during batching operations at the plant.

7The agreed statement of facts described what occurred on the day of the incident. At about 4.30am, Mr Leake was working inside the control room of the plant undertaking his usual batching duties. The control room was situated at the base of the plant and located under the GP cement powder and flyash silos. The two silos were approximately 6 metres long by 3.5 metres in diameter and tapered into a cone at the base. One silo contained cement type GP. The other contained the flyash. There was a weigh hopper situated adjacent to the control room and approximately 4 metres above ground level.

8As part of the batching process Mr Leake operated controls in the control room to allow cement powder to flow from silos via an air slide, approximately 2.5 metres in length, down to a rubber chute/sock into the sealed unit of a weigh hopper. As the weigh hopper was nearing the desired weight, Mr Leake attempted to activate, via controls in the control room, a pneumatic actuator, which was designed to close a butterfly valve on the air slide at the base of the silo. This was to stop the flow of cement powder into the weigh hopper. However on this occasion, after activating the control for the pneumatic actuator, the cement powder continued to flow into the weigh hopper.

9As the weigh hopper filled, cement powder continued to fall from the silo, which in turn caused the rubber sock at the top of the hopper to expand and fail. This led to a large release of cement powder that fell onto the control room and surrounding ground surface. As a result, cement powder and cement dust entered the control room.

10There were no masks or other breathing apparatus located in the control room. Mr Leake attempted to use his shirt as a mask. Mr Leake remained in the control room attempting to close the butterfly valve using the controls. However, he was having difficulty breathing and left after being overcome by the cement dust.

11A short time later, again using a shirt as a face-mask, Mr Leake re-entered the control room and attempted to close the butterfly valve via the controls for the pneumatic actuator, but this failed to stop the flow of cement powder. Mr Leake was again forced to leave the control room after inhaling more cement dust.

12The flow of cement powder from the silo to the hopper could be manually overridden, by turning a maintenance shut-off lever located on the air slide. Mr Leake called for another worker employed by the defendant, Martin Reardon, to bring him a shifting spanner so that they could manually override the flow of the GP cement powder.

13Mr Leake and Mr Reardon climbed approximately 6 metres up a vertical ladder on the silo to try to manually override the flow of cement powder. Whilst undertaking this task the cement powder continued to flow from the silo.

14When he got to the chute, Mr Leake managed to operate the lever and the flow of cement powder was stopped. The Plant Manager then operated the actuator switch in the batch room. On the first three attempts, the pneumatic actuator failed to close the butterfly valve, however on the fourth attempt the butterfly valve on the air slide snapped shut.

15Mr Leake estimated that the cement powder around the control room was about 400 mm deep. Mr Leake was covered in a thick covering of cement powder. He used an air compressor to blow the cement powder off himself. Mr Leake then went and had a drink of water. He was continually coughing. Mr Leake then went to the batch room to continue his duties. However, he was continually coughing, had difficulty breathing and felt dizzy.

16Mr Leake continued working but was having difficulty with his breathing. The Plant Manager called an ambulance and Mr Leake was taken to Tumut Hospital. At Tumut Hospital Mr Leake was given oxygen and had a chest x-ray. He waited a considerable period of time to be assessed by a doctor, but was informed that there was no doctor on duty at that time. As there was no doctor on duty Mr Leake chose to leave the hospital and returned to work. The Plant Manager refused to allow Mr Leake to return to work and directed that Mr Leake go home.

17Mr Leake was subsequently admitted to Wagga Hospital. Mr Leake's doctor certified him totally unfit for work. On 23 November 2009, Mr Leake's doctor certified him fit for suitable duties. The defendant made suitable duties available to Mr Leake driving a loader for five hours and Mr Leake undertook those duties on 24 and 25 November 2009. However, he was coughing, dizzy and lacked concentration. The Plant Manager asked him at the end of that shift to see his doctor again. Mr Leake's doctor subsequently deemed him totally unfit for work.

18Mr Leake stated that he has been diagnosed with Chronic Obstruction Pulmonary Disease and had only 35 per cent lung capacity. On 14 March 2010, Mr Leake suffered a heart attack which, he said he was advised, was due to the stress put on his heart by the incapacity of his lungs. As at June 2011, Mr Leake had not returned to work. Mr Leake was 29 years old at the time of the incident.

19On 25 August 2010, the defendant terminated Mr Leake's employment as he was unfit to return to any form of work with the defendant.

20The agreed statement of facts described the work system prior to 12 November 2009. It was stated that:

The defendant did not have any documented procedures in the way of a safe system of work, or other documented emergency procedures for dealing specifically with a large uncontrolled release of powder.
Prior to the incident the defendant did not have in place a Procedures Manual in relation to the batching operations which addressed the system of work to be adopted to deal with the circumstances of an uncontrolled discharge of cement from the plant during batching operations.
The defendant did not have a system of work that required that personal protective equipment such as face masks must be worn in the control room of the batching plant or in the immediate surrounds to prevent the exposure to and the inhalation cement powder.
The defendant had not undertaken a risk assessment, which identified the risk of an uncontrolled discharge of cement powder from the silos or the batching equipment during batching operations at the plant. Nor had it assessed the means by which such a risk could be controlled.
The defendant had not undertaken a risk assessment which detailed the control measures that could be adopted to eliminate or control the risk of its employees being exposed to or inhaling cement dust from an uncontrolled discharge of cement powder from the plant during batching operations.
Further, the defendant had not detailed the control measures that could be adopted such as the use of personal protective equipment such as face masks or breathing apparatus that should be worn in the control room of the batching plant or in the immediate surrounds to prevent the exposure to and the inhalation cement dust from an uncontrolled discharge of cement powder.
The defendant did not have any systems in place to instruct, train and inform its employees about the risk of the exposure to or inhalation of cement dust from an uncontrolled discharge of cement powder.
The defendant had not provided information and training to its employees, and particular Mr Leake in relation to the material safety data sheet for the cement powder.
The defendant's systems of work did not include providing information and training to its employees, and particular Mr Leake in relation to the emergency procedures to be followed should there be an uncontrolled discharge of cement powder during batching operations.
Nor did the defendant provide information and training to its employees, and particular Mr Leake that personal protective equipment such as face masks or breathing apparatus must be worn in the control room of the batching plant or in the immediate surrounds to prevent the exposure to and the inhalation cement powder.
The defendant had also failed to erect signage inside and outside of the Control room informing employees of the requirement to wear personal protective equipment such as face mask or breathing apparatus while in the Control room and undertaking batching.

21The agreed facts also addressed the work systems at the plant following the incident:

After the incident the defendant amended its OHS Procedures Manual in relation to Batching operations. This document was amended to deal with the risk of an uncontrolled discharge of cement from the silos. It provides for a procedure to deal with the discharge, and also a reference to emergency evacuation procedures if the uncontrolled discharge cannot be contained.
The defendant's OHS Procedures Manual also now has a requirement that during batching procedures all staff and personnel in the vicinity of the batch plant are required to wear appropriate personal protective equipment as signposted. This includes the requirement for the wearing of protective face masks.
Further, in March 2010, all staff were informed that they must wear dust masks during batching operations. Paper masks were made available in the control room.
Additionally signage requiring employees to wear face mask while in the Control room and undertaking batching was erected outside the control room.
A safety memo was subsequently issued reinforcing the requirement for personnel in the vicinity of the batch plant to adhere to the sign posted safety recommendations, in particular, the wearing of dust masks, during batching operations.

Mr Bunn's evidence

22Mr Bunn described his background and qualifications, which included a number of certificates for courses that included instruction in occupational health and safety, the nature of the defendant's business and its history and a description of the Tumut plant. In addition Mr Bunn deposed to the following relevant matters:

Tegra's System prior to the incident including: the policies and procedures in place; risk assessment and inspection regime; and information, instruction, supervision and training provided.

Action taken following the Incident including: changes to Tegra OHS policy and procedures; training, supervision and instruction; plant changes.

Tegra's commitment to workplace health and safety generally;

Tegra's industry involvement.

Tegra's community involvement including the involvement of each of the directors.

Cooperation with WorkCover.

Efforts to return Mr Leake to employment.

Contrition.

Consideration

23The offence carries a maximum penalty of $550,000, it being a first offence.

24In order to assess the seriousness of an offence it is first necessary to identify the risk because the obligation on an employer under s 8(1) of the Act is to ensure employees are not exposed to risk. The risk in this case was the risk of exposure to or inhalation of cement dust from the uncontrolled discharge of cement powder from the GP cement powder and flyash silos or the batching equipment during batching operations at the defendant's concrete batching plant at the premises.

25The manner in which the risk arose is described in the particulars of the charge where the failures of the defendant to ensure safety are identified. The first of these was that the defendant failed to provide a safe system of work by failing to undertake the measures 1(a) to 1(d). The second main failing was a failure to ensure that a risk assessment was undertaken before permitting employees to undertake the work. That failing is further particularised in 2(a) to 2(c) of the particulars. The third main failing or omission was a failure to provide instruction, training and information about the exposure to or inhalation of cement dust from an uncontrolled discharge of cement powder before permitting employees to commence the work. That failing or omission is further particularised in 3(a) to 3(e).

26The consequence of the failings or omissions to which the defendant pleaded guilty was serious injury to Mr Leake. As a result of the exposure and inhalation of the quantity of cement powder Mr Leake, a 29 year old man, was diagnosed with Chronic Obstruction Pulmonary Disease and has only 35 per cent lung capacity.

27It may be accepted that the risk of uncontrolled discharge was not obvious. However, whilst it may be accepted that the defendant had not experienced an uncontrolled discharge of cement powder and was not aware of any such occurrence in the industry, the defendant was aware that workers required protection against the inhalation of cement dust because it provided masks for workers to use when they were engaged on tasks that were "dusty". The problem was that workers were left to determine for themselves whether they wished to utilise dust masks. No dust mask or breathing apparatus was available in the control room, notwithstanding its proximity to the silos and weigh hopper.

28As to whether it was reasonably foreseeable an uncontrolled discharge might occur, I note that a pneumatic actuator device (butterfly valve) was used to open and close the air slide. The batching operator controlled this valve from the control room. This valve required air pressure to both open and close the valve. It seems to me it was reasonably foreseeable that such a system might fail and the consequence would be an uncontrolled discharge. In that event the only way to close the air slide was by use of metal lever located on the air slide near the tapered cone base of the silo. That required the operator to obtain a shifting spanner and then climb approximately six metres up a vertical ladder on the silo to try to manually override the flow of cement powder by manipulating the lever. Whilst this activity was being undertaken the uncontrolled discharge would continue and it was reasonably foreseeable that the operator in the control room, situated underneath the silos, might be affected by cement dust. A reasonably competent risk assessment would have revealed this potential risk.

29The measures taken by the defendant following the incident show that those remedial steps were relatively simple and straightforward.

30Further, as the prosecutor submitted, the gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant. Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk. In this case, as I have noted, the risk that manifested itself resulted in serious injuries to the health of Mr Leake.

31The seriousness of the offence is mitigated by several factors. First, this is not a case in which the defendant paid no attention to matters of occupational health and safety prior to the incident. Prior to the incident, the defendant had in place a detailed OHS management system including documented health and safety policies and procedures and safety induction training for new employees.

32Secondly, the defendant had a system of "one on one" training for employees. This enabled any difficulties that workers may have in relation to literacy to be overcome when being trained. The defendant also arranged for its workers to undergo accredited training relevant to the workers' tasks. For example Mr Leake was enrolled in the Certificate III course in Manufactured Mineral Products (but/however the incident prevented his completion of the course).

33Thirdly, the Plant Manager for the Tumut site conducted regular monthly site inspections and recorded his findings in a monthly inspection checklist. Where any issues were identified which required attention, they were recorded in the plant diary and actioned promptly.

34Fourthly, the defendant's Area Manager attended the Tumut site approximately every two weeks at the time leading up to the incident. The purpose of these visits was to hold informal meetings with the workers to discuss any plant, maintenance or safety issues for the site and take note of any requirements. In addition, the Area Manager would conduct a formal meeting at each of the defendant's sites every three to four months, which included discussion of safety issues. These meetings were documented with notes of the meeting distributed to those who were not present.

35Fifthly, the defendant responded to the risk in an appropriate way and implemented a series of improvements intended to specifically address the issues that gave rise to the incident.

36I accept the prosecutor's submission that in terms of the objective seriousness of the charge to which the defendant has pleaded guilty, it falls within the lower end of the range of seriousness of matters that come before the Court.

37Deterrence is a consideration in the sentencing process. In relation to specific deterrence, I have noted the steps taken by the defendant to ensure the risk does not recur. These steps were appropriate in the circumstances. I accept that the defendant is a safety conscious employer and the likelihood of it re-offending is slight. Nevertheless, specific deterrence should still be a factor taken into account in fixing the penalty because it is apparent that the defendant continues to operate in what is a relatively hazardous industry: Capral Aluminum Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610.

38General deterrence should also form an element of the penalty. It was Mr Bunn's evidence that no one he had spoken to in the industry had come across such an incident previously that had resulted in a cement spill of the nature that occurred at the Tumut plant on 12 November 2009. Clearly, such a spill can occur and it is appropriate to deter others from failing to take a rigorous approach to preventing such a risk.

39There are a number of subjective factors that are relevant. First, the defendant pleaded guilty. The prosecutor submitted the defendant failed to enter a plea of guilty at the earliest opportunity to the initial application for order, but it was accepted that the defendant was entitled to a discount because it has pleaded guilty to the amended application for order and the guilty plea was entered at an early point. In the circumstances, there is a utilitarian value in the guilty plea in that it has saved the expenditure of funds that are associated with putting the prosecution to proof and saved the court's time. I will discount the penalty by 25 per cent for the utilitarian value of the guilty plea.

40I accept the defendant has expressed genuine remorse and contrition both through its plea of guilty and more directly in the affidavit of Mr Bunn. The defendant has also expressly accepted responsibility for the breach of the Act, as reflected in the terms of the affidavit of Mr Bunn.

41It is common ground that the defendant cooperated in the WorkCover Authority's investigation of the incident on 12 November 2009.

42I accept from the evidence of Mr Bunn that the defendant is a good corporate citizen and that is also reflected in the extensive community activities of the directors of the defendant. The company has been operating for nearly 50 years without any prior convictions.

43The defendant asks the Court to take into account its size: Bruce Lloyd Dowling v Overtop Pty. Limited [1998] NSWIRComm 509; (1998) 86 IR 319. It was submitted the defendant is a small family owned and operated business in regional New South Wales. Further, that the burden of any fine levied will fall squarely on the shoulders of one family, the Sargent family and so any fine should be substantially reduced.

44I have taken the company's size into account and that the burden of the fine will fall on the family that owns the business.

45Having regard to the objective and subjective features of the case I have decided that the penalty should be $80,000.

Orders

46The 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.

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Decision last updated: 04 July 2012