Industrial Relations Commission New South Wales

• Medium Neutral Citation: Inspector Cooper v Ward [2013] NSWIRComm 95
• Hearing dates: 27 September 2013
• Decision date: 31 October 2013
• Jurisdiction: Industrial Court of NSW
• Before: Staff J

Decision

(1) The offence is proven and a verdict of guilty is entered.

(2) The defendant is convicted of the offence, as charged.

(3) The defendant is fined an amount of $6500 with a moiety thereof to the prosecutor.

(4) The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

• Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) and s 26(1) of the Occupational Health and Safety Act 2000 - boatbuilding industry - employees exposed by skin contact or inhalation to chemicals - fatality - general deterrence - specific deterrence - steps taken to reduce or eliminate risks - subjective factors - good corporate citizenship - no prior conviction - plea of guilty - penalty - costs
• Legislation Cited: Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) [2000] NSWIRComm 46; (2000) 99 IR 159; Inspector Dall v Ullrich [2012] NSWIRComm 87; Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143; Inspector Mason v Graham Allen Chapman & anor [2013] NSWIRComm 71; Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266; Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465; Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163; Workcover Authority of NSW (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170; WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248; Riley v Australian Grader Hire Pty Ltd; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449; R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130; WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80; WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207; WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64; (2000) 49 NSWLR 700; WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81; WorkCover Authority (NSW) (Inspector Shaw) v Du Pont (Australia) Pty Ltd (2006) 152 IR 68
• Cases Cited: Crimes (Sentencing Procedure) Act 1999
• Category: Principal judgment
• Parties: Inspector Stephen Cooper (Prosecutor); Richard Geoffrey Ward (Defendant)
• Representation: Counsel: Mr M Cahill (Prosecutor); Mr PM Skinner (Defendant); Solicitors: WorkCover Authority of New South Wales (Prosecutor); Gillis Delaney Lawyers (Defendant)
• File Number(s): IRC 913 of 2010

Judgment

1 This matter concerns an incident which occurred on the afternoon of 25 August 2008, some time between 2.00pm and 2.15pm, when Michael Parsons, who was employed as a shipwright by Seawind Catamarans Pty Ltd ("Seawind"), now known as Shipcove Pty Ltd (externally administered) (the names "Seawind" and "Shipcove" are used in this judgment to refer to the defendant's corporation), was found lying on the top of the portside forward bunk of a partly constructed catamaran. When found, Mr Parsons did not respond.

2 On the day of the incident, Mr Parsons was working on the fit out stage of a catamaran, which included completing the internal timber fit out.

3 Two metal containers bearing markings that identified them as Mr Parsons containers, were located within the portside hull in the proximity of where Mr Parsons was found. The plastic lids fitted to each of these containers had been punctured. One of the containers held a quantity of acetone and the other, a quantity of Bostik 9913. These are chemical solvents used during the building of a catamaran. When found, Mr Parsons was not wearing a respirator.

4 At the time of the incident, Mr Richard Geoffrey Ward ("the defendant"), was the sole director of Shipcove. The defendant, by virtue of the operation of s 26(1) of the Occupational Health and Safety Act 2000 ("OHS Act"), was charged in his capacity as the sole director of Shipcove, with a contravention of s 8(1) of the OHS Act.

Relevant statutory provisions

5 Section 8(1) of the OHS Act 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.

6 Section 26(1) of the OHS Act provides:

26 Officers of corporations required to exercise due diligence

(1) If a corporation has a duty or obligation under a relevant provision, an officer of the corporation must exercise due diligence to ensure that the corporation complies with that duty or obligation.

The charge

7 The defendant, in an application for order, was charged by virtue of s 26(1) of the OHS Act, in that Seawind, being an employer, on 25 August 2008, at Lot 4, York Road, Bellambi in the State of New South Wales ("the site"), failed to ensure the health, safety and welfare at work of all of its employees, in particular Michael Parsons, contrary to s 8(1) of the OHS Act.

8 The particulars of the charge were:

1. The risk to health, safety and welfare to which Seawind's employees, in particular Parsons, were exposed was a risk of exposure, by skin contact and/or inhalation, to chemicals of a character, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, and to such an extent that such exposure was likely to be injurious to their health, safety and welfare.

2. Seawind failed to provide such plant as was necessary to ensure the health and safety of its employees, in particular Parsons, in that:

(a) Seawind failed to install dedicated exhaust/ extraction ventilation which:

(i) operated independently of the actions of employees who were permitted or required by Seawind to work within the hulls of vessels under construction at the site; and

(ii) effected ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls;

(b) Seawind provided domestic-type fans to its employees as the means of mechanically ventilating the hulls of vessels under construction at the site, such fans being unsuitable and/ or inadequate for that task in that:

(i) the fans provided by Seawind created minimal air flow within the hull;

(ii) the fans provided by Seawind effected an insufficient refreshment of air within the hulls with air from outside the hulls to prevent the accumulation of chemical fumes, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls;

(iii) the fans provided by Seawind relied upon the employees permitted or required by Seawind to work within the hulls for their installation and activation; and

(iv) the location, use and effective operation of the fans provided by Seawind, whenever the compound(s) likely to give off chemical fumes were in use within in those hulls, could not readily be confirmed by supervisory staff from outside the hulls.

3. Seawind should have provided such plant as was necessary to ensure the health and safety of its employees, in particular Parsons, in that Seawind should have provided dedicated exhaust/ extraction ventilation which:

(a) operated independently of the actions of employees who were permitted or required by Seawind to work within the hulls of vessels under construction at the site; and

(b) effected ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls.

4. Seawind failed to minimise the use of acetone and Bostik 9913, in the construction of vessels at the site.

5. Seawind should have provided cleaning agents which did not contain chemicals, such as acetone, isohexane, and toluene or other volatile organic compounds, which were of such a character and/or to such an extent that there use was likely to be injurious to the health of Seawind's employees, such as water-based solvents and cleaning agents.

6. Seawind failed to enforce use by its employees, in particular Parsons, of such means of storage of solvents, including acetone and Bostik 9913, as was necessary to ensure their health, safety and welfare in that it failed to prevent and/ or permitted the use by such employees, in particular Parsons, of unlabelled containers with punctured lids as a means of storage of such solvents.

7. Seawind should have enforced use by its employees, in particular Parsons, of containers for the storage of solvents, including acetone and Bostik 9913, that were labelled and which were fitted with secure and sealable lids that prevented the release of vapours of such solvents. Alternatively and additionally, Seawind should have provided to, and enforced the use of by, its employees, in particular Parsons, containers that were labelled, spill-resistant and which inhibited the release of vapours of such solvents.

8. Seawind failed to provide such personal protective equipment as was necessary to ensure the health, safety and welfare of its employees, in particular Parsons, while working with solvents, including Bostik 9913, in that Seawind provided gloves constructed of material, in particular latex, that was, given its permeability, unsuitable as a means of preventing skin exposure to those chemicals of employees who were required or permitted to use Bostik 9913.

9. Seawind should have provided gloves constructed of chemical-resistant material suitable as a means of preventing skin exposure to organic hydrocarbons, including isohexane, toluene and acetone in conformity, with AS2161 Industrial Safety Gloves and Mittens, such as gloves manufactured from nitrile.

10. Seawind failed to provide a system of work for the use of solvents, including acetone and Bostik 9913, within the hulls of vessels under construction at the site that was without risk to the health, safety and welfare of employees who were required or permitted by Seawind to work within those hulls in that:

(a) Seawind failed to conduct a risk assessment in relation to solvents, including acetone and Bostik 9913, used in the course of the construction and finishing of vessels at the site and to develop control measures in response to the findings of any such risk assessment that prevented or reduced the risk to employees who were required or permitted to work within those vessels from the accumulation and/or inhalation of chemical fumes and/or skin contact with chemicals that were likely to be injurious to their health;

(b) Seawind failed to issue to its employees, in particular Mr Parsons, a safe work method statement or other detailed and documented work procedure setting out a step-by-step statement of the manner of and requirements for performing work involving the use of solvents, in particular acetone and Bostik 9913, within the hulls of boats under construction at the site;

11. Seawind should have issued its employees, in particular Mr Parsons, with a safe work method statement or other detailed and documented work procedure setting out a step-by-step statement of the manner of and requirements for performing work involving the use of solvents, in particular acetone and Bostik 9913, within the hulls of boats under construction at the site that:

(a) described how the work was to be carried out;

(b) identified the work activities assessed as having safety risks;

(c) identified the safety risks;

(d) described the control measures that were to be applied to the work activities to control the identified risks, including the control measures to be applied for the purpose of controlling and/or minimising the risk of exposure to, namely skin contact with and/or inhalation of, chemicals of a character and to an extent that the exposure to those chemicals was likely to be injurious to the health, safety and welfare of the employees who were permitted or required to work within those hulls;

(e) included a description of the equipment to be used in the work, the standards or codes to be complied with, the qualifications of the persons to be assigned to carry out the work and the training required to do the work.

(f) required, prior, to the commencement of work within the hulls of vessels under construction at the site, the installation of dedicated exhaust ventilation fans to those hulls which operated independently of the actions of workers subsequently working within those hulls and effected ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls;

(g) required the wearing by Parsons of a properly fitted and properly maintained respirator fitted with a filter appropriate to provide protection against isohexane, toluene and acetone vapours and other ingredients of the solvent known as Bostik 9913.

(h) required the use of gloves constructed of chemical-resistant material suitable as a means of preventing skin exposure to organic hydrocarbons, including isohexane, toluene and acetone, in conformity with AS2161 Industrial Safety Gloves and Mittens, such as nitrile.

12. Seawind failed to provide adequate supervision to its employees, in particular Parsons, in that:

(a) Seawind failed to enforce the wearing by Parsons of a respirator fitted with a filter appropriate to provide protection against isohexane, toluene and acetone vapours and other ingredients of the solvent known as Bostik 9913.

(b) Seawind failed to enforce the wearing by Parsons of such gloves as were provided by it to be used when working with solvents, in particular acetone and Bostik 9913.

(c) Seawind failed to enforce the use by Parsons of such means of mechanical ventilation, in particular domestic-style fans, as was provided by it to ventilate the hulls of boats under construction at the site when Seawind knew or should have known that Parsons was likely to be using solvents, in particular acetone and Bostik 9913.

(d) Seawind failed to periodically check on the well-being of Parsons while he was working within the hull of a boat under construction at the site when Seawind knew or should have known that Parsons was likely to be using solvents, in particular acetone and Bostik 9913.

(e) Seawind failed to monitor closely Parsons' use of solvents, in particular acetone and Bostik 9913, in circumstances where it knew or should have known that on previous occasions that Parsons had failed to wear personal protective equipment, in particular a respirator and gloves, and/or failed to install and use such means of mechanical ventilation of hulls as was provided, in particular the portable domestic fans provided by Seawind for use inside the hulls under construction whilst Parsons was using solvents, in particular acetone and Bostik 9913, inside a hull of a vessel under construction at the site.

(f) Seawind failed to provide its supervisory staff with sufficient information and/or training, in particular information and training about the risk of central nervous system depression associated with prolonged exposure to the mixture of organic hydrocarbons contained in solvents used in the course of the construction and finishing of the vessels under construction at the site, in particular acetone and Bostik 9913, resulting in a risk of asphyxiation due to loss of consciousness and associated depression or cessation of respiration.

(g) Seawind failed to provide its supervisory staff, including Booth and Mahoney, with information and training regarding the requirements for the proper use of personal protective equipment and in particular, the requirements for the proper fitting, testing and use of respirators set out in Australian/ New Zealand Standard 1715:2009 Selection, use and maintenance of respiratory protective equipment ("AS 1715") so that they could properly supervise the proper use of respiratory protective equipment by Seawind's employees, including Parsons.

(h) Seawind failed to provide its supervisory staff, including Booth and Mahoney, with information regarding the requirements for effecting adequate ventilation of the hulls of boats under construction at the site, that is ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely, a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls.

13. Seawind should have provided adequate supervision to its employees, in particular Parsons, in that Seawind should have provided supervision which:

(a) enforced the wearing by Parsons of a respirator fitted with a filter appropriate to provide protection against isohexane, toluene and acetone vapours and other ingredients of the solvent known as Bostik 9913.

(b) enforced the wearing by Parsons of such

as were provided by it to be used when working with solvents, in particular acetone and Bostik 9913.

(c) enforced the use by Parsons of such means of mechanical ventilation, in particular domestic-style fans, as was provided by it to ventilate the hulls of boats under construction at the site when Seawind knew or should have known that Parsons was likely to be using solvents, in particular acetone and Bostik 9913.

(d) involved periodic checks on the well-being of Parsons while he was working within the hull of a boat under construction at the site when Seawind knew or should have known that Parsons was likely to be using solvents, in particular acetone and Bostik 9913.

(e) monitored closely Parsons' use of solvents, in particular acetone and Bostik 9913, in circumstances where it knew or should have known that on previous occasions that Parsons had failed to wear personal protective equipment, in particular a respirator and gloves, and/or failed to install and use such means of mechanical ventilation of hulls as was provided, in particular the portable domestic fans provided by Seawind for use inside the hulls under construction whilst Parsons was using solvents, in particular acetone and Bostik 9913, inside a hull of a vessel under construction at the site.

14. Seawind should have provided its supervisory staff with information and training about the risk of central nervous system depression associated with prolonged exposure to the mixture of organic hydrocarbons contained in solvents used in the course of the construction and finishing of the vessels under construction at the site, in particular acetone and Bostik 9913, resulting in asphyxiation due to loss of consciousness and associated depression or cessation of respiration.

15. Seawind should have provided its supervisory staff, including Booth and Mahoney, with information and training regarding the requirements for the proper use of personal protective equipment and in particular, the requirements for the proper fitting, testing and use of respirators set out in Australian/ New Zealand Standard 1715:2009 Selection, use and maintenance of respiratory protective equipment ("AS 1715") so that they could properly supervise the proper use of respiratory protective equipment by Seawind 's employees, including Parsons.

16. Seawind should have provided its supervisory staff, including Booth and Mahoney, with information regarding the requirements for effecting adequate ventilation of the hulls of boats under construction at the site, that is ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely, a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls.

17. Seawind failed to provide adequate instruction and training to its employees, in particular Parsons and Johnson, in that:

(a) Seawind failed to provide the purchasing officer, Johnson, with information and training regarding the requirements for the proper use of personal protective equipment and in particular, the requirements for the proper fitting, testing and use of respirators set out in Australian/ New Zealand Standard 1715:2009 Selection, use and maintenance of respiratory protective equipment ("AS 1715") so that he could supply and fit appropriate respiratory protective equipment to Seawind's employees, including Parsons.

(b) Seawind failed to provide Parsons with instruction and training with respect to the proper fitting, testing, use and maintenance of respirators as set out in AS 1715.

(c) Seawind failed to provide Johnson with instruction and training regarding the characteristics and type of gloves necessary to be used in order to work safely with solvents it required or permitted its employees to use in the course of the construction and finishing of vessels at the site and, in particular Bostik 9913, so that he could supply gloves with the necessary characteristics for use with such solvents.

(d) Seawind failed to provide Parsons with instruction and training regarding the characteristics and type of gloves necessary to be used in order to work safely with solvents it required or permitted its employees to use in the course of the construction and finishing of vessels at the site and, in particular Bostik 9913.

(e) Seawind failed to provide its employees, in particular Parsons, with instruction and training regarding the requirements for effecting adequate ventilation of the hulls of boats under construction at the site that is ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls.

(f) Seawind failed to provide training, including periodic refresher training, to its employees, in particular Parsons, with respect to the risks to their health, safety and welfare associated with the use inside the hulls of vessels under construction of solvents, in particular Bostik 9913, and in particular, about the risk of central nervous system depression associated with prolonged exposure to the mixture of organic hydrocarbons contained in solvents used in the course of the construction and finishing of the vessels under construction at the site, in particular acetone and Bostik 9913, resulting in asphyxiation due to loss of consciousness and associated depression or cessation of respiration.

18. Seawind should have provided the purchasing officer, Mr Johnson, with information and training regarding the requirements for the proper use of personal protective equipment and in particular, the requirements for the proper fitting, testing and use of respirators set out in Australian/ New Zealand Standard 1715:2009 Selection, use and maintenance of respiratory protective equipment ("AS 1715") so that he could supply and fit appropriate respiratory protective equipment to Seawind's employees, including Parsons.

19. Seawind should have provided Parsons with instruction and training with respect to the proper fitting, testing, use and maintenance of respirators as set out in AS 1715.

20. Seawind should have provided Johnson with instruction and training regarding the characteristics and type of gloves necessary to be used in order to work safely with solvents it required or permitted its employees to use in the course of the construction and finishing of vessels at the site and, in particular Bostik 9913, so that he could supply gloves with the necessary characteristics with such solvents.

21. Seawind should have provided Parsons with instruction and training regarding the characteristics and type of gloves necessary to be used in order to work safely with solvents it required or permitted its employees to use in the course of the construction and finishing of vessels at the site and, in particular Bostik 9913.

22. Seawind should have provided instruction and training regarding the requirements for effecting adequate ventilation of the hulls of boats under construction at the site that is ventilation of those hulls sufficient to prevent the accumulation of chemical fumes, namely a mixture of organic hydrocarbons consisting of isohexane, toluene and acetone, within those hulls that were likely to be injurious to the health of employees who were required or permitted by Seawind to work in those hulls.

23. Seawind should have provided training, including periodic refresher training, to its employees, in particular Parsons, with respect to the risks to their health, safety and welfare associated with the use inside the hulls of vessels under construction of solvents, in particular acetone and Bostik 9913, including the risk of central nervous system depression associated with prolonged exposure to the mixture of organic hydrocarbons contained in solvents used in the course of the construction and finishing of the vessels under construction at the site, in particular acetone and Bostik 9913, resulting in asphyxiation due to loss of consciousness and associated depression or cessation of respiration.

Prosecutor's evidence

9 Mr M Cahill of counsel, who appeared for the prosecutor, tendered an agreed statement of facts ("ASF") which provided:

1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter.

2. At all material times Seawind Catamarans Pty Ltd [ACN 055 506 548] ("Seawind") was a body corporate whose registered address is situated at level 3, 63 Market Street, Wollongong in the State of New South Wales.

3. At all material times Richard Geoffrey Ward ("the defendant"), of 188 Foxground Road, Foxground in the State of New South Wales was a director of Seawind.

4. At all material times Seawind conducted its business at premises located at Lot 4, York Road, Bellambi in the State of New South Wales and was an employer.

5. At all material times Seawind, formerly known as Shipcove Pty Ltd, was a corporation engaged in the business of manufacturing catamarans. It employed approximately 100 people.

6. Seawind operated two assembly lines at the site. Workers employed on the first assembly, called the "1160 line", constructed catamarans known as the "Seawind 1160" series. Workers employed on the second assembly, called the "1000 line" or the "ten metre line", constructed catamarans known as the "Seawind 1000" series.

7. Each of the assembly lines in operation at the site was divided into different construction stages. The "1000 line" had three stages respectively called "assembly 1", "assembly 2" and "fitout". Assembly 1 incorporated the assembly of the main components of the hulls of each catamaran under construction, including the fitment of some bulkheads, the installation of the rear beam, fibre-glassing of elements and some dressing of external joints. Assembly 2 incorporated the fitting of bulkheads and other work associated with the construction of the main components of the finished craft, together with the commencement of fitout including plumbing, electrical works, internal carpentry and cabinet installation and carpeting. The fitout stage incorporated completion of plumbing, internal carpentry and related fixtures and fittings, hatch and window fitment, installation of deck equipment and finishing work.

8. The defendant was the sole director and the managing director of Seawind.

9. Michael Parsons ("Parsons") was employed by Seawind as a shipwright. Parsons had been employed by Seawind since February 2001, having commenced work as a first year apprentice shipwright. Parsons became a trade-qualified shipwright in January 2006. At the time of the subject incident, Parsons was working on the fitout stage of the 1000 line, where he had worked for about 5 years, and he was responsible for completion the internal timber fitout of the 1000 series including the installation and finishing of timber separation bulkheads, doors and frames, timber flooring, cabinetry and other trimming details.

10. Gary Williams ("Williams") was employed by Seawind as a shipwright.

11. Eli Jones ("Jones") was employed by Seawind as a team leader for the 1160 line (assembly one).

12. Kalon Scales ("Scales") was employed by Seawind as a labourer.

13. Brenton Mahoney ("Mahoney") was employed by Seawind as a production supervisor. He was the direct supervisor of Parsons and was the supervisor responsible for the 1000 line.

14. Margaret Jones was employed by Seawind as a detailer.

15. Chad Booth ("Booth") was employed by Seawind as a production supervisor. He provided training to Parsons on behalf of Seawind and was his supervisor until approximately mid-2007.

16. Michael Johnson ("Johnson") was employed by Seawind as a purchasing officer. His responsibilities included supervising the equipment store at the site.

17. John Oste ("Oste") was employed by Seawind as operations manager. He had overall responsibility for the production area at the site.

The Work

18. On 25 August 2008 Seawind had three catamarans under construction at the site, including two "Seawind 1000XL" model catamarans otherwise known as the "1000 series". The two 1000 series catamarans were at different stages of construction on the "1000 line". One of the 1000 series catamarans, which was under construction, as at 25 August 2008, was designated "SC315" ("the catamaran"). Work had commenced on the construction of the catamaran on 6 August 2008 and had advanced to the fit out stage when deck work, timber work, the fitting of motors and detailing would be performed.

19. It was usual for Parsons to work on boats at this stage of the construction process. Parsons was assigned to carrying out timberwork internal to the hulls of the "1000" series involving the fitting of frames, installation of cupboards, hanging doors and timber finishing.

20. On 25 August 2008, in accordance with usual practice, Parsons was working alone in the front of the port hull of the catamaran. This area was designed to function as a bunk area. Its dimensions were approximately 1.8 metres high, 1.2 metres wide (tapering towards the floor/ keel and 2.4 metres long (tapering toward the bow). The forward bunk was constructed so that there were three storage holds present between the hull and the bunk. Access to the three storage holds was obtained through openings (or hatches) in the top fibreglass deck of the bunk. Each of the three hatches into the three storage holds was open. Also, there was an open penetration, approximately 50cm x 50cm, in the deck immediately above into which a hatch was to be fitted.

21. During the course of construction, carpet was fitted within the hull of the catamaran as a lining. Contact adhesive was applied to the back of the carpet and to the surfaces within the hull to which it was to be attached. After allowing a couple of minutes for the adhesive to cure, the carpet was pressed against the surfaces to which it was to be attached.

22. Carpet had been fitted within the catamaran approximately one week prior to 25 August 2008, consistent with Seawind's standard three-week construction cycle for such boats.

23. It was usual practice to clean excessive adhesive from internal surfaces of the hull, including from the top of the bunk area and around the interior surfaces of the storage holds, a week after the carpet had been fitted. Solvent/ contact thinners were used to remove any excess contact adhesive. Bostik 9913 was a solvent that had been in use for many years prior to the incident by Seawind for that purpose and other purposes, including removal of paint and resin from the surface of fibreglass and other finishes. Acetone was used by Seawind as a solvent also. Generally, both acetone and Bostik 9913 were applied to surfaces by the use of a rag.

24. From time to time, Parsons was required or permitted by Seawind to use solvents, including Bostik 9913, in the normal course of his employment to remove excess contact adhesive from surfaces within the confines of hulls under construction and for other purposes, including removal of paint, resin and scuff marks from the surface of fibreglass and other finishes within the confines of hulls under construction.

The System of Work

25. Seawind had not conducted any formal, documented risk assessments in relation to the construction of catamarans and in particular, with respect to tasks involving the use of solvents, such as acetone and Bostik 9913, to clean glue and other material from surfaces inside the hulls of catamarans under construction at the site, including areas such as the portside forward bunk and/or the storage holds under the forward bunk.

26. Seawind did not have in place any detailed written safe work method statements, or other documented safe work procedures, in respect of the construction of catamarans, and in particular, with respect to tasks involving use of solvents, such as acetone and Bostik 9913, to clean glue and other material from surfaces within the hulls of catamarans under construction, including areas such as the portside forward bunk and/or the storage holds under the forward bunk.

27. Seawind provided its employees with portable domestic electric fans for use within the confines of hulls under construction at the site. Seawind provided for the ventilation of hulls under construction when contact adhesive, fibreglass resin and/or solvents were use by providing for the placement of two domestic standard portable fans within the confines of the hull in which the contact adhesive, fibreglass resin and/or solvents were being used. The fans were to be placed with the intention of create cross-ventilation and/or refreshment of the air within the hull via open penetrations in the hull, such as the companionway and/or other open penetrations, such as open hatches.

The Incident

28. On the afternoon of 25 August 2008, some time between 2pm and 2-15pm, Jones and Williams found Parsons lying on top of the portside forward bunk with his head, arms and torso completely in the portside front storage hold. When found, Parsons did not respond when called by name and Parsons did not respond when moved. When placed on the floor of the port hull, Parsons' eyes were closed, he was not breathing, his face appeared blue and purple in patches, froth was coming from his mouth and he had a red mark on his forehead consistent with a chemical burn due to contact with a solvent such as Bostik 9913.

29. Two metal containers, bearing markings that identified them as Parsons' containers, were located within the portside hull and in proximity to where Parsons was found. The plastic lids fitted to each of these containers had been punctured. One of these containers held a quantity of acetone. The other of these containers held a quantity of Bostik 9913.

30. As at 25 August 2008, it was common practice for such unlabelled containers, fitted with punctured plastic lids, to be used by Seawind's employees, including Parsons, as containers for solvents, including acetone and Bostik 9913. The use of containers of this type, in conjunction with such solvents, by employees working inside hulls was known to Seawind's supervisory staff.

31. A red rag was located adjacent to Parsons in the storage hold. Subsequent tests conducted on this rag revealed that it contained ingredients consistent with the constituents of Bostik 9913.

32. An amount of clear liquid was discovered at the bottom of one of the storage holds. Tests on this liquid identified it as containing ingredients consistent with the constituents of Bostik 9913.

33. When found, Parsons was not wearing a respirator and no respirator was located in the vicinity.

34. When found, Parsons was not wearing gloves and no gloves were located in the vicinity.

35. When found, Parsons was not wearing safety glasses.

36. A number of Seawind's employees assisted in moving Parsons from the forward bunk area within the port hull to the floor of the hull next to the companionway and, up the companionway, to the deck of the catamaran.

Bostik 9913

37. A material safety data sheet ("MSDS") relating to Bostik 9913, issued by its manufacturer in April 2005, states as follows:

Flammable liquid. May form flammable vapour mixtures with air...Electrical requirements for work area should be assessed according to AS3000. Vapour may travel a considerable distance to source of ignition and flash back. Avoid all ignition sources. All potential sources of ignition (...electrical equipment etc) must be eliminated both in and near the work area

...

Avoid skin and eye contact and inhalation of vapour, mist or aerosols

...

...absorption through the skin may be significant source of exposure

...

Use with local exhaust ventilation or while wearing appropriate respirator

...

Wear...impervious gloves. Use with adequate ventilation. If inhalation risk exists wear organic vapour/ particulate respirator meeting the requirements of AS/ NZS 1715 and AS/ NZS 1716

...

Inhalation of vapour can result in headaches, dizziness and possible nausea. Inhalation of high concentrations can produce central nervous system depression, which can lead to loss of co-ordination, impaired judgment and if exposure is prolonged, unconsciousness

...

The major effects in humans following acute exposure to high concentrations (such as in deliberate sniffing or industrial accidents) are central nervous system dysfunction and narcosis

38. The components of Bostik 9913 are toluene, acetone and light petroleum naphtha (mainly hexane isomers also known as isohexane). All these substances penetrate the skin. Acetone and hexane isomers also damage (burn) the skin reducing it to a porous non-selective membrane such that, as a consequence of contact, permeability of the skin may increase and the penetration through the skin of acetone, hexane and toluene may increase accordingly.

39. Bostik 9913 is a Dangerous Good Class 3 flammable liquid.

40. The vapours of the chemical constituents of Bostik 9912 are 2 to 3 times heavier than air with the result that they sink in air and would have collected at the bottom of the hull, including the area in which Parsons was found.

41. Seawind had available a MSDS relating to Bostik 9913 as part of a range of safety sheets at the site. The exact locations within the factory at which the sheets were kept are unclear.

42. Seawind provided employees with training with respect to the various MSDS available at the premises on their induction. This training consisted of new employees being shown examples drawn from the range of MSDS maintained at the premises by Seawind and being told about the availability of the sheets within the premises.

43. Seawind did not have in place a formal training system whereby employees, including Parsons, were provided with specific formal training relating to the MSDS for each chemical or substance used by employees in the course of their employment and/or periodic refresher training with respect to those documents.

"'Confined Spaces' such as hulls".

44. An induction document signed by Parsons on 6 February 2001 stated:

Confined spaces (such as hulls) can be dangerous if not properly ventilated - always ensure when using resins, glues and solvents that extraction fans are used in confined spaces

45. These comments were repeated in an employee safety induction sheet issued on 19 May 2008 after a review.

46. Despite the above identification by Seawind of hulls as "confined spaces", Seawind did not provide its employees with specific training or information regarding the physical characteristics of the hulls under construction as "confined spaces" and the nature and extent of the risks associated with the use of chemical solvents, including acetone and Bostik 9913, in such an environment.

47. Many of Seawind's employees, including supervisors, did not have any understanding of this characteristic of the hulls.

48. Despite the references in Seawind documentation to the use of extraction fans where resins, glues and solvents were in use, prior to 25 August 2008 Seawind did not provide extraction fans for use in the area inside the hulls where Parsons was required or permitted to work with resins, glues and solvents.

49. However, portable household/domestic fans were provided by Seawind for use inside hulls under construction at the site for the purpose of creating air flow inside those hulls, in particular when solvents, including acetone and Bostik 9913, were being used inside those hulls.

50. Compliance with Seawind's procedure with respect to the use of the portable household/domestic fans was not always followed by employees who were using solvents, including acetone and Bostik 9913, inside the hulls under construction at the site.

51. The use of the portable household/domestic fans for the purpose of creating airflow inside the hulls was not always enforced by Seawind.

52. Further, and in any event, the operation of the operation of the portable household/domestic fans in accordance with Seawind's procedures did not cause the air inside hulls to be refreshed.

53. Further, Seawind had not designed or implemented any means of ensuring that the ventilation of the hulls under construction at the site occurred independently of the workers assigned to work inside those hulls.

54. In any event, no fan was located in accordance with Seawind's procedures and operating within the area of the hull where Parsons was working on 25 August 2008.

55. In the absence of a proper ventilation system, Seawind had no system requiring that, when solvents such as acetone and Bostik 9913 were being used inside hulls, a stand-by person be on duty. No stand-by person was on duty whilst Parson was working in the hull of the catamaran on 25 August 2008.

56. Seawind had no system requiring the conduct of atmospheric testing or monitoring prior to and during the conduct of work inside hulls, particularly work involving the use of solvents, including acetone and Bostik 9913. No atmospheric testing or monitoring was carried out on the hull on 25 August 2010, including period on that day whilst Parsons was working inside that hull.

57. No communication device, for example a duress alarm or two-way radio, was provided to workers, including Parsons, undertaking work in the hull of the catamaran.

Ventilation of Hulls under construction

58. Testing of ventilation flow rates commissioned by Seawind after the incident revealed that Seawind's pre-incident system, using the portable household/domestic-style fans, was ineffective as a means of ventilating the hull. The use of these fans in the manner prescribed by Seawind provided minimal air flow (4 litres per second) in the area in which Parsons was working and moreover acted to circulate the air within the hull rather than to introduce new air into the hull from outside the hull.

59. Subsequent to the incident, Seawind has provided purpose-built, dedicated extraction fans designed to fit over the forward hatch of hulls under construction at the site. Such fans are installed over an open hatch at the bow of every hull in the factory and are wired so that they are activated when the lights in the factory are turned on. Such fans therefore operate independently of workers engaged in work in the hulls. Such fans also have visual indicators installed so that their operation can be confirmed from outside the hull, for example by a supervisor or manager.

60. Use of the portable household/domestic fans, in the manner described above, has ceased.

61. Testing of the exhaust fans supplied post-incident (which operate to move between 800 and 850 litres of air per second) indicated that even with such fans running, the atmospheric concentration of toluene and acetone remained at levels in excess of the maximum recommended by the National Health and Safety Commission in its Exposure Standards for Atmospheric Contaminants in the Occupational Environment issued in May 1995.

62. It follows that personal respiratory protective equipment designed for use with solvents should be used where employees are working below deck for extended periods of time whilst solvents, such as acetone and Bostik 9913, are being used.

Personal Protective Equipment

63. The personal protective equipment provided by Seawind to its employees included respirators, gloves and safety glasses.

64. Australian/ New Zealand Standard 1715:2009 Selection, use and maintenance of respiratory protective equipment ("AS 1715") states:

For RPE with a close fitting facepiece to provide its designed protection, it is essential that an adequate face seal is achieved, i.e. it be properly fitted to the wearer

...

The proper fitting of respiratory protective equipment requires the use of some type of fit test to determine an adequate match between the facepiece of the RPE and face of the wearer

65. AS 1715 also identifies and discusses the frequency and types of fit tests required, as well as the adverse effect of facial hair, in effecting a good facial seal of a respirator which utilises a close fitting facepiece.

66. As at 25 August 2008 3M brand respirators were the most common type of respirator supplied by Seawind to its employees. Such respirators were manufactured in three different sizes. Seawind was unaware of the different sizes available and made available only one size to its employees.

67. As at 25 August 2008 Seawind also provided some employees with Sundstrom brand respirators.

68. As at 25 August 2008 Johnson, Seawind's purchasing officer, was charged also with responsibility for distribution and fitment of the respirators to be used at the site. However, Johnson had not been provided with any training relating to the sizing and fitting, including testing, of the respirators he distributed.

69. As at 25 August 2008, Seawind did not provide training to any of its employees with respect to the proper fitting, use and maintenance of the respirators issued to its employees.

70. As at 25 August 2008, Seawind failed to enforce the wearing of respirators.

71. As at 25 August 2008 it was common practice for Seawind's employees, including Parsons, not to use the respirators when working with chemicals the nature of which required such use. Such practice was known to Seawind's supervisors and senior management.

72. It was not until after the incident that Seawind made available to its employees respirators in the various sizes and obtained a respirator fitting test kit that permitted it to determine the proper size to issue to particular employees. Staff then underwent a fit test and training sessions in relation to the use of such respirators.

73. As at 25 August 2008 two types of gloves were provided by Seawind to its employees, namely leather gloves and latex gloves. The latex gloves were provided for use when employees were working with chemicals, including solvents such as acetone and Bostik 9913. However, latex gloves are permeable to solvents such as acetone and Bostik 9913 and, therefore, are ineffective as a means of providing skin protection to employees using solvents such as acetone and Bostik 9913. Chemical-resistant gloves, for example nitrile gloves, were readily available as at the time of the incident.

Prior Recognition of Risk/ Prior Incidents

74. It has been reported that there was a practice which involved employees, including Parsons, Scales, Mahoney and Margret Jones, deliberately exposing themselves to fumes from chemicals used in the course of the construction of vessels at the site in order to "get high". The chemicals allegedly abused included contact adhesives and solvents, including acetone and Bostik 9913. The reported effects included light-headedness, laughing, singing, slurred speech and other effects similar to drunkenness. This practice has been reported as including groups of (non-respirator wearing) employees gathering in the hull of a boat in which contact glue for the fitting of carpets was being sprayed.

75. Some time between 2000 and 2002 an incident occurred involving an employee called Darren Growno. Growno lost consciousness when spraying contact glue for the laying of carpet in the hull of a catamaran under construction at the site.

76. At about the same time two other employees, Tim Faraway and John Douglas, collapsed while using chemicals in the course of their employment with Seawind.

77. Seawind did not carry out any review of its procedures relating to the use of chemicals, including contact adhesives and solvents, in response to these incidents.

78. Seawind did not introduce any formal, written procedural response to these incidents.

79. Prior to 25 August 2008 it was common practice for Seawind's employees not to wear respirators and gloves while using solvents, including acetone and Bostik 9913, in the hull of vessels under construction at the site. This work practice was known to Seawind's supervisory staff and management and discussed at weekly production meetings.

80. On 11 October 2006 Margaret Jones, at the time the chair of Seawind's OHS committee at the site, was working on the port side of a boat under construction on the ten metre line. She was cleaning the bunks and the bathroom of the vessel and was using Bostik 9913 and acetone to remove glue from the ceilings and walls. In accordance with her then frequent practice, she was not wearing a respirator and was working in the absence of mechanical ventilation. On this occasion Margret Jones was overcome by chemical fumes to such an extent that she was incoherent and hitting herself in the head with the handle of a chisel. Margret Jones was taken to the lunchroom by Booth and then sent for medical assessment. Oste and the defendant were made aware of the incident.

81. Margret Jones was issued with a written warning by Seawind following this incident and resigned as the chair of Seawind's OHS committee.

82. Prior to the incident of 11 October 2006, there had been a couple of occasions when Margret Jones had been involved in similar incidents in which she was significantly affected by the fumes, although on these occasions she did not black out. Again, on each of those occasions she was not wearing any personal protective equipment, including a respirator.

83. The OHS committee did not investigate any of the Jones' incidents.

84. Further, Seawind did not undertake any review of its chemical handling procedures, it procedures relating to the use of personal protective equipment, its hull ventilation procedures or its supervisory procedures and no changes were introduced to any of these procedures prior to 25 August 2008.

85. In the period between the incident on 11 October 2006 and 25 August 2008 Margret Jones wore a respirator whilst working with acetone and Bostik 9913 but, on occasions, still became "light-headed" when using those solvents.

86. An occupational hygienist report, dated 21 May 2007, commissioned by Seawind concerning solvent vapours and inhalable dust at the site was conducted in April 2007 and forwarded to Seawind in May 2007. The report commented:

It was observed that some of the workers...spent extensive amounts of time inside the hull of a boat in using various solvent based resins and glues. These areas are at times small and completely enclosed (e.g. bow or stern of catamaran hull). In some areas that I visited the odour of solvent vapour was quite overpowering. Some operators noted that when conducting extended hours of work in these locations that they suffered from headaches.

It is important to remember that these types of resins and glues must be used in well ventilated areas, and that additional ventilation may be required in awkward, small and enclosed areas to reduce the effects of these solvents. Additional ventilation could be achieved by blowing outside air into these spaces during the gluing/ resin work to dilute any airborne concentrations of solvent vapours that may be present. (emphasis in bold was italicised in original)

...

Use of respirators ...requires adequate training prior to use. Training should cover when to use the respirator, appropriate types for workplace circumstances, limitations of respirator, correct fit techniques and fit testing, care and maintenance (for cartridges and face piece devices).

Training should be conducted at commencement of employment and at routine intervals thereafter. The frequency of retraining will depend on the complexity of the respirator program and degree of hazards encountered. As a guide, retraining should be conducted annually.

87. The report was discussed among senior management of Seawind.

88. However, Seawind did not undertake any review of its chemical handling procedures, it procedures relating to the use of personal protective equipment, its hull ventilation procedures or its supervisory procedures in response to these discussions or in response to industrial hygienist report dated 21 May 2007 and no changes were introduced to any of these procedures, as a consequence of that report, prior to the incident on 25 August 2008.

89. On 4 June 2008 Parsons was found unconscious in the starboard forward hull of a catamaran under construction at the site. On this occasion, Parsons had been using contact thinners to clean the tops of bunks and was found by Scales unconscious and slumped inside a hatch. Parsons was not wearing a mask or gloves and no fan had been installed to provide ventilation. Williams used compressed air to dissipate fumes in the hull. This incident was reported to Parsons' supervisor, Mahoney. Parsons was sent home and the following day issued with a verbal warning by Mahoney. The incident was not reported to senior management of Seawind or to WorkCover.

90. In approximately July 2008 Mahoney had directed Parsons to wear a respirator as the latter's co-worker on the boat upon which they were working was using contact glue. Parsons refused. Mahoney then "clocked off" Parsons although the latter remained on the boat.

91. Parsons was observed working in the port hull of the catamaran earlier on 25 August 2008 in the presence of chemical vapours while not wearing a respirator.

Instruction and Training

92. Seawind did not provide any formalised training to employees. Training took the form of verbal instruction combined with some practical demonstrations on the job.

93. In particular, the practice of Seawind was to issue verbal instructions to employees in relation to the use of chemicals and the use of personal protective equipment at the time of the commencement of their employment. Such instruction would take a few minutes.

94. Mahoney did not provide any training or refresher training to Parsons.

95. Seawind did not have any policy or practice of providing refresher training to its employees subsequent to their initial induction training.

Supervision

96. The only training Mahoney received from Seawind regarding the use of chemicals at the workplace was informal in nature and provided by an earlier supervisor in 2001. Such training lasted about one hour. Seawind never tested Mahoney's understanding of the use and associated dangers of such chemicals.

97. Mahoney received training in relation to the use of personal protective equipment during his induction when he commenced employment with Seawind. Such training lasted about half an hour, was informal in nature and was provided by an earlier supervisor.

98. After the incident on 25 August 2008, Mahoney received training from 3M on 16 September 2008 in relation to the proper sizing, fitting and testing of respirators. This was the first training Mahoney had received subsequent to his induction when he commenced employment with Seawind.

99. Mahoney knew that Parsons would be working within the portside hull of the catamaran on 25 August 2008. He did not attend that area at any time during that day as he was performing his other duties. Mahoney last saw Parsons at approximately 1-30pm when the latter was on his way to the toilet.

100. Mahoney had not received any training in relation to the requirements for the reporting of workplace incidents to WorkCover.

101. Following the 4 June 2008 incident, Mahoney made no enquiries of Parsons as to whether the latter had any health issues in relation to substance abuse.

Absence of Medical Surveillance

102. No medical surveillance was carried out in respect of staff at the site that used solvents.

Emergency Procedures

103. The only emergency procedure training provided by Seawind at the time of the incident involving Parsons was in respect of an evacuation procedure in the event of fire. Such training had been provided a few times over a period of years.

Post-Incident Measures

104. Subsequent to 25 August 2008 Seawind conducted risk assessments with respect to the use of chemicals at the site and commissioned the conduct of atmospheric testing and monitoring of chemicals inside hulls under construction at the site.

105. Subsequent to 25 August 2008 Seawind arranged for a representative from 3M to attend to train staff in relation to the correct fitting, use and maintenance of respirators and to test that masks supplied to staff were fitted correctly. Also, Seawind issued employees with sealable buckets and installed lockers in which to store their respirators when not in use for the purpose of reducing the risks of chemical contamination of the face masks.

106. Since the incident on 25 August 2008, Seawind issued documented procedures in relation to the wearing of respirators and use of chemicals beneath the deck of boats under construction.

107. Since the incident on 25 August 2008, Seawind has taken steps to enforce the wearing of respirators by its employees when working with chemicals, including sending employees home for non-compliance.

108. Additionally, Seawind has issued containers to employees that are labelled, spill-resistant and which inhibit the release of fumes. Also, it has ceased use of unlabelled tins of the type being used by Parsons on 25 August 2008.

109. Finally, Seawind has located copies of relevant MSDS's close to the work areas in which chemicals are used and also on all respirator lockers. However, the only additional training with respect to the use of MSDS's Seawind has provided to its employees is to advise its employees where the MSDS's are now located.

10 Mr Cahill tendered a document titled "Seawind production now in full swing in Vietnam" and also provided to the court a tender bundle of documents. Included therein were the following:

(1) 19 colour photographs taken by Inspectors Charles and Cobbin on 25 August 2008, showing the Double Hull of the 1000 Series Catamaran being manufactured in the factory; man hole into the portside hull near the front portion of the hull; inside of the portside hull leading into the front portion of the hull; two tins of substances, marked 1000 and the other marked Michael Patrick Parsons; same two tins with one bearing the words "Contact Thinners" and a domestic fan.

(2) Medico-legal Report of Professor Ian Whyte prepared for the Coronial Inquest into the death of Mr Parsons.

(3) Transcript of evidence of Professor Whyte given at the Coronial Inquiry on 22 February 2012.

(4) Material safety data sheet ("MSDS") relating to Bostik 9913 dated April 2000.

(5) MSDS relating to Bostik 9913 dated 28 April 2005. Relevantly, under paragraph 8, Exposure Controls/Personal Protection the following appeared:

National occupational exposure limits:

No value assigned for this specific material by the National Occupational Health and Safety Commission (NOHSC Australia).

However for:

		TWA			STEL		CARCINOGEN	NOTICES
	ppm		mg/m3	ppm		mg/m3	-	-
Acetone	500		1,190	1,000		2,380	-	-
Toluene	100		377	150		565	-	sk

As published by the National Occupational Health & Safety Commission (NOHSC Australia).

TWA The time-weighted average airborne concentration over an eight-hour working day, for a five-day working week over an entire working life.

STEL (Short Term Exposure Limit) - the average airborne concentration over a 15 minute period which should not be exceeded at any time during a normal eight-hour workday.

'Sk' Notice - absorption through the skin may be a significant source of exposure. The exposure standard is invalidated if such contact should occur.

These Exposure Standards are guides to be used in the control of occupational health hazards. All atmospheric contamination should be kept too as low a level as is workable. These exposure standards should not be used as fine dividing lines between safe and dangerous concentrations of chemicals. they are not a measure of relative toxicity.

If the directions for use on the product label are followed, exposure of individuals using the product should not exceed the above standard. The standard was created for workers who are routinely, potentially exposed during produce manufacture.

Biological Limit Values: As per the "National Model Regulations for the Control of Workplace Hazardous Substances [NOHSC: 1005 (1994)]" the ingredients in this material do not have a Biological Limit Allocated.

Engineering measure: Ensure ventilation is adequate to maintain air concentrations below Exposure Standards. Use with local exhaust ventilation or while wearing appropriate respirator. Keep containers closed when not in use.

Personal protection equipment: OVERALLS, SAFETY SHOES, SAFETY GLASSES, GLOVES, RESPIRATOR.

Wear overalls, safety glasses and impervious gloves. Use with adequate ventilation. If inhalation risk exists wear organic vapour/particulate respirator meeting the requirements of AS/NZS 1715 and AS/NZS 1716. Available information suggests that gloves made from polyvinyl alcohol (PVA) should be suitable for intermittent contact. Always wash hands before smoking, eating, drinking or using the toilet. Wash contaminated clothing and other protective equipment before storing or re-using.

(6) MSDS Sheet relating to a product named Bostik Anchor Weld 2700 & 2701 Super dated 6 October 2004.

(7) Air sampling material received from New South Wales Fire Brigade.

(8) Report from Mrs Helen Finn, Occupational Hygienist, dated 14 April 2009. Relevantly, Ms Finn in her summary stated:

From the information provided by New South Wales Fire Brigades (NSWFB) the deceased was working with Bostik 9913 in the port side hull of the catamaran prior to 2.47 pm on 25th August 2008.

According to the MSDS, Bostik 9913 contains 10-30% acetone, 30-60% toluene and 30-60% isohexane. The MSDS recommends a lower explosive limit of 1% based on the isohexane component.

The attending Fire Brigade took atmospheric measurement within the hull of the catamaran using a MSA Orion multigas detector, a Flame ionisation detector (FID) and a Photoionisation Detector (PID).

The Orion is a 4-headed gas sensor-measuring instrument with data logging capabilities. It measures combustible gas as a percentage of the lowest explosive limit (%LEL), % oxygen, carbon monoxide and hydrogen suphide.

The Orion was calibrated at 3.15 pm using a specific test gas mixture. According to the information on the photographs and hand drawn sketch, testing started around 3.35 pm inside the hull.

The data printout indicated 100% LEL detected between 3.45 pm and 3.50 pm. The photographs and hand drawn diagram indicate that these levels were taken in area F which is the port side hull where the deceased was alleged to be working. Vapours contributing to the combustible gas reading would be toluene, hexane isomers and acetone. It should be noted that the %LEL readings have not been adjusted as the calibration gas is not provided and the exact composition of the mixture is not known. However, the raw data reading of 100% LEL equates to 1% or 10,000 parts per million (ppm) for the mixture.

This result is well above the relevant exposure standards (including the additive exposure standard) and the Immediate Dangerous to Life and Health (IDLH) as recommended by the National Institute for Occupational Safety & Health (NIOSH) for acetone, n-hexane and toluene. IDLH for other hexane isomers have not been determined.

11 Under the heading "MSDS for Bostik 9913", Ms Finn stated:

An MSDS for Bostik 9913 was supplied with the information. It was stated on the NSWFB report that this is the chemical the deceased was working with on 25th August 2008. The product contains isohexane (30-60%), toluene (30-60%) and acetone (10-30%). According to the MSDS the lower explosive limit is 1% (isohexane) and the upper limit if 7% (isohexane).

12 Under the heading "Australian Exposure Standards", Ms Finn stated:

Australian Exposure Standards (ES) are published by the Australian Safety & Compensation Commission (ASCC) and are available on the Hazardous Substances Information System Database (HSIS).

13 Under the heading "Immediately Dangerous to Life and Health (IDLH)", Ms Finn stated:

IDLH were originally determined for 387 substances in the mid-1970's as part of the Standards Completion Program (SCP), a joint project by NIOSH and the Occupational Safety and Health Administration (OSHA), for use in assigning respiratory protection equipment. NIOSH is currently evaluating the scientific adequacy of the criteria and procedures used during the SCP for establishing IDLHs. In the interim, the IDLHs have been reviewed and, (if appropriate) revised.

The purpose for establishing this IDLH was to determine a concentration from which a worker could escape without injury or without irreversible health effects in the event of respiratory protection equipment failure (e.g., contaminant breakthrough in a cartridge respirator or stoppage of air flow in a supplied-air respirator) and a concentration above which only "highly reliable" respirators would be required. In determining IDLHs, the ability of a worker to escape without loss of life or irreversible health effects was considered along with severe eye or respiratory irritation and other deleterious effects (e.g., disorientation or incoordination) that could present escape. Although in most cases, egress from a particular worksite could occur in much less than 30 minutes, as a safety margin, IDLHs were based on the effects that might occur as a consequence of a 30-minute exposure.

IDLH for acetone and toulene and n-hexane are provided below. It should be noted that Bostik 9913 contains hexane isomers many of which do not have assigned IDLH.

14 Under the heading "Comment", Ms Finn stated:

LEL readings indicate high levels of combustible gas. The combustible gas reading would be due to a mixture of vapour. Based on the recommended lower explosive limit of 1% (as indicated on the MSDS) then a 100% LEL reading would 1% or 10,000 ppm. This information is based on the raw data and has not been manipulated.

The measured level is well above the recommended exposure standards and IDLH for acetone, n-hexane and toluene. IDLH has not been determined for other hexane isomers.

Utilising the information obtained by Phil Cantrell from his inspection of the site, in addition to further information from the NSWFB and other parties may provide a more accurate assessment.

(9) Report provided by Ms Linda Apthorpe of Pickford & Rhyder Consulting Pty Ltd, Occupational Hygiene Measurements and Solutions, to Mr John Oste, Operations Manufacturing Manager, Seawind Catamarans, dated 21 May 2007. The report stated that the site had been visited on 11 April 2007 for the purposes of conducting airborne sampling for various solvent vapours and inhalable dust in the factory and to make recommendations if necessary. The report set out the measurement results in respect of solvent vapours and inhalable dust and stated under Part "V DISCUSSION, 1. Volatile Organic Chemicals" as follows:

The personal samples, indicate that measurable amounts of some airborne solvents are present, however all results were less than the relevant OES, and therefore satisfactory.

The static sample taken in the line 1160 assembly area indicated that many types of airborne solvents are present, however the concentrations were low.

Additive effect value for all personal samples were less than one, and therefore satisfactory.

Most operators wore respirators during spray work, and this practice should continue. It is important that respirators that are used where dust and solvent vapour exposure is likely, protect the individual from airborne dust (i.e. P1 pre-filter) and solvent vapours (i.e. suitable charcoal filter) (see note below on respiratory protection).

It was observed that some of the workers who wore inhalable dust samplers spent extensive amounts of time inside the hull of a boat in using various based resins and glues. These areas are at times small and completely enclosed (e.g. bow or stern of catamaran hull). In some areas that I visited the odour of solvent vapour was quite overpowering. Some operators noted that when conducting extended hours of work in these locations that they suffered from headaches.

It is important to remember that these types of resins and glues must be used in well ventilated areas, and that additional ventilation may be required in awkward, small and enclosed areas to reduce the effects of these solvents. Additional ventilation could be achieved by blowing outside air into these spaces during the gluing/resin work to dilute any airborne concentrations of solvent vapours that may be present.

 

15 Under the heading "Respiratory Protection", Ms Apthorpe stated:

If an environment exists where dust and solvent vapour is present and the operator needs to be protected, a P1 pre-filter and organic vapour cartridge set up is required (providing both the pre-filter and cartridges are suitable for the half face respirator unit).

...

Use of respirators (both half face and disposable) requires adequate training prior to use. Training should cover when to use respirator, appropriate types for workplace circumstances, limitations of respirator, correct fit techniques and fit testing, care and maintenance (for cartridges and face piece devices).

Training should be conducted at commencement of employment and at routine intervals thereafter. The frequency of retraining will depend on the complexity of the respirator program and degree of hazards encountered. As a guide, retraining should be conducted annually.

(10) Report provided by Pickford & Rhyder Consulting Pty Ltd to Carrol & O'Dea Lawyers dated 17 September 2008.

(11) Report from Pickford & Rhyder Consulting Pty Ltd to Carrol & O'Dea dated 15 October 2008.

(12) Report from Pickford & Rhyder Consulting Pty Ltd to Carrol & O'Dea dated 20 October 2008.

16 The defendant pleaded guilty to the offence as charged in the application for order. I am satisfied on the evidence, that the defendant is guilty of the offence as charged and that it was appropriate for the plea of guilty to be entered. It follows, that this judgment is concerned with the question of penalty.

Defendant's evidence

17 Mr PM Skinner of counsel, who appeared for the defendant, read an affidavit sworn by the defendant on 26 September 2013, who was required for cross-examination. The defendant set out in his affidavit, the history of Seawind, which commenced operations in 1982. In its 30 years of operation, it has built approximately 500 large cruising catamarans which have been sold all over the world. In 2008, Seawind employed over 100 employees and had a sales turnover of $17M. The defendant detailed some of the major milestones for Seawind which included building small "off the beach" Maricat catamarans (500 built); 33ft 1000 catamarans (220 built of which 100 exported), and 41ft Seawind 1250 (20 built).

18 The defendant set out his personal history and educational qualifications, the establishment of Seawind and the business and design awards that it has received, which included Illawarra Business of the Year 2001 and 2006; Exporter of the Year 2001 and 2007; NSW Premiers Export Award 2008 and National Export Finalist 2008.

19 In 1992 Seawind relocated to Wollongong and subsequently played a very significant role in the Illawarra region, being awarded the "Overall Business of the Year" in the region. This Award was won against such companies as, for example, BlueScope Steel.

20 Throughout its 30 year history, Seawind has taken on more than 50 apprentices which became tradesman/shipwrights within Seawind. Between 1995 and 2008, Seawind accepted around 4 to 6 new apprentices each year into its Apprenticeship program. Seawind was the largest marine trainer within NSW. Mr Parsons was one of Seawind's apprentices.

21 In addition, Seawind employed hundreds of unskilled and untrained employees over those 30 years. Many of these employees came from seriously disadvantaged backgrounds with many social problems, poor education, family breakdown and dysfunction. Some had criminal convictions.

22 Seawind worked with these employees, developing them into good employees and responsible citizens. Many went on to become long term employees of 10 - 15 years duration with Seawind.

23 The defendant set out the company's corporate management and governance together with his role in Seawind. The senior management group consisted of the defendant as Managing Director, a Financial Controller, a Production General Manager, a Production Coordinator; a Sales and Marketing Manager, and a Factory Systems Manager with reporting lines through to the Managing Director. There were regular management meetings. The defendant stated that he relied heavily on his management team, especially in relation to production as much of his time was spent away from the company premises promoting Seawind at International and Australian boat shows and representing Seawind at industry events.

24 The defendant's responsibilities included new design; new product development; marketing and sales; customer liaison; promotion, and exploring new company directions. The defendant estimated that he was away from the production facility for at least 50 - 60 per cent of the time.

25 The defendant's evidence was that Seawind had an occupational health and safety program which included a safety committee that met regularly. There was a continual program of workplace improvement and Seawind took pride in maintaining a clean and safe work environment for its employees.

26 Senior production managers and supervisors had external occupational health and safety training. New employees all undertook a documented induction process and many employees were selected for further external occupational health and safety training. Each day started with a "toolbox" meeting of employees and team leaders or supervisors discussed issued regarding production and occupational health and safety.

27 There were also weekly production meetings chaired by the Production General Manger which were attended by senior production employees where occupational health and safety issues were raised. The Production General Manager was responsible for occupational health and safety design and implementation.

28 The defendant stated that Seawind had a comprehensive occupational health and safety program and was proactive in constantly improving its manufacturing and safety systems. In 2006, it embarked on a "Lean Manufacturing Program" which was led by an external consulting group.

29 The Occupational Health and Safety Committee ("OHS Committee") had representatives from both the production workforce and management in line with WorkCover recommendations. It met every 3 - 4 months. Minutes of the OHS Committee meetings prior to and after the incident were annexed to the affidavit.

30 Seawind had a reporting system that all employees could use and raise awareness of hazards. A risk assessment of these hazards was then performed and reviewed by the Factory Manager.

31 Examples of the pre-incident reports for 2008 were annexed to the affidavit. There were four reports between March 2008 and August 2008. Seawind also had regular monitoring and testing done within the factory to ensure that dust, fibreglass components and volatile solvents were not excessive.

32 Examples of testing prior to the incident were annexed to the affidavit. These included an Air Monitoring Report dated 18 March 2005; a Fibreglass Monitoring Report dated 28 April 2005; a Volatile Organic Compound Monitoring Report dated 28 April 2005; an Occupational Hygiene Sampling Report by Pickford and Ryder Consulting dated 21 May 2007. Each of the reports concluded that exposure standards were not exceeded. Copies of the reports were annexed.

33 The defendant's evidence was that Mr Parsons' death was a terrible tragedy that devastated everyone at Seawind. Mr Parsons had been employed for nine years. The defendant expressed again his sincere condolences to Mr Parsons' partner and their young son. After Mr Parsons' death, the defendant visited his parents to offer his condolences and also attempted to visit Mr Parsons' partner, although she did not wish to see him. He closed the factory for a number of days to allow employees to attend Mr Parsons' funeral and to recover from the shock of his death. Counselling was made available to all employees. The defendant attended the funeral and paid for the wake.

34 The defendant stated that he accepts responsibility for what occurred. In almost 30 years of business, he said that Seawind had never experienced an incident with such serious consequences. He did not anticipate such an event and believed that Seawind's OHS systems were of a high standard and well above marine industry standards. The incident caused both the defendant and Seawind to completely reassess the occupational health and safety systems ("OHS systems") with the assistance of external safety consultants and where possible, make improvements.

35 Since the incident, Seawind has made the following changes to its OHS systems:

(a) Upgraded the ventilation by designing and building extractions fans which were permanently fitted over any open deck hatch. These fans are switched on automatically when the factory lights are turned on each morning. Each boat under construction is allocated four fans.

(b) Seawind conducted Marine industry training seminars to introduce these new ventilation systems to the Marine industry. This was done through the Boating Industry Association.

(c) All non WorkCover approved solvent dispensing bottles were immediately banned from the workplace and replaced.

(d) With respect to solvent substitution, Seawind experimented with alternative non-toxic cleaning agents and found that a substantial number of cleaning jobs could be done by a substitute. This did not eliminate the need for toluene solvent completely but did reduce its use within the factory. Once again, Seawind conducted Marine industry training seminars to introduce these new solvent substitution systems to the Marine industry.

(e) With respect to the enforcement of Personal Protection Equipment ("PPE"), Seawind now strictly enforces the use of vapour masks, protective eye glasses, and gloves.

(f) All employees now attend regular and systematic in-house training to ensure they are comprehensively educated to the dangers of the chemicals and institute safe work practices while using these chemicals.

36 In June 2008, Mr Parsons was discovered overcome by fumes. He advised his supervisor who sent him home. He had passed out in virtually an identical situation to that which occurred on the day of the incident. Although Mr Parsons received a written warning from his supervisor, he and other employees kept the incident to themselves for fear Mr Parsons being dismissed. The incident was not referred to senior management. All supervisors and managers are now compelled to attend company training in respect of their obligations and duties as supervisors.

37 After the incident, documented risk assessments were carried out for every production system and, where necessary, remedial improvements made. All employees were issued with Personal Protection Equipment ("PPE") storage containers and the use of these containers was enforced. For respirator masks, 3M was consulted and a full audit completed on 2 September 2008 to assess their state, suitability and exact fit for each employee. The result of this exercise was that 3M concluded that the majority of the employees had the correct PPE. However, approximately 20 per cent were found to have had deficient PPE and they were replaced. A program of regular checks and replacement was introduced.

38 With respect to latex gloves, after the incident, Seawind conducted extensive research into alternative gloves. For some applications, Seawind introduced Kevlar gloves to reduce the risk of knife injuries. However, the search for better gloves for use with solvents was inconclusive. Seawind adopted a practice of requiring employees to use two gloves on each hand when using solvents. Seawind also trialled different types of gloves to be worn by employees when handling chemicals such as Bostik 9913. It was concluded that this practice, for protection of the employees, was to use two latex gloves on each hand. Seawind also provided large heavy chemical gloves when recycling the acetone solvent. However, these heavy chemical gloves did not provide employees with sufficient tactile feel to undertake the cleaning jobs for which the Bostik was used.

39 The defendant stated that the incident coincided with the Global Financial Crisis ("GFC") and that the ramifications of the incident and the GFC had nearly destroyed both Seawind and himself. He stated that both Seawind and its senior managers fully co-operated with WorkCover in trying to understand how the incident occurred. Seawind undertook its own internal investigation and reported its findings to the Police and WorkCover. Seawind's insurer, QBE, also commissioned an independent investigation. Both investigations came to the conclusion that the most probable cause of Mr Parsons' death was intentional solvent abuse. The defendant stated that the GFC had a devastating effect on the Australian boatbuilding industry and had decimated boat builders worldwide. Seawind was forced to sell both its Wollongong and Nowra factories at approximately 60 per cent of the pre GFC valuation.

40 The defendant's evidence was that the ongoing prosecution affected the spirit of the company and its employees as a result of the uncertainty and unrest it created with the employees. He was unable to attract much needed equity or borrowings, due to the GFC, to financially continue because of the disclosure he was required to make to any interested investor or financier about the company as he was being prosecuted by WorkCover over the incident.

41 In respect of the defendant's plea and penalty, the defendant requested the court to consider that the following matters be taken into account:

Effect of WorkCover's Prosecution

...

(a) In August 2012, the effects of these events became too much for Seawind and myself. Physically, the WorkCover prosecution has sapped my will to fight on. SCPL was forced into liquidation and SWGH into administration.

(b) The liquidation of SCPL was unavoidable. The company was insolvent and, in the current world financial circumstances, could not be saved. SCPL was placed into liquidation on the advice of advisors KPMG and BRI Ferrier.

(c) However, when it happened and against all financial advice, I made the decision to try to save the parent company, SWGH. I simply could not bear the thought of 30 years being wasted and nor could I bear the thought of bringing serious financial harm to the Seawind customers with part built boats and significant deposits paid.

(d) We continued to build the boats on order and completed the last of these in Australia in December 2012. These were done under the control of the liquidator and at my personal risk and guarantee. We made a loss on these boats which I personally funded.

(e) With this, we ceased manufacturing in Australia with the loss to Wollongong of over 100 jobs and a company that had twice been awarded as the Illawarra Business of the Year. This has been an incredibly sad part of my life.

My position

(f) I have devoted my life to creating a world class yachting building company with 100% Australian design and manufacture. Seawind was an icon of the Australian marine industry and was run professionally and competently.

(g) Most of this is now gone.

(h) In early 2013 I was diagnosed with depression by Dr. Gerrard and underwent treatment by him.

(i) I personally funded the Deed of Arrangement of SWGH in September 2012. I have since borrowed heavily to try to rebuild the company.

(j) In 66 years of life and in 45 years in business and professional life, I have been a responsible and productive citizen of Australia. I have never before been accused of any offence, misdemeanour or crime (other than minor traffic offences). I have created high value Australian designed and manufactured products that are known throughout the sailing world. I have given employment to many hundreds of people and trained many young people starting out in their careers.

(k) This event has, along with the GFC, ruined me financially and had serious consequences to my health and family life.

My Financial Position

(j) I am currently in very difficult financial circumstances. The events since 2008 have reduced my wealth by approximately 90% and the risk of becoming personally insolvent is still very high.

(m) In August 2012, my and Seawind's financial advisors (KPMG, BRI Ferrier, Paradigm Advisory) all recommended that I liquidate all of Seawind and cease the business and retire.

(n) I could not do this as this action would have financially hurt many people and completely trashed the reputation of myself and Seawind, reputations and that I have always valued very highly.

(o) I elected to try to retrieve Seawind and in this regard have used a further $1.85 million of personal and borrowed funds to keep the company going through these harsh economic times. This $1.85 million was sourced by:

(i) Loans from my immediate family of $850,000;

(ii) Cashing in part of my Super Fund $500,000; and

  (iii) Increasing my Bank Mortgage by $500,000.

        (p) It is my priority goal to repay these debts before I retire.

42 The defendant stated that in 2008, he commenced discussions with Corsair Marine in Vietnam which culminated in him taking over that company in 2010. He made the decision to proceed with the purchase of this company as a tactical response to the GFC to lower his cost base. The defendant stated that he invested heavily in an upgrade of his Wollongong premises, spending approximately $1M to replace the roof and walls of the factory. His evidence was that the operations in Vietnam have not made a profit as at the date of swearing his affidavit. Both Seawind and Corsair Marine were endeavouring to trade back to profitability.

43 The defendant stated that as a result of the prosecution, the GFC and the death of Mr Parsons, he has lost his passion for the business and has made a decision that he now wishes to sell the business so he can repay his debts to family and other financiers and retire.

44 Mr Skinner also provided a tender bundle which included a letter from Dr LG Garrard dated 25 September 2013. Dr Garrard's report stated that the defendant consulted him on 9 May 2011 giving a history of work-related stress. He was diagnosed with moderately severe reactive depression and referred to Dr Lynne Smith - Psychologist. He was also prescribed medication. Dr Garrard stated that the defendant again presented in December 2012 with clinical depression and anxiety. He was provided with further medication and referred to Dr L Diana, Psychiatrist. Dr Garrard noted that subjective improvement led to a decision not to undertake a consultation with Dr Diana.

45 Included in the defendant's tender bundle were testimonials from the following current or retired employees: Mr Michael Rees; Mr Tim Makepeace; Mr Rudy Waalkens, and Mr Will Kuit.

46 Also tendered was an Historical Company extract in respect of Seawind, together with documentation appointing the External Administrator dated 20 August 2012; Presentation of Accounts and Statement dated 26 August 2013; Minutes of Meeting of Seawind dated 28 August 2012 and 17 August 2012, as provided to Australian Securities and Investments Commission. In respect of Seawind Group Holdings Pty Ltd ("Seawind Group Holdings"), similar material was tendered to that set out above.

47 The defendant's tender bundle also included Seawind's OHS Committee meetings held on 30 August 2007; 15 May 2008; 2 September 2008; 20 October 2008; 25 November 2008, together with Hazard and Risk Assessment reports dated 21 March 2008; 26 March 2008; 21 July 2008, and 12 August 2008.

48 The following material was also included in the tender bundle:

(1) Volatile Organic Compound Monitoring Report dated 28 April 2005.

(2) Occupational Hygiene Sampling Report from Pickford & Rhyder Consulting Pty Ltd dated 21 May 2007.

(3) SMF (Fibreglass) Monitoring Report dated 28 April 2005.

(4) Air Monitoring Report prepared by New Environment Management and Technology Pty Ltd dated 18 March 2005.

49 Mr Skinner also tendered the following brochures:

(1) Seawind Catamarans "celebrating 25 years".

(2) Seawind 1160 "The innovation just blew me away!"

(3) Seawind 1000 XL "XL on Performance, XL on Comfort".

50 During oral evidence, the defendant dealt with engaging Mr Parsons as an apprentice. He stated he attended the local TAFE in Wollongong completing an apprenticeship as a Shipwright.

51 The defendant also gave evidence in respect of Seawind's relocation to Wollongong. He confirmed that he was not aware of the incident involving Mr Parsons in June 2008 when he was found unconscious. This incident was never reported to the defendant or to senior management. He only became aware of the earlier incident after Mr Parsons' death.

52 The defendant was directed to paragraph 74 of the agreed statement of facts ("ASF") which provided that there was a practice which involved employees, including Mr Parsons, Mr Scales and Ms Margret Jones deliberately exposing themselves to fumes from chemicals used in the course of the construction of vessels at the site in order to "get high". The defendant's evidence was that he was only aware of Ms Jones engaging in this practice. His evidence was when he became aware of Ms Jones' conduct, she was referred to an occupational health and safety consultancy for counselling and treatment. She was advised that her employment would continue, but that she was not to engage in this activity in the future.

53 The defendant stated that he was aware of an incident involving Mr Darren Growno, who lost consciousness when spraying contact glue for laying a carpet in the hull of the catamaran. However, he was not aware of Mr Tim Faraway or Mr John Douglas collapsing while using chemicals in the course of their employment (see paragraph 76 and 77 of the ASF). He said Mr Growno was dismissed by Seawind and all employees were put on notice that if they engaged in this activity, their employment would also be terminated.

54 The defendant's evidence was that he was aware that employees punctured the caps of the cans of solvent for ease of use. He did not regard this as a problem. It was basically the standard practice in every boatbuilding company that he had ever visited. A puncture of about three holes made it easier for the employees to sprinkle the solvent and avoid removing the cap.

55 The defendant's evidence was that when Seawind went into liquidation, he did not claim any debts owed to him and he ensured that employees received their entitlements. He contributed $270,000 of his money to Seawind Group Holdings to take it out of administration. He had to borrow this money.

56 The defendant again expressed his remorse and contrition for the failings of Seawind.

57 During cross-examination, the defendant agreed that as early as 2002, it was part of Seawind's paper OHS system that persons working with volatile organic compounds or solvents should be protected from the fumes released by such products.

58 The defendant was shown Mr Parsons' "New Employee Orientation Procedure", which Mr Parsons had signed and dated 6 February 2002. This document proscribed Mr Parsons using solvents and glues containing volatile organic compounds without the use of extraction fans. The defendant's evidence was that domestic fans were provided for use in the factory. He accepted that these were not extraction fans.

59 The defendant's evidence was that the testing of dust and vapours was carried out in the factory in 2005 and 2007, but not inside the hulls of the catamarans because that was an area where the use of solvents was minimal. His evidence was that domestic fans were therefore entirely appropriate to circulate air.

60 After the incident, extraction fans were introduced into the factory. These fans operated from when the factory was opened and the lights turned on at the beginning of each day. There was no ability for any individual employee to turn off the extraction fans. The defendant's evidence was that Seawind was the first boatbuilding company that introduced such fans. As a result of the introduction of extraction fans, seminars were held for the boating industry to advise boatbuilding companies how extraction fans should be used in the workplace.

61 The defendant stated that the company had no difficulty in getting its employees to wear respirators where it was obvious that they should be used. For example, if an employee was spraying a boat, the employee would wear full protection gear including full respiration gear. If an employee was using contact glue to fit a carpet, he or she would use full respiration gear. It was a serious offence within Seawind if an employee was found not to be properly kitted up in full protection gear and full respiration gear. Mr Parsons was quite diligent in this respect as he had an allergy to some of the chemicals. His evidence was that employees did not use respirators when they were fitting timber inside the hull, as this work required the use of a solvent "for maybe 30 seconds or one minute ..., just spot-using the solvents. ... might not require respirators".

62 The defendant stated that Ms Jones was cautioned on a number of occasions for failing to use her respirator. The defendant recalled evidence given by Mr Mark Verhaff before the Coroner that it had been his practice not to wear a respirator when using contact adhesive. This was a practice that he had followed for some time. He agreed that on occasions employees would come and visit Mr Verhaff while he was using the contact adhesives to lay carpet without wearing respirators.

63 The defendant confirmed that he is a 100 per cent shareholder in Seawind Group Holdings. He stated that Mr Rees, the Production Manager of Seawind when it was based in Wollongong, has recently relocated to Vietnam and is the Production Manager for Corsair Marine, which employs approximately 185 staff.

64 The defendant made a statement to the court again expressing his remorse and contrition to Mr Parson's family.

Principles

65 The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act. Their Honours stated at [8] - [15]:

"[8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing.

[9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:

'[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.'

[10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows:

'[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence" ...

[11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) ("Capral") 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows:

'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:

Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.'

[12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63:

'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd [1999] 92 IR 188 (at 209 - 210) in these terms:

'... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.'

[13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" (Capral at 650; 66). On that point the Full Bench in Capral stated:

'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).'

[14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows:

'[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.'

[15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]:

'[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).' "

Consideration

66 The primary consideration, as set out in the above principles, requires a determination of the objective seriousness of the offences. This involves examining the nature and quality of the offence, as set out in the agreed statements of facts and the evidence.

67 In determining penalty, the court must take into account all relevant considerations in sentencing and make a judgment as to the appropriate sentence in the circumstances. The objective and subjective factors to be considered include those set out in s 21A, s 22, and s 23 of the Crimes (Sentencing Procedure) Act 1999 ("CSP Act"): Inspector Yeung v Howie Herring & Forsyth Pty Limited & Anor [2005] NSWIRComm 266 at [39] - [40].

68 The risk to health and safety that manifested itself on the day of the incident occurred as a result of Shipcove's employees, in particular, Mr Parsons' having been exposed, by skin contact and or inhalation, to chemicals (isohexane, toluene and acetone) to such an extent that the exposure was likely to be injurious to his health, safety and welfare.

69 As has been stated on numerous occasions by this court, the general duties created by the OHS Act are directed at obviating risks to the health and safety of persons in the workplace, rather than to the circumstances or causes of a particular accident or death. As long ago as 2004, Walton J, Vice-President in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 reviewed the legal principles which governed the predecessor sections to s 8(1) and s 8(2) of the OHS Act (s 15, s 16 of the Occupational Health and Safety Act 1983). His honour stated at [123] - [124]:

... The summary of authorities distilled by Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at 288 - 289 and endorsed recently by the Full Court in WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) [2001] 110 IR 447 at [16] provides an excellent overview:

... An extensive review of the nature of the liability created by s 15(1) was recently conducted by the Full Bench in Drake Industrial (90 IR at pp 449-453) by reference to the authorities as they had developed. In WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at pp 288-289, Hungerford J had occasion to again review this general question and, after citing the main authorities concerned, drew the following propositions:

(1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute.

(2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain.

(3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace.

(4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances.

(5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based.

(6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment.

(7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees.

(8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

(9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate.

(10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable.

(11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision.

(12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence.

The Nature of the Duty: Absolute; Pro-active; Unable to be Delegated and owed to Careless Employees

[124] As Hungerford J stated in his first two principles, the offence created by s15 is independent of fault: every leading authority describes the section as having created an absolute or strict duty; obligations; or liability. The absolute nature of liability under s15 was contrasted with "at fault" liability such as negligence by Fisher CJ in Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209:

In Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467, it was held that s 15(1) of the Act created an absolute liability in employers to conform with the terms of the section, but it is still necessary to prove that the employer failed in the language of the section in at least one of the many obligations laid upon him. It is correct to say that this failure is not the same as a failure of a duty to take care at common law where the standard of the duty is that of the reasonable and prudent man. Here, the standard is absolute. If there is a failure, subject to s 53 of the Act, however understandable the failure might be, liability is absolute.

70 His Honour continued at [126]:

[126] It follows from the exacting nature of the obligation and from the Full Court's observations in Ridge Consolidated v Meagher that, as the Courts have often held, employers must be proactive in securing the health, safety and welfare of employees and contractors.

71 It is well settled that an employer's obligation is to ensure the health and safety of its employees and contractors and extends to the hasty, careless, inadvertent, inattentive or unreasonable employee and contractor. This is a facet of the pro-active nature of the duty described in such forceful terms by Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 "employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety" and by Bauer J in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248.

72 In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 the majority (Walton J, Vice-President, Boland J as he then was, upholding the appeal, Kavanagh J dissenting) held (at [45] - [46]):

[45] The duty to provide a risk-free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312 and WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248.

[46] We agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 (at par 15) as follows:

"The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority (NSW) (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257:

'Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry'."

73 It is worth stressing the frequently repeated principle that the duty is one to prevent risks to safety, not to prevent the risk of injury, as was vividly illustrated by Hill J's description in Atco Controls of the duty (quoted above).

74 Mr Cahill, at the commencement of his submissions conceded, on the available evidence, that the prosecutor could not exclude the possibility that Mr Parsons' intentionally exposed himself to fumes released from a quantity of Bostik 9913, which he placed within the confines of one of the portside forward storage holds or lockers specifically for that purpose. It followed, as was also conceded by Mr Cahill, that the prosecutor could not establish, to the requisite standard, a causal relationship between the defendant's contravention of s 8(1) of the OHS Act and Mr Parsons' death.

75 Mr Skinner in acknowledging the concession made by Mr Cahill, submitted that the risks that formed the subject matter of the charge, did not necessarily lead to the death of an employee. That was enough, so counsel submitted, to avoid the aggravating circumstances affecting the defendant, in that all of the risks culminated in the death of Mr Parsons. I agree with this submission, but observe that Mr Parsons' death provides a measure of the gravity of the risk to health and safety flowing from the defendant's breach of the OHS Act: see Workcover Authority of NSW (Inspector Ankucic) v The Crown in the Right of the State of New South Wales (National Parks and Wildlife Service) [2003] NSWIRComm 170 at [20] - [23]. In this matter, in my view and I find, the risk was grave and both obvious and known.

76 The defendant was aware of the need for both mechanical ventilation and the use of personal respiratory protective equipment from at least February 2001 (see ASF at 44). Senior management was also aware of ongoing failures in relation to the use by Shipcove's employees of personal respiratory protective equipment prior to the subject incident on 25 August 2008.

77 The defendant and his senior management were also aware of the apparent ongoing abuse of contact adhesives and solvents by Shipcove's employees prior to the incident (see ASF at 75 - 77; 81 - 85; 91 - 93).

78 Shipcove was in possession of MSDSs with respect to Bostik 9913 solvent dated respectively April 2000 and 28 April 2005. Each MSDS disclosed that Bostik 9913 solvent contained quantities of acetone and toluene, such that exposure to high concentrations of the fumes given off by Bostik 9913 could result in central nervous system dysfunction and narcosis (see MSDS for Bostik 9913 solvent issued 28 April 2005 at pages 5 - 8 and report dated 21 May 2007 prepared by Pickford & Rhyder Consulting Pty Ltd (at pages 7 - 8)).

79 Shipcove was aware of employees exposing themselves to fumes from chemicals prior to the incident. However, it did not carry out any review of its procedures relating to the use of chemicals, nor did it introduce any formal, written procedures in relation to the use of chemicals. It was also common ground that employees did not wear respirators and gloves while using solvents, including acetone and Bostik 9913 in the hull of vessels under construction at the site. These practices were known to Shipcove's supervisory staff and to senior management and were discussed at weekly production meetings (see ASF at 81).

80 Furthermore, in October 2006, Ms Jones, at the time the Chair of Shipcove's OHS Committee at the factory, was overcome by chemical fumes while cleaning the bunks and bathrooms of a catamaran under construction. At the time of this incident, Ms Jones was using Bostik 9913 and acetone to remove glue from the ceiling and walls within the confines of one of the hulls of a catamaran under construction in the factory. She was working in the absence of mechanical ventilation and she was not wearing a respirator (see ASF at 82).

81 Although Ms Jones was issued with a written warning by Shipcove following the incident, the OHS Committee did not investigate the incident. In addition, Shipcove did not undertake any review of its chemical handling procedures, its procedures relating to the use of PPEs, or procedures relating to hull ventilation and its supervisory procedures (see ASF at 86).

82 The Pickford & Rhyder Consulting report of 21 May 2007 highlighted the risks associated with exposure to fumes from solvent-based adhesives and solvents used in the course of the manufacturing process and the need to ensure both proper ventilation of the hulls while solvents were in use. It also highlighted the importance of the use of properly fitted and maintained respiratory protective equipment. It was common ground that Shipcove reviewed none of its procedures in respect of the use of the chemicals, or wearing protective equipment after the report and that no changes were introduced (see ASF at 90).

83 Particulars 2 and 3 related to the failure of Seawind to provide such plant as was necessary to ensure the health and safety of its employees, particularly dedicated exhaust/extraction ventilation that operated independently of the actions of the employees and that provided effective ventilation while work was being carried out in the hulls so as to prevent the accumulation of chemical fumes.

84 Shipcove had identified the need for the use of extraction fans as early as 2001, as evidenced by the induction document signed by Mr Parsons. It was advised by the Pickford & Rhyder report in May 2007 that solvent- based resins and glues must be used in well ventilated areas. Immediately after the incident, and by 15 October 2008, Shipcove had devised, constructed, and installed an extraction ventilation system for use in conjunction with the building of catamarans in the factory. The ventilation system operated independently of employees.

85 It follows, and I find that, prior to the incident, senior management of the company was aware of the need for an engineering solution for the purpose of ventilating hulls under construction. The company's response in supplying domestic fans which, on tests conducted after the event, confirmed the fans did nothing to refresh the atmosphere inside the hulls under construction, was clearly an inadequate response. Shipcove, as it demonstrated shortly after the incident, had the capacity to develop, construct and install an effective ventilating system.

86 I respectfully agree with the observations of Walton J, Vice-President in Inspector Dall v Ullrich [2012] NSWIRComm 87 at [49] - [52], particularly at [50] where his Honour stated:

[49] There are a number of factors which increase the objective seriousness of the offence including the foreseeability of the risk, the seriousness of the injury suffered (or which may have been suffered) and the availability of simple remediable measures (see Cross City Tunnel at [191 (i) - (iii)] (set out above)).

[50] The criminality involved in an offence is to be measured not only by the seriousness of what occurred, but by reference to the reasons for its occurrence (Axer Pty Ltd v Environmental Protection Authority (unreported, Court of Criminal Appeal, Matter No. 60763 of 1992, 22 November 1993); (1993)113 LGERA 357 at (366). See also WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited [2000] NSWIRComm 277; (2000) 95 IR 383 at [228]). An offence will be serious when it involves a risk to safety which was reasonably foreseeable (see, for example, McDonalds at [450]; Capral at [82]; and Kembla Coal at [27]). Where the risk to safety was not only foreseeable but known and left unabated with remedial action being available, the seriousness of the offence will increase (see, for example, Inspector Gregory Maddaford v Graham Gerald Coleman & Anor [2004] NSWIRComm 317; (2004) 138 IR 21 at [89] - [91]; WorkCover Authority of NSW (Insp Lyons) v Warman International Ltd [2001] NSWIRComm 62; (2001) 105 IR 236; Morrison v Powercoal; Morrison v Powercoal (No 3); and McDonalds at [452]).

...

[52] Further, the defendant was aware that remedial action was available to abate the risk, but such action had not been taken at the Mayfield warehouse prior to the incident. This was evidenced by the fact that the defendant was aware that, in June 2006, Dale Hutton, the corporation's Health and Safety Coordinator, had informed the WorkCover Authority of the corporation's intention to undertake a review of racking across its branches. It was further evidenced by the fact that the defendant was aware that an alternative racking system, which obviated the risk of collapse by incorporating vertical bollards between individual stacks of aluminium cases, had been introduced at the corporation's South Australian warehouse but had not been introduced at the corporation's Mayfield warehouse prior to the incident.

87 Particulars 5, 6 and 7 concern the control and use of solvents; Seawind's failure to utilise chemicals that did not contain acetone, isohexane and toluene and where solvents containing such chemicals were used, Seawind failed to prevent employees using unlabelled containers with punctured lids as a means of storage of such solvents.

88 Professor Ian Whyte's Report to the Coroner stated that where toluene is stored in a container fitted with a plastic lid in which holes have been punched, the toluene will continue to evaporate until there is none left in the container. As it is heavier than air, it will fill the space from the bottom up. Professor Whyte also noted that many individuals do not notice the odour of acetone until it reaches or exceeds 1000ppm, a level which is equal to the short time exposure limit ("STEL") for acetone which exceeds the timeway for acetone.

89 Seawind was in possession of information concerning the need to control both the storage and use of solvent-based glues and solvents with a view to preventing the chronic overexposure of its employees (see the MSDS dated April 2000 re Bostik 9913 and the MSDS dated 6 October 2004 and 28 April 2005 re Bostik solvent).

90 Prior to the incident, Shipcove, although in possession of information, did not require or enforce the use of appropriate equipment in relation to the storage and application of solvents, such as acetone and Bostik 9913.

91 Simple steps were available in relation to the reduction in the use of solvents as cleaning agents, which if put in place before the incident, would have reduced the risk of chronic overexposure to such chemicals and also reduced the potential for incidental and intentional misuse of such products.

92 After the incident, Shipcove took steps to reduce the use of solvents in the cleaning of catamarans under construction at the premises through the substitution of non-toxic cleaning agents.

93 Particulars 8 and 9 relate to the failure of Seawind to provide PPE consisting of properly fitted face masks and nitrile gloves for use when its employees were working with solvents. Seawind did not provide training in respect to the proper fitting, use and maintenance of respirators used by it, nor did it enforce the wearing of respirators when working with solvent-based resins. It was common ground that the two types of gloves provided by Seawind, namely leather gloves and latex gloves, were permeable to solvents such as acetone and Bostik 9913. Such gloves were therefore ineffective as a means of providing skin protection to Seawind's employees when they were using solvents.

94 Seawind was aware of the need to provide its employees with properly fitted and maintained respiratory protective devices and personal protective equipment such as nitrile or chemical resistant gloves.

95 After the incident, Seawind retained the services, a company called 3M, to provide detailed training in relation to the fitting, fit testing, use and maintenance of respiratory protective masks to its purchasing officer and to supervisory staff and employees who were required and permitted in the course of their work to use solvent-based resins. 3M was the principal provider of respiratory protective masks in use at the factory prior to the subject incident.

96 Particulars 10 - 23 relate to Seawind's failure to provide a safe system of work, safe work method statements, or other detailed and documented work procedures, information, training and supervision. Seawind had not conducted any formal documented risks assessment in relation to the construction of catamarans at the premises and, in particular, with respect to the tasks involved in the use of solvents, such as acetone and Bostik 9913 to clean glue and/or other material from services inside the hulls of the catamaran under construction (see ASF at 25).

97 Seawind did not have in place any detailed work method statements or other documented safe work procedures in respect of the tasks involving the use of solvents or the routine conducting of atmospheric testing (see ASF at 26 and 56).

98 Seawind did not provide training or instruction to its purchasing officer in relation to the fitting and testing of respirators. Such training as was provided to the employees in relation to MSDSs that were available at the premises was restricted to training at induction. Seawind did not provide specific training relating to the MSDSs for each chemical or substance used by its employees in the course of their employment, including Mr Parsons' supervisor (see ASF at 94 - 98).

99 The prosecutor conceded that Seawind "warned" its employees, including Mr Parsons, that solvent-based resins, solvent-based glues and solvents including acetone and Bostik 9913, were dangerous chemicals and presented risks to the health and safety of its employees who were required to use those substances in the course of their employment.

100 In my view, the general warnings given to workers and the steps taken by the company in the face of a known and serious risk to safety were, in all the circumstances of this matter, entirely inadequate and unsatisfactory: see Ullrich at [49].

101 Mr Skinner in mitigation emphasised that the MSDS did not conclude that death could possibly be caused by exposure to these chemicals, although serious injury and affectation could occur. Counsel also noted that Seawind did engage an expert in May 2007.

102 Mr Skinner also submitted that the Pickford & Rhyder report did not specifically advise the company to put extractor fans on at all, although he conceded that subsequent reports did. Mr Skinner noted that the defendant knew something about the effects of powerful chemicals. The evidence is that the defendant specifically knew about the precise effects of the chemicals.

103 I accept that the defendant only became aware of the incident involving Mr Parsons in June 2008, after carrying out an investigation of the incident in August 2008 which is the subject of this prosecution.

104 In proceeding to sentence, I accept the submission of Mr Skinner that the defendant should be sentenced on his own culpability and criminality, accepting that pursuant to s 26 of the OHS Act, he is deemed to have committed the same offence as the corporation.

105 In Inspector Mason v Graham Allen Chapman & anor [2013] NSWIRComm 71 at [98], Walton J, Vice-President noted:

... the purpose of s 26(1) is to make an individual who was 'complicit' in the offence (see, for example, Hookham v The Queen and Powercoal (2005)), or responsible to an extent for the running of the corporation, similarly responsible for its acts or omissions (Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [38]). Accordingly, in assessing the culpability of the defendant, weight will be placed upon the role played by the defendant in decision making in relation to employment and changes to practices, and in otherwise running the corporation (Walco Hoist (No 2) at [39]).

106 As Wright J, President observed in Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [39] a director's criminality is to be assessed against the background of both the director's role in the management of the corporation and the nature and gravity of the corporation's offence as disclosed in the evidence.

107 The prosecutor conceded, that on the available evidence, the defendant was not simply the alter ego of Seawind. The company employed and/or utilised the services of an array of experienced managers who were involved in the day-to-day management of the corporation's affairs and the day-to-day conduct of the works performed at the subject premises. As I have already observed, the nature of the duty under the OHS Act is absolute and unable to be delegated.

108 However, in proceeding to sentence, I am mindful of the evidence given by the defendant in respect of the use of solvents by employees of Seawind and the circumstances surrounding the incident.

General deterrence

109 Although Mr Skinner submitted that I should exercise my discretion and not include an element in the penalty for general deterrence, I consider it is appropriate in this case to once again draw attention to the need for employers in the shipbuilding industry to be constantly vigilant of the need to ensure that employees and non-employees are not exposed to risks to their health and safety through the use of chemicals, solvent-based resins, solvent-based glues and solvents, including acetone and Bostik 9913. Effective ventilation systems should be put in place where such chemicals are used and employees provided with respirators and gloves. Such steps should severely reduce the risk of injury to employees. I therefore include an element in the penalty for general deterrence.

Specific deterrence

110 In relation to specific deterrence, I accept, in light of the evidence relied upon by the personal defendant, that this is not a case which calls for the imposition of some additional significant punishment aimed at deterring the defendant from further offending against the OHS Act and/or for the purpose of compelling the defendant's attention to occupational health and safety issues, so that persons are not exposed to risks to their health and safety.

111 The defendant's evidence was that Seawind was still trying to trade back to profitability. It is still based in Australia and will carry out all its sales and marketing here as well as its future design and new product development. As the corporation is still operating, I include a small component in the penalty for specific deterrence.

Subjective factors

112 The defendant's evidence is that Seawind has been in operation since 1982. It has no prior convictions and has made an impressive contribution to providing employment, particularly in respect of apprentices and trainees, in the Illawarra area. The defendant attended Mr Parsons' funeral and paid for the wake. The defendant has also been proactive within the corporation and the boatbuilding industry, advising of the significant improvements that Seawind introduced after the incident to reduce or eliminate the risks to the health and safety of its employees who use solvents.

Plea of guilty

113 The defendant entered a formal plea of guilty shortly before a four week defended hearing was due to commence. The utilitarian benefit of the plea is therefore reduced. I am mindful of the extensive review of authorities relating to the nature and purpose of the discount available in sentencing and the various factors that need to be balanced in determining the extent to which a discount in relation to the utilitarian benefit should be granted: see Inspector Kent v Duct Master Pty Ltd [2009] NSWIRComm 143.

114 I also note the principles outlined in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The plea, although late, avoided the necessity for a lengthy trial and therefore provided some utilitarian benefit. I propose to allow a discount of 15 per cent for the utilitarian benefit of the plea.

Co-operation

115 I find that the defendant fully co-operated with the WorkCover Authority of New South Wales during its investigation of the incident and that it is appropriate to take this matter into account in determining penalty.

Good industrial citizen

116 I also take into account the size and nature of the defendant's business and the inherent risks involved in the work performed by the defendants. The defendant can now demonstrate a strong commitment to occupational health and safety and is entitled to be regarded as having a good industrial safety record. The defendant is a first offender, which I take into account as a significant subjective factor, together with the assistance provided to Mr Parsons' family.

117 The Full Bench in Corinthian Industries (Sydney) Pty Ltd v WorkCover Authority of New South Wales (Inspector Wilson) (2000) 99 IR 159 stressed the importance of taking into account good industrial citizenship and the compassionate steps taken after an incident in respect of a worker. Their Honours observed at [17]:

We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area.

Remorse and contrition

118 Section 21A(3)(i) of the CSP Act provides that "remorse" may be taken into account as a mitigating factor if and only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

119 The prosecutor accepts that the defendant is remorseful for the occurrence of the offence. The evidence given by the defendant satisfies each limb of s 21A(3)(i) of the CSP Act. I am satisfied that the remorse so demonstrated is genuine.

Steps taken after the incident

120 The prosecutor conceded that Seawind undertook a reform of its OHS systems after the incident and that specific steps were taken to address the risks associated with the use of solvent-based resins, solvent-based glues and solvents. I take these matters into account.

121 Mr Skinner made an application for the court to exercise its discretion under s 10 or s 10A of the CSP Act. Section 10 and 10A of the CSP Act is in the following terms:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person's character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.

10A Conviction with no other penalty

(1) A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

(2) Any such action is taken, for the purposes of the Crimes (Local Courts Appeal and Review) Act 2001 and the Criminal Appeal Act 1912, to be a sentence passed by the court on the conviction of the offender.

122 The application of this section has been considered by a number of Full Benches of this Court. See WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64; (2000) 49 NSWLR 700; Riley v Australian Grader Hire Pty Ltd; WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services Pty Limited (2004) 136 IR 449; WorkCover Authority (NSW) (Inspector Shaw) v Du Pont (Australia) Pty Ltd (2006) 152 IR 68; T and M Industries (Aust) Pty Ltd and Anor v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130.

123 These authorities provide that s 10 of the CSP Act will be available only in rare and limited circumstances in proceedings under the OHS Act. In Profab, for example, the Full Bench stated at [26]:

Nevertheless, in occupational health and safety offences before this Court the exercise of the discretion under s 556A (cf s 10 of the Crimes (Sentencing Procedure) Act 1999) must be considered as extraordinary and highly exceptional. When a defendant seeks its exercise cogent reasons must, in our view, be provided by the defendant for such exercise and also by the judge acceding to that submission. The obligation is increased rather then diminished in a situation, such as the present, where the exercise of the discretion is not sought by the defendant but raised by the Court.

124 Shortly stated, the defendant is required to advance extenuating circumstances in which the offence was committed. This may include evidence as to age, health, or mental condition, all being matters I am required to have regard to pursuant to s 10(3) of the CSP Act, in addition to antecedents and whether the offence was trivial, together with any other matters that the court may regard as relevant to consider.

125 In light of the objective seriousness of the offence and the lack of exceptional or extraordinary matters, there is no proper basis for the exercise of my discretion under s 10 or s 10A of the CSP Act.

Maximum penalty

126 The maximum penalty in respect of the defendant is $55,000. Taking into account the appropriate seriousness of the offence, the strong subjective factors referred to earlier, particularly those the subject of the defendant's evidence, I impose a fine of $6500.

127 The prosecutor seeks a moiety and costs which I propose to grant.

Orders

128 I make the following orders:

(1) The offence is proven and a verdict of guilty is entered.

(2) The defendant is convicted of the offence, as charged.

(3) The defendant is fined an amount of $6500 with a moiety thereof to the prosecutor.

(4) The defendant shall pay the prosecutor's costs of the proceedings in an amount as agreed, or if agreement cannot be reached, as assessed.

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Decision last updated: 01 November 2013