Anthony Noakes v Stephen Fitzsimmons and Jeremy Grobben
[2013] ACTMC 8
•1 JULY 2013
ANTHONY NOAKES v STEPHEN FITZSIMMONS AND JEREMY GROBBEN
[2013] ACTMC 8 (1 JULY 2013)
Work Safety Act2008 (ACT) (repealed).
Work Safety Regulation 2009 (ACT) (repealed).
Crimes (Sentencing) Act 2005 (ACT)
Erindale M Propriety Ltd v. Curran [2004] ACT SC 69
Inspector Glass v. Foamex Polystyrene Propriety Limited [2004] NSW IRComm 100, 8
WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Propriety Ltd [1999] NSW IRComm, 300
No. CC40027 of 2012
No. CC40028 of 2012
No. CC400471 of 2012
No. CC40025 of 2012
No. CC40026 of 2012
No. CC400472 of 2012
Magistrate: Chief Magistrate Walker
Magistrates Court of the ACT
Date: 1 July 2013
| IN THE MAGISTRATES COURT | ) | No. CC40027 of 2012 |
| AT CANBERRA IN THE | ) | No. CC40028 of 2012 |
| AUSTRALIAN CAPITAL TERRITORY | ) | No. CC400471 of 2012 |
BETWEEN:
ANTHONY NOAKES
Informant
AND:
STEPHEN FITZSIMMONS
First Defendant
AND:
JEREMY GROBBEN
Second Defendant
D E C I S I O N
Magistrate: Chief Magistrate L A WALKER
Date: 1 July 2013
Place: Canberra
THE CHARGES
The defendants, Stephen Fitzsimmons and Jeremy Grobben, are both charged with one count of breaching section 33 of the Work Safety Act 2008 (repealed). That section provides that:
(1) a person commits an offence if-
(a) the person has a safety duty; and
(b) the person fails to comply with the duty; and
(c) the failure causes serious harm to someone; and
(d) the person is negligent about whether the failure causes serious harm to anyone.
The maximum penalty for this offence is 1500 penalty units or three years imprisonment or both; at the relevant time, a penalty unit was $110. Therefore the maximum financial penalty is $165,000.
The charges are that on 25 January 2011, the defendants negligently failed to comply with their safety duty in the following ways:
a.failing to take reasonably practical steps to ensure the safe storage of substances (butane) at the workplace;
b.failing to provide adequate information, instruction, training or supervision to workers to allow work in the restaurant kitchen to be carried out safely, particularly in regard to the safe storage and handling of flammable substances (butane);
c.failing to take reasonably practicable steps to implement an effective system of monitoring the work safety of workers to detect and correct the unsafe storage of butane gas under the pizza oven;
d.failing to ensure that the risks of fire explosion at the workplace were managed, as required by regulation 116 (1) of the Work Safety Regulation 2009 (the Regulation);
e.failing to eliminate potential ignition sources (in particular, in the pizza oven) from proximity to a flammable substance (butane) at the workplace, as required by regulation 116 (2) of the Regulation; and
f.failing to monitor the workplace regularly to ensure the continued effectiveness of control measures for fire and explosion at the workplace in circumstances where there were flammable substances (butane) at the workplace, as required by regulation 116 (3) of the Regulation.
BACKGROUND TO THE MATTER
Summonses were issued on 23 January 2012, two days short of a year after the offence was committed. The summonses were first returnable on 5 March 2012. Pleas of not guilty were entered in May 2012. The brief was provided to the defence in August 2012. On 6 September 2012, the matters were listed for hearing on 12, 13 and 14 March 2013. On 4 October 2012, guilty pleas were entered by each defendant to the charge contrary to s.33.The hearing was vacated and, at the parties request, and the matters relisted for sentence on 1 May 2013. On that date the defence sought further time to prepare evidence in mitigation. Submissions on sentence were heard on 26 June 2013.
It therefore took nigh on a year for summonses to issue; over one year for guilty pleas to be entered and 5 days post submission for sentence to be determined.
The material available to me for the purpose of sentencing these defendants is the following:
a. the statement of facts as agreed between the parties;
b. a series of photographs of Mr Jefferson, a person injured as a result of the breach;
c. a bundle of documents provided by way of mitigation for the defendants consisting of:
i.a series of policies and procedures both before and after the event;
ii.photographs of the restaurant interior after the event;
iii.a series of letters and certificates evidencing patron and community appreciation both before and after the event;
iv.references for Mr Grobben from Chris Gallaher, William Denny, Bill Burton along with Mr Grobben’s curriculum vitae and evidence as to his financial situation;
v.references for Mr Fitzsimmons from Craig Fox, Alan Bennett and Matthew Smorhun, along with Mr Fitzsimmons’ curriculum vitae and evidence as to his financial situation.
d. A typed outline of the Delissio project prepared by Mr Chris Hanson, a business consultant, after the breach;
e. A record of inspection completed by Mr Anthony Noakes, Work Safe Inspector on 3 February 2011 regarding lifting of the prohibition notice and the improvement notice, both issued on 25 January 2011.
THE FACTS
In short, Mr Grobben and Mr Fitzsimmons were, and continue to be, partners and owners of the Delissio restaurant on Moore Street, Braddon. That restaurant commenced business in 2007.
On 25 January 2011, three 280 millilitre cans of butane lighter gas, which were kept at the restaurant to fuel a brulee torch, were stored on an open shelf directly beneath a pizza oven. Those cans had been purchased that day but the practice had, according to paragraph 5 of the agreed facts, been ongoing for an unspecified number of weeks. It is agreed that this form of storage was contrary to established practice in the restaurant.
At about 8:30 p.m., during a busy dining session, Mr Ashleigh Jefferson was preparing and cooking pizzas in the pizza oven. Without warning, the three cans exploded and he was engulfed in flames. Mr Jefferson was maintained under running water outside of the restaurant until an ambulance and the Fire Brigade arrived.
10. He suffered significant injuries which required him to be placed in an induced coma and relocated to the specialist burns unit at Concord Hospital in Sydney for treatment. He suffered severe burns to his hands, face and elbow which have resulted in long-term injuries, as well as a deep puncture wound to his leg which was slow to heal due to infection.
11. Unfortunately, no current information as to Mr Jefferson’s condition was provided and I am uninformed as to whether he has fully recovered from those injuries. I am informed that he has since patronised the restaurant.
12. Another employee, Philippe Bui, a waiter working in the restaurant, also suffered singeing to the hair on his head, chest and forearm and a small lesion on his nose. Again, I have not been provided with any information as to his recovery.
13. A Work Safe inspector attended. Prohibition and improvements notices were placed on the restaurant that night prohibiting use of damaged kitchen equipment and testing of electrical items.
14. As previously stated, the summons was not issued until two days short of the year after this event. The restaurant continued to trade following lifting of the prohibition improvement notices on 2 February 2011.
OBJECTIVE SERIOUSNESS
15. The starting point in terms of sentencing any criminal offence is the objective seriousness of that offence. This is determined by consideration of the maximum penalty imposed by the legislature along with a consideration of the facts of the particular case. In a case such as this an assessment of the facts requires careful consideration as the balance of factors is not so immediately obvious as in some types of offences.
16. Whilst it is an element of the offence that the breach of the safety duty causes serious harm to someone, the extent of the negligence is also to be taken into consideration.
17. I have been provided with a significant amount of material and have had the benefit of comprehensive submissions by both counsel.
18. The defendants’ material included the employee handbook that was in place prior to this incident. It is a 39 page document which is both well set out and easy to navigate. Most of the document relates to client service and performance of the employee’s duties. The issue of occupational health and safety is dealt with page 38 of the document. I note that it does not address some of the most common risks that one might expect to find in a kitchen, for example the risk of fire or chemical exposure.
19. I was provided with some additional pages which do not form part of the handbook itself but reflect information provided to employees in November 2010. These documents included a page headed “occupational health and safety”. That document identified certain hazards including chemicals and fire. It notes the obligation of the employer to provide a workplace safe and free from unnecessary hazards and also notes the obligation of an employee to report hazards should they come to the employee’s attention. I was also provided with notes of meetings from January 2011 which were apparently provided to all staff. These notes included a reference to the need to be aware of the safety sheets relating to chemicals, to ensure the correct use and storage of chemicals, as well as a reminder of the occupational health and safety policy of Delissio.
20. The photographs provided indicate that there was some consideration of the risks related to chemicals and fire prior to the incident. The normal storage location prior to the incident for the butane cans was away from a source of heat. There were notices on the wall at the restaurant regarding fire procedure and a fire blanket, hose and evacuation plan.
21. I was provided with no information as to whether all of the people employed on the night of the incident had been present for the additional training provided in November 2010 and January 2011. I was told that all employees were provided with the employee handbook as well as being inducted into procedures at the start of their employment and placed on a probationary period to ensure adequate compliance. There was no information provided to me, in particular, as to when Mr Jefferson started with Delissio and, thus, what training he had received.
22. I also note that the statement of facts did not address who might have placed the butane containers at their location, who if anyone at the restaurant was responsible for ensuring compliance on a day-to-day basis with safety procedures and when the restaurant was last inspected by the defendants.
23. In submissions in relation to the objective seriousness of the breach, defence counsel highlighted the defendants’ professional approach to their business, the fact that there was an adequate system in place albeit a recognition that it had not been enforced in the weeks prior to the event, the fact that staff had been trained in respect to safety issues, the induction and ongoing nature of staff training, the fact that there had been no breach by either defendant before or after this event, the fact that the butane bottles which exploded had only been purchased that day, the fact that the bottles had not been left in that location by the defendants and that their placement there was unknown to the defendants. In short the defence submission was that the defendants’ breach was objectively towards the lower end of the scale.
24. The issue of the extent to which an employer could rely upon the exercise of common sense by employees was raised by defence counsel with a broad reference to what was said to be a trend in the higher courts towards the recognition of such an obligation. Whilst the notion of personal responsibility is recognised in the context of the tort of negligence and, and perhaps increasingly so in recent years, the concept of duty of care in that context is somewhat different to that concept within the context of work safety legislation. The safety duty to an employee is absolute, that is provided for in section 33(2). The issue of failure to comply with the duty is a matter of strict liability, as provided for in section 33(3).
25. On reflection, whilst one would certainly hope that those in the workplace would exercise common sense, work safety laws are directed to the protection of all. What might be thought to be common sense to one person, arising from their life experience, may not be so to another. Having regard to the particular nature of the duty under the work safety legislation, and proper acceptance of its breach in the manner formulated above, I am not prepared to conclude that there is a reduction in liability in these circumstances by virtue of what might well be said to be a failure to exercise common sense by an unidentified member of staff.
26. If a failure to exercise common sense was such that its effects could not be avoided by proper exercise of a safety duty, then there would simply be no negligence. The defendants’ plea to the identified breaches highlights that such is not the case here.
27. The prosecution submitted in relation to the objective seriousness of the offence that regard should be had to the degree of injury suffered, having regard to the section breached, which incorporates an element of harm caused, and to section 33(e) of the Crimes (Sentencing) Act 2005.
28. This, the prosecution submitted, was in addition to the need to have regard to the potential for injury, the foreseeability of the risk and the ease with which it could have been addressed. I was referred authorities in support of these propositions.
29. It is correct to say that the severity of the consequences of a breach does not necessarily evidence the degree of negligence. Connelly J reiterated with approval in Erindale M Propriety Ltd v. Curran [2004] ACT SC 69 at paragraph 11, the remarks of the President of the New South Wales Industrial Relations Commission, in WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Propriety Ltd [1999] NSW IRComm 300, quoting Wright J as saying:
The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of the penalty. However, the gravity or otherwise of the potential risk flowing from breach and its forseeability are clearly relevant as are the measure of gravity of the breach itself and the measure of culpability.
30. Balancing that, in Erindale at paragraph 17, Connelly J referred to the decision of Inspector Glass v. Foamex Polystyrene Propriety Limited [2004] NSWIRComm 100
The consequences of the breach of the Act, however, are not the measure by which the amount of penalty is to be determined because it is the gravity of the detriment to safety that must be the court’s focus. The consequences, however, may be a measure of the seriousness of the risk.
31. Having weighed the competing considerations I consider that these offences fall towards the mid-range of seriousness for offences of this type. My reasons for so concluding are these.
32. The risk of harm from keeping butane bottles near an heat source are obvious and foreseeable. Being that the risk is one of fire and explosion, the significance of that risk is great. What eventuated here was serious injury to one employee and lesser injury to another. What could have eventuated was mass injury, even death, as well as significant property damage caused by fire in a full restaurant. The unpredictable and highly dangerous nature of fire make any risk associated with it serious. It should never be forgotten that the Great Fire of London of 1666 started in a baker’s oven.
33. The procedures in place to identify and control that risk were informal and not enforced. The butane bottles were, as a matter of “established practice”, kept away from the oven. There was no policy or procedure written to that effect, identifying potential chemical hazard and there is no evidence before me that staff were instructed specifically where to keep flammable substances. It is for that reason that the risk eventuated.
34. The remedy for this risk was simple and of negligible cost: a clearly identified storage space, warnings to staff and compliance checks to ensure that the procedure was adhered to. None of these were in place at the time of the breach. The breach had been in place for “weeks” and although not known personally to the defendants, there was no system of review, reporting or rectification to ensure compliance with established practice.
35. Given these factors, why then do I assess the breach at being in the mid rather than the high range of objective seriousness? I do so because the breach does not, it seems to me, reflect an attitude of disdain for safety. The defendants clearly had some regard to the need for safety measures. They themselves had apparently established what, if communicated and complied with, was a safe practice. Their failure, their negligence, was in failing to realise that others may not apply that same level of common sense and that others may not recognise or advert to the risk of which they were aware. That is not gross negligence but by virtue of the particular risks associated with fire and chemicals, it is a risk which it was negligent not to address more carefully and thoroughly, particularly having regard to the likely consequences.
THE SUBJECTIVE FACTORS
36. The other factors which I have taken into account in sentencing apply to both defendants. They are as follows.
37. The defendants are people who both hold excellent reputations within the catering industry. They have demonstrated a commitment to compliance with ongoing training and education of staff and have established systems to do so. The defendants were both proactive in respect to workplace health and safety prior to the incident.
38. The defendants responded sympathetically to the injured employee, Mr Jefferson, to the extent of providing gratuitous airfares for his return to Canberra. Neither of the defendants apparently communicated directly with Mr Jefferson. It was submitted that they had concern about doing so. Although not expressed directly, I took this to mean that there might have been some concern that by communicating with him it may have been perceived that the defendants sought to influence Mr Jefferson as to what evidence might be given, noting that not guilty pleas were in place. This provides an explanation for the lack what otherwise would be considered a normal expression of concern.
39. Following the incident, the defendants responded quickly and thoroughly to the identified deficiency. They had electrical and mechanical checks carried out of equipment in the kitchen; they obtained the assistance of a hospitality consultant regarding the adequacy of their systems and practices; they organised inspections of the premises; they have contracted a six monthly independent fire review at their own expense; all key staff have been trained in first aid, the defendants meeting both the initial and ongoing cost; a staff orientation handbook has been prepared which now addresses fire and chemical risks; a risk assessment management plan has been put in place; more extensive signage has been arranged in the kitchen addressing both chemical and fire risks and better storage arrangements have been put in place in respects to flammable substances.
40. I have taken into account the guilty pleas. I note that they were not entered until nearly a year after the matters were first mentioned in Court, the matters having been listed for hearing twice before the plea was entered. I do note, however, that the pleas were to a lesser charge than the more serious breach alleged of recklessly causing serious harm contrary to section 34 of the Act and were the result of negotiation between the defence and prosecution as to the appropriate charge. Given what I know of the event, that is an appropriate outcome.
41. Whilst the plea of guilty was not entered early I am satisfied that nonetheless there is genuine remorse, certainly for the injury caused to Mr Jefferson and Mr Bui.
42. I am cognisant of the otherwise good character of both defendants; in particular both defendants clearly have a strong sense of community obligation and have been actively involved in charity work. I am cognisant that the period of default was relatively short and amounted to failure to enforce a system rather than failure to have any system in place. I am cognisant of the issue of the defendants’ capacity to pay. Neither defendant is impecunious but neither are they particularly wealthy. I do note some downturn in the hospitality business in recent times.
OTHER SENTENCING CONSIDERATIONS
43. I am cognisant of the objects of the Act as it stood at the time which included the need to secure and promote the safety of people at work, to eliminate at the source risks to people whether the workers or others, to protect people from injury and to provide a framework for continuous improvement and progressively higher standards of work safety. I note that subsequent legislation incorporates all of these objects and more.
44. I have had regard to the provisions of section 7 and section 33 of the Crimes Sentencing Act. I take in to account that both defendant’s have hitherto unblemished safety records as well as otherwise excellent character. Both have been involved in the hospitality industry, albeit in different capacities, for in excess of 10 years.
45. Given their ongoing involvement in the hospitality industry, specific deterrence is a factor in any sentence to be imposed although I accept a lesser factor against this background, the defendants having responded appropriately in relation to their safety duties.
46. I am cognisant particularly of the need for general deterrence. A robust response from the courts is necessary to reinforce all in the workplace of their obligations to the safety of the workforce. Whilst there is no clear mathematical solution to the issue of breaches of work safety duties, a penalty is more likely to have deterrent effect where the cost of failing to comply with one’s work safety obligations is greater than the cost of compliance.
47. I am satisfied that for both defendants, as first offenders, a financial penalty is appropriate. I would have fined each defendant $30,000 but in light of the guilty pleas, I reduce that to $24,000 each.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the Reasons for Decision of
Chief Magistrate L A WALKER
S.S.KEMAKEN
Associate
Counsel for the Informant: Mr. A. Williamson
Solicitor for the Informant: Director of Public Prosecutions ACT
Counsel for the Defendant: Mr. I. Bradfield
Solicitor for the Defendant: Snedden Hall & Gallop
Date of Hearing: 26 June 2013
Date of Judgment: 1 July 2013
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