Bell v Schloss

[2014] QMC 23

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Bell v Schloss [2014] QMC 23

PARTIES:

STEWART LYNN BELL

(complainant)

v

DENNIS WILLIAM SCHLOSS

(defendant)

FILE NO/S:

MAG189760/12(4)

DIVISION:

Industrial Magistrates Court

PROCEEDING:

Charge - Summary Hearing

ORIGINATING COURT:

Magistrates Court at Taroom

DELIVERED ON:

12 September 2014

DELIVERED AT:

Dalby

HEARING DATE:

4 June 2014, 5 June 2014, 6 June 2014, 10 June 2014, 12 June 2014

MAGISTRATE:

RYAN K

ORDER:

Guilty

CATCHWORDS:

INDUSTRIAL LAW - PROSECUTION – Meaning of Operating Plant, identification of relevant Safety Management Plan, admissibility of documents produced pursuant to section 834, meaning of low risk tasks, appointment of complainant, defences

Petroleum and Gas (Production and Safety) Act 2004

Coal Mining Safety and Health Act 1999.

COUNSEL:

A Macsporran, QC and Mr Nicholson for the complainant

P Roney, QC and Mr R Byrne for the defendant

SOLICITORS:

Crown Law for the complainant

Ashurst Lawyers for the defendant

The Defendant is charged that on 16 March 2011 he breached section 702 of the Petroleum and Gas (Production and Safety) Act 2004 (“the Act”) in that he failed to comply with safety procedures and obligations under the safety management plan for the plant to the extent the procedures and obligations applied to him.  As a result of this breach, it is alleged that Mr Gavin Vieritz, an operator/maintainer employed by Santos Limited, suffered bodily harm when the back pressure valve located on a mobile separator on which he was performing maintenance work separated forcefully and without warning striking him in the face and head.

The incident occurred at what is commonly known as the Scotia site which is located on Petroleum Lease 176 near Wandoan in south west Queensland.  The lease is held by Santos QNT Pty Ltd (“Santos”) and Vamgas Pty Ltd as tenants in common.  The work being undertaken on the lease was and is gas extraction.  Santos QNT Pty Ltd is a subsidiary of Santos Limited.

The Defendant, Mr Schloss was an employee of Santos Ltd who had joint supervisory responsibilities for Mr Vieritz and was the supervisor on the day of the incident.

At the outset, Mr Roney for the Defendant conceded that Mr Vieritz had sustained bodily injury making it unnecessary for the complainant to prove this allegation.

A further preliminary matter relating to a limitation issue raised by the defendant was dealt with at the commencement of the hearing, when the complainant, Mr Bell, gave evidence with regard to the state of his knowledge of the incident during 2011.  Following the giving of that evidence, Mr Roney advised the court that he was satisfied as to the complainant’s lack of knowledge of the incident until 2012, thus disposing of any question of failing to commence proceedings within the limitation period.

Particulars

Prior to the start of the hearing, Mr Roney filed and served lengthy submissions to support an application for the complaint to be dismissed on the basis of a matter of law or, in the alternative, that the complainant be required to provide proper particularisation of the bases of the complaint.

Subsequently, Mr Macsporran, for the complainant, tendered a list of particulars which referred to various sections of the Safety Management Plan (SMP) on which he was to rely to prove his case against the defendant. 

Notwithstanding the delivery of these particulars, prior to the prosecution calling Mr Knox, the general manager of Santos Ltd and relevantly the Executive Safety Officer at the time of the incident, to prove the relevant SMP which was in force at the time of the incident, Mr Roney maintained an objection to the hearing proceeding until the prosecution provided full details of the case his client was to meet.  This argument arose as a result of the disclosure that the SMP to be tendered by Mr Knox pursuant to subpoena, contained additional appendices (not previously provided to the defence) which are referred to in the clauses of the SMP and which had been particularised by the prosecution.

In the event, the documents provided by Mr Knox in response to the subpoena, including the appendices, were admitted as exhibits, on the basis that they were produced in response to a notice and not as evidence of their contents.

The incident

Mr Vieritz, the injured party, gave evidence of the occurrence of the incident.  He was at the relevant time, and still is, employed by Santos Ltd as an operator/maintainer.  He has been employed in that position for approximately 8½ years, the last five on a permanent basis.

His evidence revealed that in about 2005, he, together with a former fellow employee, were tasked with bringing the separator in question “on line” at the plant.  The separator had a number of functions, including the monitoring of water in the gas being extracted from the ground and separating that water from the gas, before the gas entered the general pipeline.

The separator is what is referred to as a mobile separator and is mounted on a trailer or “skid” which is attached to a truck to enable its transport from well head to well head.  Mr Vieritz stated, and I accept, that he worked on the separator at different times over the years.  There had been problems with the separator, in particular, as described by Mr Vieritz, the “water meter side of things”. 

At the start of the 2011 year, Mr Vieritz was tasked as part of his yearly “score card” by the defendant’s back to back joint supervisor, Mr Brad Cave to get the separator operational to enable it to be used on site.  As a result of his examination of the separator and discussions with Santos Ltd engineers and a Mr Adam Davidson, another employee of Santos Ltd working on another site, Mr Vieritz ascertained that the faulty Kimray back pressure valve on the separator could be repaired by installing a new kit.  He ordered this kit through the internal ordering system in place at Santos Ltd.

On 9 March, a week before the incident occurred, Mr Vieritz and a Mr Crowther replaced another leaking valve, being a bypass valve, on the separator which had also been identified as not functioning properly.  This replacement valve as installed by Mr Vieritz can be seen at the bottom left of the photograph which forms Exhibit 25.  At this time and until the date of the incident, the mobile separator was located at Well 22.

The ordered “kit” having arrived, on 14 March 2011 (two days before the incident), Mr Vieritz removed the hood and the Kimray back pressure valve assembly located near the top of the separator, took the assembly to the workshop and installed the “kit”.  He then refitted the assembly in the afternoon. It was this Kimray back pressure valve which separated forcefully due to a build up of pressurised gas in the separator, and caused injury to Mr Vieritz. This back pressure valve and its position are depicted in the photographs marked Exhibits 11, 25 and 26.

Mr Vieritz described, by reference to Piping and Instrumentation Drawings marked “A” and “B” forming Exhibit 40, what he did both on 14 and 16 March 2011 to isolate the gas from the well to which the separator was attached before working again on the Kimray back pressure valve.  First, he closed the valves marked 1 and 2 on drawing “B”.  These valves controlled the flow of gas from the well head to the inlet and outlet black hoses which attached the separator to the well head.

On both days, he said he then “believed” he opened the bypass valve marked 2 on drawing “A” to release any trapped gas, this being the valve replaced by him and Mr Crowther on 9 March.  Notably, this valve was found to be in the closed position when investigators attended the site after the incident on 16 March.  Mr Vieritz told the court that on 14 March, he “blew it (the gas) down the top by the blowdown on the test separator” (T2-80).  Mr Vieritz explained that this blowdown was done by opening a ball and gate valve situated on the very top of the separator.  However on 16 March, he “opened up the blow-down valve on top of it” but he closed them before he got down off the separator because his job was “only going to be a short period of time” and he “didn’t want to climb back up the test separator up high and open it again and close it.” (T2-83)

Mr Vieritz stated that after opening and closing the valves described, he removed the hood of the Kimray back pressure valve to check whether the vent plugs were blocked.  He believed the system was empty of any pressurised gas as he had “blown down” the valves and even glanced at the pressure gauge beside the Kimray back pressure valve which showed zero pressure.

After a period, he says, of 10 minutes which he spent inspecting the hood, the back pressure valve insert blew off under pressure, grazing his forehead and knocking him off the separator trailer.

The Charge

Section 702 of the Petroleum and Gas (Production and Safety) Act 2004 states –

702Requirement to comply with safety management plan     

A person at an operating plant must comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations apply to the person.

Maximum penalty – 100 penalty units

The maximum penalty is increased to 1000 penalty units or 1 year’s imprisonment if the act or omission causes bodily harm.[1]

[1] Section 732, Petroleum and Gas (Production and Safety) Act 2004

In order to succeed, the prosecution must prove each element of the charge beyond a reasonable doubt.  On the second day of the trial, the prosecution provided further particulars of the alleged offence as requested by the defence.  These particulars were incorporated into the complaint, which was amended by consent.  The amendment to count 2 in the complaint and summons forms Exhibit 6.

Section 702 confers a broad responsibility to comply with safety procedures on all persons at an operating plant to the extent those procedures apply to those persons. It was not contested that as a supervisor, the defendant was a person on whom those procedures and obligations applied.

Appointment of complainant

It has been submitted by Mr Roney for the defendant that the prosecution case should fail as there is “reasonable doubt as to whether in fact at the time this Prosecution was commenced….on 20 July 2012 that Mr Bell held that position” – that position being the commissioner for Mine Safety and Health pursuant to Section 73A of the Coal Mining Safety and Health Act 1999.

The evidence before the court is contained in Mr Bell’s affidavit[2] in which he swears that he was appointed as Acting commissioner for Mine Safety and Health on 7 December 2011.  A copy of the letter of appointment is Exhibit SLB-01 to the affidavit.

[2] Exhibit 1

During cross examination, Mr Bell confirmed that he had no independent recollection of receiving the letter of appointment, but that he had no doubt that it had been received by him.  Mr Roney submits that in the absence of Mr Bell’s independent recollection of the appointment, the prosecution should be dismissed as incompetent as it had not been “commenced by a person with authority to do so.

I do not consider Mr Bell’s failure to recollect whether he actually received the letter of appointment to be fatal to the prosecution.  He has produced a copy of the letter of appointment and deposed to his position as at the date of the commencing of proceedings.  Nothing brought forward by the defence has convinced me that Mr Bell’s evidence of his competency to bring the complaint should be discounted.  I therefore find that the prosecution has been properly brought.

Operating Plant

The amended complaint alleges that Petroleum Lease PL 176 was an operating plant for the purposes of the Act.

“Operating plant” is defined in Section 670 of the Act (as it then applied) which provides –

(2) An operating plant is any of the following—

(a) a facility used to explore for, produce or process petroleum, including machinery used for completing, maintaining, repairing, converting or decommissioning a petroleum well;

Example of machinery used for maintaining or repairing a petroleum well—

machinery known in the petroleum and gas industry as a work over rig

(b) a petroleum facility;

(c) a pipeline authorised under a petroleum authority;

(d) a distribution pipeline;

(e) a distribution system;

(f) a bulk fuel gas storage facility;

(g) a facility that is used to carry out a GHG storage activity;

(h) a GHG stream pipeline under the GHG storage Act.

(3) However, if a facility has, under a regulation under the Dangerous Goods Safety Management Act 2001, been classified as a major hazard facility, it is an operating plant only to the extent to which that Act does not apply to the facility.

(4) Subsection (2) applies for a facility or pipeline even if it is—

(a) an on-site activity as defined under the Coal Mining Safety and Health Act; or

(b) an operation as defined under the Mining and Quarrying Safety and Health Act 1999.

(5) An operating plant is also a place, or a part of a place, at which a following activity is carried out, but only to the extent of the carrying out of the activity—

(a) an LPG delivery network prescribed under a regulation;

(b) tanker delivery of bulk fuel gas;

(c) cylinder storage at premises prescribed under a regulation;

(d) an authorised activity under a petroleum authority or a GHG authority if the activity is a seismic survey for data acquisition;

(da) an underground gasification activity;

(e) another activity prescribed under a regulation and associated with the delivery, storage, transport, treatment or use of petroleum or fuel gas.

(6) Also, an operating plant includes—

(a) any part of the area of a petroleum tenure or 1923 Act petroleum tenure on which an operating plant under subsections (2) to (5) happens or is located as an authorised activity for the tenure;  and

(b) any part of the area of a mineral hydrocarbon mining lease–

(i)        on which an operating plant under subsections (2) to (5) happens or is located as an entitlement for the lease;  and

(ii)       to which section 6y71 does not apply;  and

(c) any part of the area of GHG authority on which an operating plant under subsection (2) to (5) happens or is located as a GHG storage activity for the authority.

(7) A reference to an operating plant includes a reference to each stage of the plant that has commenced.

In his submissions on behalf of the Defendant, Mr Roney has detailed the history of legislative amendment which has been made to clarify what he refers to as “tenure operating plant”.  I will not repeat those amendments here.  Suffice it to say that those amendments have gone some way to resolving questions as to the interpretations of what is ‘operating plant.’

The prosecution has submitted that Petroleum Lease PL176 is operating plant for the purposes of the Act at the relevant time, referring to Section 670(6) which provides –

Also, an operating plant includes–

(a)    any part of the area of a petroleum tenure or 1923 Act petroleum tenure on which an operating plant under subsections (2) to (5) happens or is located has an authorised activity for the tenure;…

(emphasis added)

“Petroleum” is defined in Section 10 of the Act as “a gas, that occurs naturally in the earth’s crust, as prescribed under a regulation”. The prosecution argue that Well Number 22, where the incident occurred, is “clearly an ‘operating plant’ under s 670(2)(a) and (6)”.

Mr Roney, for the defendant, has submitted that a distinction should be drawn between what he terms “facility” plant and “tenure” plant. These terms he appears to have taken from Section 670(2)(a) which refers to “a facility used to explore for, produce or process” etc and Section 670(6) which refers to “any part of the area of a petroleum tenure”, as being operating plant. I consider this distinction to be somewhat ingenuous. If one were to apply this reasoning to the other references in Section 670 as to what constituted “operating plant”, there would need to be distinctions between other categories such as “pipeline” plant, “system” plant and even “activity” plant.

Statutory interpretation requires ascertaining the clear intention of the words in the section.  If the intention is not clear, then reference can be had to any heading of the section, the purpose of the legislation, explanatory notes and any precedent cases. 

On a strict interpretation of the section, I find that the meaning of “operating plant” as it applies to a petroleum tenure, as is the case here, includes those parts of the tenure or lease which are used to “explore for, produce or process petroleum, including machinery used for maintaining or repairing a petroleum well”.[3] In other words, the operating plant for the purposes of this prosecution, includes all well heads and other infrastructure constructed by the tenure holders for the purposes set out in Section 670(2)(a).

[3] Ibid, Section 670(2)(a)

The prosecution originally alleged in the Complaint and Summons that Well Number 22 was the operating plant, this being later amended to allege that the Petroleum Lease PL176 was the operating plant.  Neither of these contentions is correct.  Well Number 22 is “part of the area of (the) petroleum tenure”.[4]  It is my view that the failure by the prosecution to properly describe the “operating plant” in the Complaint and Summons is not fatal to the prosecution.  There is no doubt that the defendant was aware of the place where the alleged offence had been committed and has not suffered any prejudice by the misdescription.

[4] Ibid, Section 670(6)

There is no contention that the defendant was at the “operating plant” being that part of the plant at which the tenure holder’s offices, the processing sheds or other well heads were situated. The defendant therefore being a person who was present at the “operating plant” on the day in question and on whom obligations were placed due to his position, was required to “comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations” applied to him.

Safety Management Plan

Before discussing the various documents provided to the court, I note that Mr Roney has made submissions with regard to whether the SMP which is alleged to have been in force at the date of the incident had been adopted by Santos QNT Pty Ltd when the “operator” of the plant changed from Santos Ltd to Santos QNT Pty Ltd in 2008. He submitted that simply because Santos Limited was the holding company of Santos QNT Pty Ltd, it could not be inferred that the Santos Ltd SMP was the SMP implemented or maintained by Santos QNT Pty Ltd before the incident. He argues that the Act requires the operator to “actually do something to make, implement or maintain it”.

Section 674 of the Act provides, inter alia, that  “The operator of an operating plant must….make a safety management plan that complies with …section 675 and …implement and maintain the plan”.[5]

[5] Section 674(1) Petroleum and Gas (Production and Safety) Act 2004

There was no evidence adduced by the prosecution to show that the SMP they sought to prove was current at the time of the incident, was in fact made by Santos QNT Pty Ltd, the entity which it is agreed was the “operator” at the relevant time. 

The provisions of Section 674 of the Act are mandatory. In the absence of any evidence that the “operator” Santos QNT Pty Ltd did anything to “make” a SMP, I find that Santos QNT Pty Ltd, being the “operator” of the plant had not complied with Section 674 of the Act with regard to the making of an SMP. The Act provides for a penalty of 1500 penalty units. But this is not the prosecution before me. I do not consider this omission by Santos QNT Pty Ltd means the prosecution should fail. A subsidiary company is one where the parent company owns the shares of the subsidiary and has control of its activities.[6]

[6] The Free Dictionary, <

The question has been raised as to which, if any, safety management plan, applied at the time of this incident. 

Section 674 of the Act (as it then was) provides –

(1)The operator of an operating plant must–

(a)for each stage of the plant, make a safety management plan that complies with –

(i)section 675;  and

(ii)if the plant is used to explore for, extract, produce or release petroleum within coal seams – section 388, subject to any exemption given under section 389; and

(b)implement and maintain the plan.

Maximum penalty – 1500 penalty units.

(2)The operator of an operating plant must not begin a stage of the plant unless –

(a)the operator has made a safety management plan that applies to the stage;  and

(b)the plan complies with section 675;  and

(c)if the plan is used to explore for, extract produce or release petroleum within coal seams – the plan complies with s 388, subject to any exemption given under s 389.

Maximum penalty – 1000 penalty units.

(3)a safety management plan may apply to more than 1 operating plant

(4)however, the plan must still comply with section 675 in relation to each operating plant to which the plan applies.

(5)Also, if section 705 applies for an operating plant, the safety management plan must include a principle hazard management plan.”

Section 675 then sets out the content requirements for safety management plans.

Mr Roney has submitted that there is a real doubt as to which, if any, safety management plan applied to the operating plant where the incident took place. He refers to three versions of the plan. The first of these was attached to Exhibit 5, which is a Certificate certified by Mr Heyward (the Director General of the Department of Natural Resources and Mines), pursuant to Section 834 of the Act requiring Santos to provide certain documents. The Certificate and its attachments were entered into evidence as an exhibit, but only on the basis that they were produced in response to a notice and not as evidence of their contents.

The attachments to Exhibit 5 included a copy of Petroleum Lease 176, Notice pursuant to Section 758 of the Act, a copy of a document entitled Santos Limited Safety Management Plan (SMP) and relevant documents referred to in it, copy of part of the Santos Limited SMP said to be as at 16 March 2011 and Copies of the Annual Safety Reports for 1 July 2009 to 30 June 210 and 1 July 2010 to 30 June 2011.

The SMP attached to Exhibit 5 differs in a number of ways from that which was produced to the court pursuant to subpoena by Mr Knox, General Manager and Chief Executive Officer of Santos Limited. I will return to those differences shortly. 

The SMP produced by Mr Knox to the court, was made up of two folders –

• a green folder entitled “Santos Safety Management Plan – Eastern Queensland Gas, Site specific information and reference to EHSMS standards” with an attached tag stating “Scotia Plant”.
• A blue folder entitled “Documents Produced by David Knox” and which contains the EHSMSs, Santos Work Permit Procedure, Santos Module 50 (Equipment Isolations) and Scotia Site daily toolbox meeting notes for 9, 10, 11, 14, 15 and 16 March 2011.

It is clear at first glance that the daily toolbox meeting notes do not form part of the SMP for the operating plant contained within Petroleum Lease PL176.

I will now return to the differences between these two SMPs.  The SMP attached to Exhibit 5 appears to have been downloaded and printed from a database, given that the various sections are printed continuously, and that a site map and organisational structure chart have been omitted.

The “relevant documents referred to” in this (the Exhibit 5) SMP are contained under tabs –

·Scotia Significant Hazard Risk Register

·2011 Environment Health and Safety Improvement Plan

·2011 Scotia Environment, Health and Safety Action Plan

·Emergency Response Plan

·Module 50:  Equipment Isolation

·Environment, health and Safety Management

·Work Permit Procedure

It is clear that at least the first four of the above listed documents are not referred to in the SMP produced under subpoena which was ultimately entered into evidence as Exhibit 53.  This (the Exhibit 53) SMP refers to the EHSMS (Environment, Health and Safety Management System Standard) for each of the “Santos activities” and which are identified by Santos Limited as their commitment to safety and environmental management.  The Exhibit 53 SMP is made up of two folders (green and blue) referred to above.

On the last day of the hearing, the prosecution called Ms Firth, a team leader with Santos Limited’s health safety and training section.  Ms Firth was first employed by Santos as a health and safety advisor, progressing to a position as operations improvement advisor. Ms Firth gave evidence that she visited the Scotia site on “a couple of occasions” between her commencing her employment and the date of the incident the subject of the charge.

She said that when she first saw the green folder[7], she took it down and flicked through it and noticed that it did not contain a lot of substance, but referred the reader to the EHSMS which was available to all via Santos Limited’s intranet system.  She further stated that there were similar folders at other Santos sites, such as Roma and Wallumbilla and that as far as she was aware the same safety management plan applied to all those sites.

[7] Forming part of Exhibit 53

As a result of the incident, the subject of the present charges, Ms Firth was tasked with revising the SMP in accordance with requirements made by the Department.  Ms Firth gave evidence that as a result of the revisions, of which there were two, Santos “developed an overarching mapping document, so really refreshing on that version, and then we had our area-specific safety management plans, which hung off that overarching mapping document.”[8]  These revisions were not in place at the time of the incident.

[8] Transcript Day 4 T-7 at 20

Ms Firth was stood down to enable her to access the Santos intranet site called TIMS to ascertain personally which of the EHSMS policies were in fact current at the date of the incident.  She subsequently gave evidence that EHSMS 05, EHSMS 01, EHSMS 09 and EHSMS 11.8 contained in Exhibit 53 were current at the date of the incident.

With regard to EHSMS 9.1, Ms Firth gave evidence that she had found that the EHSMS which was current at the time of the incident was different in three places to that contained in Exhibit 53.  First, Section 3, being the definitions table had been removed in the copy which was contained in the computer archives.  Second, the reference to Appendix H in paragraph 4.3 (of EHSMS 9.1) was different, with the online archive stating “Refer to Appendix H, stepback prompt form” and Exhibit 53 simply stating “refer to Appendix H”.  Third, at paragraph 6 (of EHSMS 9.1), the online archive does not have a list of positions and responsibilities of Santos employees, whilst Exhibit 53 does.  Ms Firth stated that she had not accessed any of the appendices referred to in the EHSMSs on the online archive.

“Screen dumps” of the Santos TIMS system relating to editing of the EHSMSs were provided by Ms Firth[9].  These “screen dumps” showed the names of persons with editing rights, and under cross examination, Ms Firth agreed that editing was done to EHSMS 05 by two different persons on the same day.  The “screen dumps” also showed that this had also occurred for EHSMS 1 and EHSMS 9.

[9] Exhibit 59

Mr Roney has submitted that there is real doubt as to which SMP was in force at the date of the incident, given the differing versions of the documents tendered to the court.  After considering the documents before me and hearing Ms Firth’s evidence, it would appear to me that the SMP current at the date of the incident was the green folder forming part of Exhibit 53 and the online version of the EHSMSs to which it (the green folder) referred. 

Of the EHSMSs on which the prosecution relies in its amended particulars, being SMP Section 7, EHSMS 09.1 paragraphs 1, 2, 4.2, 4.2.1, 4.2.2 (plus flowchart and Appendix C JHA Guideline), 4.2.3 and 4.2.5, EHSMS 11.8 paragraphs 1.1, 1.2, 3.2.1(a), Work Permit Procedure (WPP) paragrapha 1.1, 1.2, 3.5, 3.6, 5.2, 7, 7.1, 7.2, 7.2.1, 7.2.2, 7.3, 7.3.2, 7.4, 7.4.3, 7.5, 7.6, 7.6.4, 7.6.7, 7.7 and Module 50 – Equipment Isolations paragraphs 1, 1.1, 1.2, 1.3(i), 1.4, 2, 2.2, 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7(i), 4, 4.1, 4.2, 6 and 6.1, I find that these formed part of the SMP at the date of the incident.

Safety procedures and other obligations

The safety procedures and other obligations it is alleged the defendant has breached are contained in the particulars detailed in the amended Complaint and Summons.[10]

[10] Exhibit 57

First, it is alleged that the relevant SMP required a Job Hazard Analysis (JHA) to be carried out prior to the commencement of the work undertaken by Mr Vieritz on the mobile separator.  This requirement is contained in EHSMS 09.1 which states –

“The purpose of this standard is to define the requirements for identifying, assessing and controlling EHS risks associated with work activities by using Job Hazard Analysis (JHA) and Stepback processes.”

Clause 4.2.1 of Standard 09.1 describes a JHA process as one involving identifying hazards associated with each element of the job and defining appropriate risk control measures.  The Standard also provides that a JHA “shall be conducted prior to performing any job where the hazards and control measures need to be formally assessed.”[11]  Relevantly, the Standard goes on to provide that where “a job has previously been subject to a JHA, or is covered by a procedure, it may not need a new JHA.”[12]  In that case, the previous JHA or procedure is to be reviewed to ensure the scope of the job is the same and that the hazards and controls are still relevant.

[11] Exhibit 57, EHSMS 09.1, Clause 4.2.2

[12] Ibid.

What is an important rider to the JHA procedure in this case is the final paragraph of Clause 4.2.2 of Standard 09.1 which provides –

“A JHA is not required for low-risk tasks performed by a competent person as the individual’s competency and skill covers this.”

Standard 09.1 contains a flowchart of steps to be taken to determine whether a JHA was required.  These are –

·If a Permit is needed for this job get a permit issued (here, I am told there was no permit required for the subject job.  In any event, Mr Viertiz was a “permit authority” authorised to issue permits)

·If a standard operating procedure exists review it and follow it.  (here, there was no standard operating procedure for the job)

·Is something different? 

·Will the job impact others or the environment?

·Has a JHA been asked for?

·Has the work party performed a JHA for any job lately?

If “yes” to the last four points then perform JHA.  If it is a low-risk job use Stepback

Stepback is a basic risk assessment process with the aim of identifying hazards that may be encountered and to control risk.  Clause 4.3 of Standard 09.1 requires that Stepback be performed for “all jobs/tasks irrespective of whether an operating procedure/work instruction exists or a JHA has been conducted.”[13]

[13] Exhibit 57, EHSMS 09.1, Clause 4.2.2

It was not contested that Mr Vieritz himself was a very experienced worker, had worked on the mobile separator on a number of occasions and was what is referred to as a “permit authority”. Mr Woods, who is currently employed by Santos Limited as a senior training officer gave evidence about the training received by Santos employees with regard to competency in undertaking their role pursuant to the SMP.  He described that for a person to become a “permit authority”, he would be a person who holds the “highest responsibility because that person has got to make sure that … equipment is safe to work on before someone does work on it.”[14]

[14] Transcript Day 3, 3-56 at line 12

In other words, Mr Vieritz was highly qualified to carry out the task of working on the mobile separator.  It is clear that he had carried out similar type of work on the mobile separator previously, but there was no evidence put before the court as to whether a JHA had previously been carried out for this work.  Mr Vieritz himself gave evidence that he did a type of mental Stepback process before commencing work on the day in question.  He saw the task as being one of low-risk.

As to whether the task being performed by Mr Vieritz on the day in question was indeed a low-risk task, Mr Woods gave evidence that from his perspective as an assessor teaching the safety modules such as Module 50 and Stepback, he would regard the work being undertaken on the Kimray valve to be minor maintenance work “as long as Gavin had the … operating manual or the maintenance manual to work from to know what parts were inside that…valve that he was replacing.”

I am satisfied that the actual maintenance work on the Kimray valve could be classified as a low-risk task.  It is a different matter with regard to the isolation of the gas in the mobile separator itself which was required prior to work commencing on the Kimray valve.  EHSMS 09.1, Appendix C to the JHA Guideline which was not detailed in the blue folder (Exhibit 53 SMP), but showed a hypertext link to the Santos intraweb site includes in Section 3.5 the following –

“Low-risk Job

For some jobs, an individual’s competencies, skills and training are sufficient such that a formal recorded risk assessment is not required each time the job is performed.  This would only apply to certain basic low-risk jobs such as:

·Taking readings from unrestricted areas of plant

·Transfer of personnel to and from facilities

·Production Operator daily/shift rounds;  e.g. Log taking

·Change out of operational filters;  e.g. engine oil filters, air filters, water system filters etc

·Safety rounds, drills, routine inspections

……

Certain other specialist jobs could also fit into this category where, through their specific training, knowledge and skills acquired, those individuals have sufficient competency to enable them to carry out such jobs without performing a formal JHA.  Examples of this would be routine low-risk jobs carried out by qualified tradesmen.”

The isolation procedure required to be undertaken by Mr Vieritz prior to working on the Kimray valve was the subject of Mr Holmes’ evidence.  Mr Holmes was called by the prosecution as an expert to give evidence as to this process.  He stated that the gas extracted from the well is extracted at a pressure of 800 kPa which he described as 8 times[15] the pressure normally found in gas mains which traverse most urban areas.  Therefore it is essential that the gas coming from the well be isolated through the mobile separator before working on the Kimray valve in the way described by Mr Vieritz.

[15] Transcript Day 4, page 50 at line 25

Very helpfully, Mr Holmes was able to identify, by using the Piping and Instrumentation Diagrams forming Exhibit 54, a number of alternate ways of isolating the Kimray valve through the opening and closing of valves in different configurations.  The action taken by Mr Vieritz was similar to one of those configurations. 

Mr Holmes gave evidence that there could be “serious consequences” should an isolation procedure not be followed.  I am satisfied that the task of undertaking an isolation procedure on a mobile gas separator which is attached to a working gas well is not a low risk task.  Therefore, it follows that a JHA should have been performed for the task.

I note that if a JHA had been performed for the same task previously, it should have been reviewed.  There is no evidence before me that a JHA had been previously performed for the task undertaken by Mr Vieritz and indeed Mr Vieritz had no recollection of one being prepared.[16]  There is evidence that none was done on the day in question, nor was there a revision of an earlier JHA, other than the “type of mental Stepback process” undertaken by Mr Vieritz and described by him in evidence.

[16] Transcript Day 2, page 88 at lines 27 to 35

In the instant case, Mr Vieritz did undertake an isolation procedure.  He had done it two days prior, and did it again on the day in question, except that he opened the ball and gate valve at the top of the separator and then closed it before working on the Kimray valve, it would appear to save time or effort in having to climb to the top of the mobile separator to close it after the job was done.

The safety procedures and other obligations which are to be complied with in accordance with Section 702 of the Act not only apply to the defendant Mr Schloss as a supervisor, but also to Mr Vieritz as an authorised permit holder and employee on the site. But it is Mr Schloss who has been charged pursuant to Section 702. In his evidence, Mr Vieritz stated that at the toolbox meeting held on 16 March 2011, he had discussed with Mr Schloss that he would be working on the mobile separator that day.[17] It would appear therefore that Mr Schloss had breached his obligation pursuant to Section 702 to comply with the JHA safety procedures.

[17] Transcript day 2, page 87 at line 35

Defences

Defences in a proceeding brought for contravention of Section 702 are contained in Section 732A. These, as far as they apply in the instant case, are –

(2)       To the extent the contravention is a contravention of a particular safety requirement, it is a defence in the proceedings to prove –

…(b)….   If a recognised standard was made stating a way or ways to ensure the safety requirement was to be met –

(i)that the person adopted and followed a stated way to ensure the safety requirement was met; or

(ii)that the person adopted and followed another way that ensured the safety requirement was met that was equal to or better than the stated way for ensuring the safety requirement was met;  or

(c)if no regulation or recognised standard prescribes or states a way to discharge the person’s obligation in relation to the safety requirement – that the person took reasonable precautions and exercised proper diligence to ensure the safety requirement was met.

(3)       Also, it is a defence in a proceeding against a person for an offence against the relevant sections for the person to prove that the contravention was due to causes over which the person had no control. (emphasis added)

Mr Roney, for the defendant, has submitted that this defence is activated, relying on the fact that Mr Vieritz did a “Stepback JHA”, and was “known to have experience in doing isolation lists and venting the separator.” Mr Vieritz’s actions may be a defence if it was indeed Mr Vieritz who had been charged pursuant to Section 702.

Mr Schloss did not call evidence to “prove” those matters required by Section 732A.  There is no evidence that he took “reasonable precautions and exercised proper diligence to ensure the safety requirement was met”.[18]  I do not consider it a defence that Mr Schloss can rely on.

[18] Section 732A(2)(c) Petroleum and Gas (Production and Safety) Act 2004

I therefore find that the prosecution has proved its case beyond a reasonable doubt and I find the defendant guilty of the charge brought pursuant to Section 702.

Penalty

In order to activate an increase in the maximum penalty, a circumstance of aggravation, can only apply “if the act or omission that constitutes the offence caused a circumstance”, here “bodily harm” as provided in Section 732(3)(d) of the Act.

Mr Roney stated in his submissions, “(t)he question is then whether the failure to appoint such a person (a team leader) and the failure to sign the document (the JHA) was causative of a bodily harm in that sense causative of the incident which led to it.”  I consider the particulars contained in paragraph 3 of the particulars section of the Amended Complaint[19] form part of the obligations set out in paragraph 2 of those particulars and not a “subsidiary activity” as argued by the defence.

[19] Exhibit 57

When asked in cross examination as to whether anything would have been different had a JHA been completed on the day in question, Mr Vieritz stated “….with another a (sic) person, it would have required isolations, maybe that”[20]… and “…but I believe, if there was another person involved with the job, if they would…a JHA together, it may have been picked up a bit more”[21] and finally after further questioning by Mr Roney, “…New set of eyes, you know, on a job is always – always good.”[22]

[20] Transcript day 2, page 2-104 at line 43

[21] Transcript day 2, page 2-105 at line 4

[22] Transcript day 2, page 2-106 at line 12

As a result of Mr Vieritz’s evidence, his experience, and the actions he took on the day of the incident to isolate the separator, I am not satisfied that the bodily injury sustained by Mr Vieritz was caused by the “act or omission that constitutes the offence”. I therefore find that the prosecution has not proved the aggravating circumstance provided by Section 732(3)(d) of the Act to the required standard and the increase in the maximum penalty is not activated.