DPP v Esso Australia Pty Ltd
[2001] VSC 263
•30 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1484 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESSO AUSTRALIA PTY LTD |
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Sentence
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 29 June 2001 | |
DATE OF SENTENCE: | 30 July 2001 | |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 263 | Revised 6 August 2001 |
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Criminal law – sentencing – workplace safety – convictions under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – gas processing plant at Longford, Victoria – major hazard facility – catastrophic failure – death and personal injury in workplace – risk to non-employed persons – unsafe workplace and systems of work – lack of safety training – further penalty under s. 53(a)(i) – considerations applicable in sentencing – Occupational Health and Safety Act 1985 ss. 4, 6, 21, 22, 47 and 53.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | R. Richter QC with N. Clelland | Office of Public Prosecutions |
| For the Defence | M. Titshall QC with M. Hennessy | Middletons Moore & Bevins |
HIS HONOUR:
The objects of the Occupational Health and Safety Act 1985 are set forth in s. 6 of that Act. They are -
"(a) to secure the health, safety and welfare of persons at work;
(b) to protect persons at work against risks to health or safety;
(c) to assist in securing safe and healthy work environments;
(d)to eliminate, at the source, risks to the health, safety and welfare of persons at work;
(e)to provide for the involvement of employees and employers and associations representing employees and employers in the formulation and implementation of health and safety standards."
These are serious matters. The provision by employers of a safe workplace and safe systems of work is a serious matter.
Under s. 21(1) of the Occupational Health and Safety Act 1985 it is provided that an employer "shall provide so far as is practicable for employees a working environment that is safe and without risks to health". That is the basal legislative requirement.
The section proceeds in sub-s. (2) that:
"Without limiting the generality of sub-s. (1), an employer contravenes that sub-section if the employer fails -
(a)to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health;
(b)to make arrangements for ensuring so far as is practicable safety and absence of risks to health in connection with the use, handling, storage and transport of plant and substances;
(c)to maintain so far as is practicable any workplace under the control and management of the employer in a condition that is safe and without risks to health....
(proceeding then so far as is relevant to (e))
(e)to provide such information, instruction, training and supervision to employees as are necessary to enable the employees to perform their work in a manner that is safe and without risks to health."
By sub-s. (4)(d), an employer is required -
"so far as is practicable ... (to) monitor conditions at any workplace under the control and management of the employer."
Further, under s. 22 of the Act, an employer is required to -
"ensure so far as is practicable that non-employed persons are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer".
The fundamental consideration is prevention. That is the purpose of the legislation. The standard of compliance and of knowledge is objective. In deciding what is practicable as provided in ss. 21 and 22, what is looked to is (s. 4):
"(a) the severity of the hazard or risk in question;
(b)the state of knowledge which the employer had or ought to have had about the hazard or risk and any ways of mitigating or removing the hazard or risk;
(c)the availability and suitability of ways to remove or mitigate that hazard or risk; and
(d) the cost of removing or mitigating that hazard or risk."
"Hazard" means the potential to cause injury or illness. "Risk" means the likelihood of injury or illness arising from exposure to a hazard.
What occurred at Gas Plant One at Longford on 25 September 1998 was no mere accident. To use the term "accident" denotes a lack of understanding of responsibility and a lack of understanding of cause.
The then Minister, in the second reading speech to the Bill for the Occupational Health and Safety (Miscellaneous Amendments) Act 1990, in Hansard (Assembly), 13 April 1989 at p. 758 said this:
"Too often one hears the response, 'But that was an industrial accident.' This carries a connotation of inevitability, which denies the possibility of prevention. Even worse, it implies that an offence that results in a work-related fatality is not as serious as other criminal offences involving fatalities."
I agree.
The events of 25 September 1998 were the responsibility of Esso; no one else. Their cause was grievous, foreseeable and avoidable. Their consequence was grievous, tragic and avoidable.
During the course of the trial Esso made the following formal admissions:
"1.Operators and supervisors at the Longford plant were not trained with respect to and were not aware of -
(i)whether or not cold temperature hazards could arise in GP 905, GP 922 or the base of the ROD and associated piping from the loss of lean oil circulation;
(ii)whether or not cold temperature hazards could develop in GP 905 and 922 or the base of the ROD and associated piping;
(iii)whether or not dangers associated with failure of cold vessels existed in GP 905, GP 922, the base of the ROD and associated piping.
2.There were no written procedures dealing with any such hazards or dangers that may have existed associated with cold temperatures in GP 905, GP 922, the base of the ROD and associated piping."
It was evident from the evidence given by witness after witness before me that the loyal employees, including supervisors, of Esso were entirely unaware of the deadly danger lurking at GP 905 on the Friday morning, 25 September 1998, particularly around 12 noon. They were loyally attending to a leak in GP 922 and evident cold on GP 905 and related areas. Only one man knew the dangers. Mr Vandersteen, a fitter in the maintenance section, saw what was evident to be seen and in evidence said this: "I just said, 'Fuck this, I'm out of here.' We jumped on our bikes and we left the area." The explosion occurred immediately thereafter. Mr Vandersteen was not trained by Esso, but was trained by the Navy. It was the Navy, not Esso, who taught him to be aware of such danger. This failure to train in safety is a most serious dereliction. Tragically, two loyal employees, Mr John Lowery and Mr Peter Wilson, were killed in the rupture which occurred on 25 September. Eight persons were seriously injured. Those deaths and injuries are tragic in themselves. They are also a tragic measure of the hazard and risk in a gas processing facility. Longford is a major hazard installation. The potential for injury is great and obvious.
As presently the Crimes (Industrial Manslaughter) Bill is to be considered by Parliament, I consider it is inappropriate for me to say anything here about the limited penalties under the Occupational Health and Safety Act 1985 and the limited scope of the Act, other than this: this tragic case once again demonstrates, if it needs further demonstration, the vital importance of workplace safety.
After a four month trial, Esso was convicted by the jury of 11 counts of breaches of ss. 21 and 22 of the Act. Each is an indictable offence: s. 47(2).
On Count 1, Esso was convicted of a breach of s. 21(2)(b) of the Act: that the company at Longford between 1 January 1993 and 25 September 1998 failed to provide and maintain so far as was practicable for employees a working environment that was safe - in that it failed to conduct any adequate hazard identification at Gas Plant 1. Esso in fact conducted a hazard identification, namely a Hazop, on Gas Plant 2 and on Gas Plant 3, but failed in that period to conduct one on the oldest part of the plant, Gas Plant 1, and failed to do so even in the face of Exhibit 12B before me, Exxon's Instructions to Affiliates to conduct a retrospective Hazop on plants more than 20 years old. Gas Plant 1 commenced operation in 1969. The identification of hazards in a major hazard installation is obvious and fundamental.
On Count 2, Esso was convicted of a breach of s. 21(2)(b) of the Act: that it failed between 1 January 1994 and 25 September 1998 to provide and maintain so far as was practicable for employees a working environment that was safe - in that it failed to conduct any adequate risk assessment of Gas Plant 1. Esso in fact did conduct a risk assessment in December 1994, but that was neither timely for 1998 nor comprehensive, and was self-limiting because it anticipated the Hazop which was budgeted for, but never occurred, on Gas Plant 1.
On Count 3, Esso was convicted of a breach of s. 21(2)(a) of the Act: that it failed to provide and maintain plant that was safe at Longford on 25 September 1998 - in particular that vessels in the ROD/ROF area at GP 1 were dangerously cold on the morning of 25 September 1998 and susceptible to failure.
On Count 4, Esso was convicted of a breach of s. 21(2)(a) of the Act: that it failed to have any adequate procedures to enable employees to safely respond to loss of lean oil circulation - being written procedures to ensure that employees knew what to do in a situation of uncertainty or crisis.
On Count 5, Esso was convicted of a breach of s. 21(2)(e) of the Act: that it failed adequately to train employees to enable them to safely respond to a loss of lean oil circulation, and in particular in relation to the development of cold temperatures in the ROD/ROF area.
On Count 6, Esso was convicted of a breach of s. 21(2)(a) of the Act: that it failed to provide and maintain plant and systems of work that operated at safe temperatures - in particular that there were no systems of work which specified critical operating parameters, no written or oral instructions to employees not to exceed such critical operating parameters, and no adequate means of determining the operating temperature of relevant items of plant.
On Count 7, Esso was convicted of a breach of s. 21(2)(e) of the Act: that it failed adequately to train employees regarding risks associated with failure of plant at cold temperatures - in particular that it failed to train employees regarding the risks associated with operation of plant below safe temperatures including the dangers associated with, and the potential for, catastrophic failure. I shall return to this count.
On Count 8, Esso was convicted of a breach of s. 21(2)(e) of the Act: that it failed to provide adequately trained supervisors capable of safely responding to a loss of lean oil circulation and the plant operating at cold temperatures.
On Count 9, Esso was convicted of a breach of s. 21(4)(d) of the Act: that it failed to monitor the conditions - in particular failing to have properly functioning instruments which would longitudinally record what was occurring at the plant to show the history and development of the conditions, a serious breach in a major hazard installation.
On Count 10, Esso was convicted of a breach of s. 21(2)(c) of the Act: that it failed to maintain a safe workplace, by failing to have a preventative mechanism which would have precluded a process problem turning into a catastrophe.
Finally, on Count 11, Esso was convicted of a breach of s. 22 of the Act: that it failed to ensure the safety of persons other than its employees after the rupture of Gas Plant 905 and the explosions and fires which followed - notably police, ambulance and Country Fire Authority personnel.
I shall not in this sentence rehearse the detail of the events of 25 September 1998 or their antecedents. They are well known and well documented.
During the course of the trial, further documentation appeared - notably Exhibit 61.2, the letter of 30 May 2000 of Esso over the hand of its solicitors to its proposed experts, a letter to which I shall return.
I pay compliment to the jury and to the jury system. This jury sat loyally from 5 March to 28 June this year. The jury was constituted of conscientious, responsible citizens. They were, as juries daily demonstrate, also perceptive. This jury, and juries generally, well understand evidence, including complex evidence when properly presented, as it was here. Further, juries fulfil a fundamental democratic function that it is the community itself which judges serious cases, guided by the law as stated by the trial judge.
In presentation of material in the plea on behalf of Esso, learned senior counsel, Mr Titshall, referred to Esso's otherwise very good safety record. Credit should be given where credit is due. Mr Titshall elaborated that the foundation of Esso's safety management system was and is its Operations Integrity Management System, the manuals of which were in evidence. Mr Titshall rightly pointed out Esso's otherwise very good safety record in the petroleum industry. Between 1992 and 1996 Esso employees worked 12 and a half million employee hours without a single lost time injury, a technical definition involving fatality, permanent disability or time lost from work. He placed before me as Exhibit E1 data of that otherwise very good safety record. I acknowledge that record. He pointed out, rightly, that Esso is involved in heavy industry, including the gas plant concerned, and that that record stands to Esso's credit. He pointed out that since these matters of 25 September 1998, at Longford over 1.7 million work hours have been completed without any lost time injury. Further, the company has undertaken safety initiatives of numerous sorts which Mr Titshall elaborated: introduction of safety promoters, health and safety representatives, safety leader training courses, accident reporting systems, written expectations, safety awareness tests and other matters and general high standard job training and competency based assessments.
Esso also has received a number of safety awards. It has a five star rating award from the National Safety Council in 1991, APIA safety awards for 1994, 1995, 1996, 1999 and 2000, being the best safety performance of large companies, and the Fluor Daniel corporate tri-star award for 100,000 hours accident free in 1999. It also has other awards and commendable safety records including 100,000 mishap-free flying hours of helicopters to platforms. Credit there is properly given to Esso for its otherwise very good safety record.
There are three prior convictions relevant here to sentence. At the Magistrates' Court at Geelong on 1 July 1991 Esso was convicted of failing to provide a safe workplace and fined $5000. The circumstances of that prior conviction were essentially that Esso was the occupier of a service station site at which a vertical LPG tank was being installed at Grovedale near Geelong. It was installed by an unrelated company. A worker - not an employee of Esso but an employee of the installers of the tank - died as a consequence of entering the tank when it contained nitrogen. The installing company and Esso were found by the Coroner to have contributed to the death by failing to provide training in permitting the deceased to enter the confined space. Esso was convicted, as I say, of failing to provide a safe work place and was sentenced to a fine of $5000 with costs. There were four charges against Esso. Three were struck out upon Esso pleading guilty to one charge. A particular of that charge was failing to provide training and supervision to its employees, in that case its employee who was the supervisor of the deceased worker.
The other two convictions were imposed in the Magistrates' Court at Sale on 25 February 1993 of failing to provide a safe workplace, wherein Esso was sentenced to pay an aggregate fine of $6000 on those two charges together with costs. That related to a fire on the Tuna platform on 24 April 1989. The Report of 18 November 1991 of the Coroner, Mr G Johnstone, Exhibit 2 on the plea, sets out the circumstances of the events and fire on the Tuna platform in Bass Strait on 24 April 1989. The fire commenced in the main oil line pump engine enclosure and spread to the adjacent service module. The initiating factor was the failure to danger tag a removed valve on the pump while under maintenance. The Coroner found, "The precise reason for the fire results from inadequate danger tagging, work permit procedures and a failure of communication" (page 6 of the Report.) the Coroner emphasized in his Report the critical nature of working with highly flammable and explosive materials. He concluded that, especially because of the hazards and restrictions of platform work, "The failure of Esso to introduce an improved permit, tagging lock-out system results in a contribution to the fire" (page 11.) There were six charges. Esso consented to summary jurisdiction, pleaded guilty to two counts and four were struck out. That incident and fire did not involve gas processing. The Coroner was involved because there was a fire. No lives were lost, although there were some injuries.
Those prior matters were significantly earlier than the 1998 Longford matters for which Esso now is to be sentenced. However, they are relevant because they demonstrate the importance of workplace safety, the importance of safe systems of work, and the importance of training and supervision.
I turn to the proper construction of s. 53(a)(i) of the Act as to the imposition of further penalty.
That section operates to provide a discretion to impose an additional penalty on a person convicted of an offence under the Act if a person has previously been convicted of an offence under the Act. Its operation is not limited to a prior conviction for the same offence or even the same category of offence. The power given is discretionary, that is the court may, not must, impose an additional penalty. Section 53 does not increase the maximum penalty for any particular offence the subject of present conviction; rather it empowers the imposition of an additional penalty. The section thus operates globally, is discretionary and is additional. The section does not state criteria for its exercise. Accordingly it falls to be interpreted in accordance with its terms, content and purpose and in accordance with fundamental sentencing principle. The first such fundamental principle is that the offender is not to be punished twice for the one offence. The further penalty is not a second penalty for the prior conviction. Rather, it is a further penalty for the present conviction by reason of the existence of the prior conviction. The further penalty marks the seriousness of present offences in the context of an offender who has previously offended.
At common law, sentencing ultimately is an holistic, not segmented, process. As Adam and Crockett, JJ. said in R. v. Williscroft and Ors (1975) VR 292 at 300:
"Ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process."
It is not to correct to sentence by a sequential, segmented, stepped process. However, given the terms of s. 53 - "in addition to", "further" - it is necessary if s. 53 is invoked to identify the further penalty. The parties are entitled to know it. As a consequence, in the otherwise holistic synthesis, if s. 53 is invoked the element of prior conviction - a narrower concept than character - necessarily must be omitted to ensure there is no double counting. In all other respects the ultimate sentence remains holistic. With every respect, I consider the analysis stated in DPP v. Pacific Dunlop Ltd (28 June 1994, County Court Victoria) is too restrictive. Under s. 53 there is not a two step process as there stated.
Circumstances justifying the operation of s. 53 are the nature and number of prior convictions, their proximity or remoteness in time to the present offence, their relevance, the character otherwise of the offender, and whether the combination of prior convictions and present conviction demonstrates systemic failure by the offender or a longitudinal, general or flagrant failure to fulfil the lawful obligations of safety in employment.
Applying those matters to the present case, on the one hand Esso has an otherwise very good safety record. On the other hand, the prior convictions are clearly relevant because they relate to matters - the provision of a safe workplace, the knowledge of hazard and the importance the training as a preventative means - which are the essence of the present counts, although in different factual circumstances. Accordingly, I consider it is necessary and appropriate to invoke the discretion provided by s. 53. However, given Esso's otherwise very good safety record, I consider that the further penalties imposed should be moderate. I shall allocate the penalties equally to the most relevant present convictions, those that comprehend identification of provision of hazard, Count 1; provision of safe plant, Count 3; and training of supervisors, Count 8.
Of general common law principle applicable in sentencing, punishment and general deterrence are of major significance in this case.
However, before imposing sentence on Esso it is unfortunately necessary to examine the litigious conduct of Esso in these proceedings. It is necessary both of itself and as an incident of sentencing - remorse and rehabilitation being relevant to that end.
Esso was charged with criminal offences, 11 crimes under the Occupational Health and Safety Act 1995, and it was fully entitled to defend those charges. The burden of proof at all times was on the prosecution. The prosecution bought the charges; it had the burden of proving them.
Esso and its senior officers have expressed remorse for the tragic loss of life and injury which occurred as a consequence of the rupture on 25 September 1998. I have no doubt that that personal remorse is genuine, from and including the Chairman and Managing Director, Mr R.C. Olsen, down. I acknowledge that genuine remorse.
However, personal expressions of remorse need to be translated into reality. In the present case, they have not been. There are three matters which militate against corporate remorse.
First, Esso's litigious treatment of its employees. I found that the Esso employees and personnel who were called before me were most impressive. Although I do not like mentioning some individuals rather than all, the young technical operator, Mr Heath Brew, who was injured in the rupture, before me had a quiet dignity and courage. The plant supervisor, Mr Bill Visser, I found particularly decent and impressive. There were numerous other brave, decent and impressive men from Longford who gave evidence before me. One was the first witness called in the trial, Mr Jim Ward, the control room operator. I was most impressed by the integrity of Mr Ward. He was not asked one question in cross-examination before the jury. How unfortunate it was that, on Esso's instructions, its solicitors submitted to the Royal Commission:
"Mr Ward was in possession of the necessary information to initiate appropriate action to address the loss of lean oil circulation ... Mr Ward's failure in this respect was due to reasons peculiar to himself."
(Submissions on behalf of Esso Australia by its solicitors to the Longford Royal Commission, 26 April 1999, p. 83, paragraph 269.) The truth is there was only one entity responsible for lack of knowledge on that day: Esso. It, and it alone, should have properly trained the operators and supervisors not only in production, which it did, but also in safety. It, and it alone, failed to do so. Mr Ward and the employees did not fail. Esso failed. These tragic events will always live with these decent, impressive and brave men, a number of whom have received bravery awards, including Mr Visser and Mr Ward, but these events occurred through no fault of theirs.
The second matter which militates against corporate remorse was the conduct on Esso's instructions of the defence in the trial. While Esso properly is to be given credit for limiting the issues in the trial and making admissions, and I do give Esso full credit, the defence advanced was one of obfuscation - designed not to clarify, but to obscure. Esso sought to make it appear that the identification of hazard, risk and cause was impossibly difficult. To that end, prosecution experts were cross-examined in technical detail to undermine proof which, with its other hand, Esso was promoting to its own experts: the smoking gun, as Mr Richter called it, the letter of Esso's solicitors of 30 May 2000 produced at the eleventh hour, exhibit 61.2. The convoluted and obscure question asked by the defence of the defence witness, Dr Baybutt, at pages 4464 to 4466 - all 38 lines of it - and the convoluted and obscure scenario posited by Dr Baybutt at pages 4657 to 4659 - all 58 lines of it - are testimony to the defence of obfuscation; and the words were hollow when, as was put in the question at page 4466 line 5, "That's about as simply as I can put it," and by Dr Baybutt in the answer at page 4657 line 27, "I'll try to keep it as simple as I can."
The third matter, and the really significant one, is the lamentable failure of Esso to accept its responsibility for these tragic events. Early in the plea learned senior counsel for Esso said this (page 5925 line 27): "Whilst Esso does not accept the accuracy or correctness necessarily of each of the criticisms levelled by the Royal Commission, I will seek to demonstrate that it has taken very positive steps to address each and every one of those criticisms as if it were accepted, and has done so very thoroughly. I will take Your Honour to that detail, but first and most importantly, Your Honour, again, Esso does wish to once again repeat its most profound regret for the loss of life and injuries that were caused to its employees by the explosions of 25 September 1998. It might be said that that is trite." I asked, "Does Esso accept responsibility for the fatal and injurious events?" Senior counsel replied, "It accepts responsibility in the way that it has thus far." I said, "That simply means what you have just said. You heard what the jury has said and you heard what the Royal Commission said. I'm not talking about the level of hearing. I'm asking the direct question: does Esso accept responsibility for the fatal and injurious events?" Senior counsel replied, "I can't answer that question in any blanket fashion, Your Honour," to which I replied, "Very well."
Then towards the end of plea, after senior counsel rightly had reviewed Esso's otherwise commendable safety record, I asked the following (page 5970, line 2): "I think that leads to this, Mr Titshall. I have no doubt that the many and commendable facts that you have put before me are accurate and true as to your client, but the corollary of what you put to me is this. In relation to the rupture on 25 September and its antecedents, there is a mountain of evidence; a most distinguished former High Court judge with his co-Commissioner made clear and unequivocal findings, as stated in the Royal Commission Report; and a jury of 12 unanimously found proof beyond reasonable doubt of every charge laid against Esso. If Esso is the good corporate citizen you have stated it to be, why does it not accept responsibility for the fatal and injurious events?" Senior counsel replied, "I can't answer that, Your Honour," and I replied, "Very well."
Normally in sentencing, a failure to accept responsibility sounds in the matter of specific deterrence. This is not so here, because Esso has demonstrated by its subsequent operational reforms that it has acted responsibly to remedy past deficiency. But its lack of acceptance of responsibility has a relevance in my not accepting that Esso's expression of remorse is practical and operational. Esso's failure still to accept responsibility for these tragic events is a serious deficiency.
Esso has been convicted on 11 counts. Each count is a separate offence. There is an interface - not a duplication - of some counts. Accordingly, I impose penalty on a classification basis. Counts 1 and 2 relate to each other: Count 1, the identification of hazard in a most hazardous workplace, and Count 2, the assessment of risk consequent upon the identification of hazard. On the facts of this case, Counts 3, 6, 7 and 8 relate to the matter generally of excessive cold. Counts 4 and 5 relate to the loss of lean oil. Count 9 relates to monitoring. Count 10 is a consequent count. Count 11 relates to non-employees, in particular police, ambulance and CFA personnel. Specifically to ensure there is no double punishment and no double counting, I moderate the sentences on the individual counts each to the other in those categories, as well as generally, complying with the principal of totality.
Given the purpose, nature and provisions of this legislation and the facts of this case, all the offences are serious. Two warrant the maximum penalty. Count 1 warrants the maximum penalty: the failure by Esso over time to conduct hazard identification in a most hazardous workplace. Count 7 warrants the maximum penalty: the failure by Esso to train its employees about the risks they were subject to. Those employees and their loved ones had every right to be properly trained about the risks Esso sent them to face. Esso totally failed in that most fundamental of matters. I impose the maximum penalty on those two counts. Some counts warrant the imposition of a very substantial penalty, although less than the maximum. Count 3 is such: Esso's failure in the fundamental requirement of providing and maintaining safe plant. Count 9 is another: Esso's failure in the essential requirement of monitoring a hazardous workplace. Count 11 is another: Esso's failure in ensuring the safety of outside persons. All the training counts are serious, because proper training is at the front line of prevention and prevention is the essence of workplace safety. However, there is some interface of the various training counts. I have moderated the penalty on those counts to reflect that interface. That does not connote lack of seriousness. Proper training is vital.
Bearing in mind the above principles, criteria and considerations, I impose sentence as follows:
On Count 1, failure to conduct any hazard identification at Gas Plant 1, I impose the maximum penalty, a fine of $250,000. Pursuant to s. 53(a)(i) of the Occupational Health and Safety Act 1985, on Count 1 I impose a further penalty of a fine of $50,000, making a total penalty on Count 1 of a fine of $300,000.
On Count 2, failure to conduct any adequate periodic risk assessment at Gas Plant 1, I impose a fine of $150,000.
On Count 3, failure to provide and maintain plant that was safe, I impose a fine of $200,000. Pursuant to s. 53(a)(i), on Count 3 I impose a further penalty of a fine of $50,000, making a total penalty on Count 3 of a fine of $250,000.
On Count 4, failure to have adequate response procedures, I impose a fine of $100,000.
On Count 5, failure to adequately train employees to respond safely to loss of lean oil circulation, I impose a fine of $100,000.
On Count 6, failure to provide and maintain plant that operated at safe temperatures, I impose a fine of $100,000.
On Count 7, failure to adequately train employees about risks, I impose the maximum penalty, a fine of $250,000. Pursuant to the provisions of s. 53(a)(i), on Count 7 I impose a further penalty of $50,000, making a total penalty on Count 7 of a fine of $300,000.
On Count 8, failure to provide adequately trained supervisors, I impose a fine of $150,000. Pursuant to the provisions of s. 53(a)(i), on Count 8 I impose a further penalty of $50,000, making a total penalty on Count 8 of $200,000.
On Count 9, failure to monitor conditions, I impose a fine of $200,000.
On Count 10, failure to prevent the rupture and explosions by a preventative mechanism, I impose a fine of $100,000.
On Count 11, failure to ensure the safety of non-employees, particularly police, ambulance and Country Fire Authority personnel, I impose a fine of $200,000.
In total, for the 11 offences I fine Esso Australia Pty Ltd the sum of $2,000,000.
I grant a stay of 28 days for payment of the fines imposed.
Sine die.
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