SafeWork NSW v Buddco Pty Limited

[2022] NSWDC 549

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549

Hearing dates:

2-3 August 2021, 20-23 June 2022, 27 June 2022, 18-20 July 2022, 22 July 2022, 18 August 2022

Date of orders:

14 November 2022

Decision date:

14 November 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   The elements set out in the Amended Summons dated 23 June 2020 have been proved beyond reasonable doubt.

(2)   I find the defendant Buddco Pty Ltd guilty.

(3)   The matter will be listed for a Sentence Hearing on a date convenient to the parties.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

OTHER – blockages affected the operation of an ink holding tank and mill – side access hatch was removed before anchor blade was electrically isolated – contractor became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation procedure inadequate – absence of an external interlock switch or emergency stop – confined space entry permit had only been partially completed – inadequate job safety analysis and confined space entry permit procedures

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 133

Evidence Act 1995 (NSW) s 165

Work Health and Safety Act 2011 (NSW), ss 7, 12A, 16, 17, 18, 19, 32, 244, 274

Work Health and Safety Regulation (NSW), cll 5, 36, 66,

Cases Cited:

Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92

Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

Constantanidis v R [2022] NSWCA 4

Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313

Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267; (2001) 110 IR 57

Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

Orr v Cobar Managemement Pty Ltd [2019] NSWDC 224

Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 213 A Crim R 340

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337

SRA (NSW) v Dawson [1990] 37 IR 110

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

SafeWork NSW v Arkwood (Gloucester) Pty Ltd [2022] NSWDC 89

Texts Cited:

Australian/New Zealand Standard AS/NZS 4024.1503: 2014, Safety of Machinery, 30 June 2014

Australian Standard AS 2865-2009, Confined Spaces, 4 September 2009

Safe Work Australia Code of Practice, How to Manage Work Health and Safety Risks, December 2011

WorkCover NSW, Confined Spaces Code of Practice, December 2011

WorkCover NSW, Managing the Risks of Plant in the Workplace Code of Practice, July 2014

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Buddco Pty Ltd (Defendant)

Representation:

Counsel:
C Magee (Prosecutor)
M Scott with J Simpson (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)
Lander & Rogers (Defendant)

File Number(s):

2019/208718

Table of Contents

Judgment

Introduction

The Task of this Court

The Elements of the Offence

The Amended Summons

The Risk

Reasonably Practicable Measures

The Relevant Law

General Principles

Evidence of Workers at the Site

Mr Phillip Roy

Mr Andrew Furlong

Mr George Berdyshevski

Mr Yatin Mehta

Mr Robert Graham

Mr Philip Seaman

Mr Scott Eirth

Mr Aaron Pfeiffer

Mr Mamadou Diallo

Mr Damien Coad

Mr Evert Van Oeveren

Evidence of SafeWork NSW Inspector

Mr Prasad De Silva

Documentary Evidence

Company Information

Contracts Between Parties on Site

Drawings of the Tank and the Site

Blackshop Tank Cleaning Before Incident

Documents Leading up to the Incident

Documents Created on the Day of the Incident

Buddco Work Health and Safety Material

DIC Work Health and Safety Material

Training and Qualifications

Photographs

Industry Guidance Material

Work Health and Safety Regulation 2017

Medical

Post-Incident Remedial Measures

Expert Evidence

Mr Joseph Simurina

Dr Milos Nedved

Findings of Fact: Agreed Facts

Additional Findings of Fact

Prosecutor’s Additional Facts (MFI 7)

Defendant’s Additional Facts (MFI 8)

Submissions for the Prosecutor

Submissions for the Defendant

Consideration of the Expert Evidence

Consideration of Submissions: How Mr Tanner Came to be Inside the Tank

Consideration of Submissions: “Entry”

Consideration of Element 1 – Whether the Defendant Owed a Duty

Consideration of Element 2 – Whether the Defendant Failed to Comply with the Health and Safety Duty

The Risk

Reasonably Practicable – Section 18

The Likelihood of the Risk Occurring – Section 18(a)

The Degree of Harm that Might Result from the Risk – Section 18(b)

What the Defendant Knew or Ought Reasonably to Have Known – Section 18(c)

Availability and Suitability of Ways to Eliminate or Minimise the Risk – Section 18(d)

The Cost Associated with Available Ways of Eliminating or Minimising the Risk – Section 18(e)

Reasonably Practicable – As Pleaded

Conclusion on Element 2

Consideration of Element 3 – Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

Conclusion on Element 3

Conclusion

Orders

Judgment

Introduction

1. Buddco Pty Ltd (Buddco) pleaded not guilty to a charge that being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Craig Tanner and Mr Yatin Mehta, to a risk of death or serious injury contrary to s 32 of the Act.

2. On 7 December 2017, workers at an ink manufacturing plant were preparing an ink holding tank (the tank) for cleaning. When the tank cleaning contractor Mr Tanner was inside the tank an agitator (the anchor blade) activated, causing his leg to become trapped between the side of the tank and the anchor blade. He suffered fatal injuries. Workers at the plant, including Mr Mehta, who entered the tank to assist Mr Tanner also suffered injuries.

3. DIC Australia Pty Limited (DIC) conducted a business or undertaking at a factory in Auburn which involved the manufacture of ink products for the printing industry. Buddco conducted a business or undertaking which involved designing, constructing, installing, commissioning, maintaining and servicing of the ink manufacturing plant. Buddco had an agreement with DIC to maintain and service all of the plant at Auburn, including the tank which was located in the Blackshop (so named because that part of the factory manufactured black ink). Buddco engaged, or caused to be engaged, Mr Tanner (who traded as Complete Blasting Solutions) as a contractor to clean out the tank.

4. The issues to be determined are:

1. Did the defendant owe the workers a health and safety duty under s 19(1) of the Act?

2. Did the defendant fail to comply with its health and safety duty by failing to take any of the steps particularised in par 13 of the Amended Summons?

3. Did the defendant’s breach of duty expose the workers to a risk of death or serious injury?

The Task of this Court

5. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

6. The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.

7. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

8. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.

9. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

10. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4. In the present case many of the witnesses worked for the defendant, or worked for others at the site. For that reason they might have in theory attempted to minimise their own involvement or that of the defendant.

11. I say straight away that I formed the impression that all witnesses were doing their best to tell the truth. There were no submissions to the contrary. I regard any discrepancy between their oral evidence and any prior statements to be due to lapse of time and perhaps to the trauma of the incident itself.

The Elements of the Offence

12. Section 32 of the Act provides:

“A person commits a Category 2 offence if:

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.”

13. The elements of the offence are:

14. Element 1 The defendant owed the workers a duty under s 19(1) of the Act;

15. Element 2 The defendant failed to comply with that duty; and

16. Element 3 The failure exposed the workers to a risk of death or serious injury.

The Amended Summons

17. The first page of the Amended Summons dated 23 June 2020 particularises the date of the offence as 7 December 2017 and the place of the offence as the premises at 323 Chisholm Road, Auburn, in New South Wales.

18. Paragraphs 1-11 of Annexure A to the Amended Summons set out the background facts which the prosecutor seeks to prove:

“Particulars of the defendant’s duty under s 19(1) of the Act

1. Buddco Australia Pty Ltd (the defendant), being a corporation, was a person conducting a business or undertaking within the meaning of the Act.

2. At all relevant times, the defendant conducted a business or undertaking which involved designing, constructing, installing, commissioning, maintaining and servicing of ink manufacturing plant (the business).

3. DIC Australia Pty Limited (DIC) conducted a business or undertaking which involved the manufacture of ink products for the printing industry from premises located at 323 Chisholm Road, Auburn New South Wales (the premises).

4. At all relevant times, DIC engaged the defendant to maintain and service all plant at the premises including an ink holding tank (the ink holding tank) located in the Blackshop at the premises.

5. At all relevant times, the defendant engaged or caused to be engaged Craig Tanner (Mr Tanner), trading as Complete Blasting Solutions, as a subcontractor to clean out the ink holding tank (the work) at the premises.

6. At all relevant times, Mr Tanner’s activities in carrying out the work were influenced or directed by the defendant.

7. On 7 December 2017, Mr Tanner was at work in the defendant’s business or undertaking in that he was carry out [sic] activities in relation to the task of cleaning out the ink holding tank at the premises, at the request of the defendant.

8. At all relevant times, the defendant engaged or caused to be engaged Yatin Mehta (Mr Mehta), an employee of the defendant engaged to undertake work at the premises.

9. At all relevant times, Mr Mehta’s activities in carrying out the work were influenced or directed by the defendant.

10. On 7 December 2017, Mr Mehta was at work in the defendant’s business or undertaking in that he was carrying out the function of a standby person/spotter for the cleaning of the ink holding tank, at the request of the defendant.

The Duty

11. The defendant had a duty under section 19(1) of the Act to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr Tanner and Mr Mehta, while they were at work in the defendant’s business or undertaking.”

The Risk

19. Paragraph 12 of Annexure A of the Amended Summons pleads particulars of the risk to workers as follows:

“12. The risk was a risk of workers, in particular Mr Tanner and Mr Mehta, suffering serious injury or death as a consequence of being crushed and/or entangled and/or cut as a result of entering a confined space, namely the holding tank, fitted with moving mechanical parts, namely, a rotating anchor blade, which had not been electrically isolated (the risk).”

Reasonably Practicable Measures

20. Paragraph 13 of Annexure A of the Amended Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“13. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, and in particular Mr Tanner and Mr Mehta, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate or, alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a. ensure that the ink holding tank was de-energised and isolated from all energy sources prior to permitting any work in respect of, or in relation to, the cleaning of the inside of the holding tank to commence, including any work which permitted persons to be able to access the inside of the holding tank;

b. requesting that DIC install an interlocking device on the ink holding tank hatch which de-energised the tank when the hatch was open;

c. requesting that DIC install engineering controls in respect to the operating systems for the ink holding tank including controls:

i. which permitted workers undertaking tasks that required entry into the ink holding tank to isolate the tank from all forms of energy; and/or

ii. which permitted the locking out and tagging out of the means of energizing the operating systems by workers undertaking tasks that required entry into the ink holding tank; and/or

iii. to alert workers when the operating systems, including moving mechanical parts, had not been electrically isolated; and/or

iv. which permitted the operating systems, including moving mechanical parts, to be deactivated by means of an emergency stop.

d. develop, implement and enforce a safe work procedure for the task of cleaning the ink holding tank which set out the minimum steps that workers were required to undertake when carrying out the task, including a requirement that:

i. a Job Safety Analysis (JSA) be prepared prior to commencing the task;

ii. a Confined Space Entry Permit be completed prior to commencing the task;

iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken;

iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank;

v. workers consult and obtain approval from Buddco before commencing the work;

vi. the hatch of the ink holding tank not be opened until the steps above have been completed.

f. provide adequate instructions and supervision to workers performing the work including information as to how the task is to be performed, in particular that:

i. a JSA be prepared prior to commencing the task;

ii. a Confined Space Entry Permit be completed prior to commencing the task;

iii. the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken;

iv. workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank;

v. that workers confirm that the ink holding tank has been isolated from all forms of energy prior to commencing the task;

vi. workers consult and obtain approval from Buddco before commencing the work;

vii. the hatch of the ink holding tank not be opened until the steps above have been completed.”

21. Particulars (e) and (g) were abandoned during closing submissions.

22. Paragraphs 14-15 of Annexure A of the Amended Summons plead the following:

“14. As a result of the defendant’s failures to comply with its duty workers, and in particular, Mr Tanner and Mr Mehta, were exposed to a risk of death or serious injury.

15. The fatal injuries sustained by Mr Tanner and the serious injuries suffered by Mr Mehta on 7 December 2017 were manifestations of the risk.”

The Relevant Law

General Principles

23. The parties agreed that the general principles of law which are applicable can be summarised as follows.

24. The objects clause in s 3 of the Act provides:

“(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by:

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…

(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

25. The offence is one of strict liability: s 12A of the Act.

26. The content of the duty is set out in s 19 of the Act which provides:

“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a) the provision and maintenance of a work environment without risks to health and safety, and

…

(c) the provision and maintenance of safe systems of work, and

(d) the safe use, handling, and storage of plant, structures and substances, and

…

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”

27. The meaning of “worker” is dealt with by s 7(1) of the Act which provides:

“A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as:

(a) an employee, or

(b) a contractor or subcontractor, or

(c) an employee of a contractor or subcontractor…”

28. Section 16 of the Act provides that more than one person can have a duty, and says:

“(1) More than one person can concurrently have the same duty.

(2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3) If more than one person has a duty for the same matter, each person:

(a) retains responsibility for the person’s duty in relation to the matter, and

(b) must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

29. Section 17 of the Act deals with the management of risks and provides:

“A duty imposed on a person to ensure health and safety requires the person:

(a) to eliminate risks to health and safety, so far as is reasonably practicable, and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

30. The word “risk” is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury – s 32(c).

31. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.

32. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.

33. “Reasonably practicable” is defined in s 18 of the Act which provides:

“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including:

(a) the likelihood of the risk concerned occurring, and

(b) the degree of harm that might result from the risk, and

(c) what the defendant knows, or ought reasonably to know, about;

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

34. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

35. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ.

36. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68].

37. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

38. The words “reasonably practicable” indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

39. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

40. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by a worker, but defendants must conduct operations on the basis that such acts will occur, and they must be guarded against to the fullest extent practicable.

41. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [127].

42. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

43. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) A Crim R 340 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130].

44. Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 of the Act provides:

“Imputing Conduct to Bodies Corporate

(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

…”

45. Counsel for Buddco submitted that there were additional propositions of law which were applicable (MFI 9, pars 13, 15 and 16).

46. The first submission was that where a defendant lays down a safe system of work, an assessment must be undertaken as to whether the defendant has done or omitted to do anything causally connected with the risk in question. The court must consider whether the manner in which the risk manifested was beyond the defendant’s control: SRA (NSW) v Dawson [1990] 37 IR 110.

47. Counsel for Buddco also referred to the decision of Judge Scotting in Orr v Cobar Management Pty Ltd [2019] NSWDC 224 at [226], [291] and [303]. This case involved a mine worker who consciously and deliberately acted in breach of the defendant’s safety system. Counsel for Buddco also referred to my decision in Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364 where I said at [342]:

“While a person conducting a business or undertaking must guard against the possibility that an employee may be careless or inadvertent in carrying out a task, there is a line to be drawn between such behaviour and the deliberate and unforeseeable flouting of rules in the workplace and the training given to employees.”

Evidence of Workers at the Site

Mr Phillip Roy

48. In December 2017 Mr Roy was the Operations Manager for DIC. He was in charge of manufacturing, distribution, the engineering team and occupational health and safety. Part of his role included planning in relation to maintenance and production. DIC used Buddco as an external contractor to perform maintenance. DIC also had two employees who worked as part of the maintenance team. One of those was Mr Eirth. He took directions from the Buddco engineering team. Buddco had an office at the DIC premises, which was above the engineering area.

49. Mr Robert Graham provided his services as a qualified electrician through RJB Electrical Pty Ltd (RJB). Mr Graham undertook work as directed by the Buddco engineering team.

50. Mr Roy explained the process of making ink in the Blackshop. Carbon was conveyed in the dispersion phase into a pre-dispersion mixer. This was a large tank in the Blackshop which was also known as an Onslow mixer. After about four hours the liquid was transferred into the tank. From there it could be transferred to the ink mills. Transferring the ink from the Onslow mixer to the tank meant that two batches of ink could be made in the Onslow mixer in the one day.

51. Attached to the underside of the tank were load cells which measured weight. The display on the load cells showed the operators how much ink was in the tank and thus how much volume was left in the tank. There was a load cell on each of the three legs of the tank.

52. There was an access hatch on the top of the tank (the top hatch). A worker could get up on a ladder to lift up the top hatch. When access was obtained in that fashion, a fan was used to ventilate the tank. The fan was used to flush out any atmospheric contaminants so that the tank then held a breathable atmosphere. These contaminants were flushed by the fan down from the top and out through a lower hatch which was on the side of the tank, near the base (the side hatch).

53. Within the tank was an anchor blade. It was shaped like an anchor with two sides which came up each side of the tank. There were paddles halfway up the shaft. The anchor blade was designed to agitate the product in the tank to try to stop the pigment from settling out. If the pigment settled out too quickly, the discharge line from the tank became blocked with carbon.

54. The anchor blade was driven through a motor and a gearbox at the top of the tank. This was electrically powered. The blade rotated at around 60 revolutions per minute (rpm). The anchor blade was designed to agitate the pre-dispersion mix and to stop carbon from settling out inside the tank during the milling process, which could take 14 or 15 hours.

55. Pigment which blocked the discharge lines from the tank to the mills had always been a problem. Depending on the materials used, the blockage could occur in as short a time as 6 to 12 months, or as long a time as 4 to 5 years.

56. When the tank became blocked it had to be cleaned from the inside. This required a worker to enter the tank through the side hatch.

57. The electrically driven anchor blade could be controlled by a switch and buttons on a control cabinet. A switch on the control cabinet had three positions, being “Off”, “On” and “Auto”. There was a green button which Mr Roy said was the “Start” button and a red button which was the “Stop” button. There were indicator lights including a blue light which indicated that there was a low level inside the tank. The top row of indicator lights included a green light for “Running”, a red light for “Stop” and a yellow light for “Overload”.

58. Generally the tank operated in the Automatic mode. In Automatic mode the anchor blade was triggered to operate based upon the weight recorded by the load cells. If the load cells recorded a heavy weight in the tank, the anchor blade would operate by rotating for one minute every hour. The speed of the rotation of the anchor blade was 60 rpm in both Automatic and Manual modes.

59. When blockages were identified in the tank, DIC endeavoured to flush the tank. This flushing sometimes worked and sometimes did not work. If flushing did not work, then the only option was for a worker to enter the confined space of the tank and manually remove the build-up of material inside the bottom of the tank. DIC had no role in the physical work of cleaning out the tank. Such work was coordinated through Buddco. Communications were sent by email to Mr Berdyshevski and Mr Budd. Buddco engaged a contractor to come to the site to clean out the bottom of the tank to remove the residual contaminant.

60. Contractors who came on site were required to complete an induction to be able to access the site. Any contractor engaged by Buddco had to go through the induction process. DIC had a process in place that required a contractor to obtain a permit and approval to conduct any confined space work activities. DIC did not have its own confined space permit but relied on the permits provided and issued by Buddco. DIC did not do its own confined space work at the time, because this was regarded as a high-risk activity. Mr Roy understood that Buddco only ever used accredited people with confined space qualifications to clean out the tank.

61. DIC required a Job Safety Analysis (JSA) to be completed for any maintenance-based activity on site. The idea behind the JSA was to give the contractor the ability to review the activity they were doing, to highlight or identify risks, and record whether a permit was required to do the activity. On the JSA the contractor was required to record the hazards, the control measures, and who was responsible for carrying out the control measures. The JSA was “designed to make the contractor think about the activity that they are undertaking and the risks associated with that activity” (Tcpt 36/19). A JSA was required to be completed by all contractors, subcontractors and by Buddco.

62. Mr Roy was not personally aware that Buddco was engaging Mr Tanner to carry out the cleaning of the tank. Mr Roy was taken through emails which went back and forth concerning arrangements for Buddco to engage a contractor to clean out the tank. While this was scheduled to occur on 7 December 2017, Mr Roy had no personal knowledge that the work was to be done on that day.

63. After the incident occurred in which Mr Tanner and Mr Mehta were trapped inside the tank, Mr Roy rang Emergency Services. He also spoke to Mr Robert Graham to have the equipment electrically isolated. Mr Graham said to Mr Roy “No-one rang me” (Tcpt 47/41). Mr Graham confirmed to Mr Roy that he had taken steps to isolate the tank after he was called to the scene of the incident.

64. Mr Roy made enquiries to locate documents relating to the work done by Mr Tanner. He was trying to find a Confined Space Entry Permit as well as a JSA “because I couldn’t understand how he could have entered the tank without doing the paperwork and the process” (Tcpt 48/40).

65. Mr Roy said that one of the maintenance workers handed him a copy of the Confined Space Entry Permit and said they had found it by Mr Tanner’s truck. That document was tendered as Exhibit PX 8. Mr Roy put the document in his office and continued to try to look for the JSA for the tank cleaning task. It was never located.

66. Mr Roy was asked about changes to the systems of work that were implemented by DIC after the incident on 7 December 2017. He referred to emails sent out by Mr Ian Johns of DIC, the Managing Director. Buddco was requested to create a Standard Operating Procedure in relation to the cleaning of the tank. Buddco then provided such a document. Mr Roy identified the Standard Operating Procedure in PX 2, Tab 89.

67. An edited version of the Record of Interview with Mr Roy was tendered (DX 2).

68. Another step taken was the re-writing of the DIC Confined Space Entry Procedure. The new procedure was identified in PX 2, Tab 90. Mr Roy thought that Buddco updated its own Confined Space Entry Procedure after the incident.

69. The black ink holding tank was never used again.

70. In cross-examination Mr Roy was taken to a Record of Interview with a SafeWork NSW inspector dated 18 April 2018 (DX 2). In relation to the requirement for a JSA, Mr Roy said in the interview that the whole point of a JSA is to allow whoever is doing the activity to go through a series of steps. It is in effect a Safe Work Method Statement. He said that the Confined Space Entry Permit was a different procedure which was managed by Buddco. It focussed on what was required before a worker entered a confined space such as a tank. There were supposed to be two forms in relation to confined space work, being the JSA and the Confined Space Entry Permit. Once these two forms were completed, all checks had been done and everything was okay, the next step was to obtain authorisation to enter the tank. Such authorisation was to be obtained from the Buddco engineering team. They had to be satisfied that all the confined space procedures were completed. This included mechanical isolation and electrical isolation. The point of the procedure was to make sure that everything was correct before anyone was allowed to enter the tank.

71. In re-examination Mr Roy was asked what the procedure was for isolating the tank in the Blackshop. He said that as a general rule if the contractor had been hired to clean the tank, he would be the one who would ensure that isolation had been done. Buddco would then go and verify that everything was okay and then access would be permitted to continue the activity. Mr Roy said that the isolation always had to be done with the electrician and the contractor who was undertaking the activity.

Mr Andrew Furlong

72. Mr Furlong was engaged by DIC as a contractor. He worked at DIC between 1989 and 2020 when he was made redundant. In December 2017 he was the supervisor of Web Inks Production. He did the planning for ink production and made sure that all work in the factory ran smoothly. He negotiated with customers and informed them if something could not be done or delivered. He made sure that stock levels and raw materials were coming in. Mr Furlong supervised operators who worked in each of the ink sections at the DIC site. He monitored the output of the mills in each of those sections. Part of his job was to identify breakdowns in machinery and refer them to the engineering department, meaning Buddco. He usually spoke to Mr Berdyshevski or Mr Budd.

72. Mr Furlong described the sequence in relation to the production of black ink. The material was first treated in a pre-dispersion mixer and then put into the tank. The ink then went through the mills. The purpose of the tank was to speed up production, so that one batch from the pre-dispersion mixer could be held in the tank while another batch was put through the pre-dispersion mixer. The tank allowed two batches to be prepared at the same time.

73. Mr Furlong said that when the weight in the tank came to 900 kg the anchor blade came on and continued until the weight had dropped below 900 kg. There was an Automatic mode and a Manual mode to keep the ink in the tank agitated. Normally the tank was kept on Automatic. If there were any problems with the batch then the tank was put on Manual mode.

74. Mr Furlong was aware of problems caused by ink settling in the tank and blocking the pipes from the tank to the mills. If this happened he called the workshop and told them to have a look at it. If the blockage could not be cleared, then someone had to physically go into the tank and scoop the material out. He said that there was a “man-hole” built into the tank for that reason (ie the side hatch). There was a ladder needed to approach the side hatch. There were 12-18 bolts around this hatch. When work had to be done on the tank he contacted the Buddco maintenance team.

75. Mr Furlong had no interaction with Mr Tanner prior to the incident in December 2017. He had seen the cleaning task done using jackhammers, spades, shovels and buckets. Material was removed from the bottom of the tank, placed into a bucket and passed out through the side hatch.

76. On the evening of 6 December 2017 Mr Furlong arranged for the final batch of ink to be milled. This was to empty the tank and to allow it to cool down. Mr Furlong said that the pre-dispersion mixer was restarted on the morning of 7 December 2017, but Mr Berdyshevski, or someone from the Buddco workshop, asked him to switch it off. Mr Furlong was not at the DIC site on the morning of 7 December 2017, but he rang and asked for the pre-dispersion mixer to be switched off.

77. Mr Furlong was not involved in the preparation of any changes made after 7 December 2017 to practices in relation to the cleaning of tanks across the site.

Mr George Berdyshevski

79. Mr Berdyshevski worked for Buddco between 2011 and the end of 2018. He was the Engineering Manager for Buddco. Mr Berdyshevski was a fitter by trade. He allocated work to the fitters working for Buddco and the fabricators working on various projects. He helped run the Ampro software system and did site audits. The Ampro system was the DIC preventative maintenance system. Mr Berdyshevski did JSA audits. As of December 2017 there were seven people in the Buddco crew. They were involved in doing preventative, corrective and breakdown maintenance. Mr Berdyshevski was made aware of maintenance work which was required by discussions, emails, meetings and telephone calls. Mr Graham of RJB was one of the crew that he managed.

80. Mr Berdyshevski said that the Blackshop was a “pretty problematic plant” (Tcpt 82/34). There were blockages in the tank on a regular basis. Once the tank was blocked it would have to be cleaned out. Buddco used a contractor to do the confined space work of cleaning out the tank. The job had previously been done by Mr Tanner. The contractor who cleaned the tank had to gain access through the side hatch. Bolts had to be taken off the side hatch to access the tank. These bolts were usually removed by a Buddco person, or by a DIC employee such as Mr Eirth. While Mr Eirth was a direct employee of DIC, he was part of the Buddco maintenance crew.

81. Mr Berdyshevski was asked to look at the Buddco Work Health and Safety Management Plan for the DIC site (PX 1, Tab 45). He accepted that the plan required equipment to have an adequate means of isolation and a means of proving isolation of the equipment. He said that the tank was an old piece of equipment and there were no official isolation points. The electricity to the tank had to be disconnected by an electrician. He remembered that Mr Graham used to have to open up a cabinet and pull out wires to isolate the tank.

82. Mr Berdyshevski had the understanding that when the tank had to be cleaned out, the electrical energy to it would have to be isolated, and that would have to be verified, before anyone entered the tank. Two pieces of paper had to be filled out, being a JSA and a Confined Space Entry Permit. The person who could enter the tank would need to wear special clothing, and there would be equipment such as drums and tools that needed to be used on the job. The area had to be barricaded.

83. Mr Berdyshevski was asked to recall when, during the process, the side hatch should be opened. He said: “It should be right before entry, I’d say that’s – yeah – that would be the best answer” (Tcpt 90/5).

84. Mr Berdyshevski had never been present when the side hatch was opened. He was asked whose responsibility it was to verify that the equipment had been de-energised. He said that the electrician would have to do the isolation. Then Mr Berdyshevski would have to make sure that the tank was isolated. Anybody else who was “on the JSA and the confined space would have to go through the whole isolation process themselves to make sure that they understand it to be safe as well” (Tcpt 90/15).

85. Mr Berdyshevski was taken to the Buddco Employee Induction Manual (PX 1, Tab 47). He was not aware of anyone from Buddco giving Mr Tanner a site induction. Mr Berdyshevski acknowledged that the Induction Manual said that Buddco had to make the necessary isolations, including electrical isolation. He said this had to be done as a team, so an electrician was needed. This was RJB. He also said that the confined space team had to do their bit as well. They were to cordon off the area, swing the hatch out of the way, move the blade to where it was needed, then do the isolation or put the hatch back on, or whatever may be needed at the time (Tcpt 92/45).

86. Mr Berdyshevski was taken to a Buddco document relating to confined space entry (PX 1, Tab 48). Mr Berdyshevski acknowledged that the document said: “Buddco will be responsible for… isolating, locking out, and danger/warning tagging of hazardous services provided to the confined space” (Tcpt 94/27).

87. Mr Berdyshevski said that the contractor was responsible for reporting to the Buddco site supervisor with the risk assessment or Confined Space Entry Permit, prior to commencing work for entry into a confined space. The contractor had to obtain a Buddco permit authority to proceed with the work. The Buddco person who could issue such authority was either Mr Budd or Mr Berdyshevski himself.

88. Mr Berdyshevski usually conducted a toolbox talk with his crew at about 6.00am each morning. At the toolbox talk there was a discussion with workers about what was planned for the day in terms of tasks and maintenance jobs. Tasks were allocated to particular workers. Mr Berdyshevski conducted the toolbox talk on 7 December 2017. He said that Mr Mehta was to be the standby person for Mr Tanner. Mr Eirth and Mr Seaman were to help Mr Mehta set up the area for Mr Tanner to do his cleaning. Mr Berdyshevski thought that Mr Graham, the electrician, was at the toolbox talk that morning. Mr Berdyshevski said that he knew that the area would have to be set up with drums to store the “gunk” removed from the tank. There would be rags, water, cardboard on the floor and tools such as shovels provided. There was a need to install a light at the top of the tank.

89. Mr Berdyshevski was asked whether there was any specific practice in relation to when the side hatch removal would occur. He said that after the barricades were put in place the side hatch could be opened. The team would then assess and relocate the blade to where it needed to be. However, he said that in relation to these answers he was “just guessing” (Tcpt 102/45).

90. Mr Berdyshevski did not go to the Blackshop to supervise the undertaking of the preparatory steps. He recalled Mr Tanner arriving at the DIC premises on the morning of 7 December 2017. He and Mr Tanner discussed the job and the fact that Mr Mehta was to be the standby person. There was discussion about filling out the JSA and the Confined Space Entry Permit. Mr Berdyshevski remained in his office and Mr Tanner did not return to the office after this initial meeting.

91. Mr Berdyshevski was summoned to the Blackshop after the incident occurred. By that time both Mr Tanner and Mr Mehta were trapped inside the tank. Mr Berdyshevski saw Mr Graham come to the Blackshop. He asked Mr Graham whether he had checked that the isolation was correct and Mr Graham informed him that he had not been called to isolate the tank. Mr Berdyshevski asked him to do that straight away.

92. Mr Berdyshevski was involved in making a number of changes to systems at work after the incident. The Confined Space Entry Procedure was updated. A Tank Cleaning Procedure was created and introduced.

93. Mr Berdyshevski was cross-examined in relation to a Record of Interview conducted on 12 April 2018 by Inspector Ball (DX 1). He said that for confined space work a JSA had to be completed and a Confined Space Entry Procedure document needed to be filled out. These documents included consideration of the need to isolate the tank, test the gases and have an exit plan. Those forms had to be completed prior to starting work in the tank. A third person was then required to review the whole process and sign off, giving authority to go inside the tank. This third person was either Mr Budd or Mr Berdyshevski himself.

94. On 7 December 2017 Mr Berdyshevski was not given any paperwork to review and as far as he knew no paperwork was filled out. Mr Tanner had said to him that he was going to go down and assess the job and then come back and fill out the paperwork.

95. In the Record of Interview Mr Berdyshevski described what Mr Graham would do to isolate the tank. Mr Graham would open up the electrical cabinet, take the wires out of the contactor, and then sign off that he had done this and tested the isolation. Mr Berdyshevski said in the Record of Interview that it was the responsibility of Mr Tanner to identify that the tank needed to be isolated, and then ask someone who was qualified to come in and do that. Mr Tanner had followed that procedure previously. Mr Berdyshevski had confidence that Mr Tanner understood what he had to do and had followed procedures in the past. He had done that exact job before. Everyone was happy with the standard of work of Mr Tanner and with his approach to the safety of such jobs.

96. Mr Berdyshevski said in the Record of Interview that Mr Tanner and Mr Mehta were expected to complete the paperwork together for the job. Everyone on the job had to sign off on the JSA and the Confined Space Entry Permit.

Mr Yatin Mehta

97. Mr Mehta started employment with Buddco in 2010 and finished his apprenticeship as a fitter and turner in 2016. He was then a Buddco maintenance fitter employed doing plant maintenance, servicing mills, changing filters and dealing with breakdowns. It was day-to-day production maintenance. One of the pieces of equipment on which he worked was the tank.

98. Mr Mehta became aware in late 2017 that there were blockages in the tank in the Blackshop. Mr Mehta attended a toolbox talk at 6.00am on the morning of the incident on 7 December 2017. Mr Berdyshevski conducted the toolbox talk. Mr Eirth and Mr Seaman were there. He could not recall whether Mr Graham was there. During the toolbox talk there was a discussion about a contractor coming in to clean out the tank.

99. Mr Mehta had worked with Mr Tanner before 7 December 2017. This work was dealing with pumps and pipes but did not involve work on the tank in the Blackshop. Prior to 7 December 2017 Mr Mehta had never been involved in the work of cleaning out the tank.

100. Mr Berdyshevski told Mr Mehta to prepare the site including setting up all the drums and cardboard. Mr Mehta understood that he was to help Mr Tanner if he needed something when he was inside the tank. Mr Mehta had training in confined spaces. His training certificate was Exhibit PX 1, Tab 59. He was trained in being a standby person for confined space work. The standby person is there to assist the person inside the confined space, to keep an eye on him and to help him if he is in trouble. Mr Mehta had not performed the role of a confined spaces standby person prior to 7 December 2017.

101. Mr Mehta made an entry in the Ampro system to indicate that the tank was blocked. He recorded that the first job to be done by him was “open up and make tank ready for Craig” (Tcpt 127/30). He understood that the work which needed to be undertaken to assist the subcontractor included opening the top hatch, setting up lights, loosening the bolts on the side hatch and removing the side hatch.

102. Mr Mehta filled out a JSA in relation to the preparation work he was doing such as getting the cardboard and putting it on the floor, obtaining a 44-gallon drum and setting up a light at the top of the tank.

103. Mr Mehta said that he loosened the bolts on the side hatch of the tank. This was done with a spanner. He could not recall using a stepladder to reach the side hatch. He could not recall Mr Seaman coming to assist him with loosening the bolts. Mr Mehta said that when he was loosening the bolts, he had not taken any steps to arrange for the isolation of the tank. He said the following (Tcpt 131/15-25):

“Q. And did you understand that the ink holding tank was required to be isolated before the bottom hatch was opened?

A. Yes.

Q. Had you been provided with any training or information as to how the ink holding tank in the black shop could be isolated?

A. No.

Q. Had you been provided with any information or instruction as to who was to be contacted if there is a need to isolate the ink holding tank?

A. Yes, Rob Graham.”

104. Mr Mehta said that he recalled Mr Tanner arriving at the DIC premises on the morning of 7 December 2017. He saw him parking his truck outside the Blackshop. At that stage Mr Mehta was still doing preparatory steps including getting cardboard. They had a conversation about the weather but did not speak about the work to be done. Mr Mehta saw Mr Tanner go over towards the Buddco workshop. Mr Tanner said that he was going to get the paperwork done but he did not show any paperwork to Mr Mehta.

105. Mr Mehta was shown a Buddco Confined Space Entry Permit which had been partly completed (PX 1, Tab 7). He acknowledged that the entry “Yatin 7/12 8.30” was in his handwriting. He could not recall when he wrote that on the document. He noted that the spelling of his name on the front page of the document was incorrect. He could not recall any discussion with Mr Tanner about the document. He thought that Mr Tanner must have given him the document and that he simply inserted his name and copied the same date and time. He could not recollect any discussion with Mr Tanner about the document.

106. Mr Mehta had his attention drawn to that part of the document where there was a tick to indicate that isolation had been carried out. He could not recall seeing that part of the document completed when he put his name on the document. Mr Mehta understood that there needed to be testing of the atmosphere inside the tank. He understood that Mr Tanner would do that.

107. While Mr Mehta did fill out a JSA for his preparatory tasks, and he expected to complete a second JSA with Mr Tanner in relation to the cleaning job, he did not see Mr Tanner with a JSA document.

108. Mr Mehta was shown a Record of Interview conducted on 1 March 2018 by Inspector Ball. His recollection was assisted by seeing that Record of Interview. He did recall seeing Mr Tanner with a gas detector that morning. He recalled loosening the bolts and removing some of the bolts from the side hatch. The bolts were loosened and removed so that the hatch could be moved to the side but not completely opened. Mr Mehta, having seen the Record of Interview said that he had helped Mr Tanner to move the hatch. This was so Mr Tanner could check the gas. He gave the following evidence (Tcpt 140/31-38):

“Q. At the time that you removed the bolts and helped Mr Tanner move the side hatch a bit, were you aware of whether any steps had been taken to isolate electrical power to the ink holding tank at that time?

A. No.

Q. What was your understanding as to whether the tank was required to be isolated before the testing of the atmosphere inside the tank?

A. Yes, it’s supposed to be isolated before.”

109. An edited version of a Record of Interview with Mr Mehta dated 1 March 2018 was tendered (DX 4). An edited version of a Record of Interview with Mr Mehta dated 31 August 2018 was tendered (DX 5).

110. Mr Mehta said that one of the steps that the Buddco crew would take would be to contact Mr Berdyshevski. In turn Mr Berdyshevski would contact Mr Graham to come to the area to undertake the electrical isolation. Mr Mehta understood that Mr Berdyshevski had to sign off on the Confined Space Entry Permit.

111. Mr Mehta was asked about the Buddco Lock Out and Tag Procedure. He was aware that in relation to the tank, there was a lock out mechanism and it was usually the electrician who had to pull the wires out. He had never seen the electrician do that before.

112. After Mr Mehta assisted Mr Tanner in pushing aside the hatch, he saw Mr Tanner go outside the Blackshop. He thought that Mr Tanner was going to do his paperwork. This would include the Confined Space Entry Permit and the JSA. Mr Mehta continued with his preparation of the site area. He put up barrier tape.

113. He was getting the rags and cardboard ready for the work to be done when he heard screams coming from the tank. He was standing near the roller door and went inside the Blackshop to see where the screams were coming from. He saw a ladder near the side hatch to the tank. He went up to the side of the opening of the tank and looked inside, where he saw Mr Tanner who was stuck. Mr Mehta started calling people for help and he went inside the tank himself. He went in through the side hatch.

114. Mr Mehta tried to help Mr Tanner by lifting him up. The anchor blade started turning and it hit Mr Mehta’s leg. He recalled another worker named Mamadou Diallo attempting to get in through the side hatch.

115. In cross-examination Mr Mehta was taken to photos at PX 2, Tab 66. In particular, he was taken to a photo which showed the side hatch cover swung fully away from the opening and held up by a rope connected to a pipe. Mr Mehta said that part of his job was to have the side hatch cover removed. This would require two people to lift it off and put it on the ground. The job had not got to that stage when the incident occurred. He could not recall having seen the side hatch cover swung out of the way and held by the rope on the day.

116. Mr Mehta confirmed that no emergency plan had been created for that day, as the job was not that far advanced. An emergency plan would have to be discussed with the contractor who was going into the tank. An emergency plan would have to be written down on the Confined Space Entry Permit and then taken back to the Buddco supervisor for sign off.

117. Mr Mehta agreed that his understanding of the electrical isolation for the tank was that the electrician should come along and pull the wires out. Mr Mehta had no conversation with Mr Tanner about the job that day or how it was to be done, as he never got that opportunity.

118. Mr Mehta confirmed that he had said in his Record of Interview (Tcpt 152/25-33):

“Q. Okay. Going back to the preparation work, is the tank required to be isolated before the hatch is opened?

A. Yes.

Q. So that’s normally the first thing that happens?

A. Yeah, because it's not confined space anymore if you open. Like, it is a confined space, but it's not safe because there is an access point.”

119. Mr Mehta confirmed that his understanding was that the JSA and the Confined Space Entry Permit would be completed by Mr Tanner and himself. He expected that Mr Tanner would have taken the completed documents to Mr Berdyshevski and that Mr Berdyshevski would have contacted the electrician to do the isolation.

120. After the court raised a query about whether a JSA for the job of cleaning out the tank had ever been found, Mr Mehta was asked some more questions in cross-examination. He said that he did fill out a JSA for the preparatory work, but he did not take it back to the office. He usually kept such a document on his person. When he was taken to hospital all of his clothes were removed, and his preparatory JSA was probably lost with his clothes.

Mr Robert Graham

121. Mr Graham is an electrician. RJB was contracted by DIC Australia to provide Mr Graham’s electrical labour services at the site. He has worked at the DIC premises since 2008. He looked after maintenance and breakdowns and general electrical work. Buddco performed all the maintenance at the site and Mr Graham worked as part of the maintenance crew with Buddco. He attended toolbox talks each morning conducted by the Buddco engineering manager. Buddco provided him with instructions or directions in relation to the maintenance tasks that he was required to undertake that day. The instructions to Mr Graham came from either Mr Berdyshevski or Mr Budd.

122. Mr Graham had no training in confined space work. He had been trained in isolation, tag out and lock out procedures. In relation to maintenance work, one of the tasks of Mr Graham was to carry out isolation and turn off the electrical power to equipment.

123. He had been involved on prior occasions in isolating the tank in the Blackshop. There was an occasion when the side hatch was opened and the anchor blade was blocking access into the tank. He jogged the Start button to move it out of the way and then isolated the tank. On that occasion the anchor blade had stopped directly in front of the side hatch opening.

124. When the switch for the tank was in the Manual position the anchor blade ran continuously providing that the weight was above a set point, which was controlled by the load cells. When the switch was in Automatic mode, the tank would run every half hour. The low-level set point was about 900 kg. In Automatic mode, the blade would rotate from time to time as long as the level of the weight measured by the load cells was above 900 kg. If the weight was slightly below 900 kg and then some weight was put on to the tank, the anchor blade could start. For example, if the weight was close to the set point or just below, and someone pulled on the side of the tank, the anchor blade could start (Tcpt 179/39-49).

125. The tank could be isolated from the motor control centre cabinet. Mr Graham had a key to unlock the door to the cabinet. No-one else had the key. To isolate the tank he unlocked the cabinet, turned off the circuit breaker by pulling a switch down and then pulled the cables out of the bottom of the contactor. Taking the wires out of the contactor made it just a bit harder to power the tank up again. He described this as an extra level of safety.

126. Mr Graham recalled Mr Tanner coming to the site on earlier occasions. The first time he came to the DIC site Mr Graham went to the mezzanine level of the Blackshop and explained to Mr Tanner how he isolated the tank. Mr Graham put his lock onto the circuit breaker and Mr Tanner put his own lock onto the circuit breaker. Mr Graham then removed the cables from the bottom of the overload device. Mr Graham said that he would have signed a JSA for that isolation. There was no specific JSA for isolation, but there was a general JSA which had a section for isolation on it.

127. On the morning of 7 December 2017 Mr Graham commenced work at 6.00am and attended a Buddco toolbox talk run by Mr Berdyshevski. He recalled Mr Mehta, Mr Eirth and Mr Seaman being at the toolbox talk. He overheard a conversation towards the end of the meeting about the tank being cleaned that day. There was no conversation directed towards Mr Graham about this topic. Mr Graham could not recall Mr Berdyshevski telling him anything about his involvement in the cleaning of the tank. Mr Graham then went about his other tasks for the day. He was not contacted at any point to be told that Mr Tanner had arrived at the site to commence the task of cleaning out the tank. He was not contacted by Mr Berdyshevski to isolate the tank.

128. The first time Mr Graham became aware of the incident was after Mr Eirth rang and said that Mr Graham should come to the Blackshop and isolate the tank. When he got to the Blackshop he saw Mr Diallo lying on the floor and he knew something was wrong. He went to the mezzanine level and isolated the tank by opening the cabinet and turning off the circuit breaker. He did not have a locking mechanism with him at the time. He then went to the workshop and got a padlock and put that on the circuit breaker as well.

129. After the rescue crews arrived, further isolation was performed by turning off the main switch on the main distribution board on the ground level of the Blackshop. Mr Graham physically removed the fuses from this unit.

130. Mr Graham was involved in changes to the procedures at the Blackshop after the incident. There was a problem with the Onslow mixer. It could not be locked out, but steps were taken to fix that mechanism. Mr Graham provided a letter on RJB letterhead dated 15 December 2017, confirming that the mechanism had been repaired. Mr Graham was also involved in the installation of emergency stops (E-stops) in the Blackshop.

131. Mr Graham was cross-examined in relation to his Record of Interview dated 22 March 2018 (DX 6). In that Record of Interview, he said that a maintenance worker could not isolate the equipment on their own, because there had to be an electrician who could get inside the panel. He said that he had been involved with the tank cleaning before and he had always isolated the tank. Mr Graham said that Mr Tanner had done the work about three or four times before the day of the incident. He had never had a phone call from Mr Tanner asking him to do the isolation, it was always someone else who called. The only conversation he ever had with Mr Tanner about isolation was on his first visit, when he showed him how the isolation was carried out.

132. In the Record of Interview Mr Graham was asked whether he could think of any reason why Mr Tanner would put off the isolation. He could not think of any reason. He was asked whether it was common practice for workers to work on plant without isolating the plant, and he said that that was “never done”.

Mr Philip Seaman

133. Mr Seaman commenced working for Buddco in February 2017 as a Trades Assistant. He has since obtained a qualification as a mechanical fitter. His role at Buddco was to respond to breakdowns and perform short term and preventative maintenance. He worked closely with the maintenance fitters including Mr Eirth. He had not assisted with a tank clean in the Blackshop but was aware that there had been blockages in the Blackshop.

134. Mr Seaman attended the toolbox talk conducted by Mr Berdyshevski at 6.00am on the day of the incident. He became aware that the tank was to be cleaned and that Mr Tanner was to turn up to do the job that day. A request was made that he and Mr Eirth assist Mr Mehta in setting up the equipment and the materials for the tank clean. He understood that Mr Mehta was to be the confined space rescue person. Mr Seaman recalled organising a pallet with a dust extractor or fan, a jackhammer, various tools and power cables. He used a forklift to obtain a 44-gallon drum. He brought a couple of pallets of drums to the roller door at the back of the Blackshop. He assisted in setting up the lighting at the top of the tank and the extraction fan which was to be placed at the top.

135. Mr Seaman brought a ladder to the area adjacent to the side hatch.

136. Mr Seaman returned to the Blackshop and found Mr Mehta at the side hatch. When he looked at the side hatch there were two bolts remaining and Mr Mehta was trying to remove the bolt closest to him. Mr Mehta asked Mr Seaman to hold the side hatch in position while he removed the bolt. Mr Mehta asked for help in assessing the material inside the side hatch. Mr Seaman manipulated the lid far enough for Mr Mehta to look inside the tank to make his assessment of the material in it. The side hatch was then left hanging by one bolt. Mr Seaman asked if there was anything else he could do and since there was not, he moved on.

137. While at another part of the site, Mr Seaman was approached by a worker known as “Prince” who told Mr Seaman and Mr Eirth to go to the Blackshop. Mr Seaman saw Mr Diallo talking through the open side hatch. He saw Mr Diallo lift his leg up and put it inside the side hatch and then saw him be ejected out of the side hatch and onto the ground. Mr Diallo was in extreme pain and his leg was broken. Mr Seaman then went up the ladder to the opening of the side hatch and looked in. He saw Mr Mehta was in the ink underneath the anchor blade and Mr Tanner was up against the wall of the tank being pinned by the anchor blade. Both were yelling at him to turn the power off. Mr Seaman passed some tools to Mr Mehta to assist him in digging himself out of the material.

138. In cross-examination Mr Seaman was taken to photographs at PX 2, Tab 66. The photograph at p 386 showed the side hatch pivoted on one bolt. Mr Seaman said that he recalled the bolt being higher up on the flange. When he left the side hatch hanging down, it obstructed over half of the access through the side hatch.

139. Mr Seaman was taken in cross-examination to his Record of Interview dated 22 March 2018 (DX 3). He was asked some general questions about JSAs, auditing and spot checking, and the training he had in identifying potential hazards.

Mr Scott Eirth

140. Mr Eirth was employed by DIC as a Maintenance Manager. He worked as part of the Buddco maintenance team. He was involved in fixing breakdowns and servicing machinery to keep the factory running. As a maintenance fitter he had been involved with the problem of the blockages in tank. He recalled a subcontractor being brought in to clean out the tank. He had never played any role in the cleanout but had done tidying up afterwards. Mr Eirth had no confined space training. He had never had any role in electrical isolation of the tank. He gave the following evidence (Tcpt 221/20-24):

“Q. Were you ever aware of any circumstances where, when that hatch had been taken off, there was a need to have the tank continue to have electricity running or power running to it?

A. Not when the hatch is off, no. It should be isolated.”

141. Mr Eirth attended the toolbox talk on the morning of 7 December 2017. Mr Berdyshevski asked Mr Mehta to be the spotter for the clean out of the tank and Mr Mehta, Mr Eirth and Mr Seaman were asked to set up the equipment for Mr Tanner. Mr Eirth and Mr Seaman took an exhaust fan and a light from the workshop down to the Blackshop. They did not set them up, they just left them there. Mr Eirth saw Mr Tanner at the Buddco workshop. He said hello but did not discuss the job with him. Mr Eirth did not see Mr Tanner in the Blackshop that morning.

142. Mr Eirth was at another part of the site when Prince approached him and asked him to come to the Blackshop. When he arrived, Mr Eirth heard screams coming from the tank. He saw Mr Diallo arrive. Mr Eirth went upstairs and tried to press all the E-stops he could, but they did not do anything to isolate the tank. He had no knowledge of how to isolate the tank. He had never seen anyone do it.

143. When he went back to the floor of the Blackshop he saw Mr Diallo on the floor in a fair bit of pain. He did not see inside the tank. Later in the morning Mr Eirth was involved with the rescue personnel in lifting the motor and the gearbox from the top of the tank.

144. Mr Eirth was cross-examined in relation to a Record of Interview dated 1 March 2018 (DX 7).

145. In the Record of Interview Mr Eirth said that he had never seen anyone work on equipment without it being isolated.

Mr Aaron Pfeiffer

146. Mr Pfeiffer worked for DIC between 2017 and 2021 as the Production Manager. He reported to Mr Roy. Mr Pfeiffer was not involved in any discussions about the cleanout of the tank. He was not involved in any of the planning for that task. He was not aware that the cleanout was to occur on 7 December 2017.

Mr Mamadou Diallo

147. Mr Diallo was not called to give oral evidence but an edited version of his Record of Interview dated 29 November 2019 was tendered (PX 13). Mr Diallo was employed by DIC as a Production Operative. He recalled being called to the Blackshop on 7 December 2019. He saw the two men trapped in the tank.

148. He started to get into the tank to help the two trapped men but the mixer started again after about two or three seconds. It knocked his foot and cut his leg. Mr Diallo freed himself and jumped out of the tank. He suffered great pain in his leg.

Mr Damien Coad

149. Mr Coad was called as a witness by the defendant. He had been employed as a Fitter and Machinist by Buddco at the DIC site. He did maintenance work and project work. He reported to Mr Budd and Mr Berdyshevski. He had had prior contact with Mr Tanner.

150. Mr Coad had carried out an induction for Mr Tanner when he first came to the site. He was shown a Confined Space Entry Permit dated 2 December 2016 (PX 1, Tab 32). The person entering the confined space was Mr Tanner. Mr Coad had signed the document to permit the work to be done.

151. Mr Coad had also previously done work with Mr Craig Tanner, when Mr Coad was the standby person assisting Mr Tanner. On this occasion he and Mr Tanner completed the JSA to identify the tasks to be performed and to go through the procedure for the confined space work. Once Mr Tanner and Mr Coad had completed the Confined Space Entry Permit, they made contact with Mr Graham, the electrician. Mr Graham came along and isolated the board by pulling out the fuses and putting a lock on the main switch. When the isolation of the power was completed, this section of the JSA was ticked off. Once the confined space paperwork was filled out, it was taken to Mr Budd or Mr Berdyshevski for sign off to say that all procedures had been taken and that entry could take place.

152. At some stage the side hatch had to be opened. Air was blown in through the top of the tank through the top hatch to clear the atmosphere in the tank. The side hatch was opened “after the completion of all paperwork and the sign off from management” (Tcpt 323/2). After the paperwork was completed and there was a sign off from management, the side hatch would be unbolted and completely removed and stored against the wall.

153. Mr Coad was shown the photograph at PX 2, Tab 65, which depicted the side hatch swung out of the way and held up with rope attached to a pipe. He had not seen anything like that before. That was not the way he did the work with Mr Tanner on the previous occasion.

154. Having worked with Mr Tanner previously, Mr Coad said that his impression was that he was competent in his attention to safety and detail (Tcpt 325/35).

155. Mr Coad had an involvement with updating procedures after the incident.

156. Mr Coad confirmed in cross-examination that after completion of the JSA and completion of the Confined Space Entry Permit, and before any further step was taken in relation to the tank, steps were taken to arrange for the isolation of all energy to the tank.

157. Mr Coad said that the tank was not isolated when it was opened up to be vented, but it was isolated in order to provide access to the interior of the tank. The tank was vented by removing the bolts from the side hatch door and then relocating the door with a bolt at the top and a bolt at the bottom to allow air flow from the tank but not enough space for a person to get in (Tcpt 327/45). He said that there was only about a three or four inch gap to allow for venting. When the side hatch was taken off for this purpose, there was still electrical energy connected to the tank. He said that the tank would be isolated before any work was actually done inside the tank.

158. In cross-examination Mr Coad said that when he had assisted Mr Tanner on previous occasions there was no written procedure for the tank cleaning at the DIC site. He said it was a case of filling in the JSA and there was no standard procedure (Tcpt 333/35). He confirmed in cross-examination that the side hatch door would always be undone before the isolation (Tcpt 332/4).

Mr Evert Van Oeveren

159. A statement by Mr Van Oeveren was admitted into evidence (PX 4). Mr Van Oeveren worked at the DIC site between 1988 and 2008 as the Engineering and Maintenance Manager. He was a qualified mechanical engineer. As early as 2003 there were problems with sediment blocking the tank. To deal with this Mr Van Oeveren commissioned work on an agitator for the tank so that the agitator would slowly stir the ink and prevent it from settling. The agitator was a U-shaped anchor blade rotating on a central shaft. The electric motor that powered the agitator was located on the top of the tank. Mr Van Oeveren attached to his statement a detailed drawing of the anchor blade which he commissioned. He also annotated photographs of the Blackshop to indicate the tank and various other pieces of equipment.

Evidence of SafeWork NSW Inspector

Mr Prasad De Silva

160. Mr Prasad De Silva was a State Inspector who was part of the engineering team with SafeWork NSW. He held the degrees of Bachelor of Engineering and a Masters of Management. On 18 December 2017 he attended the DIC premises with Inspector Simurina and Mr Phillip Roy. Inspector De Silva expressed the view, and recorded in his notebook, that interlocking of the side hatch was not practicable.

161. In cross-examination Inspector De Silva said that it was part of his task to assist SafeWork NSW by providing technical advice or technical expertise in relation to the operation of machines. The purpose of his attendance at the site was to assist Inspector Simurina in determining whether or not there had been compliance with Improvement Notices.

162. He acknowledged that he told the inspectors not to require an interlocking device to be fitted. He took the view that because maintenance had to be done, an interlocking device was not appropriate. Inspector De Silva confirmed that it was still his view that interlocking was not practicable.

Documentary Evidence

Company Information

163. Buddco was incorporated in 2009. The sole director since 2012 has been Mr Josh Budd (PX 1, Tab 1). At the date of the incident Mr Budd was the Managing Director. Mr Berdyshevski was the Engineering Manager and reported directly to Mr Budd. Mr Coad (fitter and turner), Mr Mehta (fitter and turner) and Mr Seaman (trainee mechanical engineer) reported directly to Mr Berdyshevski (PX 1, Tab 2).

Contracts Between Parties on Site

164. DIC and Buddco entered into a written agreement dated 9 September 2009 by which DIC appointed Buddco for five years to supply labour only for the design, construction, installation, commissioning, maintenance and servicing of ink manufacturing plant and associated equipment (PX 1, Tab 3). By a letter dated 4 August 2014 that agreement was extended to run from 9 September 2014 for a further period of five years (PX 1, Tab 4).

165. By an undated letter RJB agreed to provide electrical labour services to DIC. All labour rates and materials were to be agreed between the parties (PX 1, Tab 5).

Drawings of the Tank and the Site

166. Exhibit PX 1, Tab 8 was a drawing of the tank. The U-shaped anchor blade can be seen, as well as the motor and the gearbox on top of the tank.

167. The prosecutor also tendered a Blackshop flow diagram (PX 1, Tab 9).

168. A plan of the DIC site was tendered (PX 1, Tab 10). The Blackshop is indicated in the top left of the plan. Immediately to the left of the Blackshop is the area where Buddco had its office and workshop.

400. It is for these reasons that I decline to make a finding in terms of par 52 of the defendant’s Additional Facts document (MFI 8). When all the evidence is taken into account, it is clear that prior to December 2017, the isolation procedure was not followed consistently by Buddco employees and contractors. Indeed, there was no step-by-step procedure to be followed.

401. It is also for these reasons that I decline to make a finding in terms of par 60 of MFI 8. There was no coherent procedure to tell employees and contractors when the side hatch should be unbolted and completely removed. In particular, there was no step-by-step procedure telling employees and contractors when isolation should occur in relation to unbolting and removal of the side hatch.

402. I find that the step pleaded in par 13(a) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Interlocking Device – Paragraph 13(b) of the Amended Summons

406. Paragraph 13(b) of the Amended Summons pleads that the step which should have been taken by Buddco was:

“Requesting that DIC install an interlocking device on the ink holding tank hatch which de-energised the tank when the hatch was open.”

407. Mr Simurina and Dr Nedved were in agreement that interlocking devices are engineering controls which eliminate a risk. The power to the interior of the tank would have been automatically shut off by an interlocking device if one had been fitted to the side hatch. The obligation under the Act is to provide the highest level of protection, and this is done by eliminating risk (if that is reasonably practicable) rather than minimising risk.

408. However, as pointed out by counsel for the defendant, the tank was not owned by Buddco, it was owned by DIC. All Buddco could do would be to request DIC to install an interlocking device on the tank side hatch. There was no direct evidence what the attitude of DIC would have been to such a request. DIC could have said “No” or it could have said “The tank is old, we do not want to use it for much longer, so we will not spend any money”. Given that DIC had passed the tank cleaning work onto Buddco entirely, the response of DIC could well have been: “You are entirely responsible for safety during work on the tank so you take appropriate precautions”.

409. All that having been said, making a request of DIC to install an interlocking device was a reasonably practicable measure which Buddco could have taken. Whether it would have had the practical result of eliminating the risk, really falls to be considered in relation to Element 3 of the offence, which is discussed below.

410. I find that the step pleaded in par 13(b) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Engineering Controls – Paragraph 13(c) of the Amended Summons

411. Paragraph 13(c) of the Amended Summons pleads that Buddco should have requested DIC to install four particularised engineering controls. Those controls are pleaded as follows:

“i.   which permitted workers undertaking tasks that required entry into the ink holding tank to isolate the tank from all forms of energy; and/or

ii.   which permitted the locking out and tagging out of the means of energizing the operating systems by workers undertaking tasks that required entry into the ink holding tank; and/or

iii.   to alert workers when the operating systems, including moving mechanical parts, had not been electrically isolated; and/or

iv.   which permitted the operating systems, including moving mechanical parts, to be deactivated by means of an emergency stop.”

412. Engineering control (i) as pleaded is a statement of an aim to be achieved, rather than a particular engineering control which could or should have been employed.

413. Engineering control (ii) refers to locking out and tagging out of the electrical power to the tank. Buddco already had such a measure in place, which involved Mr Graham being called to open up the cabinet, shut the circuit breaker, put a lock on the circuit breaker and pull the wires out. Engineering control (ii) does not seek to add to the existing system of locking out and tagging out, which if followed by workers, was adequate to isolate the tank, and which in the past had appropriately isolated the tank. The flaw in the system was not that there was no means of locking out and tagging out the electricity, but there was no coherent system for mandating that such isolation occurred at a particular point in the process.

414. Engineering control (iii) was not the subject of any evidence. The prosecution did not call evidence of any device which should have been installed to alert workers when the tank had not been electrically isolated.

415. Engineering control (iv) was the subject of evidence. When the two men became trapped in the tank, workers in the Blackshop tried to find an emergency stop which would isolate the electrical power to the tank. While there were a number of E-stops in the Blackshop, none of them isolated the power to the tank. Such E-stops were installed after the event.

416. However, the installation of E-stops does not eliminate or minimise the risk. The need to hit an E-stop and cut off the power to the tank would only arise after the risk has materialised, and someone is trapped inside the tank by the anchor blade. In other words, engineering control (iv), while desirable, is not a means of eliminating or minimising the risk. At best, it might reduce the injuries suffered after the risk has materialised.

417. I find that the prosecution has not established its case in relation to par 13(c) of the Amended Summons.

Safe Work Procedure – Paragraph 13(d) of the Amended Summons

418. Paragraph 13(d) of the Amended Summons pleads that Buddco should have taken the following steps:

“d.   develop, implement and enforce a safe work procedure for the task of cleaning the ink holding tank which set out the minimum steps that workers were required to undertake when carrying out the task, including a requirement that:

i.   a Job Safety Analysis (JSA) be prepared prior to commencing the task;

ii.   a Confined Space Entry Permit be completed prior to commencing the task;

iii.   the ink holding tank be isolated from all forms of energy prior to commencing the task, with detailed guidance on the specific isolations required and how they were to be undertaken;

iv.   workers lock out and tag out of the means of energizing the operating systems prior to entry into the ink holding tank;

v.   workers consult and obtain approval from Buddco before commencing the work;

vi.   the hatch of the ink holding tank not be opened until the steps above have been completed.”

419. Buddco did have a procedure requiring the two workers involved in tank cleaning to complete a JSA and a Confined Space Entry Permit. Buddco already had in place a procedure requiring approval from Buddco, and consideration of the JSA and the Confined Space Entry Permit, before work in the tank was authorised. The crucial matters pleaded in par 13(d) of the Amended Summons, and missing from the existing Buddco procedure, were that:

1. Buddco did not provide detailed guidance on the specific isolations required and how they were to be undertaken.

2. Buddco did not mandate that the side hatch of the tank should not be opened until isolation had been completed.

420. The summary above of the differing interpretations within Buddco on these crucial matters, demonstrates that the use of a generic JSA, and the absence of a step-by-step procedure, was inadequate to minimise the risk. As Mr Roy said, the whole point of a JSA is to allow whoever is doing the activity to go through a series of steps. It is in effect a Safe Work Method Statement (see par 67 above).

421. The evidence shows that it was Buddco which, through its workers, opened the side hatch of the tank at a time when Buddco had not carried out its own obligations to isolate the tank.

422. As recognised by some of the Buddco workers, the isolation should have occurred before the side hatch was opened for any purpose. As soon as the side hatch was opened, even partially, there was an access point to the confined space. The risk then existed.

423. As Dr Nedved pointed out, it is not unknown in an industry, in fact it is a common experience, for workers to take shortcuts. This means that administrative controls are only as good as the scrupulous attention paid by workers to observing the controls. However, in this case I find that the JSA procedure was inadequate, in that it did not set out a step-by-step procedure for the inherently dangerous task of opening the tank and cleaning it.

424. For all we will ever know, Mr Tanner may well have assumed that the tank was electrically isolated, because the side hatch was partially opened by Buddco. The evidence of Mr Graham shows that it was never Mr Tanner who called him to come and isolate the tank on previous occasions, which means that it must have always been a Buddco person. This would accord with the Buddco written procedures, which placed the obligation to isolate the tank upon Buddco itself.

425. If on the day of the incident the tank had been isolated by Buddco before the side hatch was opened to any degree, this tragic incident would never have occurred.

426. I find that the step pleaded in par 13(d) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Instruction and Supervision – Paragraph 13(f) of the Amended Summons

427. Paragraph 13(f) of the Amended Summons pleads that Buddco should have provided adequate instructions and supervision to workers performing the work, including information as to how the task was to be performed in accordance with the improved procedure pleaded in par 13(d) of the Amended Summons.

428. It stands to reason that if there was to be a new step-by-step procedure, and an imperative that the tank be isolated before the side hatch was opened at all, then there should have been adequate instruction and supervision in such improved procedure.

429. I find that the step pleaded in par 13(f) of the Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Conclusion on Element 2

430. I find that the prosecution has proved the case pleaded in subpars 13 (a), (b),(d) and (f) of the Amended Summons, I am satisfied beyond a reasonable doubt that the defendant failed to comply with its health and safety duty.

Consideration of Element 3 – Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

431. The relevant question on causation is not whether the failures of the defendant were the cause of the death of Mr Tanner and the injuries to Mr Mehta, but whether the act or omission of the defendant was a substantial or significant cause of the workers being exposed to the risk of injury – Bulga Underground Operations at [127], [130].

432. That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers – Bulga Underground Operations at [129]-[130].

433. The Court of Criminal Appeal recently considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established.

434. The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the court did so is best expressed by Simpson AJA at [2] as follows:

“I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd (‘GCE’) gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld.”

435. Justice Walton agreed with the conclusion reached by Justice Cavanagh saying at [12]:

“I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised.”

436. Justice Cavanagh set out the principles in relation to causation at [229]-[235] as follows:

“229   In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person.

230   As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed.

231   It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause.

232   Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause.

233   This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk.

234   Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof).

235   In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk.”

437. The conclusion reached by Justice Cavanagh was expressed at [241]-[243] as follows:

“241   The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work.

242   It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown.

243   In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work.”

438. As set out above, I have found that the defendant breached its health and safety duty by failing to take the measures pleaded in subpars 13 (a), (b), (d) and (f) of the Amended Summons.

439. In relation to par 13(a) of the Amended Summons, the failure of Buddco to isolate the tank before the side hatch was opened was clearly a substantial cause of the workers being exposed to the risk. If the tank was isolated before the hatch was moved or removed, the anchor blade could not have spun and the risk would not have been present.

440. In relation to par 13(b) of the Amended Summons, a request to DIC to install an interlocking device may or may not have led to DIC installing the device. However, when DIC had handed complete control of the confined space work in relation to the tank to Buddco, there was no prospect of an appropriate interlock device being installed unless Buddco drew this to the attention of DIC. The failure to do this was a significant or substantial cause of the risk to which the workers were exposed.

441. There is material in the evidence which suggests that if Buddco had requested that DIC install an interlocking device on the side hatch, such advice would most likely have been accepted.

442. The agreement between DIC and Buddco (PX 1, Tab 3) obliged Buddco in cl 6(a) to comply with all applicable legislation in relation to the provision of the services. In cl 6(b) Buddco was obliged to obey all reasonable directions given by DIC “in respect of the safety and maintenance/repairs of equipment”. In cl 6(d) Buddco was obliged to comply with all relevant occupational health and safety and compliance legislation. This of course included its duties under the Act. By cl 6(e) Buddco had to ensure that DIC was informed of any reason which may cause Buddco to not carry out its duties in a safe and lawful manner.

443. The finding has already been made above that Buddco was obliged to take the reasonably practicable step of requesting DIC to install an interlock on the tank side hatch. Buddco should have come to the view that it could not comply with the obligation to carry out its duties in a safe and lawful manner if it failed to draw that to the attention of DIC.

444. The DIC Workplace Health and Safety Manual (PX 1, Tab 57) stated in s 1.0 that DIC was “vitally concerned with the safety of all of its employees”. It was “a fundamental requirement of the Company that its business be conducted safely”.

445. Also in s 1.0, under the heading “Safe Working Conditions”, DIC made specific reference to safety guards, interlock systems and isolation systems being appropriate.

446. In s 1.0, under the heading “Safe Working Methods”, DIC stated that “safest possible methods of work will be devised taking into account the advice of specialists”. DIC had already appointed Buddco as the “specialist” to carry out confined space work. This suggests that DIC would have taken into account any advice given by Buddco requesting the installation of an interlocking device on the tank side hatch.

447. In s 2.0 the key objectives of DIC’s workplace health and safety system were stated. These included:

“•   Ensuring guards and safety devices are in place, before and during and after use.

•   Management at all levels ensuring that proper and safe systems of work are in operation.

•   Ensuring the safest possible methods of work will be devised taking into account the advice of specialists and employees’ representatives.”

448. Section 10.0 of the DIC Workplace Health and Safety Manual dealt with “Risk Control & Hazard Identification”. The section referred to identifying hazards, risk assessment and the hierarchy of control, with elimination of a hazard being “our first choice”. The evidence shows that installation of an interlocking device on the tank side hatch was the only step which could have been taken to eliminate the risk of workers becoming entrapped in the tank if electricity had not first been isolated before the tank was opened.

448. Given these policies of DIC, I find that if Buddco had taken the reasonably practicable step of requesting DIC to install an interlocking device on the tank side hatch, DIC would have taken that advice and installed the interlock. The failure by Buddco to request that DIC install the interlock was thus a substantial or significant cause of Mr Tanner and Mr Mehta being exposed to the risk of injury.

449. In relation to the failure to have an appropriate step-by-step procedure for isolating the tank, and providing adequate instructions and supervision to workers performing the task under that improved regime, such failure was a significant or substantial cause of Mr Tanner and Mr Mehta being exposed to the risk. The confused and confusing approach of Buddco towards isolating the tank (including who was to do this and when it was to be done) were in my view the main cause of the workers being exposed to the risk. When Buddco was in charge of the whole process, and had control of the operation such that it could mandate how it was performed, a failure to provide and enforce an appropriate step-by-step procedure was a significant or substantial cause of the risk being in existence.

450. Had there been an appropriate procedure, which was reinforced by appropriate training and/or supervision, then the risk would have been minimised. As it was, the uncertain and ill-defined Buddco procedure was a direct cause of the workers being exposed to the risk posed by the anchor blade automatically activating, because the tank had not been electrically isolated before the side hatch was opened.

Conclusion on Element 3

452. I am satisfied beyond a reasonable doubt that the breach of duty by the defendant exposed workers to a risk of death or serious injury.

Conclusion

453. I find that the defendant Buddco Pty Ltd committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 (NSW) because:

1. The defendant owed the workers named in the Amended Summons dated 23 June 2020 a health and safety duty under s 19(1) of the Act.

2. The defendant failed to comply with that duty.

3. The breach of duty by the defendant exposed the workers to a risk of death or serious injury.

454. I find the offence set out in the Amended Summons dated 23 June 2020 proved beyond a reasonable doubt.

455. I will hear the parties on sentence.

Orders

456. The orders of the court are:

1. The elements set out in the Amended Summons dated 23 June 2020 have been proved beyond reasonable doubt.

2. I find the defendant Buddco Pty Ltd guilty.

3. The matter will be listed for a Sentence Hearing on a date convenient to the parties.

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Decision last updated: 14 November 2022