SafeWork v Omega International and Shetty

District Court

New South Wales

Case Name:	SafeWork v Omega International and Shetty
Medium Neutral Citation:	[2016] NSWDC 11
Hearing Date(s):	01 February 2016
Date of Orders:	1 February 2016
Decision Date:	1 February 2016
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	Omega International Coatings Pty Ltd: The defendant is convicted and fined The prosecutor is to have a moiety of the fine Kananjar Shetty: Pursuant to section 10 of the Crimes (Sentencing Procedure) Act, I dismiss the charge and record no conviction
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – static electricity fire – failures of the defendant were not of a systemic nature  SENTENCE – mitigating factors – fine – capacity to pay – circumstances – appropriate penalty
Legislation Cited:	Occupational Health and Safety Act 2000 Fines Act 1996 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Omega International Coatings Pty Ltd (Defendant) Kananjar Shetty (Defendant)
Representation:	Counsel: P McDonald SC with S Walsh appeared for the Prosecutor Y Shariff appeared for the Defendants Solicitor: SafeWorkNSW Legal Services Carroll & O'Dea Lawyers
File Number(s):	2012/387526; 2012/387961
Publication Restriction:	None

1. The defendant, Omega International Coatings Pty Ltd, repairs industrial coatings at its premises at two places in Kurrajong Avenue, Mount Druitt. In the course of the preparation of those coatings, inflammable liquids are combined.

2. On 28 January 2011, when an employee, Mr Konchok Lama, was decanting toluene from a 1,000 litre container into another container for the purpose of manufacturing paint thinner, the toluene ignited, causing an extensive fire.    

3. The defendant is charged pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (the Act) that it failed to ensure that the defendant’s employees including Mr Lama and two other persons were not exposed to risk to their health and safety contrary to s 8(1) of the Act.

4. The particulars of the charge are in summary that:

   First the defendant failed to adequately assess the risks that could arise from operations at the site including the risks of the decanting system and the risk of failing to dissipate static electricity.

   Second that the defendant should have ensured that the container being used for decanting was of a suitable type with antistatic wires that prevented the possibility of ignition and,

   Third, that the defendant failed to provide adequate information, instruction and training to Mr Lama in relation to his work.

5. The cause of the ignition was the discharge of static electricity. In the course of agitating toluene there is a risk that static electricity may build up and that its discharge may cause a spark.

6. In order to obviate that risk the appropriate practice is that each container be fitted with a static wire leading from the contents to an earthing cable on the steel cage of the container. Through those connections any accumulation of positive electrons within either drum may safely pass to earth.

7. It is common ground that Mr Lama properly connected the earthing cables of the donor drum…