WorkCover Authority of NSW v Damon Spackman

[2015] NSWDC 219

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Damon Spackman [2015] NSWDC 219
Hearing dates:	27 July 2015; 11 August 2015
Decision date:	28 August 2015
Jurisdiction:	Civil
Before:	Kearns DCJ
Decision:	The defendant is convicted of the offence charged. The defendant is fined the sum of $19,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	Occupational Health and Safety Act 2000 ss 8(1) and 26 – plea of guilty to some particulars, others contested – worker exposed to acidic solution when plumbing – chemical burns to legs – duty of employer to ensure health, safety and welfare of employees so far as is reasonably practicable – failure to undertake risk assessment, to prepare SWMS, to warn, to ensure wearing of PPE, to ensure employee was qualified to work in a confined space – foreseeability of risk – foreseeability of consequences – means available to avoid risk – specific and general deterrence – utilitarian value of guilty plea – no prior convictions – regret and remorse – discount for guilty plea
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	WorkCover Authority of New South Wales (prosecutor) Damon Spackman (defendant)
Representation:	Counsel: Mr M Moir appeared for the prosecutor Mr J Young appeared for the defendant.
File Number(s):	13/77826

Judgment

outline

1. On 18 March 2011, Mr Williams sustained chemical burns to his lower legs. He was working at the premises of Sony DADC Australia Pty Ltd in a pit that had an acidic solution in it. He was working there as an employee of Master Plumbers Sydney Pty Limited.

2. The defendant was concerned in the management of Master Plumbers within the meaning of s 26 of the Occupational Health and Safety Act 2000.

THE CHARGE, PLEA AND PARTICULARS

3. The defendant is charged that being a person concerned in the management of Master Plumbers, he breached s 8(1) of the Act in that Master Plumbers failed to ensure the health and safety of Mr Williams.

4. The defendant has pleaded guilty in respect of some of the particulars alleged in the Amended Summons. In summary, those are:

1. failing to undertake a risk assessment identifying control measures for work in the pit;

2. failing to ensure that Mr Williams was qualified to work in a confined space. The pit was a confined space within the meaning of the legislation;

3. failing to ensure that a safe work method statement was in place relating to work in the pit.

5. There were three other particulars in the Amended Summons. One was not proceeded with. The other two were contested. They were, in summary,

1. failing to warn employees of the risk of coming into contact with hazardous substances in the pit;

2. failing to ensure that employees wore appropriate personal protective equipment in the pit.

6. The contest in respect of those two particulars occupied two days of hearing.

7. On the defendant’s own evidence, the defendant must fail on both those contested particulars. Some background is necessary.

THE EVIDENCE

8. Sony DADC engages in the production of CD, DVD and Blu-Ray discs. The process involves the use of chemicals. They are washed or drained into a waste water system which treats it before it is released into the sewerage. Part of the waste water system includes a waste water pit.

9. In January 2011, the defendant attended the Sony site to assess a job for which Master Plumbers was to quote. A quote was provided and accepted in January 2011.

10. On 15 March 2011, the defendant, together with Mr Williams and Mr Skillicorn, attended the site to commence work. Prior to that, on 10 March 2011, the defendant says he prepared the first page of a Work Method Statement (Exhibit PX 1, Tab 6). He was challenged about that, it being put that it was prepared after the incident to Mr Williams on 18 March 2011. I am not satisfied it was prepared after the incident. I accept the defendant’s evidence that the first page was prepared on 10 March 2011 and the second page on the day Master Plumbers attended the Sony site to start work.

11. Before work commenced on 15 March 2011, there was an induction at the site given by Mr Drake, Facilities Manager of Sony. Present were Mr Drake, the defendant, Mr Williams and Mr Skillicorn.

12. At the induction, there was presentation of material not relevant to work in the pit. There was conflicting evidence as to whether the pit was mentioned at all. I find that it was not. Mr Drake’s evidence was ambivalent about this. The evidence of the defendant and Mr Williams would support that the pit was not mentioned. Further, the defendant was firm in his evidence on the fact that the pit work was no part of the original quote and it arose as an extra only after the quoted work was completed on the third day, being 17 March 2011. That evidence of the defendant correlates with information Mr Drake gave in his interview with WorkCover on 30 July 2012 (Exhibit DX 4). There, he said he reviewed the Work Method Statement that had been prepared by the defendant to ensure it included reference to the circumstances he discussed at the induction (A54, 107). The absence of any reference to the pit and its specific risks supports the defendant’s position on this point.

13. Mr Williams’s statement of 12 March 2012 (Exhibit PX 3 [9]) refers to the defendant telling him at the induction to wear gum boots in the pit. I consider that either Mr Williams was mistaken, if that is what he then said, or this piece of information was wrongly recorded. Mr Williams corrected it in his recorded interview with WorkCover on 31 July 2012 (Exhibit DX 3). The correction is that this was not mentioned until the next day. That is still two days before the incident, but that needs to be understood in the context that Mr Williams in his evidence was uncertain if the matter of the pit work was raised on the second or third day.

14. Following the induction, the Work Method Statement (Exhibit PX 1, Tab 6) was completed outside the pump room in the car park. Mr Williams did not sign this document. I do not accept the evidence of the defendant and Mr Skillicorn that Mr Williams was present when page 2 was prepared. When Mr Spackman’s statement of about August 2012 (Exhibit DX 2) was prepared, he could not remember any detail about the preparation of the Work Method Statement (As 52, 54, 58, 59, 60, 63).

15. At this point, I indicate I have not the slightest hesitation in accepting Mr Williams as a witness of truth. Unless I indicate otherwise, where his evidence conflicts with that of other witnesses, I prefer his evidence.

16. Further, the circumstances of the signing of the Work Method Statement on the account given by the defendant reveal there was really no difficulty in obtaining Mr Williams’s signature. Page 2 of the document was being prepared on the bonnet of the defendant’s vehicle. It had material that could not have taken more than about 30 seconds to write. Apart from the signatures, it contains only 12 written words. The explanation that Mr Williams had departed from an important matter to collect something from his vehicle when he would have had to wait but a very brief time is most unsatisfactory and I do not accept it. I do not accept that Mr Williams was present.

17. The defendant says that, nevertheless, this document really does not matter because it was for the original job and did not relate to the pit. It is the case that this document did not relate to work in the pit. This meant there was no Safe Work Method Statement for work in the pit and the defendant has pleaded guilty in respect of that matter. The defendant says, correctly, there was no cause for a SWMS in relation to work in the pit until 17 March 2011. This is because it was not until then that it was apparent that Master Plumbers would be doing work in the pit.

18. On 17 March 2011, Sony and the defendant agreed that the work in the pit would be done. There is conflict in the evidence as to whether work was done on both 17 and 18 March 2011 or on 18 March 2011 only. I do not find that to be a conflict of critical moment, although I think it is likely that work was done in the pit on 18 March 2011 only. One thing is clear and that is when it was agreed the work would be done in the pit, the defendant had no understanding that the fluid in the pit was caustic or acidic. He thought it was alkaline and that it was harmless except that it might sting or itch or, if left on for a long time, possibly result in some burn. It was not until 21 March 2011 when the defendant rang Mr Drake to find out what the solution was that the defendant learned that the fluid in the pit was caustic.

19. One thing clearly follows from this and that is that the company did not warn Mr Williams about the caustic nature of the liquid and the risks of coming into contact with it.

20. Whether Mr Drake warned Mr Williams of the caustic nature of the liquid is another question, but an irrelevant one. Mr Drake is not charged with the offence. The defendant is and the defendant failed.

21. In any event, I do not accept that Mr Drake warned Mr Williams of the caustic nature of the fluid. Any warning given by him was given in the presence of the defendant, Mr Williams and Mr Skillikorn and was given only at the induction. Mr Williams denies receiving any warning and it is clear that the defendant could not have been warned by Mr Drake, considering his state of knowledge as to the nature of the liquid. The only warning given by Mr Drake was at the induction and that was a general warning about fluid in the pipes, but no warning that it was caustic and no warning about the pit.

22. I am satisfied beyond reasonable doubt that Master Plumbers failed to warn its employees of the risk of coming into contact with the liquid as specified in particular h of the Amended Summons.

23. The other contested particular is that Master Plumbers failed to ensure that the employees wore appropriate personal protective equipment including full coverage footwear and leg protection before entering the pit. Again, the defendant’s own evidence makes out this case for the prosecution. The defendant’s case here is that Mr Williams wore short gum boots with the tops just above the ankles and not long gum boots supplied by the defendant. I reject that case. Even if that case is correct, the prosecutor has made out this case on this particular. In this regard, two things are to be noted. The first is that Mr Williams, though an experienced plumber, had been employed by the company only a very short time before the incident. In that very short time, the defendant says he had occasion to speak to Mr Williams about his failure to wear proper PPE, being ear muffs and eye wear. The defendant had some reservations about Mr Williams’s concerns for his own safety.

24. The second thing to note is that, in that context, the defendant, apart from supplying long gum boots and telling Mr Williams to wear them did nothing to follow up or check that he wore them or other leg protection. This was a failure to “ensure” within the meaning of s 8(1) of the Act. The defendant’s absence from the site on 18 March 2011 is no answer to this. There is no explanation as to why he could not have made a passing visit to the site or even a telephone call to Mr Drake, Mr Skillicorn or Mr Williams to satisfy himself that Mr Williams was wearing the long gum boots.

25. In any event, this particular is not dependent on the supply and wear of gum boots, long or short. The charge is failing to ensure the wearing of “full coverage footwear and leg protection”. Gum boots, even long ones, were not enough. The risk was always going to be that the fluid would slosh around and enter the boots, whatever boots, Mr Williams was wearing. He needed full “leg protection” to guard against the risk. The company failed to ensure that he had it and wore it.

26. Further, I do not accept the case that Mr Williams was wearing short gum boots. He said he had only one pair of gum boots and they were long boots. It is practically certain that a plumber of his experience would have had a pair of long gum boots.

27. At this point, I record some findings I make on the evidence.

1. There was a minimum of six inches’ depth of fluid in the pit when Mr Williams commenced his work in the pit. Mr Drake explained that in emptying the pit, the pump could not remove the last six inches.

2. When Mr Williams entered the pit, there were four to six inches between the level of the fluid and the top of his gum boots. That was Mr Skillicorn’s observation.

3. It follows from these two findings that Mr Williams was wearing gum boots that were at least 10 to 11 inches in height. They had to be long gum boots. They could not have been short gum boots with tops at about ankle level.

4. When Mr Williams was working in the pit, the fluid was slowly rising. That was Mr Skillicorn’s observation. It is consistent with Mr Drake’s evidence that when production is continuing, and it was, fluid will continue to drain into the pit (Exhibit DX 4, A69-73).

5. By the time Mr Williams finished his work in the pit, the fluid level was near the top of his boots. This may appear to contradict Mr Drake’s evidence that the fluid would be unlikely to rise that quickly, but there are reasons for preferring Mr Skillicorn’s evidence here. The first is that his evidence was of eye witness observation. The second is he was able to support his observation with circumstantial detail that the fluid level was “pretty high” (T56.29). The third is that the contradiction is more apparent than real as Mr Drake’s evidence on this point was based on a premise that the fluid rose about 12 inches (T96.29). The fourth is that it is not only from the pipes, but also from floor waste that the pit received fluid.

28. At the minimum level of six inches, the fluid would be near or over the top of Mr Williams’s boots if he wore short gum boots. It would not make sense that he would wear short gum boots in those circumstances, even if the fluid was innocuous. It is certain he would not have been wearing short gum boots if he had been told the fluid was caustic and warned of its dangers.

29. I am satisfied beyond reasonable doubt that Mr Williams wore long gum boots.

30. The matters I have set out demonstrate that the submission of Mr Young, who appeared for the defendant, that the defendant took all reasonable steps to ensure the safety of his employees and that he did everything reasonably practical to ensure the safety of the employees is not made out in relation to the contested particulars.

31. There were a couple of matters referred to that I should address briefly.

32. The first is that Mr Williams continued to work in the pit for some time after he noticed burning to his legs and despite exhortations from Mr Skillicorn that he get out. I accept Mr Williams’s evidence that he got out of the pit soon after he noticed the burning. Quite apart from the fact that I prefer Mr Williams’s evidence, it defies sense that a person would continue working in such circumstances.

33. The other matter concerns representations on behalf of the defendant to WorkCover. They include a reference to a “blatant lie” told by Mr Williams (p26 of the defendant’s representations to WorkCover on 1 July 2014). If this is meant to amount to a submission that Mr Williams’s evidence is infected by lies, I reject it. The context of the “blatant lie” is that when Mr Williams went to hospital after the incident, he gave a false history. He told the hospital the injury resulted from standing in a pond at a friend’s place. Mr Williams had nothing to gain in giving that history and he did so to try to protect the defendant. I accept that explanation and I note he frankly admitted this lie when it was put to him in cross-examination.

the sentence

The sentencing

34. I need to bear in mind several matters. I need to bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act. I need to bear in mind the purposes of the Occupational Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I need to bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.

35. Bearing on the gravity of the offence and moral culpability are the foreseeability of the risk and of the consequences of the risk coming home and also the means available to avoid the risk.

36. The analysis thus far demonstrates the foreseeability of the risk and of its consequences and also that means were available to avoid it.

37. Far from being a safety conscious person the defendant professed to be, the evidence demonstrated otherwise. It demonstrated that:

1. the defendant failed to obtain Mr Williams’s signature to the Work Method Statement. Its contents were not explained to him;

2. the defendant failed to prepare an SWMS for work in the pit;

3. the defendant did not ascertain the nature of the liquid in the pit and warn Mr Williams of its risks;

4. the defendant, qualified to work in confined spaces, did not appreciate that the pit was a confined space which obviously it was;

5. the defendant was not aware that Mr Williams was not qualified to work in confined spaces and, as the person effectively in charge of the job, he should have found out;

6. the defendant, with misgivings about Mr Williams’s concern for his own safety did not check or enquire to see that he was wearing the appropriate PPE.

38. All these matters place this offence at a medium level of gravity.

Deterrence

39. In assessing penalty in this case, I take into account specific deterrence. The defendant continues to work. That, together with his view that he felt he could not have done more so far as PPE is concerned, means that specific deterrence needs to be factored in.

40. General deterrence also needs to be factored in. It is difficult to know to what extent like work is carried out in industry, but certainly there are many industries that handle caustic/acidic liquids. There are also industries that involve work in confined spaces. Operators need to know that it is important to comply with statutory obligations and that there are consequences for not doing so.

41. One mitigating factor put before me is the plea of guilty. It can operate in two possible ways. One is its utilitarian value and the other is its evidence of regret and remorse.

42. The utilitarian value in this case is minimal. Some measure of preparation and litigation was possibly avoided by the plea, but not much. It is difficult to see that much preparation or court time would have been taken additional to that which was taken had the defendant pleaded not guilty. The plea came relatively late. I propose to allow a discount of five percent.

43. Evidence of regret and remorse is sparse. The defendant had next to no contact with Mr Williams after he was injured. Expressions of regret in evidence were much less than wholesome and in answers to questions were offered grudgingly. I am not satisfied there is genuine regret or remorse.

44. By way of subjective matters, the defendant has put before me two character references (Exhibit DX 5). They demonstrate a safety-conscious person. Regrettably, that was not manifest in this case, particularly with the failings I enumerated earlier. It is difficult to reconcile the defendant in this case with the one described in the references. This is all the more so where the defendant does not appear to have any real regret about this incident and where he still takes a view that he could not have done more so far as personal protective equipment was concerned. I believe the references are worth some, but not substantial, weight.

45. The defendant has no prior convictions and that needs to be taken into account in his favour. That also fixes the maximum penalty at $55,000.

ORDERS

46. The defendant is convicted of the offence charged.

47. The defendant is fined the sum of $19,000 with a moiety to the prosecutor.

48. The defendant is to pay the prosecutor’s costs as agreed or assessed.

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Decision last updated: 30 September 2015