WorkCover v Orica Pty Ltd

[2015] NSWDC 7

District Court

New South Wales

Medium Neutral Citation:	WorkCover v Orica Pty Ltd [2015] NSWDC 7
Hearing dates:	16-18 December 2014
Decision date:	05 February 2015
Jurisdiction:	Criminal
Before:	Curtis J
Decision:	The summons is dismissed
Legislation Cited:	Occupational Health and Safety Act 2000
Category:	Principal judgment
Parties:	WorkCover Authority of New South Wales (Inspector Brock) (Prosecutor) Orica Australia Pty Ltd (Defendant)
Representation:	Counsel: J V Agius SC with M Moir (Prosecutor) A Moses SC with Y Shariff (Defendant) Solicitors: WorkCover Legal Services (Prosecutor) Ashurst Australia (Defendant)
File Number(s):	2013/172390

Judgment

Introduction

1. On 9 November 2011 at the defendant’s Kooragang Island chemical plant, Mr Brad Ryan, a welder/pipe fitter employed by the maintenance contractor Downer Australia Ltd (Downer) to replace a defective valve, cut into a live steam line with an angle grinder releasing an arc of steam under pressure of 1380 kPa.

2. Although Mr Ryan was not injured, the prosecutor Inspector Stephen Brock has summoned the defendant to answer a charge that, contrary to section 8(2) of the Occupational Health and Safety Act 2000, it failed to ensure that Mr Ryan and two other employees of Downer in his company, were not exposed to a risk to their health arising from the conduct of its undertaking.

3. The summons particularises the risk as:

The risk of being burnt by reason of being exposed to the uncontrolled release of high-pressure steam.

4. For reasons which follow I am unpersuaded that this risk arose. Upon the evidence the work practices and controls instituted by the defendant were adequate to ensure that the release of the high-pressure steam was controlled to a sufficient extent both in quantity and direction away from Mr Ryan's body, and its release did not expose him or the other two men to the risk of being burnt.

The System of Work

5. The valve in question controlled the passage of steam to a condensation line with an automatic valve designed to release accumulated water condensate. The valve required replacement because its handle had become detached.

6. The defendant’s system of work required that a designated Shutdown Coordinator isolate the pipe from live steam where the work was to be performed. This was done by the Shutdown Coordinator identifying, closing and locking all valves that permitted steam to reach that pipe.

7. It is common ground that the steam line cut by Mr Ryan should have been, but was not, isolated from mains steam pressure. This was because Mr Steve Ezzy, the Shutdown Coordinator employed by the defendant, failed to accurately identify the circuits by which steam entered that line.

8. Mr Ezzy had been thoroughly trained and retrained by the defendant in his duties. He had about 20 years of experience working at the site and 4 years experience in the role of Shutdown Coordinator. He had performed "thousands" of shutdowns before this event without a single failure.

9. Identification of the relevant circuit by observation of the pipe work was not difficult. When Mr Ezzy became aware of the incident he simply retraced the pipe work and corrected his error within a very short time.

10. Mr Moses SC for the defendant submits that it was not reasonably foreseeable that Mr Ezzy, a senior and experienced Shutdown Operator, who had been trained and assessed as competent to carry out this simple task before, would make a mistake. I do not accept this submission, because the defendant did foresee this possibility, and in my opinion took adequate steps to guard against possible consequences.

11. Before the contractors could begin work it was necessary that they submit to Mr Ezzy a document entitled Job Safety & Environment Analysis (JSEA)/Safe Work Method Statement prepared by the contractors and signed by their supervisor. Mr Ezzy was required to discuss this document with the workers before providing to the contractors a further document described as a Work Permit.

The JSEA

12. The JSEA in relation to this work was jointly prepared by Mr Ryan, his co-worker John Tukana and their supervisor Mr Paul Temperley.

13. The JSEA identified as a "high risk" the hazard of "pressurised fluids" and required as a precaution the wearing of gloves and a full face shield.

14. Further precautions required that the workers Implement controls that reduced risk to medium level or below.

The recommended Corrective Action or Procedure was stated to be:

Take care when working around pipes and valves

Consider all pipes to be under high-pressure until proven otherwise.

15. The document further instructed the workers to Review points of isolation with the operators to ensure that they align with the equipment being isolated and the permit. Mr Temperley in evidence agreed that this constituted a direction to himself to trace out the pipe work in company with the operator, although he said that this practice was only sometimes observed.

16. A further document entitled Changes to the JSEA was also submitted to Mr Ezzy in which the necessary steps to eliminate or minimise all hazards of cutting into the pipe included:

Cut pipe away from person--Full face shield-- Let drain before cutting fully-- Check for hot pipe.

This is a reference to what is described as the nick test. All witnesses, including the prosecutor Mr Brock, agreed that in all cases involving cutting into pipes that may contain hazardous materials, it was necessary to guard against the possibility of human error by first cutting a small nick into the pipe in a position away from the body to permit harmless escape of hazardous material.

Mr Brock said that this was a necessary precaution, even when all practical steps had otherwise been taken to ensure that the pipe had been isolated and contained no hazardous material.

The Work Permit

17. The Work Permit prepared by Mr Ezzy recorded as a potential hazard the possibility of Steam and Fluid under Pressure.

18. The Work Permit required that Mr Ezzy certify that:

The plant item described above is in my opinion in a safe condition for the job to be done provided all the special precautions are fully observed. These precautions have been discussed with the persons involved.

19. The Work Permit also required endorsement from the Downer supervisor that:

I have read the certificate and understand the precautions to be taken. I undertake to explain these precautions to all people under my charge working on this job, and obtain their signature.

The Permit was endorsed with the signatures of Downer’s supervisor Mr Paul Temperley, and the workers Mr John Tukana and Mr Ryan.

20. Another document, entitled Consultation & Sign-off Record was signed by Downer’s workers, including Mr Ryan. This document read:

I confirm by my signature below that I have attended a briefing on the requirements of the attached Job Safety and Environmental Analysis and agree to perform the work in the manner detailed on it.

Mr Ryan's Evidence

21. Mr Ryan confirmed in evidence that the contents of JSEA and the Work Permit were discussed with Mr Ezzy and Mr Temperly before work commenced. The Work Permit gave him cause to believe that the pipe may contain live steam and he took the necessary precautions.

22. He said, in his record of interview that "Even though we assumed that the pipe was empty you always approach it as live." He agreed in his oral evidence that the Personal Protective Equipment referred to in the JSEA was necessary having regard to the work to be performed, and the known risk of steam in the line. He said that he conducted the nick test on the pipe because he understood that he was to approach the line as if it was under high pressure.

23. Mr Ryan said that he deliberately positioned his body away from the nick when cutting into the pipe, so that when initially condensate, and then steam, was emitted from the pipe he was "Out of the line of fire".

24. I discount his further evidence that he cut into the pipe at the top in the one o'clock position “So that if there is substance in there it will come straight at you". This evidence is inconsistent with the statement that he cut the pipe in a position "Out of the line of fire", and the fact that he was not injured.

25. The evidence is also inconsistent with the evidence of Mr Temperley, who was supervising the work. Mr Temperley said Mr Ryan cut into the underside of the pipe at approximately the seven o'clock position, and that the steam escaped downwards onto the platform on which Mr Ryan stood, and away from his body.

26. Within seconds of the steam emerging Mr Temperley passed to Mr Ryan a leather blanket which he placed over the pipe to contain the escaping steam. When asked if he could have escaped from the work platform if he had not contained the steam Mr Ryan answered: "Possibly". In any event Mr Ryan was not at risk when standing on the platform beside the escaping steam, but not in its path.

27. It follows from these reasons that neither Mr Temperley nor Mr Tukana was exposed to the risk of being burned by the steam. Each of these men remained at a lower level when Mr Ryan positioned himself on the platform to cut the pipe. They were not exposed to the venting steam.

Conclusion

28. The prosecutor has failed to prove that Mr Ryan, Mr Temperley, or Mr Tukana were exposed to the risk of being burnt by reason of being exposed to the uncontrolled release of high-pressure steam.

Orders

29. The summons is dismissed.

I will hear the parties on costs.

J V Agius SC with M Moir instructed by WorkCover Legal Services appeared for the Prosecutor

A Moses SC with Y Shariff instructed by Ashurst Australia appeared for the Defendant

Decision last updated: 11 February 2015