Citation: WorkCover Authority of NSW v Damon Spackman [2015] NSWDC 219
Court: District Court of NSW
Date: 28 August 2015
Judge: Kearns DCJ
Background
A plumber employed by Master Plumbers Sydney Pty Limited sustained chemical burns to his lower legs on 18 March 2011. He was working in a wastewater pit at a disc manufacturing facility, which contained an acidic solution used in the facility's production process. The defendant was a person concerned in the management of Master Plumbers within the meaning of s 26 of the Occupational Health and Safety Act 2000 (NSW).
The pit work arose as an additional job only after the originally quoted work was completed on the third day of attendance at the site. The defendant, on his own evidence, did not know the fluid in the pit was caustic or acidic at the time he arranged for the work to be carried out. He only discovered its true nature several days after the incident.
WorkCover charged the defendant with failing to ensure the health, safety and welfare of the injured worker, contrary to s 8(1) of the Act. The defendant pleaded guilty to three of the five contested particulars but disputed two others, requiring a two-day contested hearing.
Legal Issues
- Whether the defendant failed to warn employees of the risk of coming into contact with hazardous substances in the pit
- Whether the defendant failed to ensure employees wore appropriate personal protective equipment (PPE) before entering the pit
- What penalty was appropriate, having regard to objective seriousness, specific and general deterrence, mitigating factors, and the utilitarian value of the guilty plea
Decision
Contested particulars
On both contested particulars, Kearns DCJ found against the defendant. The court held that the employer had not warned the worker about the caustic nature of the liquid in the pit. The defendant's own evidence confirmed that he did not know the fluid was caustic until after the incident, making it impossible for any adequate warning to have been given. Any general warning delivered at the site induction was confined to fluid in pipes and did not address the pit or its specific hazards.
On the PPE question, the court found that Master Plumbers failed to ensure the worker wore appropriate full leg coverage before entering the pit. Even accepting the defendant's own version of events, the prosecution established this particular on his own evidence. The court preferred the injured worker's account on disputed factual matters throughout the hearing, describing him as a witness of truth.
Sentencing
The court treated the objective seriousness as moderate to high. The risk of chemical exposure when working in a confined space containing industrial wastewater was foreseeable, and the consequences were serious. The defendant's failure to undertake a risk assessment, to prepare a safe work method statement for the pit work, to ensure the worker was qualified to work in a confined space, to warn of the hazard, and to ensure appropriate PPE was worn represented multiple systemic failings.
On mitigation, the court allowed only a five percent discount for the guilty plea given its limited utilitarian value and the lateness with which it was entered. The court was not satisfied the defendant had demonstrated genuine regret or remorse, noting that his expressions of regret were offered grudgingly and that he still maintained he could not have done more regarding PPE. Character references were given some, but not substantial, weight. The defendant's lack of prior convictions was taken into account, which also fixed the maximum penalty at $55,000.
Orders Made
- The defendant was convicted of the offence charged.
- The defendant was fined $19,000, with a moiety (half) to the prosecutor.
- The defendant was ordered to pay the prosecutor's costs as agreed or assessed.
Key Takeaways
- Under s 26 of the Occupational Health and Safety Act 2000, a person concerned in the management of a corporation can be held personally liable for the corporation's failure to ensure employee health and safety, even where the specific hazardous work only emerged as an additional task on site.
- A defendant's own evidence can be sufficient to establish contested particulars against them, as occurred here on both the warning and PPE failures.
- The District Court confirmed that ignorance of the precise nature of a chemical hazard does not excuse the failure to identify and assess the risk before directing workers to enter a confined space containing industrial wastewater.
- Specific deterrence remained a sentencing consideration even in the absence of prior convictions, where the defendant continued to work in the same industry and showed limited acceptance of responsibility.
- A guilty plea entered late, with minimal utilitarian value and insufficient evidence of genuine remorse, attracted only a five percent discount from the penalty.
Legislation and Cases Referenced
Legislation:
- Occupational Health and Safety Act 2000 (NSW), ss 8(1) and 26
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases: No specific cases were cited in the portions of the judgment provided.