Industrial Court of New South Wales

CITATION: Inspector Mayo-Ramsay (WorkCover Authority of

NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356

PARTIES: PROSECUTOR Inspector Rosalie Mayo-Ramsay (WorkCover Authority of New South Wales) DEFENDANT The Crown in the Right of the State of New South Wales (NSW Fire Brigades)

FILE NUMBER(S): IRC 768, 769 of 2005

CORAM: Boland J

CATCHWORDS: Occupational health and safety - Fire and explosion in oil seed crushing plant - Fatalities - Prosecution under s 15 and s 16 of Occupational Health and Safety Act 1983 - New South Wales Fire Brigades - Statutory interpretation -Whether immunity from criminal liability under Fire Brigades Act 1989 - Whether s 78 of Fire Brigades Act as it applied on 6 December 1999 to alleged and admitted failures of Fire Brigades to ensure safety - Whether s 78 of Fire Brigades Act applied to omissions - Whether elements of offences proven - Whether challenged particulars made out - Held s 78 of Fire Brigades Act did not apply to alleged and admitted failures of Fire Brigades to ensure safety and therefore no immunity from prosecution under Occupational Health and Safety Act - Offences proven Statutory interpretation - Occupational health and safety - Fire and explosion in oil seed crushing plant - Fatalities - Prosecution under s 15 and s 16 of Occupational Health and Safety Act 1983 - New South Wales Fire Brigades - Whether immunity from criminal liability under Fire Brigades Act 1989 - Whether s 78 of Fire Brigades Act as it applied on 6 December 1999 to alleged and admitted failures of Fire Brigades to ensure safety - Whether s 78 of Fire Brigades Act applied to omissions - Whether elements of offences proven - Whether challenged particulars made

out - Held s 78 of Fire Brigades Act did not apply to alleged and admitted failures of Fire Brigades to ensure safety and therefore no immunity from prosecution under Occupational Health and Safety Act - Offences proven

LEGISLATION CITED: Australian National Airlines Act 1945 (Cth) Bush Fires Act 1949 Factories, Shops and Industries Act 1962 (NSW) Fire Brigades Act 1909 Fire Brigades Act 1989 Health Act 1928 (Vic) Independent Commission Against Corruption Act 1988 Interpretation Act 1987 Limitation Act 1969 Local Government Act 1919 Local Government Act 1993 Occupational Health and Safety Act 1983 Western Australian Marine Act 1982 (WA) Workers Compensation Act 1987 (NSW)

CASES CITED: Australian National Airlines Commission v Newman (1987) 162 CLR 466 Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312 Bell v the State of Western Australia [2004] WASCA 205Board of Fire Commissioners of NSW v Ardouin (1961) 109 CLR 105 Bropho v State of Western Australia (1990) 171 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Country Energy v Malone (2005) 138 IR 221 CSR Limited t/as CSR Wood Panels v WorkCover Authority of New South Wales (Inspector Reid) (2001) 109 IR 275 Fowler v Taylor [1957] VR 593 Garrett v Freeman (2006) 147 LGERA 96 Garrett v Freeman (No. 2) (2006) 145 LGERA 459 Hudson v Venderheld (1968) 118 CLR 171 Inspector Campbell v James Gordon Hitchcock [2003] NSWIRComm 148 Inspector Page v Woolworths Limited, unreported, Peterson J, 9 September 1994 Johnson v Refuge Assurance Co Ltd [1913] 1 KB 259 Ketchell v Wynch (2001) 164 FLR 460 Legge v Coffey (No. 2) (2001) 110 IR 447 Morrison v Powercoal Pty Ltd & Anor. (No. 3) (2005) 147 IR 117 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 205 ALR 1 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 NSW Bar Association v Muirhead (1988) 14 NSWLR 173

Potter v Minahan (1908) 7 CLR 277 Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575 R & W Vincent Pty Limited v Board of Fire Commissioners of NSW (1977) 1 NSWLR 15) R v Hammer (1923) 2 KB 786 Re Carter Smith; ex parte The Commissioner of Taxation (1908) 8 SR (NSW) 246 Stephens v Stephens (1970) 72 SR (NSW) 459; (1970) 92 WN (NSW) 810 Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 The Ombudsman v Laughton (2005) 64 NSWLR 114 WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante (2003) 126 IR 1 Workcover Authority of NSW (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1998) 103 A Crim R 213

HEARING DATES: 29/08/2006, 4/09/2006, 6/09/2006, 19/09/2006, 21/09/2006

DATE OF JUDGMENT:

11/10/2006

LEGAL REPRESENTATIVES:

PROSECUTOR Mr S Crawshaw SC with Mr M P Cahill and Mr A Naylor of counsel Solicitor: Mr G Diggins WorkCover Authority of NSW DEFENDANT Mr P M Kite, SC with Mr C Lonergan of counsel Solicitor: Mr S Hogan Crown Solicitors Office

JUDGMENT:

1

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BOLAND J

Friday 10 November 2006 Matter No IRC 768 of 2005 Inspector Rosalie Mayo-Ramsay (WorkCover Authority of New South Wales) v The Crown in the Right of the State of New South Wales (New South Wales Fire Brigades) Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 769 of 2005 Inspector Rosalie Mayo-Ramsay (WorkCover Authority of New South Wales) v The Crown in the Right of the State of New South Wales (New South Wales Fire Brigades) Prosecution under s 16(1) of the Occupational Health and Safety Act 1983

JUDGMENT [2006] NSWIRComm 356

EVIDENCE AND ADMISSIONS 7 FACTUAL BACKGROUND 8 Oilseed crushing - the plant and process 8 Plant defects 10 Events leading to fire and explosion 12 IMMUNITY 28 Whether s 78 provides immunity from criminal liability 29 Whether s 78 applies to failures of defendant 34 Whether s 78 applies to omissions 52 ELEMENTS OF THE OFFENCES 55 CHALLENGED PARTICULARS 57 Failure to provide safe system of work (s 15(1) and s 16(1)) 59 Failure to provide information to its employees regarding the risk of spontaneous combustion in stored seed meal, including cottonseed meal (s 15(1)) 89 Failure to provide its employees with information regarding the fire and/ or explosion risks associated with the heating and/ or partial combustion of seed meal (s 15(1)) 89 Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to spontaneously combust, smoulder and give off pyrolytic vapours

and gases (s 15(1)) 89 Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating (s 15(1)) 90 Failure to provide adequate information, instruction and training to its employees with respect to use of the “Dangerous Goods – Initial Emergency Response Guide” book (s 15(1)) 90 ANNEXURE A - PROSECUTOR’S LIST OF DOCUMENTS 100 ANNEXURE B - ADMISSIONS BY DEFENDANT 107 INTRODUCTION 1 In the early hours of the morning of 6 December 1999, the Telarah Fire Brigade and a Hazmat Unit of the New South Wales Fire Brigades from Newcastle attended the premises of Caines Pty Limited at Gardiners Road, Rutherford. They were responding to a report of spontaneous combustion in cottonseed meal in a storage bin or silo on the site known as bin D. 2 At approximately 6:20 am there was an explosion in the bin. Three employees of Caines (Robert Anderson, Ronald Brooker and Geoffrey Terry) received fatal burn injuries. Ronald Jenkins, the Captain in charge of the Telarah Brigade, received burn injuries to his face and hands. 3 As a consequence of what occurred on 6 December 1999 the Crown in the Right of the State of New South Wales, in its capacity as the New South Wales Fire Brigades ("the defendant"), was prosecuted by Inspector Rosalie Mayo-Ramsay of the WorkCover Authority of New South Wales for breaches of s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. Those provisions were in the following terms:

15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer’s employees. … 16 Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.

4 In her application for an order requiring the defendant to appear before the Court to answer the s 15(1) charge, Inspector Mayo-Ramsay alleged the defendant had failed to ensure the safety of its employees as follows:

i. Failed to provide or maintain a system of work that was safe and without risks to its employees with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the incident site. ii. Failed to provide and/ or maintain a safe work method for use in the fighting of and/or extinguishing a suspected fire in a seed meal

storage bin, including but not limited to the cottonseed meal stored in bin D at the subject premises. iii. Failed to provide and/ or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. iv. Failed to provide its employees with any or any adequate information about the fire and/ or explosion risks inherent in the processes conducted in and about seed oil extraction plants. v. Failed to provide information to its employees regarding the risk of spontaneous combustion in stored seed meal, including cottonseed meal. vi. Failed to provide its employees with information regarding the fire and/ or explosion risks associated with the heating and/ or partial combustion of seed meal. vii. Failed to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to spontaneously combust, smoulder and give off pyrolytic vapours and gases. viii. Failed to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating. ix. Failed to provide its employees with adequate information, instruction and training with respect to the use of the “Dangerous Goods – Initial Emergency Response Guide” book. x. Failed to provide its employees with adequate information, instruction and training with respect to the identification of dangerous goods. xi. Failed to provide such supervision of the incident site as was necessary to ensure the health and safety at work of its employees whilst undertaking fire-fighting activities at the subject site.

5 It was further alleged that as a result of the abovementioned failures, Captain Jenkins, Deputy Captain Neil Morriss, Retained Firefighter Michael Pilton, Retained Firefighter David Pilton, Retained Firefighter Darren Schofield, Retained Firefighter Walter Morris, Retained Firefighter Ronald Jarrett, Retained Firefighter Gary Armstrong, Station Officer Gary Evans, Firefighter McCall and Firefighter Bear were placed at risk of injury. 6 In relation to the charge under s 16(1), it was alleged in the application for order that the defendant had:

i. Failed to provide or maintain a system of work that was safe and without risks to health and safety of persons not in its employ with respect to the prevention and/ or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the site. ii. Failed to provide and/or maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. iii. Failed to maintain strict control of the site and to control the access of non-New South Wales personnel to areas that were liable to be and were affected by explosion and fire emanating from the storage bin known as bin D. iv. Failed to provide any or any adequate supervision of non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd, who were present on the site on the morning of 6 December 1999. v. Allowed non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd to enter areas of the crushing mill and its surrounds whilst unaccompanied and unsupervised by appropriately trained members of the New South Wales Fire Brigades. vi. Allowed non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd, to act independently of the fire prevention and/ or fire suppression activities that were being conducted at the site by members of the New South Wales Fire Brigades. vii. Failed to ensure that non-New South Wales Fire Brigades personnel were fitted with proper personal protective equipment prior to being permitted access to areas of the site in which they were exposed to risks of injury from the fire located inside bin D.

7 It was further alleged that as a result of the abovementioned failures, Mr Robert Anderson, Mr Ronald Keith Brooker, Mr Geoffrey Robert Terry, Mr Robert Jordan, Mr Jason Brooker, Mr Jason McKewen, Mr Richard Zambrowski, Mr Nigel Little, Mr Steven Hipwell and Mr Mark Price were exposed to risks to their health and safety arising from the defendant’s fire prevention and/ or suppression activities at the site. 8 As the defendant noted in its submissions, these are the first ever prosecutions brought against the NSW Fire Brigades, as a corporate entity, for any breach of occupational health and safety legislation. 9 The defendant submitted that it was not guilty by reason of the immunity granted to it under s 78 of the Fire Brigades Act 1989. If, however, it be found that there was no immunity, the defendant accepted that, given certain admissions it had made, it would be

found guilty of the two charges subject to its challenges to a number of the alleged failures to ensure safety, which the prosecutor has pressed. I shall deal with the charges after having addressed the question of immunity. EVIDENCE AND ADMISSIONS 10 Before addressing the immunity question it should be noted that the matter proceeded on the basis of documentary evidence; there was no oral evidence. The documentary evidence included 16 lever arch files and one smaller file that contained:

(a) Witness statements, records of interview and transcript of proceedings in the coronial inquest into the deaths of Robert Anderson, Ronald Brooker and Geoffrey Terry; (b) Expert reports including a report by David Pearson of Testsafe Australia into the fire and explosion that occurred at Caines on 6 December 1999 and a report by Ian Pentony entitled "Post Incident analysis - Explosion and Fire at Caines Pty Ltd, Rutherford, NSW"; (c) Various photographs, plans and sketches; (d) Autopsy reports, insurance reports, codes of practice, Australian standards, various handbooks, firefighting/hazardous materials manuals, firefighters' training manuals, firefighters' training records, memos, extracts from various texts, journals, reports and operating manuals; (e) Video of Caines' Operating Procedure; (f) Transcript from coronial inquest of evidence of Daniel Michael Flynn, Operations Manager, Cargill Australia Limited; (g) Emergency Plan - Cargill Australia Ltd - Newcastle Oil Seed Processing Plant; (h) File notes indicating contact between Cargill Australia Ltd and local (Mayfield) fire brigade re: site visit; (i) Extracts from manuals of Cargill Australia Limited (confidential information).

11 A copy of the index of the material in the 16 volumes is contained in Annexure A to this judgment. 12 The defendant made a number of admissions. The admissions are contained in Annexure B to this judgment. 13 The prosecutor also provided, without objection, a 1:50 scale model of the receival area and storage silos of the Caines' plant constructed by Detective Sergeant N J Raymond of the Maitland Crime Scene Section of NSW Police, which was most helpful in gaining an understanding of the layout of the plant. FACTUAL BACKGROUND Oilseed crushing - the plant and process 14 Both parties provided extensive submissions relating to the relevant factual background based on the evidentiary material. As at 6 December 1999, Caines operated two separate industrial plants at the Rutherford site, namely:

(a) an oilseed crushing plant that utilised continuous screw type expellers to extract oil from a range of oilseeds, including cotton seed, sunflower seed and canola seed; and (b) a refinery to process/refine seed oil for bottling or margarine

production. 15 The prosecutions relate to the oilseed crushing plant. The prosecutor provide an uncontested description of the plant process as follows (references to evidence omitted):

(a) Seeds were delivered by truck, weighed on arrival and unloaded into a pit [“the receiving pit”] located in the receiving bay near the mill. From the receiving pit, the seed was transported to a meats bin via an internal transport system, consisting of augers and an elevator, where it was stored before being processed in the mill.

(b) From the meats bin, the seed (“meats”) was transported via the transport system to cookers where they were heated and rolled before dropping through to the screw expellers where the seed oil was extracted. This process removed most, but not all of the oil contained in the meats. The oil extracted from the cooked seeds retained some fine meats. The expellers also created a by-product of the extraction process, known as “seedcake”, consisting of compacted remnants of the cooked seed, contained between 4% and 8% residual oil. (c) As at 6 December 1999, Caines Pty Ltd used a diatomaceous earth as a bleaching and filtration agent, in the refinery, to refine the seed oil extracted by the expellers. The proprietary name of this bleaching earth was “Tonsil Activated Clay”. After use, this product became saturated with vegetable oil. At this stage, it became known as “spent bleaching earth”. Spent bleaching earth was known to be at risk of spontaneous combustion. 125 tonnes of spent bleaching earth contained up to 25 tonnes of oil. (d) The oil having been extracted, the seedcake emerged from the expellers at a temperature of 130°C. It was then cooled while being transported, via a series of jacketed screw conveyors, to a hammer mill for pulverisation into meal. The conveyors were cooled using water that passed from a cooling tower unit through the jackets of the conveyors. (e) Before arriving at the hammer mill, the seedcake was combined with the spent bleaching earth by means of a ribbon mixer. The hammer mill pulverised the seedcake/spent bleaching earth mixture into a fine powder known as “meal”. (f) From the hammer mill, the meal was transported via an auger system to storage bins where it was kept on a short-term basis (5-6 days) pending sale and delivery as stock feed. There were four (4) storage bins known as bins A, B, C and D. The bin in which the hot “cotton [seed] meal” was detected was Bin D. (g) Each bin, including Bin D, had a capacity of 80 tonnes with a wedge-type base and circular top. The wedge at the bottom of Bin D was divided by a vertical baffle plate that was 4m high. The purpose of this baffle was to assist with passage of the cotton meal to the twin augers at the base of the bin. The vertical baffle plates were added to the bins after the plant had been constructed. Initially, an air cannon had been fitted to each side of the bins to aid product flow. These air cannons released a burst of air at set intervals to help move the meal through the bin to the twin augers. Each air cannon discharged about 30L of compressed air at each

internal. Plant defects 16 The Rutherford Site had been the subject of a series of insurance assessments and reports prior to the incident on 6 December 1999. These reports identified defects and the risks associated therewith. In addition, there was other evidence relating to the plant's defects. For example, the original design of the product transportation system, the seed storage silos, the meats bin and the meal bins (including bin D) took little account of the risks associated with dust. Specifically, the design and construction did not include venting and/or dust explosion hatches and the provisions for fixed fire fighting apparatus were minimal, that is, there were no sprinklers and/or a deluge system. There was no demur by the defendant as to the following defects identified by the prosecutor from the evidence: · The design and construction of the Seed Crushing Mill at the Rutherford site failed to take adequate account of the fire and explosion risks inherent in the processes to be conducted in and about the plant; · The Seed Crushing Mill [including the meats bin, the meal bins and the transportation system] was not fitted with adequate fixed fire fighting systems; · Housekeeping was adequate but the design of the plant was such that there were obvious signs of oily dust accumulation in and about the receival bay and in other areas – particularly around the conveyor boot [i.e., the bucket elevator boot] as a consequence of product spillage, with an associated elevated fire and/or explosion risk; · Caines had not developed and/or implemented any safe working procedures designed to deal with the fire and/or explosion risks inherent in the processes to be conducted in and about the Seed Crushing plant; · Caines had not trained the employees charged with the day to day operation of the Seed Crushing plant about the chemical characteristics of the substances associated with the seed crushing process - i.e., the capacity of the seed cake and the seed meal to heat, smoulder and give off pyrolytic vapours and gases; · Caines had not developed any Material Safety Data Sheets [MSDS] that included intermediate products such as spent bleaching earth and seedcake and/or final products such as seed meal - either with or without the addition of spent bleaching earth; · Caines had not developed a manifest of chemicals and/or dangerous goods that included intermediate products such as spent bleaching earth and seedcake and/or final products such as seed meal- either with or without the addition of spent bleaching earth; · Caines had not amended its Dangerous Goods licence to reflect the storage of class 4.2 Spontaneous Goods; · Caines had not erected relevant Dangerous Goods warning signs on the front boundary fence of the premises; · Caines had not numbered and labelled the storage bins for meal with appropriate warning signs and/or “diamonds” identifying the contents as class 4.2 Spontaneously Combustible Goods;

· Caines did not have any member of staff who was trained and in possession of the information necessary to deal with Dangerous Goods inquiries and/or incident at the premises involving Dangerous Goods, including incidents involving meal and/or spent bleaching earth; · Caines had not developed any procedures to fight fires of any kind, including but not limited to smoulders in spent bleaching earth, smoulders in seedcake, smoulders in meal, dust explosions and/or dust flash fires, in and about the Seed Crushing Plant; · Caines had not provided any training to the staff charged with the day to day operation of the plant, including Mr Robert Anderson, with respect to the fighting of fires of any kind; · Caines had not developed and/or implemented an Emergency Plan; · Caines had not developed and/or implemented any Emergency Training program so that staff who may be required to assist in emergency situations, such as fires etc, were aware of the risks and their responsibilities; · Caines did not have any personal protective equipment available for its staff to use in the course of fighting a fire, or for use by its staff whilst assisting fire officers; and · Caines had not invited the Captain of the Local Fire Brigade, Captain Jenkins, down to the Rutherford site to conduct an inspection of the Crushing Plant or a review of any kind. 17 It may be noted that Caines, the general manager and company secretary of Caines, and the managing director, were prosecuted in relation to what occurred on 6 December 1999 and penalties were imposed: Inspector Mayo-Ramsay v Caines Pty Limited & Ors [2006] NSWIRComm 223. Events leading to fire and explosion 18 The prosecutor referred to the evidence relating to the events leading up to the fire and explosion. At about 2300 hours on Sunday 5 December 1999, Robert Jordan and Jason McKewen attended at the site. Robert Jordan was at the site to start up the seed crushing mill in preparation for the commencement of the day shift. Jason McKewen was at the site to start up the oil refinery. In addition, two other members of staff were present on site: Greg Hall was doing maintenance on a scrubber pump; and, Jason Brooker was working in the refinery. 19 At about 0200 hours on 6 December, Robert Jordan noticed a strong, unpleasant odour in the vicinity of the storage bins. It was a different kind of odour from any that he had smelled before. At approximately 0245 hours Robert Jordan walked down between bins B and D and noticed heat coming from in between the two bins. When Mr Jordan put his hand onto the western side of bin D he noticed that it was very hot adjacent to the air cannon (used to pump air into the bin). Robert Jordan then asked Jason McKewen and Jason Brooker to come down to the meal bins (or silos) to have a look. Mr McKewen described the odour as “foul”. 20 Robert Jordan then rang Bob Anderson, the acting site supervisor, to obtain some advice. The evidence was that Mr Jordan told Mr Anderson that “there was an awful smell around the place”, that he went looking for it and found that bin D was “extremely hot” on the side. Mr Anderson informed Mr Jordan that he would go to the fire brigade

station on the way to the Caines' plant. 21 Mr Anderson made a "000" call and had the following conversation with Newcastle Fire Command Centre (at 0329 hours on 6 December 1999):

“CALLER (Mr Anderson): Hello? Hello? OPERATOR: Yeah mate. CALLER: Yeah, um. I work at Caines at Maitland and we’ve got a meal bin there which, ah, is a by-product … (break in tape) OPR: Well, how long has it been like that mate? How long has it been full? Over the weekend has it? CALLER: Yeah, we don’t know how full it is. The operator doesn’t want to take the top off. (break in tape) CALLER: Opposite the fire station. I couldn’t get anyone to, uh, answer. (pause with phones ringing in background and a break in taping) OPR: So what, it has just been building up in heat has it? CALLER: Yeah – the side of the bins are very hot and (break in tape) OPR: All right. CALLER: I said I’d come out but I’d go to the fire station first to see what I could find out. OPR: We’d better come down there and have a look mate. CALLER: All right. OPR: What’s the address? CALLER: Its Lot 10 OPR: Hang on. CALLER: Gardener Road. OPR: What’s it? Um. What is it? Cottonmeal? CALLER: Cottonmeal – yeah. Spontaneous combustion I’d say.

(break in taping) OPR: What’s the address? CALLER: Lot 10. OPR: Lot 10. CALLER: Gardener Road, Rutherford.

22 Counsel for the prosecutor referred to the evidence of Jason McKewen obtaining a Riken gas monitor, used for detecting gas leaks in Caines’ hydrogenation plant, to check the odour near the storage bins. While Mr McKewen was operating the monitor and walking back down toward storage bin area, the meter of the monitor was said to have gone “off the dial”. When Mr McKewen approached the storage bin area on a second occasion, the monitor went “off the dial” again. The gas monitor was used to detect hydrogen – a combustible and explosive gas – and hydrocarbons. 23 Mr Anderson arrived at the site and told the staff that he had spoken with New South Wales Fire Brigades. Mr Jordan went to the gates to meet the fire brigade whilst Mr Anderson and the other staff waited for them to arrive. 24 The members of the Telarah Fire Brigade (TFB) were called out at 0332 hours on 6 December 1999. At 0339 hours the Telarah pumper and crew responded to the call. Captain Jenkins stated that on his arrival at the site he was advised that there was heating in one of the storage bins, bin D. 25 Counsel for the prosecutor observed that there was a dispute in the evidence as to whether Captain Jenkins was told by Caines' staff members and/or members of his brigade about ‘the Gas Leak Detector going off the dial’. Counsel referred to Mr Jordan's assertion that he waited near the front of the site for the TFB to arrive and told the fire fighters about the gas on their arrival at the site. Mr McKewen stated in his evidence that Mr Anderson "told them about the gas detector” and “they had a look at the bin and they rang Hazmat”. The driver of the Telarah pumper, Retained Firefighter (RF) Walter Morris, stated that on arrival of the pumper at the Caines site there was a Caines employee waiting at the gate and the employee said: “We’ve had a fire in a silo” and the employee also stated that they had been using a gas monitor which was “going off the dial”. RF Morris also stated in evidence that he realised the significance of this information and that he "would have" spoken to Captain Jenkins about it. Station Officer Evans, who I shall refer to shortly, also gave evidence that he was aware Caines’ staff members had reported that a gas monitor had been used but that an unidentified person informed him that the particular monitor detected the presence of oxygen. 26 Nevertheless, Captain Jenkins denied being provided with this information on the morning of the incident, either directly or indirectly. 27 After arriving at the site, Captain Jenkins:

(a) Conducted a visual inspection of bin D and its surrounds. In the process of inspecting bin D and its surrounds Captain Jenkins made two observations. First, there was a spot, at about head height, on the western ‘external’ side of bin D that was warm to touch. Secondly, there was an unusual and strong odour within the area surrounding the (heating) bin; (b) Asked Mr Anderson if it was possible for someone to get a hose line into the storage bins from the top (Mr Anderson sent Mr

Jordan to the top of the bin to check whether there was access. Mr Jordan made the trip unaccompanied and unsupervised by any member of defendant. Captain Jenkins gave evidence that he was unaware that Mr Jordan had gone to the top of the bin. Mr Jordan returned from the top of the bin and informed Mr Anderson that there was no access into the top of the bin. Mr Anderson conveyed this information to Captain Jenkins); (c) Considered "establishing a hose onto the top of the silo involved. When I asked if I could get access into the top of the silo the Site Engineer stated there was no access from the top”; (d) Evacuated all personnel, both Caines' staff and fire fighters from the area to “a safe position outside the building proper” and called in Hazmat. Captain Jenkins decided that gas detection, identification and monitoring were required, areas of expertise outside the training and equipment provided to the Telarah Brigade; (e) Liaised with Caines’ staff whilst waiting for Hazmat with a view to ascertaining information about the plant and the substance located in bin D. Captain Jenkins was told that the bin had “an input auger at the top and two output augers at the bottom”. Captain Jenkins stated that he believed the bin to be a “conventional silo” – one in which oxygen would be freely available; (f) Sought and obtained an Orica Chemicals “Material Safety Data Sheet” (or MSDS) dated 1 July 1996 for “Tonsil Activated Clay” (or ‘bleaching earth’). This MSDS related to the activated clay/bleaching earth prior to its use in the refining process and as a consequence, it disclosed no information regarding the characteristics of the bleaching earth once “spent” (i.e., used in the refining process) and laden with oil. In particular, the MSDS for the clay did not disclose that, once laden with oil, the “spent bleaching earth” was liable to spontaneously combust on exposure to air unless properly handled, cooled and stored. The Caines' employees had no access to an MSDS for the Tonsil Activated Clay after it had been used (‘spent’) in the refining process; (g) Ascertained that bin D held “stock feed containing a by-product of cotton seed”. However, the Caines' employees did not have access to an MSDS for the mixture of milled seed cake and spent bleaching earth that was in bin D on the morning of 6 December 1999.

28 At 0359 hours on 6 December 1999 Station Officer (SO) Evans was contacted at his home by pager to respond to the Caines' site. SO Evans left his home at 0409 hours and arrived at the Rutherford Caines' site at 0434 hours. Senior Firefighters Walker, Bear and McCall, of the Hazmat Unit Newcastle, travelled together on a Hazmat appliance from Newcastle to the Rutherford site. 29 As the defendant submitted, there was no issue that on the arrival SO Evans became the officer in charge and the “Incident Commander” under the Incident Command System for the purpose of s 3 of the Fire Brigades Act. SO Evans conceded that he had a dual role on the morning of 6 December 1999, namely, as fire officer in charge or incident controller and as a specialist support service.

30 After arriving at the site, SO Evans: (a) Undertook what he described as a “size up” - an assessment of the site and of the incident; (b) Was shown a “bin or hopper” – bin D – “that was believed to be heating internally”. SO Evans noticed a noxious odour but he identified no signs of any smoke, any other indication of burning, or other obvious signs of fire; (c) Was presented with the MSDS for Tonsil Activated Clay; (d) Sought unsuccessfully to find information about the properties of cotton seed meal from databases on his laptop computer; (e) Consulted with Captain Jenkins and the site engineer, Mr Anderson, regarding the monitoring of gas and the removal of the cottonseed meal from the storage bin; (f) Decided that the cottonseed meal should be removed from the bin and dumped onto a concrete pad outside the seed-crushing mill to cool down. The cottonseed meal was to be removed from the bin using the auger to deliver it into a truck in the “receival bay” and the truck would then be used to dump the meal on to the concrete pad for cooling. According to both Captain Jenkins and SO Evans, Mr Anderson indicated that this was how Caines normally dealt with overheating seed meal.

31 In relation to gas and temperature monitoring, there were some differences in the evidence. SO Evans asserted that, once on the scene, FireFighter (FF) McCall (who arrived with FF Bear at 0440 hours) was assigned the tasks of gas monitoring and monitoring the temperature of bin D. FF McCall said in his evidence that he commenced to take gas readings when the meal commenced to be removed by auger from bin D which, according to FF McCall, was at about 0540 hours. SO Evans said the removal of the meal from bin D started at about 0515 hours. RF David Pilton said the auger commenced to be used to empty bin D at about 0500 hours when he left the site. FF McCall appears to have commenced to take temperature readings at about 0515 hours, but before he commenced to take gas readings. 32 Some considerable amount of time appears to have elapsed between FF McCall's arrival on the scene and when he commenced to take gas and temperature readings. The failure to do so calls in to question the conduct of the defendant in circumstances where bin D was hot to touch (FF McCall initially registered a temperature as high as 280 degrees Celsius), where SO Evans noticed a noxious odour when he arrived and where the evidence indicates that concern about the presence of gas was the prime reason for calling out Hazmat. 33 Moreover, as the prosecutor submitted, the issue of gas monitoring was further complicated by the fact that:

(a) the batteries in the TMX412 gas monitor are said to have gone flat within five minutes of the commencement of gas monitoring on that morning; (b) FF McCall did not replace the batteries in the gas monitor; (c) no further gas monitoring of any kind was undertaken after the batteries went flat; and (d) the subject unit subsequently displayed a memory fault that has prevented recovery of the last readings taken with that unit despite built in memory protection mechanisms.

The only explanation provided for the failure to implement some other form of gas monitoring was that the initial readings taken with the TMX 412 gas monitor did not disclose the presence of any inflammable or toxic gases. FF McCall’s opined that there was no need to test for gases in the area again because the gas levels had already been checked. SO Evans formed the view, “well okay you’ve done enough gas detection”.

34 In any event, FF McCall and Mr Anderson continued to monitor the temperature of the meal coming out of the auger system into the truck, as well as the side of bin D, with Raytec heat monitors. When temperature monitoring was commenced, as I have already noted, the temperature measured at the hottest point on the side of the bin was 280 degrees Celsius; the hottest point being immediately adjacent to the air cannon. When all the meal had been removed from the hot side of bin D the temperature adjacent to the air cannon was 70 degrees Celsius. Other temperature readings around bin D were as low as 25 degrees Celsius (Mr Pearson opined that the drop in temperature may have been due to the smouldering meal losing thermal contact with the wall of the bin) . 35 As a further safety precaution it should be added that the Hazmat crew also set up a flameproof positive pressure electric fan in the “receival bay” area to disperse odour and dust, although this was said by the prosecutor to create a risk of the formation of dust in that area and thereby increase the increase of a secondary explosion. 36 The following submission by the prosecutor, summarising the evidentiary material, identifies the location and activities of various personnel and refers to observations made by some of those personnel prior to and at the time of the explosion. Parts of the submission were put squarely in issue by the defendant but for the reasons I will later explain, mostly I have accepted the prosecutor's version of events as accurate and in accordance with the evidence. References to the evidence have been omitted:

Jason McKewen drove the truck and Robert Jordan operated the auger system used to empty the meal from Bin D. Neither Mr McKewen nor Mr Jordan were provided with any form of personal protective equipment. Mr Jordan was not offered any breathing apparatus. Captain Jenkins directed 4 retained firefighters to form 2 BA [Breathing Apparatus] crews to man a charged hose in the receival bay. One member of each crew was directed by Captain Jenkins to station himself at the top of a ladder located next to the truck in the receival bay with a charged hose for the purpose of extinguishing any burning material augured (sic) from Bin D, via the crushing plant’s transportation system, into the back of the truck. The other member of each crew was directed to man the ladder. The members of these crews, RF Michael Pilton, RF Schofield, Deputy Captain Morriss and RF Armstrong, were wearing their full turn out uniform and fitted with SCBA (Self-Contained Breathing Apparatus). The first shift was taken by RF Schofield and RF Pilton while Deputy Captain Morriss and RF Armstrong stood by. Deputy Captain Morriss and RF Armstrong relieved RF Schofield and RF Pilton after the low air warning sounded on RF Schofield’s breathing apparatus. RF David Pilton assisted his brother, RF Michael Pilton, and RF

Schofield, Armstrong and Deputy Capitan Morriss, to don breathing apparatus. With Deputy Captain Morriss’ permission, he then left the site to go to his ordinary job as a mechanic. RF David Pilton left the Caines site at approximately 5am. It is likely that RF David Pilton was with or near RF Jarrett in the vicinity of the Telarah Pumper at the time of and in the period leading up to the explosion. RF Walter Morris acted as the breathing apparatus controller. He monitored the breathing apparatus crews including the time they spent in the apparatus. At the time of the explosion, RF Walter Morris was standing immediately adjacent to the Telarah pumper. It is likely that RF Walter Morris was in and around the receival bay area or the Telarah pumper in the period while Bin D was being augured (sic). RF Jarrett stayed with the Telarah Pumper during the entire period from his arrival at the site with other members of the Telarah Fire Brigade until the time of the explosion. He assisted other members of the Telarah Fire Brigade to don breathing apparatus. As the meal was being augered from Bin D through the auger system and into the truck in the receival bay, FF McCall monitored the temperature of the meal as it came out of the chute in the receival bay. He was about 10-15 metres away from the chute at this time. He also monitored the temperature outside Bin D. FF McCall was assisted by FF Bear. Estimates of the time when augering of the meal from Bin D commenced vary from 5.15am to 5.40am. One to 1½ truckloads of meal had been removed when the auger began to run dry. Members of the Caines staff, in particular, Jason Brooker, Robert Jordan and Bob Anderson, then bashed on the side of the bin with a 1½-inch (35mm) diameter iron bar to loosen the remaining meal. When this occurred, Mr Jordan noticed “a lot of pale blue smoke coming out of the doors that feed into the auger”. After the hose crews rotated, Deputy Captain Morriss was manning the charged hose at the top of the ladder adjacent to the truck. During this period, Deputy Captain Morriss observed:

(a) fine dust in the air in the receival bay, particularly around the chute from which the cottonseed meal was being discharged into the back of the truck; (b) meal containing chunks of black material and small amounts of burning product being discharged into the back of the truck; and (c) smoke emanating from the seed receiving pit located under the truck.

Mr Jordan was asked by Mr Anderson to go to the top of the bins on a second occasion that morning. The purpose of this second trip

was to measure how much meal was left in Bin D. Again, Mr Jordan made this trip to the top of the bins unaccompanied and unsupervised by any member of New South Wales Fire Brigades. When Mr Jordan reached the top of the bins he noticed smoke coming out of the inspection hatch at the top of Bin D. When Mr Jordan opened the lid on the inspection hatch to drop the measuring tape into the bin, Mr Jordan saw smoke being drawn back into the bin. Mr Jordan then waited a few minutes before putting his tape about 12 metres down into the bin to a point just above the auger. When Mr Jordan returned to the base of the bin area, he informed Bob Anderson that the bin was empty. Mr Jordan did not inform anyone of the smoke coming from the inspection port. The significance of the smoke being drawn back into the bin through the inspection funnel, whilst not apparent to Mr Jordan, must not be underestimated. Further, it must be observed that, if Mr Jordan been accompanied at all relevant times by a member of the Fire Brigades, a member of the Fire Brigades would have been present to make the subject observation. Mr Jordan then returned to the operation control panel in the “receival bay”. Then, in accordance with instructions provided to him by Mr Anderson, Mr Jordan closed all the auger doors to the auger on the hot side of Bin D except for one in which he had changed the air line around for it to remain open as it had a faulty solenoid. Mr Jordan then opened the two rear doors on the auger for the cool side of Bin D. The purpose of this activity was to bring the meal away from the inspection hatch at the base of Bin D. Mr Anderson also instructed Ron Brooker and Geoffrey Terry to take the inspection hatch cover plate off from the base of Bin D. A member of staff then turned on the compressor so that Mr Brooker and Mr Terry could use a pneumatic bolt gun to undo the bolts securing the inspection hatch cover from the base of Bin D. Shortly after Mr Jordan started the auger to remove the meal from the cool side of Bin D, Mr Anderson, Mr Brooker and Mr Terry started to remove the inspection hatch cover from the base of Bin D. Richard Zambrowski saw the rattle gun being used to remove the bolts. As the inspection hatch opened, there was an influx of cold,

oxygenated air into Bin D. This influx of air was followed by an explosion inside Bin D and a fireball that emanated from the hatch opening to engulf all three men. As a consequence, all three men suffered serious burns to more than 60% of their bodies and later died of their injuries. Mr Jordan was standing at the control panel in the receival bay when the explosion occurred and Mr McEwen was driving the truck. Mr Jordan saw a fireball come out of the augers and engulf the entire loading bay area. Fire also emerged from the discharge chute above the truck in the loading bay. At the time of the explosion, Captain Jenkins was approaching the base of Bin D. Captain Jenkins saw a fireball coming out of the base of Bin D. Captain Jenkins, who had removed his gloves, pulled down the visor on his helmet to protect his face but suffered severe burns to his hands and other parts of his body. At the time of the explosion, FF Bear was replacing some equipment into the breathing apparatus vehicle. This vehicle was situated approximately 100m away from the crushing mill. FF Bear hear a loud explosion and, upon investigation, saw a man whose clothing was alight and went to his assistance. At the time of the explosion, FF McCall was getting a drink out of the BA Van. According to FF McCall, two minutes earlier he had been taking temperature reading near an air inlet valve at Bin D approximately 2.5 metres above ground level. According to SO Evans, immediately prior to the explosion, he was talking to Captain Jenkins. Captain Jenkins then followed the manager (Mr Anderson) towards the bins. It is not clear from the evidence where SO Evans was situated at the time of the explosion.During the course of the morning after the arrival of the Hazmat Unit but prior to the explosion, Jason Brooker, Jason McKewen, Richard Zambrowski, Nigel Little, Steven Hipwell and Mark Price, at various times, all entered the seed crushing mill and the storage bin area unaccompanied and unsupervised by members of New South Wales Fire Brigades. These Caines' employees were also allowed to undertake activities in and about the seed crushing mill and the storage bin area independent of New South Wales Fire Brigades. These activities included banging on the side of Bin D with a metal bar or “stock” whilst the bin was being emptied and also the activation of plant and equipment. At the time of the explosion, Mr Little and Mr Richard Zambrowski were inside the crushing mill adjacent to the base of bin D. Albeit that these men were some 4 to 5 metres from the base of bin D at the time of the explosion, they were separated from the area in which Mr Anderson, Mr Brooker and Mr Terry were

working by the single skin Colorbond sheet wall that was damaged in the explosion.

37 In relation to the factual background, Mr Kite of senior counsel for the defendant, submitted there were some important considerations to be taken into account in the defendant's favour. These included that what Captain Jenkins was initially undertaking, and which SO Evans carried on with following his arrival at the Caines' site, represented actions fulfilling the statutory obligation set by the Fire Brigades Act. Specifically, it was submitted, the actions of both officers involved, firstly, an assessment of the site and of bin D in particular. That assessment ultimately led to the decision to auger out the contents of bin D. Further, it was submitted, that process of augering out the contents of bin D passed without incident. It was only when the inspection hatch was removed by the Caines' employees that a fire ball was triggered and that gave rise to the fatal injuries to Mr Anderson, Mr Brooker and Mr Terry and the injuries of Captain Jenkins. 38 Mr Kite referred to the evidence of Inspector Pentony before the Senior Deputy State Coroner, and which senior counsel said was not challenged in the Inquest and Fire Inquiry, and was not challenged in these proceedings, that in respect of the decision to auger out the contents of bin D being arrived at after consultation with Mr Ron Anderson of Caines, that it was:

[E]ntirely reasonable to base decisions in the assessment process upon information provided by a person with that background (local knowledge and expertise) in the contexts of a smallish site with the activities that were going on there.

39 Counsel for the defendant also referred the evidence of the then Assistant Commissioner Gregory Mullins and Director of State Operations (now the Commissioner of the NSW Fire Brigades), to the effect that it was appropriate, indeed necessary, in the circumstances for the officer in charge to seek advice from site management on, inter alia, silo content, access and mechanical operation of the plant in determining the Fire Brigades' strategy. Commissioner Mullins observed:

For this reason it is an established procedure of the NSWFB to seek out technical experts on site at emergencies involving chemicals, plant, equipment, and complex processes. It is prudent practice at silo fires to seek advice from site management on silo contents, access, and operation, as well as any other peculiarities. The Incident Controller then develops strategies taking into account the technical advice, in accordance with the firefighting procedures suggested in Part 6C, Chapter 45, Section 6, page 139 of the Manual of Firemanship. It appears from statements that I have read that advice was sought from on-site personnel at Rutherford. It appears that Captain JENKINS and Station Officer EVANS consulted with site management in accordance with procedures for fighting silo fires outlined in the Manual of Firemanship Part 6C. Firefighting procedures implemented on 6 December 1999 at Rutherford by the NSWFB were apparently developed using information received from site management, understanding of the fire situation by the NSWFB officers, and procedures for fighting

silo fires outlined in the Manual of Firemanship Part 6C. Commissioner Mullins' evidence, Mr Kite noted, was unchallenged at the Inquest and Fire Inquiry and was not challenged in these proceedings.

40 Mr Kite further submitted it was important to bear in mind the unchallenged evidence of Commissioner Mullins that he gave before the Inquest and Fire Inquiry regarding the operational environment of an incident controller:

[I]t was a small fire at that time, at that temperature, it was not going to go out of its own accord. It was either going to involve the whole vessel and all of the product and possibly the bins next to it in a domino effect, or it was going to be put out. There is only one of two outcomes and it had to be dealt with, and the officers on the scene made the judgment that in accordance with the procedures we know about at that time and the advice we have from the experts on the scene, who know about the processes and product, we’ll work it out and put the fire out. Yes there may be other risks but they’re secondary to the one that we have presenting.

41 Counsel for the defendant submitted: The critical and important issue to appreciate is that operational firefighters/incident controllers, once they respond to a fire or emergency, are fulfilling the (statutory) obligations imposed by s 11 of the Fire Brigades Act. It is submitted that what took place on the arrival of Captain Jenkins, and subsequently Station Officer Evans who on arrival became incident controller, at the Caines site on 6th December 1999 was that operational judgments/decisions were made at the incident site, based upon, inter alia, information provided by site management, all of which was done to fulfil the statutory obligations imposed upon NSW Fire Brigades Officers, particularly incident controllers, pursuant to s 11 of the Fire Brigades Act.

42 Section 11 of the Fire Brigades Act provides: (1) When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger. (2) When there is a report of a hazardous material incident, a fire brigade must, despite anything to the contrary in any Act:

(a) proceed with all speed to the site of the incident, and (b) try by all possible means to render the site of the incident safe and save any lives and property that are in danger.

IMMUNITY 43 At the time of the alleged offences in December 1999, s 78 of the Fire Brigades Act was in the following terms:

78. A matter or thing done by the Minister, the Commissioner, any member of staff of the Department, any member of a fire brigade or any person acting under the authority of the Commissioner does

not, if the matter or thing was done in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown to any action, liability, claim or demand.

44 The defendant submitted, as I have noted, that the section provided immunity from all forms of legal redress, including criminal prosecution, in the circumstances covered by the section. If that be right s 78 would, subject to its terms, provide immunity for the defendant against any prosecution under the Occupational Health and Safety Act 1983 and its successor, the 2000 Act, because such prosecutions are criminal prosecutions. 45 Both the defendant and the prosecutor made extensive submissions as to the approach to be taken to the interpretation of s 78. The prosecutor put a number of alternative submissions in respect of s 78 as follows:

(i) It is submitted that s 78 does not apply to the failures or omissions that occurred in this case under the Occupational Health and Safety Act 1983 (OHS Act). (ii) Alternatively, it is submitted that s 78 does not operate to exclude criminal proceedings. (iii) Further in the alternative, it is submitted that, if s 78 can operate to exclude criminal proceedings, it does not operate to exclude proceedings for offences committed under the OHS Act.

Whether s 78 provides immunity from criminal liability 46 Section 78 is an exemption from liability provision (Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312, Spigelman CJ (Giles and Ipp JJA concurring) at [33] that "protects the interests of a statutory authority which is given privileges in the nature of a monopoly for provision of a public service, at the expense of what otherwise would be individual justiciable rights": Suatu Holdings Pty Ltd v Australian Postal Corporation (1989) 86 ALR 532 at 541 per Gummow J. The proper construction of such provisions has usually arisen in the context of civil proceedings (see, for example, Board of Fire Commissioners of NSW v Ardouin (1961) 109 CLR 105; Stephens v Stephens (1970) 92 WN (NSW) 810; and, R & W Vincent Pty Limited v Board of Fire Commissioners of NSW (1977) 1 NSWLR 15), although they have been considered in the context of criminal proceedings (see Fowler v Taylor [1957] VR 593; NSW Bar Association v Muirhead (1988) 14 NSWLR 173; Garrett v Freeman (2006) 147 LGERA 96). 47 Much of the defendant's submissions regarding immunity focused on seeking to demonstrate that the prosecutor's second alternative submission was wrong. That is to say, the defendant's proposition was that s 78 gave immunity not only from civil liability but also from criminal liability. 48 The question of whether s 78 provides immunity from criminal liability is a difficult one to answer. In order to determine the meaning of it one must have regard to the context in which it is to be found in the statute and in doing so adopt a purposive approach to the interpretation of the provision: s 33 of the Interpretation Act 1987; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd & Ors (2004) 205 ALR 1 per McHugh ACJ, Gummow and Hayne JJ at [11] citing with approval the observations of McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Morrison v Powercoal Pty Ltd & Anor. (No. 3) (2005) 147 IR 117 at [36]-[43]. 49 The main considerations in favour of a positive answer to the question, namely that s 78 provides general immunity from criminal liability, are:

(1) There is no authority to support the proposition that the words "claim" and "demand" in s 78 include process by which criminal

proceedings are instituted. The words “claim” and “demand” refer to processes, both legal and antecedent to legal proceedings, by which a right to recover damages or other civil recompense is enforced. However, the term "action" is broad enough to encompass the concept of criminal proceedings depending upon the context in which it is used: Re Carter Smith; ex parte The Commissioner of Taxation (1908) 8 SR (NSW) 246 at 249; Johnson v Refuge Assurance Co Ltd [1913] 1 KB 259 at 264; R v Hammer (1923) 2 KB 786 at 790-791. See also section 11 of the Limitation Act 1969 and Butterworths Concise Australian Legal Dictionary, Second Edition (where "action" is defined as ‘any proceeding in a court’). (2) The word “liability” may extend to criminal as well as civil liability depending upon the context in which it is used: see Workcover Authority of NSW (Inspector Gilbert) v Energy Australia (formerly Sydney Electricity) (1998) 103 A Crim R 213 at 230; Country Energy v Malone (2005) 138 IR 221 at [32]-[37] and [53]; (3) The purpose of Fire Brigades Act is the prevention and extinguishment of fires and protecting and saving life and property in case of a fire. It is the duty of the Commissioner under the Fire Brigades Act to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of a fire. The Fire Brigades Act affords to the Commissioner, and other officers, very wide powers, the exercise of which may directly and seriously infringe on private and public rights, in carrying out their functions. It is arguable, therefore, in balancing public and private interests against the interests of enabling the Fire Brigades to effectively carry out its duty of protecting life and property, the balance should fall in favour of the view that s 78 provides not only civil immunity but also immunity from criminal liability in circumstances where something is done in good faith for the purpose of executing the Fire Brigades Act or any other Act. For example, if the Fire Brigades faced the prospect of a criminal prosecution every time it found it necessary to have someone removed from the scene of a fire (see s 19 for power to do so), or found it necessary to destroy a wall or building pursuant to s 16 in order to prevent the spread of a fire, it would make the Fire Brigades Act unworkable and, therefore, it is arguable the balance lies in favour of construing s 78 as providing immunity from criminal liability; (4) The statutes (Health Act 1928 (Vic); Workers Compensation Act 1987 (NSW); Local Government Act 1993 (NSW)) under consideration in those cases where the words "action, liability, claim or demand" were held not to grant immunity from criminal liability (Fowler v Taylor [1957] VR 593; NSW Bar Association v Muirhead (1988) 14 NSWLR 173; Garrett v Freeman (No. 2) (2006) 145 LGERA 459; Garrett v Freeman (2006) 147 LGERA 96) were statues with quite different purposes to the Fire Brigades Act.

50 The main considerations in favour of a negative answer to the question, namely, that s 78 does not provide general immunity from criminal liability, are:

(1) The combination of words "action, liability, claim or demand" are more likely to be associated with civil proceedings and not criminal proceedings; (2) In more recent times, it has become recognised that the term "action" was not appropriate to describe criminal proceedings: Ketchell v Wynch (2001) 164 FLR 460 at 467 per Thomas JA. (3) None of the cases relied upon by the defendant in support of the proposition that the word "action" might be construed to encompass criminal liability were criminal cases; (4) There was no case brought to the attention of the Court where the words "action, liability, claim or demand" had been held to grant immunity from criminal liability. This is despite the fact that the words have appeared in exemption from liability provisions in UK statutes for at least 150 years and in Australian statutes for at least 120 years: see Fowler v Taylor at 594; (5) In those cases where it was considered whether the words "action, liability, claim or demand" provided immunity from criminal liability it has been determined that no such immunity existed; (6) Of particular significance is that to gain statutory protection against liability under an immunity provision, the provision, should not only ordinarily so provide in express terms, but also that such provisions should be strictly construed: see Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116 per Kitto J; Puntoriero & Anor v Water Administration Ministerial Corporation (1999) 199 CLR 575 at 613 per Callinan J; Bankstown City Council v Alamdo Holdings Pty Limited (2004) 135 LGERA 312 at 321 per Spigelman CJ; Bropho v Western Australia (1990) 171 CLR 1 at 18 citing Potter v Minahan (1908) 7 CLR 277 at 304; The Daniels Corporation International Pty Ltd & Anor v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 562-563 per McHugh J; (7) It would have been open to the legislature to make specific provision in s 78 for immunity from criminal liability in 1989, when the Act was made, in much the same way as such provision is made in other statutes (e.g., Independent Commission Against Corruption Act 1988) but this was not done; (8) In much the same way that Dean J found the health officer in Fowler v Taylor was entitled to forcibly enter the premises pursuant to s 359 of the Health Act (and thereby the assault was justified) it is arguable (subject to what I find under the next heading) that an officer of the Fire Brigades exercising a prescribed function under the Fire Brigades Act in the course of preventing and extinguishing fires and protecting and saving life and property (see ss 16, 17, 19 and 22 for instance), would not be criminally liable for exercising such a function given that it was directly authorised by the Act and, consequently, there would be no need to rely on s 78 for immunity.

51 My tentative view is that s 78 of the Fire Brigades Act does not provide a general immunity from criminal liability. However, it is unnecessary for me to decide this point in light of my later finding that the alleged failures by the defendant to ensure the safety on employees and non-employees were not matters or things done in good faith for the purposes of executing the Fire Brigades Act or any other Act. Whether s 78 applies to failures of defendant 52 The prosecutor submitted that the failures of the defendant in this case to ensure safety, health and welfare were not matters or things done for the purposes of executing either the Fire Brigades Act or any other Act, including the Occupational Health and Safety Act 1983. Accordingly, it was submitted, s 78 did not exempt the defendant from liability. It becomes necessary to consider, firstly, the relevant powers, functions and duties that may be exercised by persons under the Fire Brigades Act and, secondly, a number of the relevant authorities. 53 Section 6 of the Fire Brigades Act describes the Commissioner's duty in dealing with fires and hazardous material incidents (s 23(1) provides that any function conferred or imposed on the Commissioner by Part 3 of the Act may be exercised by any officer or member of a fire brigade authorised for the purpose by the Commissioner):

6 Duty to deal with fires and hazardous material incidents (1) It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district. (2) It is the duty of the Commissioner to take all practicable measures:

(a) for protecting and saving life and property endangered by hazardous material incidents, and (b) for confining or ending such an incident, and (c) for rendering the site of such an incident safe.

54 Section 7 provides the Commissioner with a broad authority to take measures to protect persons from death or injury and to protect property from damage:

7 General authority to protect persons and property (1) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved. (2) In the case of fire, it does not matter whether or not the persons are, or the property is, within a fire district.

55 Section 8 provides for the establishment and maintenance of permanent and volunteer fire brigades:

8 Establishment, maintenance etc of fire brigades For the purpose of exercising the Commissioner’s functions under this Part, the Commissioner may:

(a) with the approval of the Minister, establish permanent fire brigades and form or assist in the formation of volunteer fire brigades, and (b) provide permanent and volunteer fire brigades with suitable premises and requisite equipment, and(c) maintain permanent fire brigades, and (d) pay subsidies to volunteer fire brigades and make payments to the members of volunteer fire

brigades. 56 Section 10 provides:

10 Exercise of functions by officers and agents The Commissioner may exercise the Commissioner’s functions under this Act by his or her officers or agents (including the members of any permanent fire brigade) or by the members of any volunteer fire brigade.

57 Section 11 provides that a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to a fire and try by all possible means to extinguish it and save any lives and property that are in danger:

11 Brigades to proceed with speed to suspected fires or hazardous material incidents (1) When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger. (2) When there is a report of a hazardous material incident, a fire brigade must, despite anything to the contrary in any Act:

(a) proceed with all speed to the site of the incident, and (b) try by all possible means to render the site of the incident safe and save any lives and property that are in danger.

58 Section 13 provides: 13 General powers of officers at fires and hazardous material incidents (1) At a fire, the officer in charge:

(a) may take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire, and (b) is to control and direct the operations of any fire brigade.

(1A) At the site of a hazardous material incident, the officer in charge:

(a) may take such measures as the officer thinks proper for the protection and saving of life and property, for confining and ending the incident and for rendering the site safe, and (b) is to control and direct the operations of any fire brigade. The site is taken to be such area in the vicinity of the incident as is for the time being determined by the officer in charge.

(2) If the fire is a bush fire (including a grass fire), the officer in charge is, as far as practicable, to carry into effect any plan of operations in force under section 52 of the Rural Fires Act 1997 in relation to the place where the fire occurs. (3) The following provisions of this Division are intended to be particular examples of the way in which functions under this

section can be exercised and are not intended to limit the generality of this section.

59 Sections 16, 17, 19 and 22 illustrate the extent of the powers of Fire Brigades, when fighting fires or dealing with hazardous materials, to interfere with persons or property:

16 Taking possession etc of buildings and vessels during fires or hazardous material incidents (1) During a fire, the officer in charge may take possession of any building, vehicle or vessel, and any property in it or on it, if it is so situated that a fire in it would endanger any structure or any property in a structure. (2) The officer in charge may, to control, extinguish or prevent the spread of the fire, cause such a building to be pulled down or destroyed and cause such a vehicle to be removed or destroyed and such a vessel to be removed or sunk, and may remove any such property and keep it in safe custody. (2A) For the purpose of confining or ending a hazardous material incident or rendering the site of such an incident safe, the officer in charge may:

(a) take possession of any building, vehicle or vessel in the vicinity of that site and any property (whether or not the property consists of a hazardous material) in it or on it, and (b) cause such a vehicle or vessel to be removed or remove any such property and keep it in safe custody.

(3) Whenever practicable, the consent of the Harbour Master, or other officer having the control of the removal of vessels in the port, is to be obtained before any vessel is removed or sunk. 17 Making walls and buildings safe (1) The officer in charge at a fire may during the fire or immediately after it, pull down, destroy, or shore up any wall or building damaged or rendered insecure by the fire or which, in the officer’s opinion, may be dangerous to life or property. (1A) The officer in charge at a hazardous material incident may, during the incident or immediately after it, pull down, destroy or shore up any wall or building damaged or rendered insecure by the incident or which, in the officer’s opinion, may be dangerous to life or property. (2) The cost of doing so is to be borne by the owner of the wall or building and is to be paid to the Commissioner. … 19 General power to remove persons or obstacles The officer in charge at a fire or hazardous material incident may cause to be removed any person, vehicle, vessel or thing the presence of whom or which at or near a fire or hazardous material incident might, in the officer’s opinion, interfere with the work of any fire brigade or the exercise of any of the officer’s functions. … 22 Authority to enter land and buildings The Commissioner is authorised to enter, by his or her agents, any

land, building or vessel where any fire or hazardous material incident has occurred and to retain possession of the land, building or vessel for a reasonable time or until an inquest or inquiry has been held relating to the fire or incident.

60 The leading authority on the issue that arises for consideration in this case would appear to be Ardouin. In that case the plaintiff was injured when his motorcycle collided with a fire engine proceeding to a fire. The defendant pleaded, inter alia, s 46 of the Fire Brigades Act 1909, which was in the following terms:

The board, the chief officer, or any other officer of the board, exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers…

61 Dixon CJ found that s 46 had no application since it did not cover the use of the roadway by fire brigade vehicles for the purpose of proceedings to a fire. At 109-110 his Honour stated:

In my opinion, upon the proper construction of s. 46 it does not cover the use of the roadway by fire brigade vehicles for the purpose of proceeding to a fire nor does it cover performances of functions of such description of the Board of Fire Commissioners by its servants or agents. When s. 46 speaks of the bona fide exercise of the Board's powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property. … [I]t may be said generally that once a power is found which depends upon the statute and involves detriment or disadvantage to others, either necessarily or in consequence of its improper or faulty exercise, it appears to me that s. 46 is capable of applying: it is not, however, expressed in terms which make it applicable to the doing of things in the course of performing the functions of the Board, which are of an ordinary character involving no invasion of private rights and requiring no special authority. It is a function of the Board under s. 19(1) to attempt to extinguish a fire, to protect and save life. It is no doubt a duty under s. 28 for a brigade, an expression capable of including servants or agents of the Board, to proceed with all speed to the site of a fire and to endeavour to extinguish it and save lives and property. But that involves no specific power to which s. 46 would necessarily attach.

62 McTiernan J dissented and considered the appeal should be allowed. Kitto J found that the immunity provided by s 46 was a very limited immunity. He said at 117:

What, then, is the strict meaning that should be given to the description of the damage which may be caused with immunity from liability? It is limited to damage caused "in" the bona fide exercise of powers. In my opinion the meaning is that the immunity attaches in respect only of damage resulting from an act which, if it had not been negligent, would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other than s. 46 or the by-laws gave power in the circumstances to do, as distinguished from an act which was

merely incidental to, or done by the way in the course of, the exercise of a power.

63 Taylor J held that the negligent driving on a public road of a motor vehicle belonging to the board was not within s 46 since it was not something done in the exercise of a power conferred by the Act. Windeyer J considered that s 46 had no application at all. 64 In Stephens v Stephens (1970) 92 WN (NSW) 810 a motor vehicle collided with a fire-fighting vehicle which was stationary on the highway and engaged in fighting a bush fire. A passenger in the vehicle was injured and sued the driver of the firefighting vehicle. The driver relied on defences based on s 48 of the Bush Fires Act 1949, which provided immunity to certain named persons "acting in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act." 65 Mason JA (with whom Moffitt JA agreed, Manning JA dissenting) said that although there was some difference in language in s 48 compared to s 46 of the Fire Brigades Act 1909 and s 580 of the Local Government Act 1919, which were the subject of decisions in Ardouin and Hudson v Venderheld (1968) 118 CLR 171 respectively, it did not seem to his Honour any material distinction could be found that would enable the Court to take a different approach to the construction of the phrase "anything done bona fide under and for the purposes of the Act" in s 48 (812). 66 Mason JA stated at 812-813:

The section [s 48] should be regarded as conferring immunity from action on the defendant as a person acting in execution of the Act only in respect of an act done pursuant to an authority which the Act itself confers. If the provisions of the Act conferred authority on the defendant to have the truck of which he was the driver stationary on the highway, with its motor idling, while water from the truck was sprayed on the seat of the fire, then s 48 has the effect of protecting the defendant from the consequences of performing the act negligently and occasioning injury to the plaintiff.

67 After considering the provisions of the Act, Mason JA concluded there was no immunity because the Act did not confer legal authority on the defendant to have a fire fighting vehicle on a public highway or to extinguish a bushfire by using the equipment on such a vehicle (at 814). It may be noted that Mason JA found that the Act did not authorise the extinguishment of a bush fire because no such authority was necessary. 68 In R & W Vincent Pty Ltd v Board of Fire Commissioners of New South Wales [1977] 1 NSWLR 15 Taylor CJ at CL considered a claim for negligent performance by the defendant in the performance of its duties in that a fire that certain fire brigades had purported to extinguish broke out again and spread to the plaintiff's properties and caused damage. 69 The defendant claimed immunity under s 46 of the Fire Brigades Act 1909, which provided that:

The board, the chief officer, or any other officer of the board, exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers…

70 After considering a number of cases, including Ardouin, Taylor CJ at CL found at 20-21:

In these cases I have under consideration the negligence that is alleged is the negligent performance of the board's powers and duties in extinguishing fires. In my opinion, the damage

complained of is damage caused in the bona fide exercise of powers by the board, that is, if it had not been negligent, it would have been an integral part of the very thing which the provisions of the Act gave power, in the circumstances to do - extinguish fires - and, hence, it confers no right of action…

And at 21-22:

The statements of claim in each one of these cases in substance alleges a failure by the officers of the board to extinguish the fire properly. Extinguishing the fire was something they were required to do under the Act, and if, in the bona fide exercise of their powers to extinguish fires they failed to extinguish the fire, but left the fire in the bona fide belief that it was extinguished, then for the damage caused by it subsequently spreading to the plaintiff's premises they would be protected by s 46.

71 The words “for the purpose of executing this or any other Act” were considered by the New South Wales Court of Appeal in The Ombudsman v Laughton (2005) 64 NSWLR 114. In that case, the relevant protective provision was in the following terms:

35A(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.

72 Spigelman CJ (with whom the other members of the Court agreed) applied a purposive approach to the construction of the statutory provision:

25 To determine the legal meaning it is necessary to adopt a purposive interpretation. The purpose of s 35A is to protect from challenge the substantive conduct of the Ombudsman, namely the investigations and reports and other such functions for which the Ombudsman Act and other Acts provide. The words “executing (an) Act” do not necessarily extend to the performance of any statutory function or the exercise of any statutory power. They may not encompass matters of internal administration such as employment of staff. 26 In my opinion s 35A is concerned with the exercise by the Ombudsman of his or her statutory powers and functions with external effect (such as the Freedom of Information Act 1989

investigation considered in The Ombudsman v Koopman (2003) 58 NSWLR 182.) Section 32 of the Ombudsman Act is not of that character. It is concerned with the employment of staff, an internal matter not arising in the course of an investigation or report or any other such function. An appeal under s 20 of the GREAT Act is not, in my opinion, a civil proceeding “in respect of (a) thing done ... for the purpose of executing this or any other Act.”

73 In addition to agreeing with the reasons of the Chief Justice, Handley JA gave additional reasons (with which Basten JA agreed):

28 I agree with the Chief Justice but will add additional reasons of my own. Section 35A(1) is a privative or protective section which protects the Ombudsman from legal proceedings “in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act”. 29 In my judgment these are words of limitation which confine the protection conferred by the section to acts or omissions done or omitted in exercising or refusing to exercise the statutory powers of obtaining information and investigating complaints conferred by the Act. The words are not equivalent to anything done or omitted by the Ombudsman in his or her official capacity. 30 A similar restrictive interpretation of privative or protective provisions in statutes is well established. The scope of the Public Authorities Protection Act 1893 was considered by the House of Lords in Bradford Corporation v Myers [1916] 1 AC 242. The section gave protection to public authorities for “any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any power duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority”. 31 The Corporation relied on this section when sued by an occupier who had purchased coke from the municipal gasworks. As a result of the negligence of an employee of the corporation the coke was tipped through the shop window of the purchaser in the course of its delivery. 32 Lord Buckmaster LC said at 247 that the Act only applied where:

“… the act is one which is either an act in the direct execution of a statute, or in the discharge of public duty, or the exercise of the public authority.”

33 In the same case Viscount Haldane said at p 251, speaking of the words of the section:

“I do not think that they can be properly extended so as to embrace an act which is not done in direct pursuance of the provisions of the statute or in the direct execution of the duty or authority.”

34 A similar question came before the High Court in Board of Fire Commissioners (NSW) v Ardouin (1962) 109 CLR 105. The Board relied upon a protective section, s 42 (sic) of its Act, to answer an action for negligence arising from the conduct of a fireman driving his fire engine to the scene of a fire along a public street. The act in question of course did not require any special statutory authority. 35 Section 46 of the Act provided:

“The Board, the Chief Officer, or an officer of the Board, exercising any powers conferred by this Act or the by-laws shall not be liable for any damage caused in the bona fide exercise of such powers.”

36 The High Court held that the Board was not entitled to rely on the section in that case. 37 Kitto J said at p 117 that the protection given by the section was only available in respect of damage caused in doing things actually within the direct authorisation of the Act or the by-laws. 38 In my view the words “for the purpose of executing this or any other Act” refer only to what might be called the external exercise or the adverse exercise of powers conferred by the Act in the course of obtaining information or otherwise for the purpose of conducting an authorised investigation, and do not refer to matters of internal administration. For those additional reasons I agree that the appeal fails and should be dismissed with costs.

74 Relying on Laughton and Ardouin, it was submitted for the prosecutor that the protection afforded by the use of the words “for the purpose of executing this or any other Act” in s 78 could only apply to matters or things done (or omitted to be done) within the direct authorisation of a statute and/or involving the external exercise or the adverse exercise of powers conferred by the Act. 75 However, it was submitted, nothing in the Fire Brigades Act or any other Act authorised, directly or indirectly, expressly or impliedly, the defendant’s failures as alleged and admitted in these proceedings. The omissions about which the prosecutor made complaint did not involve the adverse exercise of powers conferred by the Act. 76 The prosecutor placed reliance on Australian National Airlines Commission v Newman(1987) 162 CLR 466. In that case an employee of the Airlines Commission who was a catering assistant in the staff canteen provided by the Commission slipped on a patch of grease on the floor of the flight services kitchen. The High Court held that s 63(1) of the Australian National Airlines Act 1945 (Cth) did not prevent the respondent employee from suing the Commission for negligent failure to provide a safe system of work and breaches of the Factories, Shops and Industries Act 1962 (NSW). Section 63(1) provided:

(1) All actions against the Commission or against any person for or arising out of anything done or purporting to have been done under this Act, shall be commenced within two years after the act

complained of was committed. 77 Mason CJ, Deane, Toohey and Gaudron JJ) stated at 471:

The flaw in this argument is that s.63(1) lends no support to the view that, for the purpose of determining whether the sub-section applies, we should look to the general statutory function or power, pursuant to which the Commission carried on its relevant undertaking, rather than to the particular act of which the respondent complained. The expression at the end of the sub-section "the act complained of" refers back to the earlier words "anything done or purporting to have been done under this Act”. These words refer to the particular act that causes the injury complained of, rather than to the general function or power pursuant to which the Commission engages in the undertaking in the course of which the injury occurs. What the respondent complained of was not the carrying on of a flight services kitchen, but the failure to provide a safe means of access to a place of work, the failure to maintain the floor in good order and condition and the failure to properly maintain it.

78 After referring to Ardouin and Hudson, it was stated in the joint judgment at 473-474: Our statement of the reasons for the decisions in Ardouin and, more particularly, Hudson immediately focuses attention on the flaws in the Commission's argument in the present case. The Court in each of the two cases, for the purpose of determining whether the statutory provision applied, directed its attention to the particular act that caused the injury, the negligent driving of a vehicle on a public street, instead of looking to the general statutory function - operating as a fire brigade or as a local authority - in the course of which the particular act was done. Both Ardouin and Hudson are inconsistent with the notion that, for the purpose of deciding whether s.63(1) applies, we should look to the carrying on of the business or operation of a flight services kitchen, rather than to the Commission's negligent failure to provide a safe means of access to a place of work or to maintain the floor in good order and condition or to maintain it properly. And, by parity of reasoning with the approach adopted by Kitto J. in Ardouin, we should not regard the act complained of by the respondent as something authorized by s.19H(1) and, accordingly, as something done "under" the Act.

79 In considering the terms of s 63(1) the majority said at 471-472: The starting point of the application of s.63(1) in a particular case must necessarily be the identification of the thing "for or arising out of" which the action is brought, which, as we have indicated, will correspond with what the section describes as the "act complained of". In the present case, there is no difficulty in identifying the "act complained of" or the thing "for or arising out of" which the particular action was brought. It was the failure to provide a safe means of access to a place of work or to maintain the floor in good order and condition or to maintain it properly. As a matter of ordinary language, it seems to us that the Commission's

failure in any of those regards could not, in the context of a disentitling provision of the kind contained in s.63(1) of the Act, properly be seen as coming within the description of something "done or purporting to be done" under an Act which contains nothing at all about either the failure to provide or the provision of safe means of access or about the neglect or the proper maintenance of floors in premises owned and occupied by the Commission.

80 The majority considered that its approach to the interpretation of s 63(1) was consistent with that taken by Kitto J in Ardouin and by the Court in Hudson. 81 It is not easy to reconcile the different approaches to the question of immunity in the cases I have referred to. However, in relation to Ardouin and Vincent where the same exemption from liability provision was considered, but where two different outcomes were delivered, I think the distinction is that in Ardouin the critical finding was that the driving of the fire engine on the public road was not done "in" the exercise of a power under the Act but was "merely incidental to, or done by the way in the course of, the exercise of a power": per Kitto J at 117. In Vincent, on the other hand, Taylor CJ at CL considered that the statements of claim in substance alleged a failure by the officers of the board to extinguish the fire properly and as extinguishing a fire was something they were directly required to do under the statute, the immunity provided by s 46 applied. 82 The relevant statutory provisions considered in the various authorities I have referred to are not all the same as those considered in Ardouin and Vincent. This is evident from the following summary:

(1) In Ardouin and Vincent, the relevant provision was that the chief officer, or an officer of the Board, exercising any powers conferred by the Act or the by-laws, "shall not be liable for any damage caused in the bona fide exercise of such powers". (2) In Stephens the relevant provision provided immunity to certain named persons "acting in the execution or intended execution of this Act in respect of anything done bona fide under and for the purposes of this Act." (3) In Hudson’s case, no proceedings could be instituted against a local authority or any member thereof or any member or servant thereof “for anything done or intended to be done or omitted to be done under this Act” until the expiration of one month after notice in writing had been served on the person concerned and such action had to be commenced within a period of 12 months after the cause of action arose. (4) In Newman, any action against the Australian National Airlines Commission or against any person “for or arising out of anything done or purporting to have been done under this Act” was required to be commenced within two years after the act complained of was committed. (5) In Laughton immunity existed in "respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith".

83 Section 78 of the Fire Brigades Act provides immunity in respect of any matter or

thing that was done in good faith "for the purposes of executing this or any other Act". It does appear to me that that expression is of wider import than the expression “for anything done… under this Act” as it appeared in the provision considered in Newman and is wider than a provision that provides protection from liability for any damage caused "in the bona fide exercise" of powers conferred by the statute, as was considered in Ardouin. Does this different wording mean that no reliance can be placed on Ardouin, Hudson or Newman in relation to whether the failures alleged and admitted in this case were matters or things done for the purposes of executing the Fire Brigades Act? In my opinion, notwithstanding the different wording, the three High Court judgments are applicable to this case. 84 An important principle adopted in the three High Court cases (Ardouin, Hudson and Newman), and one I consider that applies to both civil and criminal proceedings, was that immunity provisions such as s 78 demand a strict interpretation. This was expressed by Kitto J at 116:

[T]he protective nature of the provision made in s. 46… is such that a most strict interpretation of its words is plainly demanded. The consequences for the property, the health, the lives, of individuals affected by a negligent exercise of power under the Act may be of the most serious; yet the section takes away all remedy, if only good faith exist. And the Act, be it noted, makes no provision of its own for compensation. As already mentioned it does, in s. 32, enable damage caused to property by an officer in the circumstances there mentioned to be deemed damage by fire for the purposes of a fire policy; but that provision covers only a limited class of cases, and even where it applies all it does is to transfer the burden of the loss from the owner of the property to the insurer. Section 46 operates, then, to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.

85 In taking this approach Kitto J then posed the question, “What, then, is the strict meaning that should be given to the description of the damage which may be caused with immunity from liability?" His answer, as I have previously quoted, was as follows:

It is limited to damage caused ‘in’ the bona fide exercise of powers. In my opinion the meaning is that the immunity attaches in respect only of damage resulting from an act which, if it had not been negligent, would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other than s. 46 or the by-laws gave power in the circumstances to do, as distinguished from an act which was merely incidental to, or done by the way in the course of, the exercise of a power.”

86 If I may adapt what Kitto J stated at 117 of Ardouin to s 78: the immunity that will attach to any liability resulting from a matter or thing done in good faith for the purposes of executing the Act which, if it had not attracted liability, would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other

than s 78 gave power in the circumstances to do, as distinguished from an act which was merely incidental to, or done by the way in the course of, the exercise of a power. 87 It does not appear to me that the expression “for anything done… under this Act” or a provision that provides protection from liability for any damage caused "in the bona fide exercise" of powers conferred by the statute may relevantly be distinguishable from a provision relating to a matter or thing done in good faith for the purposes of executing an Act. In Ardouin, taking a strict interpretative approach, Kitto J differentiated between an act done directly in the exercise of a power under the statute and an act that was incidental to, or in the course of, the exercise of a power. In interpreting s 78 what must be considered is the matter or thing done for the purposes of executing the Act or any other Act. 88 If an officer in charge were to pull down a building to prevent the spread of a fire pursuant to the power vested in the officer under s 16(2) of the Fire Brigades Act, if it were done in good faith, albeit negligently, it is arguable that would be a matter or thing done for the purpose of executing the Act and immunity from civil liability would apply. But an act not directly authorised by the statute, that is, an act that was not done for the specific purpose of carrying out or implementing or performing or accomplishing an express (and perhaps implied) provision of the Fire Brigades Act or any other Act would not attract immunity. 89 As with the failures by the appellant in Australian National Airlines to provide safe means of access, etc, the alleged failures by the defendant in these proceedings could not, in the context of an exemption from liability provision of the kind contained in s 78, properly be seen as coming within the description of a matter or thing done (or omitted to be done if one accepts the defendant's submissions regarding omissions being covered by s 78) in good faith for the purposes of executing the Fire Brigades Act, which contains nothing at all about any of the failures alleged or admitted in these proceedings. 90 The approach of the majority in Australian National Airlines and by Mason JA in Stephens was to consider the act that gave rise to the injury instead of looking to the general statutory function in the course of which the particular act was done and to consider whether the act was something done under the statute. If one takes the same approach in these proceedings, it was admitted, for example, in respect of the charge under s 15, that the defendant failed to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in or about seed oil extraction plants. This failure, amongst other failures, it was alleged was causative of the breach of s 15 by the defendant. The failure occurred in the course of the fire brigade carrying out its statutory function - attempting to extinguish a fire. However, the failure to provide the adequate information could not be said to be a matter or thing done (or omitted to be done) for the purpose of extinguishing the fire. Consequently, immunity from criminal liability was not available to the defendant in those circumstances. 91 I agree with the prosecutor's submission that the immunity afforded by the use of the words “for the purpose of executing this or any other Act” in s 78 only applies to matters or things done (or omitted to be done) within the direct authorisation of the statute and involving the adverse exercise of powers conferred by the Fire Brigades Act or any other Act: The Ombudsman v Laughton. However, nothing in that Act or any other Act authorised, directly or indirectly, expressly or impliedly, the defendant’s failures as alleged and admitted in these proceedings and the failures did not involve the adverse exercise of powers. Whether s 78 applies to omissions

92 It was a matter of disagreement between the parties as to whether, at the time of the incident, s 78 included omissions. The prosecutor contended that the provisions of the section at the time of the alleged offences did not apply to omissions. In the absence of any provision applicable to omissions in s 78, it was submitted that, strictly construed, the provision should be interpreted as only providing protection for positive acts done, as distinct from failures or omissions. 93 The prosecutor referred to the joint judgment in Australian National Airlines Commission v Newman, which stated at 471:

The absence of any reference to omissions in s.63(1) provides some ground for thinking that the provision should be confined in its operation. A limitation provision, because it derogates from the ordinary rights of individuals, should be strictly construed. In its context, the reference to acts, unaccompanied by a corresponding reference to omissions, may suggest that the sub-section was intended to apply to positive acts done in the performance of functions and the exercise of powers of such a nature that they involve a special risk of interference with persons or property, e.g., the risks associated with the flying of aircraft in the course of carrying on an airline business. In that regard, there is much to be said for the view that the remarks of Dixon C.J. in Board of Fire Commissioners (N.S.W.) v. Ardouin (1961) 109 CLR 105, at pp 109-110, are in point here notwithstanding that they were directed to the operation of a differently worded provision. It is unnecessary however that we pursue that question or that we determine the extent, if at all, to which s.63(1) is to be read as applying to omissions as well as to acts of commission. Even if the sub-section be read as referring indifferently to acts of commission and omission, we agree with the conclusion reached by the majority of the Court of Appeal that it did not apply to bar the respondent's action in the present case.

94 I also note what was said in Puntoriero at [14] per Gleeson CJ and Gummow J: It is necessary now to look more closely at the text of sub-s (1) of s 19. The sub-section is directed to litigation of a certain description, namely actions with respect to loss or damage. The loss or damage concerned is not identified as that which is suffered as a consequence of failure to exercise a function of the Corporation. Rather, it is loss or damage suffered as a consequence of the exercise of such functions. This suggests that the sub-section is designed to derogate from the rights of plaintiffs which otherwise would be infringed by positive acts of the Corporation done in exercise of its functions.

And at [113] per Callinan J:

Both cases [Ardouin and Newman] demonstrate that to gain a statutory protection against liability for an omission under an immunity provision, the provision should not only ordinarily so provide in express terms, but also that such provisions should generally be strictly construed.

95 In Bell v the State of Western Australia [2004] WASCA 205 the Full Court of the

Supreme Court held at [54] that s 124 of the Western Australian Marine Act 1982 (WA) should be construed to apply to positive acts done in the performance or purported performance of a power or duty. Section 124 was in the following terms:

124 Immunity of Minister and officials No liability shall attach to the Minister, the chief executive officer or any other official of the Department, or to any person acting with the authority or on the direction of the Minister or the chief executive officer in good faith and in the exercise or purported exercise of a power or in the discharge or purported discharge of a duty under this Act.

96 The defendant relied on the Explanatory Memorandum which accompanied the Fire Brigades Amendment (Community Fire Units) Bill 2005 and which referred to the amendments to s 78 in the following terms:

At present, s.78 of the Principal Act provides that any matters or things done by certain persons including members of a fire brigade, do not subject those persons or the Crown to any liability provided the matters or things were done in good faith, for the purposes of executing the Principal Act or any other Act. Schedule 1[5] amends this section to clarify that this protection also covers omissions and Schedule 1[6] extends the protection from liability to members of Community Fire Units. This is consistent with similar provisions in the Rural Fires Act 1997 and the State Emergency and Rescue Management Act 1989.

97 The defendant contended that at the time of the alleged offences s 78 did apply to omissions and that the 2005 Explanatory Memorandum sought to clarify this as being the case. 98 The terms of an Explanatory Memorandum are, however, no substitute for a consideration of the subject, scope and purpose of a statutory text and a bald statement in an Explanatory Memorandum regarding intent, without more, cannot take precedence over the words of the statute and their context. 99 The defendant also relied on Vincent in support of the proposition that s 78 applies not only to positive acts but to omissions as well. As the prosecutor submitted, Vincent applied s 46 of the Fire Brigades Act 1909. That provision can be distinguished from s 78 because it provided for exclusion for liability “for any damage caused” rather than for a “matter or thing done”. Damage could be caused by an omission as well as a positive act. It is not surprising in those circumstances, as the prosecutor contended, that there was no debate in Vincent about the applicability of the section to failures or omissions. 100 Having regard to what the High Court said in Newman and Puntoriero, I tend strongly to the view that s 78 did not apply to omissions. I am strengthened in this view by the language used in s 78. A "matter or thing done… for the purposes of executing…" is the language of a positive act to be carried out or implemented for a specific purpose. If one were to approach the interpretation of this phrase from the point of view of its ordinary or natural meaning let alone on a strict interpretative basis, one could not readily conclude it meant a matter or thing omitted to be done. It is difficult to see, in the absence to a specific reference to omissions in the provision, how omitting a matter or thing can be said to be a positive act to be carried out or implemented for a specific purpose. It is unnecessary, however, for me to decide this point because whether the alleged and

admitted failures the subject of these proceedings are matters or things done or omitted to be done, they are not matters or things done or omitted to be done in good faith for the purposes of executing the Fire Brigades Act or any other Act and, therefore I find, do not attract immunity from liability under the Occupational Health and Safety Act. It may be noted that s 6 of the Occupational Health and Safety Act provides:

This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

ELEMENTS OF THE OFFENCES 101 It is necessary that the prosecution prove each of the elements of the offences. The elements of the offence created by s 15(1) that the prosecution must prove beyond reasonable doubt are as follows:

(a) the defendant was an employer at the time of the alleged breach; (b) that there was a risk to employees' health or safety; (c) that there was a causal nexus between the defendant's breach and the risk to employees' safety; (d) that the risk was to employees at work.

See WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35 at [272]; Inspector Campbell v James Gordon Hitchcock [2003] NSWIRComm 148 at [123]; Legge v Coffey (No. 2) (2001) 110 IR 447 at [16]-[17].

102 The elements of the offence created by s 16(1) that the prosecution must prove beyond reasonable doubt are as follows:

(a) the defendant was an employer; (b) there were persons who were not employees of the defendant exposed to risk to their health and safety; (c) the risk arose from the conduct of the defendant’s undertaking; (d) the exposure to risk was at the defendant’s place of work.

See Inspector Page v Woolworths Limited, unreported, Peterson J, 9 September 1994, at 8; CSR Limited t/as CSR Wood Panels v WorkCover Authority of New South Wales (Inspector Reid) (1995) 109 IR 275 at 281 per Bauer J; WorkCover Authority of New South Wales (Inspector Keenan) v TAFE (1999) 92 IR 251 at 257 per Full Bench.

103 The defendant's position was that, subject to the outcome of its submission regarding immunity under s 78 of the Fire Brigades Act, given the admissions it has made it accepts it would be found guilty of the two offences, subject to challenges it has made to a number of the particulars that the prosecutor has pressed. 104 The Court has found that the Fire Brigades Act, and in particular, s 78 does not provide immunity from criminal liability in this case. Given the defendant's admissions, it

must be taken that the defendant has accepted that the elements of each of the offences have been made out. 105 I have considered the elements of the offences in the light of the defendant's admissions and I am satisfied those elements are made out. It follows that given the defendant's failure to convince the Court in respect of the application of the provisions of s 78 of the Fire Brigades Act, the offences under s 15(1) and s 16(1) have been proven. I so find. No defences were raised under s 53 of the Occupational Health and Safety Act. CHALLENGED PARTICULARS 106 It is strictly unnecessary for the Court, in proceedings concerning liability, to consider those aspects of the particulars of the charges that were challenged by the defendant as not having been made out in circumstances where the offences have been proven. However, as the parties have fully addressed this matter and that, inevitably, the Court will be required to consider the nature and quality of the defendant's failures for the purposes of sentencing, it is convenient to deal with the challenged particulars at this stage. 107 Whilst admissions were made by the defendant in respect of a number of the particulars of both charges, the defendant did not admit to all of the particulars or to all aspects of the particulars. For instance, whilst the defendant admitted in respect of the s 15(1) charge that it failed to "maintain" a system of work that was safe and without risks (particular (i)(i)), it did not admit that it failed to "provide" such a safe system of work. 108 Consequently, the particulars challenged by the defendant are as follows:

Section 15(1) charge (i) That the Defendant at all material times:

i. Failed to provide a system of work that was safe and without risks to its employees with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the incident site.ii. Failed to provide a safe work method for use in the fighting of and/or extinguishing a suspected fire in a seed meal storage bin, including but not limited to the cottonseed meal stored in bin D at the subject premises. iii. Failed to provide a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. iv. Failed to provide its employees with any information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants. … … ... … ix. Failed to provide its employees with adequate instructions and training with respect to the use of the “Dangerous Goods – Initial Emergency

Response Guide” book. xi. …

(j) As a result of the abovementioned failures Retained Firefighter Michael Pilton, Retained Firefighter David Pilton, Retained Firefighter Darren Schofield, Retained Firefighter Walter Morris, Retained Firefighter Ronald Jarrett, Station Officer Gary Evans, Firefighter McCall and Firefighter Bear were placed at risk of injury. Section 16(1) charge (i) That the Defendant at all material times:

i. Failed to provide a system of work that was safe and without risks to the health and safety of persons not in its employ with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the site. ii. Failed to provide a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/or fire suppression activities. iii. ... iv. Failed to provide any supervision of non-New South Wales Fire Brigades Personnel, namely members of the staff at Caines Pty Ltd, who were present on the site on the morning of 6th December 1999

(j) As a result of the abovementioned failures Mr Jason Brooker, Mr Jason McKewen, Mr Richard Zambrowski, Mr Nigel Little, Mr Stephen Hipwell and Mr Mark Price were exposed to risks to their health and safety arising from the Defendant’s fire prevention and/or suppression activities at the site.

Failure to provide safe system of work (s 15(1) and s 16(1)) 109 In relation to the s 15 offence, the defendant has admitted that it failed to maintain a system of work that was safe and without risks to its employees with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the incident site. Further, the defendant has admitted that the failure contributed to a risk to the health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. The defendant has not admitted that the failure to maintain contributed to a risk to the health, safety or welfare of any of its other employees who were present at the Caines' Rutherford site on the morning of 6 December 1999, in particular, RF Michael Pilton, RF David Pilton, RF Darren Schofield, RF Walter Morris, RF Ronald Jarrett, SO Evans, FF McCall and FF Bear.

110 The defendant has not admitted that it failed to provide a safe system of work. The prosecution pressed this aspect of the defendant’s failures. Further, the prosecution pressed that the failure to provide and/or maintain a safe system of work contributed to a risk to the health, safety or welfare of firefighters other than those in respect of whom an admission was made. 111 In relation to the s 16 offence, the defendant has made a similar admission as that for the s 15 offence, that is, it failed to maintain a system of work that was safe and without risks. Further, the defendant has admitted that this failure contributed to a risk to the health and safety of the deceased Caines' employees, namely, Robert Anderson, Ronald Brooker and Geoffrey Terry and, as well, Robert Jordan. 112 In relation to the s 16 offence, the defendant has declined to admit that it failed to provide a safe system of work. Further, the defendant has declined to admit that the failure to provide and/or maintain a safe system of work contributed to risks to the health and safety of Caines' employees other than Robert Jordan and those who died. The prosecution pressed both of these aspects of the defendant’s failures. 113 The defendant submitted that the prosecutor failed to prove beyond reasonable doubt that it had failed to provide a safe system of work with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D. But that, in any event, it was submitted, the defendant had provided a safe system of work. In particular, reference was made to a system that provided for annual visits to the Cargill site at Newcastle by the Mayfield brigade. Further, reference was made to the Manual of Firemanship, which, it was contended, acknowledged the procedure of augering out as an appropriate procedure in the circumstances associated with bin D. Reference was also made to the procedures in place within NSW Fire Brigades to conduct drive-bys and site audits to enable the identification of sites on which dangerous goods were handled and/or stored. It was submitted for the defendant that the fact the Caines' site had not been visited for this purpose could be no more than evidence of a failure to maintain a system. 114 As to the prosecutor's submission that the defendant either knew, or should have known, about the relevant risks to its employees and Caines' staff and that the defendant failed to implement any system of work to ensure against these risks, the defendant submitted a major feature of the Caines' site was the unapproved modifications to the silo so as to make it oxygen limiting, a feature in respect of which the defendant could not have been aware. 115 The defendant's position, then, regarding its provision of a system of work was that it was a safe system for the following reasons:

(1) In accordance with standard procedure both Captain Jenkins and SO Evans, on arrival at the site, obtained as much information as they could regarding the site, the product and any unusual or dangerous features of the product. (2) Whilst awaiting the arrival of the HAZMAT Unit, Captain Jenkins directed an evacuation of all known personnel from the immediate area of bin D and then requested further information from Mr Anderson (the site engineer) regarding the product.

(3) It was an established procedure of the NSWFB to seek out technical experts on site at emergencies involving chemicals, plant, equipment, and complex processes. On the basis of information provided by the Caines' personnel with local knowledge and expertise it was entirely reasonable to auger out the contents of bin D. (4) Procedures for fighting silo fires were followed as outlined in the Manual of Firemanship, Part 6C. (5) Procedures were in place to conduct annual visits to plants to assess risks in fighting fires (eg, Cargills). (6) A system of drive bys and site audits was in place to enable the identification of sites on which dangerous goods were handled and/or stored. Information derived from these inspections was added to the Stored Chemical Information Database.

116 Contrary to the defendant's submission, I am satisfied beyond reasonable doubt that the defendant failed to provide a safe system of work. In order for there to be in existence a system of work that is safe and without risk in the context of s 15(1) and s 16(1) there needs to be a scheme or method in place for doing things in an organised or structured way that will ensure the safety of employees and other persons at a defendant's place of work. Whilst the defendant was completely aware of the risks associated with the seed oil extraction process, including the risks of spontaneous combustion and dust explosions associated with seed storage, seedcake and seed meal and whilst there were some indications that the defendant had taken steps to plan in relation to the prevention and/or the fighting of fires in seed oil extraction plants, those steps fell well short of providing a system that was safe and without risk. As the prosecution submitted:

[I]t is the very nature of the defendant's duties under the Fire Brigade Act that means that the fire brigade has to be prepared for all manner of risks for the health and safety of its employees that might arise in the course of its employees' performing fire prevention and fire suppression duties or, for that matter, Hazmat response, pursuant to section 11 of the Fire Brigade Act.

117 As an organisation required to be prepared for all manner of risks, the steps the defendant had put in place for dealing with fires in seed oil extraction plants were ad hoc and in so far as ensuring safety was concerned, ineffective. A safe system of work will not usually come about by accident but will involve investigation and careful planning. Putting in place a safe system of work will involve actively searching out and eliminating, where reasonably practicable, any risks to safety. In my opinion, the defendant had failed to adequately turn its corporate mind to putting in place a safe system with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D. 118 If one considers the approach of Captain Jenkins on the morning of 6 December 1999, he decided his brigade was not competent to deal with the situation and he called in the Hazmat Unit. On one view of it that was a sensible and safe course of action. However, the flaws in the defendant's system for dealing with the situation that existed at the Caines' plant become apparent after the Hazmat unit arrived and SO Evans took

charge. That is not to be critical of SO Evans to the extent he should carry the blame for the defendant's failures to ensure safety. Culpability rests entirely with the defendant. 119 In considering the flaws in the defendant's system firstly, there was no operational guideline in place dealing with the fighting of fires in oil seed processing plants and which informed and guided employees as to the matters that needed to be considered as part of a risk assessment. Secondly, SO Evans had received no training from his employer with respect to fighting fires in silos prior to 6 December and had not received training associated with the particular risks in oil seed extraction plants. Thirdly, contrary to the assertions made by the defendant that Captain Jenkins and SO Evans made proper enquiries and carried out a proper risk assessment on the morning of the incident, it is evident this did not occur. 120 A competent risk assessment would have:

(1) Caused closer inquiry to be made about what was in bin D. On the one hand SO Evans and Captain Jenkins had been provided with an MSDS describing a relatively inert substance - unused tonsil activated clay. No reference was made in the MSDS to any of the spontaneous combustion characteristics associated with the clay once used. On the other hand, the two officers were advised that bin D contained vegetable matter that was spontaneously combusting. What was in fact in the bin was seed meal capable of spontaneously combusting and giving off pyrolytic gases or vapours, combined with a quantity of spent tonsil activated clay which was also spontaneously combustible under given circumstances and when heated will give off pyrolytic gases. It may be that the correct knowledge of the contents of bin D would have made no difference to the course of action ultimately taken. Then again, it could have influenced the officers to take another course of action such as injecting inert gas into the bin and sealing it off. In any event, no system was in place to ensure the content of the bin and its properties were properly identified and, consequently, no proper assessment was made of the potential for the bin's contents to cause an explosion. (2) Considered the circumstances of the Caines' employees. As it was, no consideration was given to the complete lack of personal protective equipment for Caines' employees who remained within the plant, no assessment was made of the need to supervise the Caines' employees and no warnings were issued to Caines' employees about the risks of fire or explosion in circumstances where no inquiry was made of the employees as to their firefighting training and plans in the event of an emergency. This contrasts with the following directions issued by the defendant after 6 December 1999 with respect to the “[u]se of non-operational personnel at emergency incidents":

1 Exclude all non-operational staff from the identified combat zone. 2 The Incident Controller should avoid using non-operational personnel in any area where they might

be subjected to danger, unless their assistance is essential to the management or activities of the incident. 3 Record and monitor the attendance, location and activities of any non-authorised operational personnel. 4 The function of any authorised non-operational personnel must be clearly defined and understood by all members of the Incident Management Team. 5 Ensure that non-operational personnel who need to enter a combat zone are accompanied and kept under close supervision. 6 The Incident Controller should ensure that if assistance of non – operational personnel within the combat zone is essential, steps must be taken to ensure that they do not enter areas where personal protective equipment (PPE) is required. If, however, it is essential that they enter such areas, an appropriate level of PPE must be provided and worn by the non-operational personnel, commensurate with the PPE worn by operational firefighters in the same area. NOTE: It is preferable that non-operational personnel provide their own PPE. However, if their PPE is inadequate, the Incident Controller must either exclude them from the combat zone or provide NSWFB PPE to them. 7 Once non-operational personnel have completed their specified task(s) they must be immediately withdrawn from the Combat Zone.

(3) Revealed there was a readily accessible staircase that would have given access to the top of the bins where testing for gases could have been conducted and assistance gained in determining whether or not bin D was of the oxygen limiting type or whether gases could build up in the headspace of the bin and represent a potential explosion. In this latter respect, no inquiry was made of Caines' staff as to whether bin D was of the oxygen limiting type or whether it was of such a design that combustible gas could build up in the headspace. The evidence was that bin D was not of the oxygen limiting type. (4) Revealed the lack of any dust mitigation systems in the plant and the consequent potential for a dust explosion. In particular, in deciding to turn on the auger and transportation system in order to

transfer the material from bin D to the truck, no assessment was made for the potential for the material in the bin to cause a fire in the transportation system, especially the bucket elevator where there was the potential for large amounts of flammable dust to build up. (5) Revealed that Caines had no plan or proper systems in place for dealing with spontaneous combustion in a bin and staff had received no training in that respect. This would have been sufficient to put a properly trained incident controller on notice that caution would need to be exercised about taking advice from Caines' staff in respect of dealing with spontaneously combusting material in bin D.

121 SO Evans decided, without dissent from Captain Jenkins because Captain Jenkins did not have the necessary training or experience to contend otherwise, that he would empty bin D of its contents by using the auger at the bottom of the bin. That was done, not on the basis of any training or procedure laid down within the defendant's operational guidelines, but rather on the basis of advice from Mr Anderson that this was the usual way of dealing with the problem. But as Mr Cahill for the prosecutor, submitted:

This was not a usual situation, as was conceded by officer Evans; this was the first time the fire brigade had been called out to the site to deal with fire or heating in a bin. This was not a usual situation, this was an unusual situation, a most unusual situation, the fire brigade being called out in the early hours of Monday morning; the plant closed down; Mr Jordan and Mr McKewen having identified significant heat, strong odour in the area of bin D and, indeed, utilising a gas leak detector, which detected hydrogen reading; on their evidence it sent the gas detector off its dial.

122 The circumstances called for an independent assessment of the appropriate course of action, yet there was no system requirement to conduct a comprehensive risk assessment and nothing in the form of an adequate checklist to address the peculiar features of a fire in an oilseed processing plant. Instead, Mr Anderson's inexpert advice to use the auger to empty bin D was followed by SO Evans without critical assessment, which is perhaps unsurprising given the absence of training in silo-specific fire fighting. 123 I note that the Manual of Firemanship recommends that in the case of a grain fire in a bin that it "be worked out" through the hoppers so as to remove the fire. The Manual also states, however, that when working out hoppers from the bottom it must be borne in mind that there is a possibility of a dust explosion occurring within the bins and that this may occur though the pressure of flammable gas from the slow combustion in the grain, or through the sudden collapse of the grain while being worked out. No consideration appears to have been given to this eventuality. 124 As the prosecutor submitted, the failure to conduct an assessment of the relevant risks contributed to the risk of an explosion because there was a failure to identify risks that would have become apparent if such an assessment had been conducted, rather than relying on advice from Caines' staff who were ill-equipped to give such advice. The risks included the following:

(1) Unloading of the bin via the auger system caused clouds of flammable dust to form within bin D which, had they come into contact with a source of ignition, could have resulted in a dust

explosion within bin D. Mr Pearson stated: Alternatively, if there was sufficient oxygen in the silo, then there is an explosion risk to the clouds of flammable dust produced as unstable piles of meal periodically collapsed due to it being drawn out via the augers from underneath. Cottonseed meal is known to be an explosive dust [footnotes omitted]. Again, if any suitable ignition source was available, for instance as the smoldering (sic) mass was uncovered, then an explosion could occur. (Supplementary Report: Caines Fire & Explosion on 6/12/99”, TestSafe Australia, 25 August 2006, at 23).

As the prosecutor submitted, drawing on information contained in the Manual of Firemanship and Firefighting Training Manual:

It was well within the knowledge of the Defendant that there was a need for “special care” when dealing with fires such as the fire in Bin D “since in many cases a slight disturbance is capable of causing the upper layer to fall into the cavity which has been burned away, and this might give rise to a minor explosion … this might in turn disturb further dust and create a major one”. It was well within the knowledge of the Defendant that care should be taken to avoid disturbance of the heap.

(2) Unloading of the bin via the auger system caused clouds of flammable dust to form in areas in and around the auger system and the truck into which the cottonseed meal was unloaded. In particular, “clouds of flammable dust were formed and maintained for considerable periods of time, within the main bucket elevator and … near the chute above the truck” (Pearson, R D, “An investigation of a Fire and Explosion in a Cottonseed Meal Silo at Caines Pty Ltd, Rutherford, NSW, 6 December 1999”, TestSafe Australia, 21 August 2000, at 38). The fire in the silo was still active at this time. Small nuggets of burnt and burning meal were being dropped through these clouds of flammable dust. There was a “serious risk” that these clouds of flammable dust could be ignited by the burnt and burning meal.

(3) Had a dust explosion occurred within the main bucket elevator or near the chute above the truck, the accumulation of dust caused by poor housekeeping in and around the receival bay created a further risk that the explosion or fire would propagate to other parts within the plant. Mr Pearson stated:

According to reference 82 [“Expert advises on avoiding explosions in grain silos”], bucket elevators draw in large amounts of air and material and the revolving buckets and agitate the mixture, producing a highly combustible cloud of dust particles. In addition, over a recent 10-year period there were 148 grain elevator explosions, 56% of which were believed to be caused by the bucket elevators. Unloading the meal also caused small nuggets of burnt and burning meal to be moved through augers, a bucket elevator, and finally through a chute falling through the air into the back of a truck. Because this process produces clouds of dust within the elevator, augers and rear of the truck for sustained periods, and a potential ignition source was present, then any ignition could have propagated back into the silo initiating a dust or gas explosion. For the reasons given above, unloading the meal significantly increased the risk of an explosion (Supplementary Report: Caines Fire & Explosion on 6/12/99, TestSafe Australia, 25 August 2006, at 23-24).

125 What, of course, proved to be a fatal error was the removal of the inspection hatch at the base of bin D. This action appears to have been the immediate cause of the explosion. When the plate was removed, there was an influx of fresh air that caused the sources of ignition within the bin to flare up. At the same time, the fresh air mixed turbulently with the more buoyant, fuel-rich gaseous air within the bin causing the gas/air concentration to be lowered to within flammable range. The explosion was ignited when this flammable mixture came into contact with smouldering meal within the bin, which had become more exposed as a result of the unloading of the bin via the auger system: see Mr Pearson's Report, “An investigation of a Fire and Explosion in a Cottonseed Meal Silo at Caines Pty Ltd, Rutherford, NSW, 6 December 1999”, TestSafe Australia, 21 August 2000, at 30-31, 38, 39; and Inspector Pentony's Report, “Post Incident Analysis: Explosion & Fire at Caines Pty Ltd, Rutherford NSW”, 6 April 2000, at 9.

126 The defendant was aware of the potential for ignition of gases caused by an inrush of air and of the importance of ensuring against the risk of an explosion that might be caused by an inrush or air when unloading bin D. However, extraordinarily, SO Evans said he was not aware of the hazard associated with introducing oxygen into the headspace of a silo with spontaneously combusted material inside. 127 In the absence of:

(1) any operational guideline dealing with the peculiarities of fighting of fires in oil seed processing plants; (2) adequate training of SO Evans, Captain Jenkins and other employees of the defendant with respect to fighting fires in silos prior to 6 December including an absence of training associated with the particular risks in oil seed extraction plants; (3) a requirement to conduct a comprehensive risk assessment, the lack of which created serious risks to employees of the defendant and staff of Caines; (4) SO Evans having knowledge of the hazard associated with introducing oxygen into the headspace of a silo with spontaneously combusted material inside; it is impossible to come to any conclusion other than that the defendant failed to provide a safe system of work. The lack of knowledge and training displayed by SO Evans, an officer commanding a Hazmat unit, in respect of the circumstances confronting him on 6 December 1999 is telling. In an interview carried out by Inspector Mayo-Ramsay on 5 July 2000, the following exchange occurred between the Inspector and SO Evans:

Q48. What training have you received in fighting fires in silos? A48. Specifically none. Q49. What safety precautions does the NSW Fire Brigades have in place to fight silo fires? A49. Specifically none. Q50. Were the firefighters under your control on the day of the incident, trained in fighting fires in silos? A50. Not specifically.

The defendant cannot claim it provided a system of work that ensured safety when one of its officers in such a key firefighting role simply had not been provided with the necessary training and knowledge to deal with the situation. And where,

as a consequence, SO Evans relied, uncritically, on the advice of Caines' staff who were, themselves, manifestly without the necessary knowledge, experience, equipment and skill to offer the advice.

128 I note the evidence of Commissioner Mullins that: 9. Given the diversity of the types of situations that firefighters can be called upon to handle, it is not possible to train in depth for every conceivable type of situation. 10. Training is aimed at instilling proficiency in the most common types of incidents attended, for example structure fires and motor vehicle accidents, and taking a structured risk management approach to other less frequent and sometimes complex incidents. Training also includes competencies such as the use of breathing apparatus, search and rescue, and locating fires in circumstances where visibility and access are often restricted.

129 I also note that no defence was offered under s 53 of the Act that it was not reasonably practicable for the person to comply with the provision of s 15(1) and s 16(1), or that the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the defendant to make provision. Moreover, I do not accept that a "structured risk management approach" was taken by the defendant at the Caines' site on 6 December 1999. 130 It was contended by the defendant that in terms of applying its system of work it was handicapped in being able to do so because of inadequate fire protection procedures and facilities at the Caines' site, giving rise to inherent hazards. This may have been so, but so apparent were the deficiencies at the site it should have provided a cautionary signal to SO Evans in deciding how best to proceed in dealing with the situation. If an adequate and safe system of work had been provided by the defendant the plant's deficiencies, and the risk they represented, would have become quickly apparent. 131 That local brigades may have carried out annual familiarisation visits or inspections of Cargill's plants does not amount to evidence of providing a safe system of work in respect of the fighting of fires in seed extraction plants generally. It simply means that local brigades responded to an invitation by Cargill to carry out the inspections. None of the information or expertise that may have been gained from these visits went beyond the local brigades. Indeed, Mr Mullins gave evidence that:

[It] was a deficiency in our brigade exercise program as we called it for pre-incident planning as we call it now. Information gained by local stations remained usually in paper form at the station and was not disseminated throughout the brigades. The new system we’re implementing is using templates on computer, they can be placed on CD, can be placed on the Intranet and disseminated throughout the brigades.

132 Whilst some policies, procedures and information on the fighting of fires in seed extraction plants did exist within the defendant's operations (the Manual of Firemanship; NSW Fire Brigades Station Officer Syllabus; the course outline for NSW Fire Brigades BA and HAZMAT course; the BA/HAZMAT Technicians Manual; NSW Fire Brigades Training Manual, and, other relevant available information (eg, Emergency Preplanning and Firefighting Manual – A Guide for Grain Elevator Operators and Fire Department Officials, March 1987 (a US publication)), there was no translation of this material into a

functional, coherent system of work where specific operational guidelines and training were provided throughout the Brigade's operations; it remained no more than a paper system scattered throughout a variety of manuals until after the incident of 6 December 1999 when the Caines' fire and explosion obviously caused the defendant to review its capability for dealing with fires in oil seed processing plants and to put in place appropriate measures. 133 The reason for an absence of such a system of work at the time of the incident is not readily apparent, although I note Commissioner Mullins' evidence that it was "relatively uncommon for the NSWFB to be called to silo fires..." 134 The defendant did have in place prior to 6 December 1999 a system of “drive bys” and “site audits” to enable the identification of sites on which dangerous goods were handled and/or stored. Information derived from these inspections was added to the Stored Chemical Information Database. Besides falling well short of providing a safe system of work for dealing with fires in oil seed processing plants, resources were not made available to retained fire brigades for undertaking drive bys and site audits until after the incident on 6 December 1999. Consequently, no drive-by or site audit had taken place in relation to the Caines' Rutherford plant prior to 6 December 1999. 135 Whilst, as I have noted, there were elements of a relevant system of work within the defendant's operations, including some policies, procedures and information, there was no coherent system that was capable of being effectively deployed on the ground in the type of emergency that arose at Caines' plant on 6 December. However, even if the elements to which I have referred could be said to constitute a "system" it was, manifestly, not a system of work that was safe and without risks to employees and non-employees. 136 I turn to the question of whether the failures to provide a safe system of work placed the defendant's employees and the employees of Caines at risk. It is beyond reasonable doubt that if the defendant had provided and maintained a safe system of work, which would have included an adequate assessment of the risk and an adequate plan to deal with the circumstances that confronted the defendant's employees on 6 December 1999, the risks to health and safety to the defendant's employees and the employees of Caines could have been avoided. 137 The defendant submitted that the risk to its own employees and employees of Caines did not arise until the time of the explosion in bin D and that it was only certain personnel who were placed at risk because of their location vis a vis the effects of the explosion. The prosecution, on the other hand, submitted the risk existed from the time the defendant's employees arrived at the site and that all personnel present on the site were placed at risk. 138 The situation that existed at the time the Telarah brigade arrived and which still existed when the Hazmat unit and SO Evans arrived, included the following:

(1) The design and construction of the bins did not include venting and/or dust explosion hatches and provision of fixed fire fighting apparatus in the plant was minimal (ie, there were no sprinklers and/or a deluge system); (2) Caines had not developed and/or implemented any safe working procedures designed to deal with the fire and/or explosion

risks inherent in the processes to be conducted in and about the Seed Crushing plant; (3) Spent bleaching earth and cottonseed meal were known to be at risk of spontaneous combustion and to give off gases; (4) There was a strong, unpleasant odour in the vicinity of the storage bins; (5) The side of bin D was extremely hot; (6) The meter of the gas monitor used by Caines' staff to detect hydrogen – a combustible and explosive gas – and hydrocarbons, went “off the dial”.

139 Notwithstanding these conditions, I do not consider there is sufficient evidence for me to find beyond reasonable doubt that the situation existing at the time the defendant's employees arrived at the site exposed them and the Caines' employees to a risk of fire and/or explosion. It would appear that in order for there to have been an explosion the ignition source in bin D would needed to have been powerful enough or there would needed to have been sufficient oxygen in the bin, or both. The evidence does not establish that this was the situation at the time the defendant's employees arrived at the site. 140 The evidence does, however, clearly establish that once the process of emptying bin D commenced there was the risk of an explosion both inside and outside bin D that extended throughout the storage area, the crushing mill and to the receival bay. Mr Pearson described both risks as "potentially extremely dangerous outcome as a result of unloading silo D". Mr Pearson stated in his report:

There would have been clouds of dust produced as the meal collapsed and fell within silo D as it was unloaded. Of particular concern was towards the end of unloading of the hot side of the silo. At this time the smouldering meal was uncovered and the dies of the hopper were hit with iron bars to dislodge any meal hold up on its sloping sides. Therefore it is likely that clouds of potentially flammable dust were in contact with an ignition source. … As the meal was removed from silo D and the smouldering mass of meal was exposed to the silo’s atmosphere, a dust or flammable gas explosion could have occurred at any time. Even a small initial explosion could have disturbed significant quantities of dust at the base of the silo hopper and contributed to a much larger confined dust explosion. This could have caused a catastrophic failure of silo D (Pearson, R D, “An investigation of a Fire and Explosion in a Cottonseed Meal Silo at Caines Pty Ltd, Rutherford, NSW, 6 December 1999”, TestSafe Australia, 21 August 2000, at 32 and 38).

141 Dealing, firstly, with the risk to the defendant's employees. These employees were located in and around the crushing mill, the receival bay and around bin D, at various times, after augering out of the meal commenced. Captain Jenkins directed four retained firefighters to form two BA (Breathing Apparatus) crews to man a charged hose in the

receival bay. One member of each crew was directed by Captain Jenkins to station himself at the top of a ladder located next to the truck in the receival bay with a charged hose for the purpose of extinguishing any burning material augered from bin D, via the crushing plant’s transportation system, into the back of the truck. The other member of each crew was directed to man the ladder. The members of these crews (RF Michael Pilton, RF Schofield, Deputy Captain Morriss and RF Armstrong) were wearing their full turn out uniform and fitted with SCBA (Self-Contained Breathing Apparatus). RF Schofield and RF Michael Pilton took the first shift while Deputy Captain Morriss and RF Armstrong stood by. Deputy Captain Morriss and RF Armstrong relieved RF Schofield and RF Michael Pilton after the low air warning sounded on RF Schofield’s breathing apparatus. 142 In my opinion, by their presence in the receival bay during the augering process, RF Michael Pilton and RF Schofield were exposed to risk as a consequence of the defendant's failure to provide a safe system of work. The defendant has admitted that Captain Jenkins, Deputy Captain Morriss and RF Armstrong were exposed to risk. 143 RF David Pilton assisted his brother, RF Michael Pilton, and RF Schofield, Armstrong and Deputy Captain Morriss, to don breathing apparatus. With Deputy Captain Morriss’ permission, he then left the site to go to his ordinary job as a mechanic. RF David Pilton left the Caines' site at approximately 0500 hours. 144 The evidence about when the augering commenced varied from about 0500 hours to 0540 hours. There is sufficient doubt about RF David Pilton being at the site after the augering commenced. I, therefore, find he was not exposed to risk as a consequence of the failure to provide a safe system of work. 145 RF Walter Morris acted as the breathing apparatus controller. He monitored the breathing apparatus crews including the time they spent in the apparatus. At the time of the explosion, RF Walter Morris was standing immediately adjacent to the Telarah pumper parked adjacent to the doors to the receival bay. When the explosion occurred RF Morriss ran to take cover behind the pumper. He said as he turned he observed "the flame come from within the truck loading bay door." I find RF Morriss was exposed to risk as a consequence of the failure to provide a safe system of work. 146 RF Jarrett stayed with the Telarah Pumper during the entire period from his arrival at the site with other members of the Telarah Fire Brigade until the time of the explosion. He assisted other members of the Telarah Fire Brigade to don breathing apparatus. In the absence of any other evidence, I am unable to find RF Jarrett was exposed to risk as a consequence of the failure to provide a safe system of work. 147 As the meal was being augered from bin D through the auger system and into the truck in the receival bay, FF McCall monitored the temperature of the meal as it came out of the chute in the receival bay. He also monitored the temperature outside bin D. FF Bear assisted FF McCall. Both FF McCall and FF Bear were exposed to risk. 148 SO Evans was moving about the base of bin D and in the receival bay during the augering process. SO Evans was exposed to risk. 149 It was conceded by the prosecution that the fact that some of the officers were

wearing their full fire fighting kit this reduced the risk of injury as a consequence of potential exposure to fire. This was demonstrated by the fact that neither Deputy Captain Morriss nor FF Schofield actually sustained injury as consequence of being engulfed by the fireball. Nevertheless, as the defendant admitted, Deputy Captain Morriss was exposed to risk. If he was exposed to risk so were other officers wearing full kit. These officers could easily have removed their face protection or momentarily removed their gloves at the time of an explosion (cf Captain Jenkins). 150 The size of the fireball, the physical damage sustained to the plant and the injuries sustained by Captain Jenkins and the deceased are evidence of the magnitude and gravity of the risk to which the defendant's employees were exposed. 151 Turning to the Caines' employees, the defendant has admitted its failure to provide a safe system of work exposed the deceased employees and Mr Jordan to risk. No admissions were made in respect of the other Caines' employees. 152 During the course of the morning of 6 December 1999, after the arrival of the Hazmat Unit but prior to the explosion, Jason Brooker, Jason McKewen, Richard Zambrowski, Nigel Little, Steven Hipwell and Mark Price, at various times after augering commenced, all entered the seed crushing mill and the storage bin area unaccompanied, unprotected by proper personal equipment and unsupervised by members of New South Wales Fire Brigades (cf Mr Jordan ascending the stairs to the top of bin D to check the level of meal in the bin). There were no controls in place to prevent any Caines’ employee from entering and moving about the crushing mill, including the area at the base of Bin D whilst augering was in progress. At the time of the explosion Mr McKewen was in the truck in the receival area and Mr Little and Mr Richard Zambrowski were inside the crushing mill adjacent to the base of bin D. Although these two men were only some 4 to 5 metres from the base of bin D at the time of the explosion, they were separated from the area in which Mr Anderson, Mr Booker and Mr Terry were working only by a single skin Colorbond sheet wall that was damaged in the explosion. 153 I am satisfied beyond reasonable doubt that all of the Caines' employees named in the s 16(1) charge were placed at risk as a consequence of the defendant's failure to provide a safe system of work. Failure to provide a safe work method (s 15(1)) 154 It was alleged by the prosecution in the charge under s 15(1) that the defendant failed to provide and/or maintain a safe work method for use in the fighting of and/or extinguishing a suspected fire in a seed meal storage bin, including but not limited to the cottonseed meal stored in bin D at the subject premises. The defendant has admitted that it failed to maintain a safe work method but has not admitted that it failed to provide such a safe work method. The prosecution pressed this aspect of the charge. 155 For the defendant it was submitted:

It beggars belief that the NSW Fire Brigades could be criticised, let alone prosecuted, for the charge that it failed to provide a safe work method in fighting and/or extinguishing a suspected fire in a seed meal storage bin including but not limited to the cottonseed meal

stored in bin D at the subject premises in circumstances of such an disorganised and dysfunctional plant that ignored occupational health and safety requirements and responsibilities even when directed to do so by its insurer. The subject premises were a disaster waiting to happen. To allege that the NSW Fire Brigades somehow failed in its responsibilities under s.15(1), said to be a failure to provide a safe work system, in these circumstances cannot be entertained. Indeed the evidence establishes that the NSW Fire Brigades had such a system. Additionally, the strategy of augering out the material, as determined by the NSW Fire Brigades, had worked. The theories of Mr Pearson… can be put to one side when reference is had to the evidence pertaining to the Caines' site.

156 There are a number of things to be said in response to this submission: (1) That an employer may operate a disorganised and dysfunctional plant from an occupational health and safety viewpoint could not, by itself, be regarded as the basis for relieving the defendant from providing a safe work method for use in the fighting of and/or extinguishing a suspected fire. (2) The poor state of the plant, the absence of any emergency plan and the absence of training of Caines' personnel should have served to highlight the need for an adequate risk assessment before embarking on a course of action to deal with the contents of bin D. (3) The use of the auger to empty bin D may have proceeded without incident but that seemed to be more luck than good safety management. In any event, the important consideration in so far as the auger is concerned is the risks created by its use and these included those risks described earlier in relation to the failure to provide a safe system of work. (4) The evidence establishes the defendant did not provide and maintain a relevant safe system of work.

157 Given my findings in relation to the failure of the defendant to provide a safe system of work, I am satisfied those findings apply equally to the failure of the defendant to provide a safe work method. I am also satisfied beyond reasonable doubt that the same employees that were placed at risk as a consequence of the defendant's failure to provide a safe system of work were also placed at risk as a consequence of the defendant's failure to provide a safe work method Failure to provide a safe work method for the conduct of monitoring for flammable gases (s 15(1)) 158 The s 15(1) charge alleged that the defendant failed to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. The defendant has admitted that it failed to maintain such a safe work method but did not admit it failed to provide that method. The prosecution pressed this aspect of the charge. 159 The defendant submitted there was gas monitoring. It was submitted the evidence

was that FF McCall tested for the presence of, inter alia, carbon monoxide, hydrogen sulphide and lower level explosive limits of any gases in the air using a gas monitor known as a "TMX 412". After testing for approximately five minutes FF McCall found that the area "was clear". 160 The question here is whether the defendant failed to provide a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. The test conducted by FF McCall was carried out just after the auger commenced to be used and only for about five minutes. That was the extent of testing by the defendant for gases in circumstances where Caines' gas leak detector "went off the dial". The reason there was no further testing was that the gas detector was believed to have gone into low battery mode and so FF McCall "just put it back away because we had already checked the area and it was cleared so there was no need to go over it again". 161 Testing for the presence of gas for five minutes in circumstances where previous testing by Caines' staff had indicated the strong presence of gas, where there was a strong odour and where the presence of gas was a reason why Captain Jenkins called in the Hazmat unit did not, in my opinion, amount to the provision and maintenance of a safe work method with respect to the monitoring for flammable gases. It was not as though the lack of continual gas monitoring was caused by an individual’s failure to implement an existing safe work method. There was no procedure that required gases to be continually monitored in the circumstances that presented at the Caines' plant on the morning of 6 December. 162 I note in contrast to the five minutes spent testing for gas, there was almost constant monitoring of the temperature of the bin undertaken by FF McCall and others on the morning of 6 December. 163 I must comment that I find it very difficult to understand how what may only be described as a perfunctory testing for the presence of gas could have been allowed to occur in circumstances where SO Evans noticed a noxious odour that continued to be present after FF McCall put away the malfunctioning gas detector; where there was a very large bin containing combustible vegetable matter; where the bin was very hot; where it would have been known or foreseeable that emptying the bin via the auger would have caused turbulence of gas and dust within the bin; and, where it would have been known or reasonably foreseeable that there was a risk of the build-up of flammable gases and the risk of an explosion. 164 Further, as the prosecutor submitted, the failure to monitor for gas continued even where there were visual indications of the presence of gas, specifically:

(a) when white vapour or smoke was observed to be coming out of the augers; (b) when pale blue smoke came out through the doors at the bottom of bin D; (c) when RF Fatches saw smoke in the auger in the receival bay; (d) when RF Morriss saw blue grey smoke emanating from under the truck in the receival bay (consistent with smoke passing through duct work that

communicated with the boot elevator); (e) when FF McCall saw smoke associated with clumps in the meal.

165 Other evidence supporting a finding that the defendant did not provide a safe work method with respect to the monitoring for flammable gases is as follows:

(1) No monitoring was done from the top of bin D to test the headspace. The TMX 412 gas detector had the capability of testing gases remotely by the use of nozzles. Had a proper assessment been made of the area and had the inspection funnel at the top of the bin been discovered, it would have been possible to insert the gas detector (had it been working) to test the gases in the headspace of the bin. I accept it is likely that tests of the gases in the headspace of the bin would have demonstrated a presence of flammable gases. This would have enabled steps to be taken to have avoided the risk of an explosion. (2) The defendant failed to ensure that FF McCall was properly trained in the use of the TMX 412 gas detector. In particular, the defendant failed to ensure that FF McCall would be alert to the possibility that the fact that it went into low battery mode may have indicated that it was not functioning correctly. SO Evans conceded that the fact that the device went into low battery mode might have indicated, “it was a somewhat more serious problem than a mere flat battery”. (3) SO Evans made no inquiries as to the gas levels at the base of bin D either during the augering process or after it was thought that the meal had been emptied from the bin. In this respect, Mr Pearson stated:

If a single initial measurement indicated the absence of flammable gases, then regular measurements may have provided early warning of their emergence and hence the opportunity to evacuate. (D Pearson, “Supplementary Report: Caines Fire and Explosion on 6/12/99”, TestSafe Australia, 25 August 2006, at 28).

166 The defendant submitted that whilst it was the case that the gas monitoring activity was curtailed, by reason of a battery failure in the TMX 412 gas detector, it was not established that the ultimate explosion that took place, following the removal of the hatch at the base of bin D, was in fact a gas explosion. The preponderance of the evidence it was submitted, was to the contrary and, indeed, suggested that an initial back draft explosion took place with possibly a subsequent dust explosion. 167 My understanding of the evidence, however, including expert evidence of Inspector Pentony, is that the backdraft-initiated explosion started with the gas igniting "and it continued with the gas and the dust burning". Mr Pearson's expert opinion was the explosion was caused by the ignition of gases in the bin and the ignition of dust.

168 I find that the defendant failed to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. 169 In relation to whether the aforementioned failure put employees of the defendant at risk, had the defendant provided a safe work method for the monitoring of flammable gases in bin D and had it conducted a proper assessment of the site including the extent to which access could be have been gained to the inspection funnel on the top of the bin, it is likely that tests of the gases in the headspace of the bin would have demonstrated a presence of flammable gases. This would have enabled steps to have been taken to have avoided the risk of an explosion. In particular, the site could have been evacuated or steps could have been taken to ensure that the augering process was not commenced or if it had commenced, ceased, and that the inspection hatch was not removed. 170 It follows that the defendant's failure to provide and/or maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D placed at risk the following employees of the defendant for the same reasons given in relation to the failure to provide a safe system of work: Captain Jenkins, Deputy Captain Neil Morriss, RF Michael Pilton, RF Darren Schofield, RF Walter Morris, RF Gary Armstrong, SO Gary Evans, FF McCall and FF Bear. Failure to provide its employees with any information about the fire and/or explosion risks (s 15(1)) 171 The defendant admitted that it failed to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants and that this failure contributed to a risk to the health, safety and welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. 172 The defendant did not admit that it failed to provide its employees with any information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants and, consequently, no risk arose in respect of the defendant's employees. 173 The prosecution did not press that the defendant failed to provide any information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants. It did, however, press that the defendant failed to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants and that this failure contributed to a risk to the health, safety and welfare of all Fire Brigade employees at the site including those in respect of whom admissions were made, namely, Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. 174 The prosecutor submitted that as at 6 December 1999, Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong had access to the same information as the other Telarah Fire Brigade officers in relation to whom the defendant has declined to admit that the failure to provide adequate information contributed to the risk to health, safety and welfare. It was submitted there was no evidence that these other firefighters had access to other, better information regarding the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants, than Captain Jenkins, Deputy

Captain Morriss and RF Gary Armstrong. Nor was there any evidence, it was submitted, that Telarah Fire Brigade officers other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong had better access to the Firefighting Training Manual or to the Dangerous Goods – Initial Emergency Response Guide book, which on the evidence was carried on every fire fighting truck in the State of New South Wales at the time of the incident. All Telarah Fire Brigade officers appeared to have had access to the same information, it was submitted. 175 It was further submitted the other employees of the defendant were exposed to the same risks as Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong as a consequence of the inadequacy of the information. The other members of the Fire Brigades who had access to the same information as Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong and who were in and around bin D on the morning of 6 December 1999 were exposed to the same risks as Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong it was submitted. 176 In relation to SO Evans and the Hazmat crew it was submitted the fact that they may have been in possession of more information than members of the Telarah Brigade did not have the effect that this particular was not made out as against the Hazmat personnel. On the contrary, it was submitted, even with the additional information, Hazmat personnel failed to identify the risks. They were equally at risk as members of the Telarah brigade. 177 The defendant's admission in relation to the failure to provide its employees with adequate information about the fire and/or explosion risks inherent in the processes conducted in and about seed oil extraction plants means that there was a failure to provide adequate information not only to those employees who it was admitted were put at risk but the failure extended to all employees. It was not admitted, however, that the failure put at risk employees other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. 178 The defendant's position thus appears to be that whilst employees other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong were not provided with adequate information about the fire and/or explosion risks, they were, nevertheless, not exposed to any risk on 6 December 1999. It follows that if all employees of the defendant were subject to the same disadvantage of not having been provided with adequate information, the reason why it was submitted employees other than Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong were not exposed to risk must be because these other employees were not close enough to the explosion to be exposed to risk. I have already dealt with the issue of when the risk arose and how employees were exposed to the risk. 179 I find that the defendant's failure to provide its employees with adequate information about the fire and/ or explosion risks inherent in the processes conducted in and about seed oil extraction plants exposed the following employees to risk to their health and safety: Captain Jenkins, Deputy Captain Neil Morriss, RF Michael Pilton, RF Darren Schofield, RF Walter Morris, RF Gary Armstrong, SO Gary Evans, FF McCall and FF Bear. Failure to provide information to its employees regarding the risk of spontaneous

combustion in stored seed meal, including cottonseed meal (s 15(1)) 180 The defendant did not admit this failure. The prosecution did not press it. Failure to provide its employees with information regarding the fire and/ or explosion risks associated with the heating and/ or partial combustion of seed meal (s 15(1)) 181 The defendant did not admit this failure. The prosecution did not press it. Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to spontaneously combust, smoulder and give off pyrolytic vapours and gases (s 15(1)) Failure to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating (s 15(1)) 182 The defendant admitted to all aspects of these two failures except that it did not admit that it failed to provide its employees with information about the capacity of seed cake and seed meal to spontaneously combust. The prosecution did not press this aspect of the charge. 183 Further, the defendant admitted that these failures contributed to the risk to health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong. However, the defendant declined to admit that the failure contributed to the risk to the health, safety or welfare of any other firefighter who was present at the Caines' Rutherford plant on the morning of 6 December 1999, namely, RF Michael Pilton, RF David Pilton, RF Darren Schofield, RF Walter Morris, RF Ronald Jarrett, SO Evans, FF McCall and FF Bear. 184 With the exception of RF David Pilton and RF Jarrett, for the reasons given earlier, if the defendant's failures to provide all of its employees with information regarding the chemical characteristics of substances associated with seed crushing plants contributed to the risk to health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Gary Armstrong, the failures necessarily contributed to the risks to which the other employees were exposed. I so find. Failure to provide adequate information, instruction and training to its employees with respect to use of the “Dangerous Goods – Initial Emergency Response Guide” book (s 15(1)) 185 The defendant did not admit to any aspect of this particular of the charge. The prosecution did not press that aspect of the particular relating to the failure to provide information. It did, however, press this particular so far as the defendant allegedly failed to provide adequate instructions and training to its employees with respect to use of the “Dangerous Goods Initial Emergency Response Guide”. 186 It was put by the defendant that the prosecutor’s submissions on this particular come down to allegations that, because NSW Fire Brigade officers were not provided with

sufficient information, by way of using the Emergency Response Guide, they were subjected to the risk of an explosion. It was observed by the defendant that all of the evidence points to the fact that the explosion occurred because the hatch at the base of bin D was removed and nothing else. 187 Undoubtedly, the removal of the hatch was the immediate cause of the explosion. But a focus on the immediate cause of an incident is too narrow. The inquiry under s 15(1) and s 16(1) needs to focus on the employer's acts or omissions and whether those acts or omissions caused employees, and those to whom the employer owes a duty of care under s 16(1) of the Act, to be exposed to risks to their safety, health or welfare. 188 In the present case, the prosecutor has made multiple allegations that by its acts or omissions the defendant failed to ensure the safety of its own employees and the employees of Caines. The defendant has admitted to a number of the acts or omissions and has admitted these acts or omissions caused certain personnel to be placed at risk in terms of their health and safety. 189 Regardless of the fact the hatch was removed the defendant's employees and the employees of Caines were still exposed to risk from an explosion and/or fire from the moment the auger began to operate because of the defendant's failures to ensure safety. In the circumstances that presented on 6 December 1999 the auger should not have been started up, let alone the hatch on bin D removed. 190 The defendant's proposition that the explosion occurred because the hatch at the base of bin D was removed and nothing else, entirely misses the point of the inquiry. It is not what caused the explosion but what caused the risk of the explosion. Similarly, in respect of the allegation that the defendant failed to provide adequate instruction and training to its employees with respect to use of the Emergency Response Guide, the question is not whether this failure caused the explosion but rather whether it caused the personnel the subject of the charge to be placed at risk. It is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question is whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way" see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 at [49]-[50]. 191 The defendant went on in its submission to contend that the evidence only demonstrated that there was a lack of knowledge about how to use the Guide. The example given by the prosecutor it was noted, was that FF Bear only had limited training in the use of the Guide. The defendant noted the further allegation by the prosecutor to the effect that the officers failed to consult the guide for the purposes of developing a strategy for use at the Caines' site on the morning of 6 December 1999. The defendant submitted (references omitted):

Remembering that the particular of the charge is that the NSW Fire Brigades failed to provide adequate instruction and training, inter alia, with respect to the use of the Dangerous Goods – Initial Response Guide book, and indeed (sic) such submissions [officers failed to consult the guide], are irrelevant to the charge as here particularised. Against the background that Station Officer Evans was provided with the MSDS for the product on 6th December

1999 (viz: being non-combustible) and he having made inquiries (electronically) regarding cottonmeal and cottonseed meal, no issue arises for the purposes of this particular of the charge as to why Station Officer Evans did not have regard to the contents of the Emergency Response Guide book. More particularly Station Officer Evans, based upon the information with which he was provided at Caines on 6th December 1999, had not been informed that a dangerous good was involved. In all events the relevant guide book was available to operational firefighters at the Caines site on 6th December 1999 and, in those circumstances, this particular charge is not made out. All officers knew the guide book was available and were trained in its use.

192 It is unnecessary for me to describe in any detail how the Emergency Response Guide worked except to say I am satisfied that any person trained in its use would have been warned, had they consulted the Guide, that the matter in bin D, an organic solid, which was known or suspected to be spontaneously combusting, was classified as a dangerous good. According to the Guide the fire and explosion hazards associated with spontaneously combustible matter: · May ignite on contact with air, moist air or water · May react vigorously or explosively on contact with water · May produce flammable, poisonous and/or corrosive gases on contact with air, moist air or water · May re-ignite after fire is extinguished · Fire will produce irritating, poisonous and/or corrosive gases · Containers may explode when heated. · Runoff may create multiple fire or explosion hazard · May decompose explosively (D) when heated or involved in a fire. · May be kept in a protective medium. 193 The section of the Guide relating to evacuation stated:

When any large container (including rail and road tankers) is involved in a fire, consider initial evacuation for 800m in all directions.

194 If the reader had looked up “Self-Heating Solid, Organic” of the Guide the reader would have been advised under the heading “Fire or explosion”: · Exposure to air will lead to spontaneous combustion. · Burn rapidly · May re-ignite after fire is extinguished. · Fire may produce irritating, poisonous and/or corrosive gases. · Containers may explode when heated. · Runoff may create multiple fire or explosion hazard · Some may decompose explosively (D) or polymerise violently (P) when heated or involved in a fire. 195 Copies of the Guide were kept in all Fire Brigade vehicles including the Telarah Fire Brigade vehicle and the Hazmat vehicle that attended the Caines' site on 6 December 1999.

196 Both SO Evans and Captain Jenkins were aware that there was cottonseed meal (and tonsil activated clay) in bin D, Captain Jenkins knew the contents of the bin were spontaneously combusting, SO Evans conceded he knew the contents were combusting. Therefore, it must have been understood the material in bin D was likely to have been giving off some form of gas. SO Evans checked available databases on his laptop computer that provided information on chemicals and hazardous materials but the databases did not provide any information on cottonseed meal. SO Evans did not consult the Guide (nor did any other officer) because it was submitted he was not informed that a dangerous good was involved. 197 SO Evans may not have been told a dangerous good was involved but it seems to me that spontaneously combusting vegetable matter giving off gases in a large bin would squarely raise a question in the mind of a properly trained fire incident controller about the properties of the vegetable matter and, indeed, it did because SO Evans searched, unsuccessfully, for more information regarding cottonseed meal. 198 Not being any the wiser through the electronic search, it is arguable that if SO Evans and Captain Jenkins had received adequate training and instruction on how to use the Guide, they would have consulted it in order to determine if the matter in bin D was classed as a dangerous good and, if so, what hazards it presented. Conversely, if SO Evans and Captain Jenkins had not received adequate training and instruction on the Guide and its use, it is unlikely that they would have consulted the Guide. And, indeed, this was the thrust of the prosecutor's submission. 199 However, this is largely conjecture and I am of the opinion that the prosecutor has not established beyond reasonable doubt that the defendant failed to provide adequate instruction and training to its employees with respect to use of the “Dangerous Goods – Initial Emergency Response Guide” book. The onus was on the prosecutor to prove there was a failure to provide adequate instruction and training in relation to the Guide and there was no such proof beyond reasonable doubt that two key officers - SO Evans and Captain Jenkins - had not been provided with such training and instruction. There is no direct evidence that SO Evans, in particular, was not provided with adequate training, and too much scope for speculation as to why he did not consult the Guide, to conclude beyond reasonable doubt that it was because he was not provided with adequate training and instruction. 200 I find that this particular was not made out. Failure to provide adequate information and training to Fire Brigades officers with respect to identification of dangerous goods (s 15(1)) 201 The defendant did not admit to any aspect of this failure. The prosecution did not press it. Failure to provide such supervision of the incident site as was necessary to ensure the health and safety at work of its employees whilst undertaking firefighting activities at the Caines site (s 15(1)) 202 The defendant admitted this failure. Further, it admitted that the failure contributed to the risk to the health, safety or welfare of Captain Jenkins, Deputy Captain Morriss and RF Armstrong. The defendant declined to admit that the failure contributed to the health,

safety or welfare of any other Fire Brigades officers, namely, RF Michael Pilton, RF David Pilton, RF Darren Schofield, RF Walter Morris, RF Ronald Jarrett, SO Evans, FF McCall and FF Bear. The prosecution pressed this aspect of the charge. 203 RF David Pilton was not placed at risk because, as I found earlier, there is reasonable doubt he was present when the risk arose and I am not satisfied RF Jarrett was exposed to risk. In so far as other employees of the defendant were concerned, there was an obligation upon SO Evans as incident controller to provide the necessary supervision to ensure health and safety. He had authority to “take such measures as the officer thinks proper for the protection and saving of life and property and for the control and extinguishing of the fire” (s 13(1)(a) of the Fire Brigades Act) and he had authority “to control and direct the operations of any fire brigade”. In respect of the employees other than RF David Pilton and RF Jarrett, each of them, for the reasons earlier provided, was put at risk of injury from fire and/or explosion. There was a failure by the defendant to provide the relevant supervision to ensure the health and safety at work of its employees whilst undertaking firefighting activities at the Caines' site on 6 December 1999. Failure to provide and/or maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities (s 16(1)) 204 The defendant admitted that it failed to maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. Further, it admitted that this failure contributed to the risk to the safety of the deceased members of the Caines' staff, namely, Robert Anderson, Ronald Brooker and Geoffrey Terry and, as well, Robert Jordan. 205 The defendant did not admit that it failed to provide a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. Nor did the defendant admit that its failure to either provide or maintain a safe work method statement regarding the use of non-Fire Brigades personnel, contributed to a risk to the health and safety of Caines' staff other than the deceased and Robert Jordan. The prosecution pressed both of these aspects of the charge. 206 As the prosecutor submitted, there was no evidence that at any time prior to 14 September 2001 (when the defendant developed and promulgated a protocol entitled “Use of non-operational personnel at emergency incidents”), there was anything other than an unwritten custom or practice about the use of non-Fire Brigade personnel. There was no evidence that, as at 6 December 1999, the defendant had any document delineating the circumstances in which non-Fire Brigades personnel should and should not be used in fire prevention and/or fire suppression activities. And there was no evidence that the defendant was not in a position to provide the type of directions or guidelines set out in this protocol prior to the subject incident. 207 I accept the following submission put by the prosecutor:

If the Defendant had a safe work method, such as the protocol published in September 2001, regarding the use of non-Fire Brigades personnel as at 6 December 1999, it is more likely that both Captain Jenkins and SO Evans would have taken steps to define “a combat zone” or danger area [ie the area in which fire prevention/fire suppression activities were taking place and areas

of danger emanating there from]. The evidence indicates that neither SO Evans nor Captain Jenkins took steps to define a “fireground”, “combat zone” or danger area from which non-operational staff were excluded. If a protocol of the type referred to above had been in effect, it is likely that SO Evans and Captain Jenkins would have more carefully controlled access to the crushing mill areas with a view to excluding non-operational staff from the crushing mill area, including the Mill itself, the receival bay and the area around the base of the storage bins. Further, it is more likely that Captain Jenkins and SO Evans would have issued clear directions to Mr Anderson that Caines' employees were not to be allowed within the vicinity of Bin D unless accompanied by a firefighter and kept under close supervision… … a safe work method statement regarding the use of non-Fire Brigade personnel would have made it more likely that those Caines' employees who were permitted access to the crushing mill in the vicinity of Bin D were appropriately attired in personal protective equipment. This would have significantly reduced the risk to the safety not only of Messrs Anderson, Brooker and Terry but others who were in the crushing mill at the time of the explosion, namely, Robert Jordan, Mark Price, Steven Hipwell and Richard Zambrowski. The fact that Deputy Captain Neil Morriss was able to survive the explosion with no physical injuries despite being engulfed by the fireball, demonstrates the importance of a safe work method statement that is designed to ensure that all personnel on the fireground are appropriately attired.

208 As I earlier found, each of the named Caines' employees were exposed to risk from the time the augering commenced because of their location within the plant vis a vis the reach of the explosion and being without proper personal protective equipment. In my opinion, the failure to provide a safe work method statement was causally connected to the risk to which Caines' employees were exposed. Failure to maintain strict control of the site and failure to control the access of Caines employees to areas that were liable to be and were affected by the explosion and fire emanating from Bin D (s 16(1)) Failure to provide any or any adequate supervision of Caines employees who were present on the Caines site prior to the explosion on 6 December 1999 (s 16(1)) The Defendant allowed Caines employees to enter areas of the seed crushing mill and its surrounds whilst unaccompanied and unsupervised by appropriately trained employees of the Defendant (s 16(1)) The Defendant allowed Caines employees to act independently of the fire prevention and/or fire suppression activities that were being conducted at the site by employees of the Defendant (s 16(1)) The Defendant failed to ensure that Caines employees were fitted with proper personal protective equipment prior to being permitted access to area of the site in which they were exposed to risks of injury from fire and explosion (s 16(1))

209 The defendant admitted all aspects of the foregoing failures. Further, the defendant admitted that these failures contributed to a risk to the safety of the deceased and to Robert Jordan. The defendant declined to admit that these failures contributed to a risk to the health and safety of Caines' staff other than the deceased and Robert Jordan. The prosecution pressed this aspect of the failures. 210 Putting aside the overlap that appears to be present between at least some of the failures, I am satisfied that all of the Caines' employees named in the s 16(1) charge were placed at risk by the foregoing failures. Each of the named employees was exposed to risk once the auger commenced to operate for the reasons given earlier. Each of the foregoing failures contributed to the fact that the employees were in a location in the plant without proper personal protective equipment such that they were exposed to the risk of injury from explosion and/or fire. CONCLUDING STATEMENT 211 As I found at [105], the defendant has been unsuccessful in its reliance on s 78 of the Fire Brigades Act and it does not have immunity from liability under the Occupational Health and Safety Act in respect of the charges laid against it in these proceedings. Further, that the elements of each of the offences have been made out and, consequently, the offences under s 15(1) and s 16(1) have been proven. 212 Matter Nos IRC 768 and 769 of 2005 are listed for directions at 9.30 am on Friday 17 November 2006 for the purpose of setting a time and date to hear submissions on sentence and costs.

______________________________ - 112 -

ANNEXURE A Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right

of New South Wales (New South Wales Fire Brigades)

PROSECUTOR’S LIST OF DOCUMENTS

TAB DOCUMENT DATE LOCATION

VOLUME 1

Witness Statements, ROIs & Transcript

1 ALEXANDER, Robert – NSWFB Statement 12/04/2000

2 ALEXANDER, Robert – Statement 22/08/2000

3 ALEXANDER, Robert Gregory – Inquest Transcript

30/04/2002

4 ALEXANDER, Robert – 20 photos taken by

5 ALEXANDER, Robert – 14 photographs taken by

6 ALEXANDER, Robert – Definition of terms

7 ARMSTRONG, Gary – NSWFB Statement 19/03/2000

8 ARMSTRONG, Gary – WorkCover ROI 22/06/2000

9 ARMSTRONG, Gary – Inquest Transcript 08/10/2001

10 BEAR, Scott Anthony – NSWFB Statement 16/03/2000

11 BEAR, Scott – WorkCover ROI 22/06/2000

12 BEAR, Scott Anthony – Inquest Transcript 11/10/2001

13 BROOKER, Jason – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

14 BROOKER, Jason Phillip – Police Statement 09/12/1999

15 BROOKER, Jason Phillip – WorkCover Statement

22/02/2000

16 BROOKER, Jason Phillip – Inquest Transcript

17/09/2001

17 BROOKER, Jason Phillip – Inquest Transcript

09/04/2002

18 CHAMMINGS, David – Statement 17/09/2001

19 CHAMMINGS, David Vern – Inquest Transcript

10/04/2002

20 EVANS, Garry James – NSWFB Statement 22/12/1999

21 EVANS, Garry James – WorkCover ROI 05/07/2000

22 EVANS, Gary- Summary of training 22/07/2000

23 EVANS, Gary James – Inquest Transcript 29/08/2002

24 EVANS, Gary James – Inquest Transcript 30/08/2002

25 FATCHES, Douglas Bruce – NSWFB Statement

17/03/2000

26 FATCHES, Doug – WorkCover ROI 23/06/2000

27 FATCHES, Douglas Bruce – Inquest Transcript

05/10/2001

28 FATCHES, Douglas Bruce – Inquest Transcript

08/10/2001

VOLUME 2

29 GIBBONS, Douglas – WorkCover Statement 22/08/2001

30 GIBBONS, Douglas Edward – Inquest Transcript

11/04/2002

31 HALL, Daniel Thomas – Police Statement 10/01/2000

32 HALL, Dan – WorkCover ROI 18/02/2000

33 HALL, Daniel Thomas – Police Statement 21/09/2000

34 HALL, Daniel Thomas – Inquest Transcript 21/09/2001

35 HALL, Daniel Thomas – Inquest Transcript 24/09/2001

36 HALL, Daniel Thomas – Inquest Transcript 25/09/2001

37 HIPWELL, Stephen – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

38 HIPWELL, Steven John – Police Statement 09/12/1999

39 HIPWELL, Steven John – WorkCover Statement

22/02/2000

40 HIPWELL, Steven John – Inquest Transcript 19/09/2001

41 HISLOP, Graham – WorkCover ROI 14/06/2000

42 HISLOP, Graham – WorkCover ROI 14/06/2000

43 HISLOP, Graham Douglas – Inquest Transcript

02/09/2002

44 HISLOP, Graham Douglas – Inquest Transcript

03/09/2002

45 HISLOP, Graham – Sketch diagram

46 JARMAIN, Trevor – Police Statement 04/04/2000

47 JARRETT, Ronald Wilfred – NSWFB Statement

16/03/2000

48 JARRETT, Ronald Wilfred – Inquest Transcript

08/10/2001

49 JEFFREY, Ronald – Statement 05/10/2001 don’t have

50 JEFFREY, Ronald – Inquest Transcript 10/10/2001

VOLUME 3

51 JENKINS, Ronald – Report of Fire at Lot 10 Garners Road, Rutherford, 06/12/1999

08/05/2000

52 JENKINS, Ronald James – W/C ROI 10/05/2000

53 JENKINS, Ronald James – Inquest Transcript

08/04/2002

54 JENKINS, Ronald James – Inquest Transcript

09/04/2002

55 JORDAN, Robert – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

56 JORDAN, Robert – Police Statement 10/12/1999

57 JORDAN, Robert Gerard – WorkCover Statement

17/02/2000

58 JORDAN, Robert Gerard – Police Statement 27/04/2000

59 JORDAN, Robert Gerard – Inquest 25/09/2001

Transcript

60 JORDAN, Robert Gerard – Inquest Transcript

26/09/2001

61 JORDAN, Robert Gerard – Inquest Transcript

06/09/2002

62 LITTLE, Nigel – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

63 LITTLE, Nigel – Police Statement 10/12/1999

64 LITTLE, Nigel – WorkCover Statement 17/02/2000

65 LITTLE, Nigel Charles – Inquest Transcript 18/09/2001

66 MAYO-RAMSAY, Rosalie – WorkCover Statement

03/08/2000

67 McCALL, Gregory James – NSWFB Statement

16/03/2000

68 McCALL, Greg – WorkCover ROI 22/06/2000

69 McCALL, Gregory James – Inquest Transcript

03/10/2001

70 McCALL, Gregory James – Inquest Transcript

04/10/2001

71 McKEWEN, Jason – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

72 McKEWEN, Jason Scott – Police Statement 10/12/1999

73 McKEWEN, Jason Scott – WorkCover Statement

17/02/2000

74 McKEWEN, Jason Scott – Inquest Transcript

17/09/2001

75 MORRIS, Walter Albert – NSWFB Statement

17/03/2000

76 MORRIS, Walter – WorkCover ROI 23/06/2000

77 MORRIS, Walter – Inquest Transcript 09/10/2001

VOLUME 4

78 MORRISS, Neil Raymond – NSWFB Statement

17/03/2000

79 MORRISS, Neil – WorkCover ROI 22/06/2000

80 MORRISS, Neil Raymond – NSWFB Statement together with 2 photographs

22/08/2000

81 MORRISS, Neil Raymond – Inquest Transcript

08/10/2001

82 MORRISS, Neil Raymond – Inquest Transcript

09/10/2001

83 MULLINS, Gregory Philip – NSWFB Statement annexing: summary of qualifications and experience; Manual of Firemanship, Part 6C, Ch 45, Section 6, “Fires in grains, hops and their derivatives”; Special Incidents SOG (No. 8.2) Fire Fighting Techniques for Silo Fires; Guidelines Support Document (No 8.2), Silo Fires; NSWFB Safety Bulletin 2001/11 – Fires in Silos; Transfer of Control after Incidents; Use of non-operational personnel at emergency incidents”

12/09/2001

84 MULLINS, Gregory Phillip – Inquest Transcript

04/09/2002

85 PILTON, David Colin – NSWFB Statement 19/03/2000

86 PILTON, David Colin– Inquest Transcript 04/10/2001

87 PILTON, Michael John – NSWFB Statement 16/03/2000

88 PILTON, Michael – WorkCover ROI 23/06/2000

89 PILTON, Michael John – Inquest Transcript 04/10/2001

90 PRICE, Mark – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

91 PRICE, Mark Raymond – Police Statement 09/12/1999

92 PRICE, Mark Raymond – WorkCover Statement

17/02/2000

93 PRICE, Mark Raymond – Inquest Transcript 17/09/2001

94 RAYMOND, Neil Joseph – Police Statement 17/01/2000

95 SCHOFIELD, Darren – NSWFB Statement 17/03/2000

96 SCHOFIELD, Darren – WorkCover ROI 23/06/2000

97 SCHOFIELD, Darren – Inquest Transcript 05/10/2001

VOLUME 5

98 WALKER, Robert Bruce – NSWFB Statement

16/03/2000

99 WALKER, Robert – WorkCover ROI 22/06/2000

100 WALKER, Robert Bruce – Inquest Transcript

04/10/2001

101 WALKER, Robert Bruce – Inquest Transcript

05/10/2001

102 ZAMBROWSKI, John – Handwritten statement in Det HOGBIN’s Police Notebook F 216853

06/12/1999

103 ZAMBROWSKI, John Peter – Police Statement

09/12/1999

104 ZAMBROWSKI, John Peter – WorkCover Statement

18/02/2000

105 ZAMBROWSKI, John Peter – Inquest Transcript

18/09/2001

106 ZAMBROWSKI, Richard Jeffrey – Police Statement

10/12/1999

107 ZAMBROWSKI, Richard Jeffrey – WorkCover Statement

17/02/2000

108 ZAMBROWSKI, Richard Jeffrey – Inquest Transcript

19/09/2001

VOLUME 6

Expert Reports & Certificates

1 PEARSON, Robert David – Final Draft of Investigation Report

15/08/2000

2 PEARSON, Robert David, “An Investigation of a Fire and Explosion in a Cottonseed Meal Silo at Caines Pty Lt, Rutherford, NSW, 6 December 1999”, TestSafe Australia

21/08/2000

3 PEARSON, David, “Supplementary Report: Caines Fire & Explosion on 06/12/99”, TestSafe Australia

25/08/2006

4 PEARSON, Robert David – Inquest Transcript

01/05/2002

5 PEARSON, Robert David – Inquest Transcript

02/05/2002

6 PENTONY, Ian, “Post Incident Analysis – Explosion & Fire at Caines Pty Ltd Rutherford NSW”

06/04/2000

7 PENTONY, Ian – Qualifications

1

8 PENTONY, Ian James – Inquest Transcript 02/05/2002

VOLUME 7

Other Documents

1 Photographs taken by Inspector Mayo-Ramsay & Accompanying Index

06/12/1999

2 Photographs taken by Detective Sergeant Raymond (84 photographs)

Photograph number 70 marked “B” and photographs of hoses from MFI “A” (Ex 27) marked “A”

3 Photographs of Caines Pty Ltd plant after modifications

4 Plan—Rutherford Plant Site

5 Various Caines Pty Ltd Site Plans & Drawings

6 Plan drawing of Bin D

7 Site Plan

8 Sketch plans prepared by Caines Pty Ltd employees —Steven Hipwell, Nigel Little, Richard Zambrowski, Jason McKewen, Mark Price, Robert Jordan, John Zambrowski and Jason Brooker.

9 b) Site plan as marked by Greg McCALL

VOLUME 8

c)

10 COPS Event E 13680802 06/12/1999

11 Report of Death to Coroner – R ANDERSON

03/03/2000

12 Autopsy Report – R ANDERSON 30/03/2000

13 Report of Death to Coroner – R K BROOKER

18/12/1999

14 Autopsy Report – R K BROOKER 24/01/2000

15 Report of Death to Coroner – G R TERRY 08/12/1999

16 Autopsy Report – G R TERRY 03/02/2000

17 Material Safety Data Sheet for “Tonsil” range acid bleached bentonite products”

07/1997

18 d) Transcript of meeting at Caines site attended by Mick JOHNSON, Rosalie MAYO-RAMSAY, Neil RAYMOND, Tania [McMCASTER]

19 Material Safety Data Sheets on hand at Caines Pty Ltd

20 Caines Pty Ltd “Housekeeping Inspection Meal & Seed Handling Section – Daily Report Sheet”

21/03/2000

21 Caines Pty Ltd Expeller Cake Results Moisture and oil readings

02/12/1999 06/12/1999

22 WorkCover Authority, Report of analysis of samples supplied by R Mayo-Ramsay on 25/01/2000

28/01/2000

23 Caines Pty Ltd Safety Management Plan 05/11/1999

NSWFB, Basic Hazardous Materials

24 Caines Pty Ltd Riken GH-202F Gas Leak Checker – Operating Instructions

25 Sunrise & Sunset Results 06/12/1999

26 Caines Spent Bleaching Earth Chemwatch Material Safety Data Sheet

04/12/2000

27 Loss Control Guide – Fire and Other Risks (Excluding Motor)

03/1994

28 Zurich Policyholder Property Loss Control Report

13/05/1997

29 Underwriter’s File commencing with Zurich Property Underwriting Risk Assessment Report

13/05/1997

30 Zurich Risk Assessment file 17/04/1997

31 Zurich Policyholder Loss Control Report 18/11/1998

Zurich Survey Report 08/03/1996

32 Email from Bob Wallington to Robert HayesCaines Risk Engineering File No 2

23/11/1999 30/11/1998

33 Zurich Risk Engineer Professional Profile: Andrew Webb

VOLUME 9

34 WorkCover Authority, Code of Practice: Safety Aspects in the design, manufacture and installation of on-farm silos and field bins

02/08/1992

35 e) Caines Cottonseed Meal Chemwatch Material Safety Data Sheet

23/11/2000

36 Australian Standard 2430.2 – 1986 “Classification of Hazardous Areas: Part 2- Combustible Dusts”

37 Extract from BIA-Report, “Combustion and explosion characteristics of dusts”

38 Extracts from Bailey’s Industrial Oil and Fat Products, Vol 1, 4th ed, p 148

39 “Cottonseed and its Products”

40 “The Investigation of Grain Elevator Explosions”

1980

41 “Preventing Fatalities Due to Fires and Explosions in Oxygen-Limiting Silos”

July 1986

42 National Grain and Feed Association, Emergency Pre-Planning & Firefighting Manual

March 1987

43 Prather, T G, “Silo Fires: Prevention and Control Conventional and Sealed Silos”

October1988

44 “News Release: Silo Fires – Costly, Frustrating and Even Deadly”

August 1993

45 NFPA 68 Guide for Venting of Deflagrations 1994 Edition

11/02/1994

46 NFPA 61 Standard for the Prevention of Fires and Dust Explosions in Agricultural and Food Products Facilities 1995 Edition & 1999 Edition

1995 1999

47 United States Fire Administration, The Hazards Associated with Agricultural Silo Fires – Special Report

August 1998

48 C M Fleischmann, “Backdraft Phenomena” November 1993

49 Manual of Firemanship, Part 6C, Chapter 45, Section 8, “Fires in animal and vegetable oils”, pp 180-190

50 Practical Firemanship, Part 6C, Chapter 45, Section 1, “Fires in Dusts”

14/4/2000

51 Fire Protection Handbook, 17th ed, section on “Characteristics of Dust Explosions”, “Deflagration Characteristics of Selected Compatible Dusts”, “Factors influencing Destructiveness of Dust Explosions”, “Material Subject to Self-Heating”, “The Fire Hazard” & “The Explosion Hazard”.

VOLUME 10

52 Newcastle Fire Brigade Printout 06/12/1999

53 NSWFB Incident Report 06/12/1999

54 Standards Australia, Dangerous Goods – Initial Emergency Response Guide, SAA/SNZ HB76:1997

1997

55 NSWFB Silo Fire data 1987-2002

56 NSWFB Standard Operational Guidelines

57 NSWFB drive-by audits

58 NSWFB Log 06/12/1999

59 NSWFB lists of firefighters who responded to Caines site on 06/12/1999 and explanation of codes used in Log

VOLUME 11

60 Telephone message record 0329 hours 06/12/1999 to 0837 hours 06/12/1999

61 Radio messages 0039 hours 06/12/1999 to 2056 hours 07/12/1999

62 TMX412 Gas Detector Operators Manual 14/04/2000

63 NSWFB memo from Perkins to Hamilton dated 22/12/1999 re faulty TMX 412 gas detector NSWFB memo from Hamilton to Johnson dated 3/12/1999 re faulty TMX 412 gas detector

64 Gas detector instructions

65 NSWFB Station Officer Syllabus

66 NSWFB Station program volunteer f/f

67 NSWFB Station drill program permanent f/f

68 Telarah Fire Brigade Training Records

69 Course outline for NSWFB BA and Hazmat course & list of course attendees

70 NSWFB STP2001 Station Training Program Guidelines

71 NSWFB Training Manuals 01.11 and 01.06

VOLUME 12

72 BA/Hazmat Technicians Manual

VOLUME 13

73 NSWFB, Firefighters Training Manual, Vol. 1

VOLUME 14

74 NSWFB, Firefighters Training Manual, Vol. 2

VOLUME 15

75 Caines Thermometer (physical exhibit)

76 Video by NSW Police entitled “Operating Procedures of Caines Factory Lot 10

Gardeners Road, Rutherford” (physical exhibit)

77 CIG – Inert Gas Purging, Carbon Dioxide, Seed Mill Flow Diagram, Operating Instructions for Riken portable gas leak checker

78 Letter from NSWFB to WorkCover re Drive-By Program

79 Dust Explosion Hazards Guidelines and Support Document

80 Extracts from Drysdale, An Introduction to Fire Dynamics (1985)

81 Extracts from Karlsson & Quintiere, Enclosure Fire Dynamics (2000)

82 TMX412 Specifications – Industrial Scientific Corp Website

83 Baker, “Explosion Prevention” (1987), The American Chemical Society

84 Structure Operator’s Manual, Harvestor Systems, AO Smith Harvestore Products Inc

85 Apte & Pearson, “A Report of the Investigation of an Explosion in a Silo at Old Bonalbo NSW on 29 June 1996”, (1997)

86 Bruhn & Kroegel, “Silo Fires – Why & How ?”, International Silo Conference, Ontario

87 Copies of Caines oilseed production records from October 1999 to December 1999

88 Copy of Caines Expeller Plant Flow Sheet – LCO 20/1/001

89 Copy of Caines plant operating procedures

90 A C Wamble & W B Harris, “Recommended standard for operating screw press mills processing cottonseed”, “Texas Engineering Experiment Station, Research Report 47,

91 Caines Pty Ltd, Confined Space Procedures

92 Caines Oilseed Plant, Operating Manual

93 Letter from Michelle Patterson (WorkCover) to Superintendent S W Findley (NSW) Police) dated 13 April 2000 including printout from SCID database

94 Photographs taken during Caines site visits by Pearson and Apte

don’t have

95 Record of conversation between David don’t have

Pearson and Richard Zambrowski

96 Bureau of Meteorology Report for 29/11/1999 to 11/12/1999

97 NSWFB, Basic Hazardous Materials

98 “Expert advises on avoiding explosions in grain silos"

99 K.S. Simon Yu, “Flashover and Backdraught” in Fire Engineers Journal

December 1992

VOLUME 16

f) Documents the subject of objection to tender

1 FLYNN, Daniel Michael – Inquest Transcript

12/04/2002

2 Werner, “4 Firefighters Injured in Silo Blaze”, Firehouse.com website

3 News release regarding silo fires on farm safety publications website www.nraes.org

4 Media report, Maitland Mercury, “Three plant workers fighting for their lives”

5 Media report, The Newcastle Herald, “1000 degree fireball”

6 Media report, The Maitland Mercury, “Plant vigil as second explosion feared”

7 Media report, “Silo fire blamed on hatch” don’t have

8 Copy of communications between Professor B F Gray Combustion and Scientific Consultants and NSW Police regarding proposed testing of oilseed meal

9 Stockton Fire Brigade memo – produced by Cargill on 29/08/2006 don’t have—obtain from first subpoena bundle

10 Cargills Emergency Action Plan January 1997

11 Cargills Emergency Action Plan June 1998

12 Cargills telephone messages etc

ANNEXURE B ADMISSIONS BY DEFENDANT

Matter No IRC 768 of 2005 (a) There is established and, at all material times there was established, pursuant to Section 65 of the Fire Brigades Act 1989 (NSW), a “Department of the Government” of the Crown in the Right of the State of New South Wales with the name of “NSW Fire Brigades”. (b) At all material times the Crown in the Right of the State of New South Wales was an

employer for the purposes of the Occupational Health and Safety Act 1983 (NSW). (c) At all material times a member of a fire brigade was, when acting as a member of that fire brigade, an employee of the Crown in the Right of the State of New South Wales. (d) At all material times the Crown in the Right of the State of New South Wales (NSW Fire Brigades) (“the defendant”) was charged with statutory responsibility for the prevention and extinguishing of fires and protecting and saving life and property in the case of fire in any fire district within the State of New South Wales. (e) At all material times the defendant’s statutory responsibilities for the prevention and extinguishing of fires and the protection and saving of life and property included the prevention and extinguishing of fires and the protection and saving of life and property on premises known as Lot 10, Gardiners Road, Rutherford in the State of New South Wales (“the site”). (f) At all material times the defendant employed the following persons as members of the Telarah Fire Brigade: i. Retained Fire-fighter (RF) Ronald Jenkins, the Captain of the Telarah Fire Brigade (“TFB”); ii. RF Neil Morriss, Deputy Captain of the TFB; iii. RF Michael Pilton; iv. RF David Pilton; v. RF Darren Schofield; vi. RF Walter Morris; vii. RF Ronald Jarret; and viii. RF Gary Armstrong. (g) In addition, at all material times, the defendant employed the following persons as members of the Newcastle Hazmat Unit: i. Station Officer (“SO”) Evans; ii. Fire-fighter (“FF”) McCall; and iii. FF Bear. (h) (i) At all material times, the defendant i. Failed to maintain a system of work that was safe and without risks to its employees with respect to the prevention and/or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the incident site. ii. Failed to maintain a safe work method for use in the fighting of and/or extinguishing a suspected fire in a seed meal storage bin, including but not limited to the cottonseed meal stored in bin D at the subject premises. iii. Failed to maintain a safe work method for the conduct of monitoring for flammable gases in and about the seed-crushing mill, including but not limited to the vicinity of bin D. iv. Failed to provide its employees with adequate information about the fire and/ or explosion risks inherent in the processes conducted in and about seed oil extraction

plants. v. vi. vii. Failed to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to smoulder and give off pyrolytic vapours and gases. viii. Failed to provide its employees with information regarding the chemical characteristics of substances associated with seed crushing plants and, in particular, the capacity of seed cake and seed meal to give off pyrolytic vapours and gases when subjected to heating. ix. . x. xi. Failed to provide such supervision of the incident site as was necessary to ensure the health and safety at work of its employees whilst undertaking fire-fighting activities at the subject site. (j) As a result of the abovementioned failures, Captain Jenkins was placed at risk of injury.

Matter No IRC 769 of 2005

(a) There is established and, at all material times, there was established, pursuant to Section 65 of the Fire Brigades Act 1999 (NSW), a “Department of the Government” of the Crown in the Right of the State of New South Wales with the name of “NSW Fire Brigades”. (b) At all material times the Crown in the Right of the State of New South Wales was an employer for the purposes of the Occupational Health and Safety Act 1983 (NSW). (c) At all material times a member of a Fire Brigade was, when acting as a member of that Fire Brigade, an employee of the Crown in the Right of the State of New South Wales. (d) At all material times the Crown in the Right of the State of New South Wales (NSW Fire Brigades) (“the defendant”) was charged with statutory responsibility for the prevention and extinguishing of fires and protecting and saving life and property in the case of fire in any fire district within the State of New South Wales. (e) At all material times the defendant’s statutory responsibilities for the prevention and extinguishing of fires and the protection and saving of life and property included the prevention and extinguishing of fires and the protection and saving of life and property on premises known as Lot 10, Gardiners Road, Rutherford in the State of New South Wales (“the site”). (f) At all material times the defendant employed the following persons as members of the Telarah Fire Brigade: i. Retained Fire-fighter (RF) Ronald Jenkins, the Captain of the Telarah Fire Brigade (“TFB”); ii. RF Neil Morris, Deputy Captain of the TFB; iii. RF Michael Pilton; iv. RF David Pilton; v. RF Darren Schofield; vi. RF Walter Morris; vii. RF Ronald Jarret; and

viii. RF Gary Armstrong. (g) In addition, at all material times, the defendant employed the following persons as members of the Newcastle Hazmat Unit: i. Station Officer (“SO”) Evans; ii. Fire-fighter (“FF”) McCall; and iii. FF Bear. (h) (i) At all material times the defendant: i. Failed to maintain a system of work that was safe and without risks to health and safety of persons not in its employ with respect to the prevention and/ or the fighting of fires in seed oil extraction plants, including but not limited to the prevention and/ or fighting of fires in seed meal storage facilities such as the seed meal storage bin, known as bin D, that was located at the site. ii. Failed to maintain a safe work method statement for the utilisation of non-New South Wales Fire Brigades personnel in fire prevention and/ or fire suppression activities. iii. Failed to maintain strict control of the site and to control the access of non-New South Wales personnel to areas that were liable to be and were affected by explosion and fire emanating from the storage bin known as bin D. iv. Failed to provide adequate supervision of non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd, who were present on the site on the morning of 6 December 1999. v. Allowed non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd to enter areas of the crushing mill and its surrounds whilst unaccompanied and unsupervised by appropriately trained members of the New South Wales Fire Brigades. vi. Allowed non-New South Wales Fire Brigades personnel, namely members of the staff of Caines Pty Ltd, to act independently of the fire prevention and/ or fire suppression activities that were being conducted at the site by members of the New South Wales Fire Brigades. vii. Failed to ensure that non-New South Wales Fire Brigades personnel were fitted with proper personal protective equipment prior to being permitted access to areas of the site in which they were exposed to risks of injury from the fire located inside bin D. (j) As a result of the abovementioned failures, Mr Robert Anderson, Mr Ronald Keith Brooker and Mr Geoffrey Robert Terry were exposed to risks to their health and safety arsing from the defendant’s fire prevention and/ or suppression activities at the site.