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Managing risk

Inadequate ventilation caused worker’s asthma: $1.2m fine

A District Court Judge has severely criticised the safety performance of a major provider of services to the mining, construction and infrastructure industries, and imposed a heavy penalty. Where did they go wrong?

09 May 2024

Gaby Grammeno

Contributor

The activities at an industrial chemical manufacturing facility at Kooragang Island include producing cobalt catalyst pellets in the Cobalt Catalyst Manufacturing Shed (Cobalt Shed). Two of the workers in the Cobalt Shed were exposed to cobalt dust released during the manufacturing process.

Cobalt dust is known to be associated with respiratory, heart and thyroid disorders, as well as sensitization of the respiratory tract and skin. One of the workers exposed to it developed occupational asthma.

SafeWork NSW prosecuted the business for failing to comply with its duty under work health and safety laws by recklessly exposing the workers to a risk of death or serious injury.

The charge of recklessness means that an offender ‘foresaw the possibility of the risk to an individual of death or serious injury through its conduct but continued on regardless’. If the offence is considered to be reckless, the maximum penalty is a fine of $3 million.

In court

In the District Court of New South Wales, the evidence clearly indicated that the business had:

failed to ensure the local extraction ventilation in the Cobalt Shed was adequate to remove the cobalt dust from the breathing air
failed to take corrective action to address the findings of a 2014 risk assessment report that part of the dust extraction system was not working properly or the findings of a 2019 occupational hygiene report warning of the many inadequacies of the dust extraction system
failed to take numerous steps for the safe use, handling, and storage of cobalt that could have mitigated the risk and protected the workers’ health, including the use of suitable personal protective equipment, provision of information and training, continuous biological monitoring of the workers’ health, decontamination and regular cleaning of the Shed.

The company’s own air monitoring had shown that workers were breathing alarmingly high levels of cobalt dust – on one occasion it was 12 times the Occupational Exposure Standard and on another, 28 times higher than the Standard. Surfaces in the cobalt area were reportedly thick with ‘black cobalt dust’.

Red flags ignored

Judge David Russell was scathing about the ‘filthy’ working environment and the recklessness displayed by the business in the face of all the indicators of serious risk.

The judge sad there were so many red flags available 'including the 2014 risk assessment, air monitoring, urine tests and blood tests, and yet nothing was done' He said even a cursory inspection of the Dickensian state of the Cobalt Shed, with dust visible on most surfaces, would have alerted the business to the risk which it had created, basically through ignorance and neglect.

Further, the company ‘certainly foresaw the possibility of the risk to an individual of death or serious injury through its lack of precautions taken in the Cobalt Shed. Not only did it foresee the risk of injury, but it had evidence in its hands that there was not just the possibility of a risk, but that the risk was actually present day after day, year after year. This is a serious instance of an offender being reckless as to the risk to an individual of death or serious injury.’

The case against the business based on an allegation of recklessness was strong and was established through their own documents. Aggravating factors were that the harm done to the worker was substantial, and the company had a significant record of previous convictions.

The mitigating factors taken into account were that the business was otherwise of good character, as demonstrated by the steps it took after the incident – it had brought its documentation and procedures into line with what should have been in place all along. It had cooperated with SafeWork’s investigation, accepted responsibility for the outcome and shown remorse. It had eventually pleaded guilty to a Category 1 offence (the most serious category).

Judge Russell convicted the business and took the view that it should have pleaded guilty much sooner than it did. Nevertheless, he reduced the appropriate fine by 20% from $1.5 million to $1.2 million plus costs, as the guilty plea had saved a lot of public expenditure.

What it means for employers

Ignoring foreseeable risks of serious harm or death for workers can expose an employer to prosecution for a Category 1 offence, which may result in heavy financial penalties or imprisonment of individuals.