If It´s A Dangerous Task, It Must Be Supervised

Inspector Batty v Waste Equipment Pty Ltd & Anor¹ concerned a prosecution brought against Waste Equipment Pty Limited and the sole director of Waste Equipment, John Cross (Cross), for failing to ensure the health, safety and welfare at work of all its employees and, in particular, Timothy Hirst (Hirst), contrary to section 8(1) of the Occupational Health and Safety Act 2000 (NSW).

Incident

Waste Equipment operated a business fabricating and selling waste collection bins and waste equipment in a workshop. At the time of the incident Emile Pacevski (Pacevski) was heating, cutting and tack-welding the catches on the door at the rear of a large waste bin using an oxyacetylene cutting device and an electric welder. The door of the large waste bin was clamped shut in order to maintain the correct alignment during the fitting process and so Pacevski could not see Hirst who was behind the door of the large waste bin. At the same time, Hirst was spray painting the internal walls at the rear of the large waste bin near the closed door on which Pacevski was working and there was a build-up of paint spray and fumes within the large bin. The workshop foreman had left the site that same day, prior to this work being commenced by Pacevski and Hirst. As Pacevski was oxyacetylene cutting the top catch on the door, he noticed flames emerging about two feet over the top rim of the large waste bin. Pacevski then ran up the ladder to the platform next to the door and saw Hirst standing at the door of the bin engulfed in flames that extended to about one foot from his body. Adjacent to the right rear corner of the large waste bin was an open-top 20-litre drum with the label "Ameron Coating Rustfighter 215" and the flammable liquid 3 red diamond sign, containing about three or four litres of paint thinner, which was also on fire. Hirst suffered severe third degree burns to 90% of his body and his impairment has since been assessed as 95%.

Relevant Law

Kavanagh J took the following matters into account in relation to the activities which took place prior to the incident:

• the area in which the spray painting took place was not adequately ventilated and away from any ignition source, contrary to the Occupational Health and Safety Regulation 2001 (NSW) (Regulation)

• a hot work permit had not been issued to Pacevski and the conduct of the hot work and painting concurrently and in the same geographic area was contrary to the applicable Australian Standard

• Waste Equipment had not provided its employees with the Material Safety Data Sheets (MSDS) in respect of the paint and enamel thinner used in the Workshop

• Waste Equipment had not informed, instructed or trained its employees in respect of safe distances between painting and hot work, and

• contrary to the Regulation, the WorkCover Spray Painting Guide 2001 and the MSDS which required that persons working with paint and enamel thinner wear personal protective equipment, Hirst was wearing jeans, a long-sleeve shirt, gloves, work boots, a respirator, glasses and a beanie, and it was noted that Waste Equipment did not provide Hirst with access to safety glasses.

Steps to remedy defects

After the incident, Waste Equipment instituted a system at the workshop whereby spray painting and hot work were to be performed during separate shifts, rather than in conjunction with each other. Kavanagh J considered the decision of Schmidt J in WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited which found that the availability of simple and straight-forward steps to remedy the defects in the system is relevant to the consideration of the objective seriousness of the offence.² Kavanagh J found that there were obvious steps that could have been taken which would have eliminated or reduced the risk and observed that those steps were implemented after the incident. Further, her Honour said that it would have been easily available to Waste Equipment to ensure adequate instruction and training had been provided to Hirst and Pacevski.

Reliance on employees

Kavanagh J was satisfied that both Pacevski and Hirst were highly skilled employees who were given a substantial degree of autonomy and observed that this led to the foreman foregoing his responsibility to ensure the employees were supervised when performing tasks in a dangerous environment. It was found that the circumstances revealed the need for Waste Equipment and its managers and directors to ensure excessive reliance was not placed upon the discretion of employees in undertaking inherently dangerous tasks. Kavanagh J stated that, given the forseeability of the particular risk, ensuring safety measures are adequate was the responsibility of both Waste Equipment and Cross.

Penalty

Kavanagh J referred to the principle that the gravity of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant.³ Kavanagh J found that major burns to 90 percent of Hirst's body was not just a remote possibility, rather there was a high risk to safety when Hirst was required to manually paint in an enclosed area without fan extraction in the vicinity of welding work. The Court noted that the post-incident action by the defendants was particularly important in the context where there was no pre-existing occupational health and safety system rigorously in place at the time of the incident. The defendants were found guilty of the offence as charged, Waste Equipment was fined $120,000 and Cross was fined $20,000.

Implications for employers

This case highlights the importance of:

• ensuring that all workers, even those who are highly experienced and competent, must be supervised when performing inherently dangerous tasks

• not placing excessive reliance on highly skilled workers

• providing employees with MSDS in relation to hazardous substances in the workplace

• keeping employees informed, up-to-date and trained with respect to safe work practices, and

• ensuring employees wear personal protective equipment when performing dangerous tasks.

Footnotes

1 [2009] NSWIRComm 60.

2 Unreported decision of Schmidt J, 25 February 1994.

3 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW [1999] NSWIRComm 343 (12 August 1999).

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