The Industrial Court of New South Wales has handed down its first Work Health and Safety sentencing judgment since the Court was reconstituted in July 2024.
In this case, a company that undertakes demolition and civil works has been fined $180,000 following an explosion that occurred during demolition works. This decision serves as a reminder of the importance of comprehensively identifying hazards, communicating those hazards, and implementing safe systems of work, and that paper systems by themselves afford no protection. It also serves as a reminder that the duty of care goes beyond contractual terms.
Hibernian Contracting Pty Ltd (Hibernian) was engaged by Camden Council (Council) to redevelop the Council’s works depot in Narellan, New South Wales (Site). This work commenced in or around June 2021. The Site was a seven-hectare property with 25 buildings to be either demolished or redeveloped, including the demolition of a workshop located on top of a pit (Pit) that contained waste tanks. These tanks included a tank that had previously been used to store oil from vehicles serviced at the Site (Waste Oil Tank). We note that the initial scope of work did not involve the demolition, decommissioning, or dismantling of the waste tanks. As part of Hibernian’s engagement, the Council provided it with a Construction Environmental Management Plan (CEMP), which identified the presence of chemicals and fuels in the pit. Hibernian subcontracted the supervision of the works to Kevin O’Keeffe (Mr O’Keeffe).
On 13 August 2022, a Council worker asked Mr O’Keeffe if Hibernian workers could assist with removing tanks from the Pit. This was not part of their scope of work. Despite this, Hibernian’s employees used grinders to remove metal fixtures from the Pit, which involved hot works. This was not part of Hibernian’s work plan. The same Council worker also advised Mr O’Keeffe that he had emptied all of the tanks in the Pit except for the Waste Oil Tank.
On 17 August 2022, a pre-work meeting was held where Hibernian workers were given tasks, including cleaning up and sorting materials into various bins. The removal of tanks from the Pit was not an allocated task. However, on the morning of the incident, Hibernian’s workers lifted two other tanks from the Pit. Dustin Clifford (Mr Clifford), a labourer employed by Hibernian, without telling anyone, used an angle grinder to cut through a thin, horizontal pipe that was connected to the Waste Oil Tank. As Mr Clifford was cutting the pipe, an explosion occurred and a flame of approximately 10 metres high engulfed the Pit and Mr Clifford (Incident). Mr Clifford sustained burns to 15% of his body, which required extensive medical treatment and rehabilitation.
Hibernian was charged with and pleaded guilty to a category two offence in breaching its primary duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) in exposing workers to the risk of serious injury or death from a fire or explosion created by ignition sources being used around hazardous substances in or on the tank and its pipework.
At Court, it was heard that at the time of the Incident, Hibernian had various documented systems in place, including a Daily Pre-Start Hazard Assessment Checklist, a WHS Management Plan, a site-specific Safe Work Method Statement (SWMS), a refresher SWMS for demolition work, site inductions and Toolbox Talks. However, these systems failed to identify or address the specific hazards posed by conducting hot work near flammable substances, notably that:
- the checklist signed by Mr Clifford on the day of the Incident did not identify hazards from ignition sources, hazardous areas, hazardous atmospheres, or the implementation of controls for hot work, such as the use of angle grinders;
- the WHS Management Plan prohibited untrained workers from performing hot works but failed to recognise the fire and explosion risks arising from hot work near hazardous chemicals;
- site inductions and safety documentation similarly omitted site-specific references to hazardous substances. Mr Clifford had not been trained on those hazards; and
- the relevant SWMS failed to identify high-risk construction work, and although the refresher SWMS mentioned contaminated areas in general terms, it did not lead to the examination of the Pit for flammable or other hazardous substances prior to the Incident.
Further, there had been no Toolbox Talk at the Site for several months, and the Site lacked a hot work permit system altogether, which allowed workers to access and use hot tools without oversight.
In mitigation, Hibernian argued that the scope of work was to lift the Waste Oil Tank and that the hot work undertaken by Mr Clifford was not a foreseeable activity. The Court rejected this argument. The Court also noted that although the Council had provided Hibernian the CEMP, which identified the presence of chemicals and fuels in the Pit, no one at Hibernian reviewed it prior to the Incident.
Justice Paingakulam noted that “the absence of appropriate systems was due, in large part, to a breakdown in communication within Hibernian”. It was also noted that “Hibernian should have ensured that appropriate systems were in place when it came to the removal of the Waste Oil Tank, because…[the Council worker had told] Mr O’Keeffe that the Waste Oil Tank had not been emptied. The removal of two tanks from the Pit by Hibernian’s workers on the morning of the incident should have alerted Mr O’Keeffe to the fact that the removal of the Waste Oil Tank was imminent.”1
Justice Paingakulam assessed the offence as falling within the mid-range of objective seriousness. Hibernian entered an early guilty plea, cooperated with the investigation and demonstrated remorse. After applying a 25% discount for the early guilty plea, Hibernian was fined $180,000 and ordered to pay the prosecutor’s costs.
Key takeaways
This case serves as an important reminder of the importance of ensuring that safety systems are properly implemented and reflect work as done on the ground. While Hibernian did have policies and processes in place, they were either insufficient or not targeted at the unique risks of the Site. The case also points to the importance of having strong contractor management processes and procedures, ensuring that consultation, cooperation and coordination occurs between all duty holders. Furthermore, the scope of the duty of care extends beyond contractual obligations, and a duty may apply despite an activity being outside the scope of work.
Finally, this case marks the first decision of the reconstituted Industrial Court and gives us an early look at how the Court will handle offences under the WHS Act. We will continue to monitor the decisions of the Industrial Court closely and share updates on these decisions as it develops its caselaw and reasoning in WHS matters.
Source: Lexology
