In an important lesson for employers, this case demonstrates that a worker’s disobedience or failure to follow instructions does not excuse inadequate safe work procedures and training.
Following burn injuries sustained by a ‘disobedient’ 16 year old worker during a workplace explosion, the District Court of NSW has clarified the distinction between the health and safety duties owed by employers and workers in SafeWork NSW v Hubtex Australia Pty Ltd [2021] NSWDC 664 and SafeWork NSW v Scharfe [2021] NSWDC 260.
The incident
Hubtex Australia Pty Ltd engaged Mr Blackman on a 14-day work trial. Mr Blackman was 16 years old at the time. In the workshop, there was a spray bottle filled with a highly flammable brake cleaner. There were no warning labels on the spray bottle and Mr Blackman was not shown the Material Safety Data Sheet (MSDS) or taken through any Safe Work Method Statements (SWMS).
The Workshop Leading Hand, Mr Scharfe, instructed Mr Blackman to dismantle an old forklift gearbox housing using spanners. Mr Blackman decided to use the brake cleaner to clean the gearbox. Mr Scharfe did not discuss the use of the brake cleaner and Mr Blackman was not instructed to use the brake cleaner for this purpose.
However, Mr Blackman had previously been told that spraying brake cleaner on an axle housing was not the correct product to use as it was dangerous, and Mr Blackman understood that the brake cleaner was flammable.
Mr Blackman asked if he could use an open-ended spanner and Mr Scharfe’s rattle gun. Mr Scharfe instructed Mr Blackman not to use the rattle gun, but Mr Blackman used it anyway. The rattle gun caused a spark that ignited the brake cleaner, causing an explosion and flames to cover Mr Blackman’s face, right arm and fingers. Mr Blackman sustained burns, attended hospital, and required several artificial skin grafts.
Hubtex had a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of its workers while at work, pursuant to section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act). Hubtex pleaded guilty to an offence for failing to comply with its primary duty, thereby exposing Mr Blackman to a risk of death or serious injury. It also pleaded guilty to failing to notify SafeWork NSW immediately after the incident.
Although Mr Blackman was directly instructed not to use the rattle gun, there were numerous issues with Hubtex’s procedures:
- Although Mr Blackman was provided with induction training, he was not shown the relevant SWMS or Job Safety Analysis worksheets or provided with training for using the brake cleaner.
- Hubtex was required to notify SafeWork NSW of the incident immediately but did not do so until two days later.
- There was no safe work procedure for using the brake cleaner, and the brake cleaner was not appropriately labelled with a hazard pictogram or hazard statement.
- Hubtex did not conduct a risk assessment on the tools that were brought into the workplace by workers and the Operator’s Manual for the rattle gun was not available in the workshop.
Hubtex convicted and fined $124,000
The Court found that Hubtex knew there was a risk of a worker being injured by the incorrect use of hazardous chemicals. Despite this, the brake cleaner was readily available in the workshop and inadequately labelled. Hubtex’s conduct created a situation where the brake cleaner could be used by an inexperienced worker.
The potential consequences involved a risk of serious injury, and the steps that could have been taken to eliminate or minimise the risk were simple, well known and inexpensive. Mr Blackman was vulnerable due to his youth and inexperience. Mr Blackman’s failure to comply with instructions was a mitigating factor, but only to a limited degree because ‘the obligation of the offender to ensure the health and safety of its workers extended to disobedient workers’.
Mr Scharfe acquitted as health and safety duty was not breached
As a worker, Mr Scharfe had a duty to take reasonable care to ensure that his acts or omissions did not adversely affect the health and safety of other persons, pursuant to section 28(b) of the WHS Act. SafeWork NSW contended that Mr Scharfe breached this duty, thereby exposing Mr Blackman and others in the vicinity to a risk of death or serious injury.
The Court accepted that Mr Scharfe did not warn Mr Blackman that the brake cleaner was highly flammable or train him on the content of the MSDS. However, Mr Scharfe did not give Mr Blackman any task that necessitated the use of brake cleaner, and Mr Scharfe could not have reasonably foreseen that Mr Blackman would have used the brake cleaner as a degreaser.
Mr Scharfe had sternly told Mr Blackman not to use the rattle gun and it would not have been reasonably practicable for him to stand next to Mr Blackman to watch his every move. The risk was not reasonably foreseeable to Mr Scharfe, and therefore, he did not fail to exercise reasonable care. Mr Scharfe was acquitted as he did not breach the health and safety duty owed by him.
Lessons for employers on the standard of care owed
The Court found that workers do not have a duty to ‘ensure health and safety’, and workers do not need to exercise reasonable care to eliminate or minimise all risks to another person at a workplace. Instead, workers have a duty not to expose other persons to a risk of injury as a result of the immediate conduct of the worker.
However, a person conducting a business or undertaking (PCBU) (generally employers and senior officers) must ensure, so far as is reasonably practicable, the safety of the workers it engages. The standard of care owed by workers is less than that owed by a PCBU because workers have less influence and control over systems of work.
Employers must ensure they implement safe work procedures, conduct risk assessments and adequately train employees to discharge their work health and safety obligations. Employers risk facing significant penalties for contraventions of the WHS Act.
Source: Mondaq
