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District Court 5 February 2015

Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd

[2015] NSWDC 15

Other
OCCUPATIONAL HEALTH AND SAFETY ACCIDENT IN RESTAURANT BURNS INJURIES TO WAITRESS WAITRESS RE FILLING BURNER POT FOR BAIN MARIE WITH METHYLATED SPIRITS

Citation: Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd [2015] NSWDC 15
Court: District Court of New South Wales
Date: 5 February 2015
Judge: Kearns DCJ

Background

A restaurant company operated a buffet-style dining service that used methylated spirits to fuel burner pots heating food in bains-marie (water-bath food warmers). On the evening of 1 January 2011, a casual waitress was the sole staff member in the restaurant. She noticed one of the burner pots appeared to have gone out and moved to refuel it from a five-litre container of methylated spirits.

The flame had not in fact been extinguished. The vapours ignited, causing an explosion and fire that resulted in serious burns to the waitress, who required significant skin grafting. The company was subsequently charged by a WorkCover inspector with breaching section 8(1) of the Occupational Health and Safety Act 2000, which imposes an absolute duty on employers to ensure the health, safety and welfare of employees at work.

The central dispute at trial was whether the waitress's handling of the burner pots formed part of her duties, and whether the company had failed in its obligations by not providing training, conducting a risk assessment, or adopting a safer fuelling system.

Legal Issues

  • Whether refuelling burner pots formed part of the waitress's duties as a waitress, such that the employer's safety obligations were engaged.
  • Whether the methylated spirits burner pot system constituted unsafe plant and equipment under section 8(1)(b) of the Act.
  • Whether the company had failed to provide adequate information, instruction, training and direction to the waitress regarding the safe handling of methylated spirits.
  • Whether using gel fuel in sealed disposable cans was a practical and available alternative that would have eliminated the risk.
  • Whether the company failed to conduct a documented risk assessment and provide written safe work procedures.
  • Whether restricting the waitress's access to methylated spirits was a practicable measure.
  • Whether the company's failure to supervise the waitress on the night of the incident contributed to the risk.

Decision

Credibility of the employer's evidence

The court found the director's evidence to be unreliable across multiple issues, including the waitress's start date, her involvement with bains-marie, and whether safety documents had been displayed. The court accepted the waitress's account where it conflicted with the director's, and found that the director's evidence about certain documents was not only false but deliberately so (at [7], [35], [48]).

Whether refuelling was part of the waitress's duties

The court rejected the employer's position that bains-marie were entirely outside the waitress's responsibilities. Evidence established that the waitress had observed a more senior employee explain and demonstrate the filling process, had set up bains-marie on prior occasions including filling the burner pots, and was the only staff member in the restaurant that evening with an immediate need to keep food at the required temperature. The court found that refuelling the burner pot on 1 January 2011 was part of her duties (at [19]).

Particular (a): Unsafe plant and equipment

The court found that the prosecution had not proven the bain-marie equipment itself was unsafe. Several heating methods exist (methylated spirits, gel fuel, electricity) and each can be safe when properly used. The case the prosecution actually established related to the manner of use and the absence of instruction, not to any defect in the equipment itself. The prosecution failed on this particular (at [32]-[33]).

Particular (b): Failure to provide information, instruction, training and direction

The court found that the waitress received no written material, no formal safety instruction, and no training when engaged. The director did not show her the material safety data sheet for methylated spirits and his evidence to the contrary was rejected as false. Photographs confirmed the safety data sheet was only displayed in the chemical storage room after the incident, not before it (at [34]-[36]). The court found this failure was a material and significant cause of the waitress's exposure to the risk of burns, because appropriate information would have led her to handle the task differently or not at all (at [37]). The prosecution succeeded on this particular (at [39]).

Particular (c): Failure to use a safer system of work (gel fuel in sealed cans)

The court found that gel fuel sealed in disposable cans was a practical alternative that would have eliminated the risk entirely. Had it been in use, the waitress would not have handled methylated spirits. The company's own decision to switch to gel fuel immediately after the incident was treated as strongly dispositive of the practicability argument (at [42]-[44]). The prosecution succeeded on this particular.

Particular (d): Failure to conduct a risk assessment and provide written directions

The court found that no documented risk assessment was conducted and no written safe work directions were given to the waitress. The court rejected the director's evidence that assessments had been completed, characterising his evidence as unreliable. The court found that a proper risk assessment would likely have identified gel fuel or strict handling protocols as appropriate measures (at [46]-[50]). However, the court did not accept that providing a written safe work method was established as a required measure, noting that a spoken direction would be more effective for a recently arrived worker whose first language was not English (at [51]). The prosecution succeeded on this particular, except in relation to the written safe work method (at [54]).

Particular (e): Restricting access to methylated spirits

The court found that restricting access to methylated spirits was not a practical option because the waitress needed access to the fuel to perform duties the employer had assigned to her. There was no point in restricting access in circumstances where refuelling was part of her job. The prosecution failed on this particular (at [57]-[58]).

Particular (e): Supervision

The court found the waitress was not supervised on the night of the incident. The director's physical proximity in another part of the building did not constitute supervision. The failure to supervise was found to be a significant contribution to the incident (at [59]-[61]). However, the court declined to find the specific supervision particulars made out. The practical staffing arrangements meant only one person could be in the restaurant, and the framing of the particular required constant or regular roving supervision rather than the more targeted direction that would have been effective (at [62]-[63]). The prosecution failed on these particulars as framed.

Overall verdict

Having found the prosecution established multiple particulars (failure to provide information and instruction, failure to adopt a safer fuelling system, and failure to conduct a risk assessment), the court found the defendant guilty of breaching section 8(1) of the Occupational Health and Safety Act 2000 (at [64]).

Orders Made

  • The defendant was found guilty of the offence charged in the summons and convicted accordingly.

Key Takeaways

  • Under section 8(1) of the Occupational Health and Safety Act 2000, an employer's duty to ensure employee safety is absolute in the sense that any possibility of detriment to safety triggers the obligation; the employer must eliminate, not merely reduce, the identified risk (at [27]-[28]).

  • The District Court confirmed that the duty under section 8 extends to employees who may act carelessly, inattentively, or inadvertently, drawing on the principle established in Dunlop Rubber Australia Limited v Buckley (at [29]).

  • Where an employer switches to a safer alternative immediately after a workplace incident, that post-incident conduct is strong evidence that the alternative was practicable before the incident occurred. The adoption of gel fuel cans the day after the explosion was decisive on the safer system particular (at [43]-[44]).

  • A finding that a particular task fell within an employee's duties, even absent explicit instruction, can be established through evidence of observed practice, prior performance of the task, and the operational context in which the employee was working (at [19]).

  • Causation in OHS prosecutions does not require the employer's failure to be the sole cause of the risk materialising. Material or substantial contribution is sufficient, as confirmed in Simpson Design Associates Pty Ltd v Industrial Court of New South Wales (at [30]).

Legislation and Cases Referenced

Legislation
- Occupational Health and Safety Act 2000

Cases
- Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313, Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772], WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171, Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316