Citation: SafeWork NSW v Scharfe [2021] NSWDC 260
Court: District Court of New South Wales
Date: 18 June 2021
Judge: Scotting DCJ
Background
The defendant was employed as a leading hand in a forklift servicing workshop at Riverstone, NSW. His responsibilities included coordinating day-to-day workshop operations and supervising approximately five workers. On 2 March 2017, he directed a 16-year-old work trial participant to dismantle a forklift gearbox by removing its bolts.
The young worker, who had limited experience and was still within his 14-day trial period, independently decided to use a spray bottle of Wolfchester Brake Parts Cleaner to degrease the bolts before attempting to undo them. When the bolts proved too difficult to shift with a spanner, the defendant directed him to use a battery-operated impact wrench (a "rattle gun"). The moment the worker triggered the rattle gun, a spark ignited residual brake cleaner fumes, causing burns to his face, ears, right arm and left hand. Two other workers, Goedsir and Lester, were in the vicinity at the time.
SafeWork NSW prosecuted the defendant under section 32 of the Work Health and Safety Act 2011 (the Act), alleging he breached the duty imposed on workers by section 28(b) and thereby exposed all three men to a risk of death or serious injury.
Legal Issues
- What is the proper scope of the duty owed by a worker under section 28(b) of the Work Health and Safety Act 2011?
- Did the defendant breach that duty by failing to take the specific precautionary steps alleged in the prosecution's summons?
- Did any breach by the defendant expose the three men to a risk of death or serious injury, as required for the offence under section 32?
Decision
Scotting DCJ acquitted the defendant, finding that the prosecution had not established all elements of the offence beyond reasonable doubt.
On the question of breach, the District Court found that the defendant did not breach the health and safety duty owed under section 28 of the Act. The prosecution had particularised a series of failures, including not warning the worker about the flammability of the brake cleaner, not warning him that the rattle gun was a potential ignition source, and not preventing the combined use of those two items. The court accepted some of these particulars would have been causally relevant but ultimately was not satisfied the duty extended to the specific conduct alleged in the manner the prosecution framed it.
On the question of causation, the court found that the failure alleged in particular (a) of the summons, specifically not warning the worker that the brake cleaner was highly flammable, was not causative because the worker already knew the brake cleaner was flammable. The court found that failures particularised in (b), (c) and (d), relating to the rattle gun as an ignition source, and in (e) and (f), which would have prevented the combined use of both items, would have been causally relevant, had breach been established.
On the question of exposure of Goedsir and Lester to a risk of death or serious injury, the court was not persuaded beyond reasonable doubt that those two workers were sufficiently proximate to the point of ignition to have been exposed to that level of risk. Although they were in the vicinity, the evidence did not satisfy the court to the required standard. The prosecution therefore failed on this element as well.
Orders Made
• The matter is adjourned to Friday 9 July 2021 for the making of final orders or to consider any application of the prosecutor to state questions to the Court of Criminal Appeal.
Key Takeaways
- The District Court held that all elements of a section 32 WHS Act offence must be established beyond reasonable doubt, including both breach of duty and a causal link between that breach and the exposure to risk.
- A conviction under section 32 requires proof that the defendant's specific failures actually caused the relevant exposure to risk. Where a worker already possessed the knowledge that an alleged warning would have conveyed, the failure to give that warning cannot satisfy the causation requirement.
- Under section 28(b) of the Work Health and Safety Act 2011, workers owe health and safety duties, but the precise scope of those duties in a supervisory context requires careful analysis of the particular conduct alleged by the prosecution.
- Physical proximity alone is insufficient to establish that bystanders were exposed to a "risk of death or serious injury." The evidence must satisfy the court beyond reasonable doubt that the proximity was sufficient to bring them within the zone of potential danger.
- The decision turned substantially on its particular facts, including the age and experience of the injured worker, the prior warning he had received about brake cleaner from another supervisor, and the absence of any instruction from the defendant to use the brake cleaner on the day of the incident.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), sections 28(b) and 32
- Interpretation Act 1987 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
- Occupational Health and Safety Act 1983 (NSW)
Cases:
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- Neindorf v Junkovic (2005) 80 ALJR 341
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131
- Inspector Martin v Russell Larkham [2003] NSWIRComm 31
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467