Citation: SafeWork NSW v Danrae Remedial Services Pty Ltd [2025] NSWDC 70
Court: District Court of New South Wales
Date: 18 March 2025
Judge: Scotting DCJ
Background
Danrae Remedial Services Pty Ltd is a company engaged in remedial construction work. On 12 November 2021, two of its workers were applying a waterproofing membrane to a third-floor balcony at a townhouse in Botany. The task required them to use Ardex WA98 Adhesive, a highly flammable substance, to bond membrane sheets to the floor.
The conditions on the day were wet. One of the workers used a Leister Triac-ST Heat Gun (capable of reaching temperatures up to 700 degrees Celsius) to dry sections of the balcony floor so the adhesive would adhere properly. The heat gun was left switched on near the work area. When one of the workers placed a roller back into a bucket of decanted adhesive, vapour from the adhesive ignited, causing a flash fire that engulfed him and burned his lower legs.
SafeWork NSW prosecuted Danrae under section 32 of the Work Health and Safety Act 2011, alleging that the company failed to comply with its primary health and safety duty under section 19(1), thereby exposing the workers to a risk of death or serious injury. Danrae pleaded not guilty.
Legal Issues
- Whether Danrae failed to comply with its health and safety duty by failing to take the reasonably practicable steps particularised in the prosecution summons (Element 2)
- Whether that failure exposed the workers to a risk of death or serious injury (Element 3)
- Whether the heat gun was the source of ignition for the fire (relevant to penalty only)
Decision
Danrae conceded that it owed the workers a duty under section 19(1) of the Work Health and Safety Act 2011. The central contest was whether the company took all reasonably practicable steps to discharge that duty. His Honour found, beyond reasonable doubt, that Danrae failed to take some of the reasonably practicable steps particularised in the summons. Those failures exposed the two workers to a risk of death or serious injury, satisfying the elements of the section 32 offence.
Scotting DCJ made significant credit findings in the course of the judgment. The company's sole director was assessed as deliberately vague and prepared to tailor his evidence to suit the company's interests. His earlier statutory response had attributed the incident to worker error, a position the judge found objectively unsupported by Danrae's own Safe Work Method Statement, which had not identified the heat gun as an ignition source at all. Both workers also gave evidence assessed as guarded, with their earlier recorded interviews found to be more reliable than their oral testimony.
On the question of ignition source, the defence advanced static electricity as an alternative explanation for the fire. His Honour rejected that theory as speculative, noting that the crucial factual preconditions required to support it had not been established in evidence. The prosecution's expert, an experienced chemical engineer, was preferred over the defence's forensic fire investigator on the question of the physical and chemical properties of the adhesive vapour.
The court was satisfied beyond reasonable doubt that vapour from the adhesive spread across the confined balcony floor and ignited when it reached the heat gun. Any heat gun setting above two to three on a ten-point scale would have been sufficient to auto-ignite the solvent component in the vapour. A guilty verdict was entered on the section 32 offence, and the finding that the heat gun was the ignition source will be taken into account at sentencing.
Orders Made
• Find the defendant guilty of the s 32 offence
Key Takeaways
- Under section 32 of the Work Health and Safety Act 2011, a conviction requires proof beyond reasonable doubt that the accused failed to comply with a health and safety duty and that the failure exposed workers to a risk of death or serious injury; Danrae's concession that it owed the duty meant the trial turned entirely on the second and third elements.
- A defendant company's Safe Work Method Statement can become significant evidence against it where the SWMS fails to identify a known ignition source as a hazard, undercutting later claims that workers caused the incident by deviating from company protocols.
- The District Court preferred the prosecution's chemical engineering expert over the defence's forensic fire investigator, particularly on questions going to the physical and chemical properties of flammable vapour, where the defence witness's training and experience was found to be less directly relevant.
- Where a proposed alternative ignition source (here, static electricity) lacks evidentiary support for the factual preconditions necessary to make it a realistic possibility, a court will treat it as speculation rather than a basis for reasonable doubt.
- Earlier recorded investigative interviews were treated as more reliable than the oral evidence of two worker witnesses, both of whom appeared guarded and reluctant to say anything adverse to their employer's interests at trial.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Interpretation Act 1987 (NSW)
- Occupational Health and Safety Act 2000 (NSW)
Cases
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171
- R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321
- R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332
- Royall v The Queen (1991) 172 CLR 378