Comcare v John Holland Rail Pty Ltd [2009] FCA 771

In Brief

  • The Federal Court of Australia has imposed a penalty of $124,960 on an employer for breach of s16(1) of the Occupational Health & Safety Act 1991 (Cth), despite acknowledging that the employer took seriously its responsibility to provide a safe system of work, both prior to and after the accident.
  • The incident involved unsafe refuelling of a friction saw used to cut railway track, so that fuel spurted from a container under pressure and was ignited by a hot weld.
  • The court held that circumstances where an employee was badly burned, and where the incident "could have been far worse" indicated that the employer's OH&S compliance systems were not implemented effectively.

Background

The respondent employer provided railway track maintenance services in Western Australia. In November 2008 a team of its employees was tasked to repair rail track in the Kalgoorlie area by using aluminothermic ("thermit") welding techniques. This requires cutting the rails with a friction saw and filling the cut with superheated liquid metal filler, which then cools and solidifies to form a weld.

The team was supervised by B, and included an employee D who had previous experience of thermit welding, and an employee G who did not have such experience.

The team finished a thermit weld and waited for it to cool. D noticed that the friction saw was low on fuel and asked G to retrieve a jerry can containing pre-mixed 2-stroke fuel from the team's truck. D knew that industry practice (and the employer's practice) was to remove the friction saw away from the heat source and refuel it at another location, yet for some reason on this occasion D decided that it was safe to refuel the saw at the location of the last weld.

Both D and the supervisor B were aware that pressure built up in a jerry can containing petrol and the pressure had to be released slowly to avoid the petrol spurting. G was not aware of this.

G placed the jerry can on the ground about 2 metres from D and the friction saw. B then called out to D and G to be careful, and instructed D not to refuel the saw near the rail track. D responded that refuelling where he was standing would be fine. B took no further steps to prevent D or G from refuelling.

G removed the cap from the jerry can. The contents were under pressure and spurted out onto D and the recently-finished weld in the track. The fuel caught alight, setting D's clothing on fire. The flames also travelled back to G holding the jerry can, which caught on fire. G suffered burns to his fingers and hair, and threw the jerry can away from him and towards the truck.

G ran to the truck looking for water, while the burning jerry can lay on the ground in close proximity to the truck which contained oxy-acetylene welding equipment in the back. The drawbar system of the truck was scorched by flames from the burning jerry can.

The supervisor B ran to the truck and pulled the hoses of the oxy-acetylene system away from the fire, then instructed another crew member to drive the truck forward away from the fire. Meanwhile G tried to use a water extinguisher on the truck to put out the fire, but it did not work, after which he used bottled water to put out the fire.

D sustained second degree burns to 20% of his body (including his torso, arms and hands). He was transferred by the Royal Flying Doctor Service to Royal Perth Hospital where he remained for some three weeks, undergoing extensive skin grafts. He returned to work on restricted duties three months after the accident, and to full duties a further month after that.

After the accident, the regulator (Comcare) began proceedings against the employer for breach of section 16(1) of the Occupational Health and Safety Act 1991 (Cth) ("the OH&S Act"), which provides that "An employer must take all reasonably practicable steps to protect the health and safety at work of the employer's employees". Comcare sought an order for civil penalty, but did not pursue criminal sanctions against the employer.

The Proceedings

Initially the employer resisted the proceedings, however before the trial began the employer conceded that it had contravened section 16(1) of the OH&S Act, with reference to three specified statutory grounds of breach listed in section 16(2) of the Act, viz.:

  1. failing to provide and maintain a working environment, including plant and systems of work that were safe;
  2. failing to ensure the safety at work of, and the absence of risk at work to the health of its employees in connection with the use and handling of plant and substances; and
  3. failing to provide appropriate information, instruction, training and supervision to its employees in connection with the task of refuelling the friction saw.

The hearing before Barker J therefore proceeded in order to determine the appropriate penalty. The maximum civil penalty for breach of section 16(1) is $242,000. Comcare sought a penalty in the range of $80,000 to $120,000. The employer did not contest that a civil penalty should be imposed, but argued that a penalty of $20,000 to $70,000 was appropriate. The court imposed a penalty of $124,960, thus higher than the top of the range sought by the regulator.

The court adopted the dictum of Madgwick J in Comcare v Commonwealth [2007] FCA 662 at [116] that the overriding principle is that the amount of the penalty should reflect the Court's view of the seriousness of the offending conduct in all the relevant circumstances.

The employer had instituted an occupational health & safety system prior to the accident, which included work procedure and safe method statements for thermit welding. This covered the need to refuel away from "hot areas" and combustible sources, safe procedure for opening jerry cans, and fire-fighting procedures. However, Barker J noted that the actual events of the accident indicated that the employer's system was not implemented effectively. The court noted the following specific circumstances:

  • D apparently believed that it was safe to refuel the saw while it was on the rail near a hot weld;
  • The refuelling also took place near a vehicle loaded with combustible material (the oxyacetylene equipment);
  • G opened the jerry can without first releasing the pressure, and neither the supervisor B nor D attempted to dissuade him;
  • Although the supervisor B told D and G to be careful and to carry out the refuelling away from the track, he did nothing further to prevent them from refuelling;
  • The fire extinguisher which G attempted to use from the truck failed to work;
  • G failed to use a fire blanket to put out the flames, being the recommended way to fight this type of fire, instead using water to put out a flammable liquid fire;

These facts were inconsistent with B, D or G having received sufficient or effective training. "The evidence suggests that B, D and G were all insufficiently trained or supervised in relation to the refuelling process that led up to the incident to fully appreciate the risks their conduct posed to all those working at the site"1.

Whilst D's actual injuries demonstrated that the breach was serious, other factors also reinforced this: (a) any of the crew could have suffered such injuries; (b) the risk of injury was foreseeable, and even the precise circumstances were foreseeable; (c) the incident could have been far worse. Although the employer argued that the amount of fuel on the ground from the burning jerry can was insufficient to ignite materials on the truck, the court noted the scorch marks on the draw bar system of the truck and held that there was a "real risk" of the risk of materials on the truck igniting.

The court agreed that the employer appeared to be a responsible employer which took seriously its responsibilities to provide a safe system of work for its employees: it had identified the foreseeable risk and included it in its procedures; this was not a case of systemic failure to appropriately address a known or foreseeable risk; and this type of problem (arising from a refuelling process) had not occurred before on the respondent's work sites; Further, without being required to do so the employer immediately commenced an investigation into the incident, took all appropriate steps to support the affected employees, and engaged consultants to advise it on how to improve its procedures and practices. The employer had since reviewed its safety procedures, held workshops and issued alert bulletins.

However, the court identified that the real problem was that the supervisor B seems not to have been sufficiently trained to act as an effective supervisor in relation to the enforcement of this procedure. D's training also appeared to be lacking and Gela was not specifically trained in that regard at all. "The conduct of the respondent's employee signifies a failure on the respondent's part to communicate and enforce its own internal procedures concerning safety in the work place in this case. A specific deterrent is plainly called for".2

An element of general deterrence was also required, as the objective seriousness of the offence "calls for a substantial penalty to indicate the social and industrial policies of the legislation and its range of penalties".3

The court took into account that the employer admitted the contravention at the hearing, however the effect of this discount on penalty was limited: It was only after the proceedings were programmed to a contested hearing on the question of liability that the employer indicated it would consent to a declaration of contravention being made by the Court.

Although no death resulted in this case, the incident was still extremely dangerous. Therefore a penalty "towards the middle of scale" was considered appropriate. The maximum civil penalty for breach of the section was 2200 penalty units (equivalent to A$242,000), therefore the court imposed a penalty of 1136 penalty units, equivalent to the sum of A$124,960.

Implications

  • A court assessing penalty in OH&S matters will give significant weight to the objective evidence of the effectiveness and thoroughness of an employer's OH&S systems, as demonstrated by employee's behaviour at the time of the accident.
  • It appears from the judgment that the court gave very little credit or discount for the employer's admission of contravention close to the hearing. Therefore, such a "plea of guilty" should be made early, preferably before proceedings are set down for hearing, so as to gain full benefit of the discount to penalty.

Footnotes

1. Judgment at ¶166

2. Judgment at ¶181

3. Judgment at ¶184

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