In SafeWork NSW v Hibernian Contracting Pty Ltd [2025] the NSW Industrial Court handed down its first sentence since it was reconstituted in 2024.
The Court found Hibernian Contracting Pty Ltd (Hibernian) had breached its duty of care to an employee by failing to conduct a risk assessment or ensure proper supervision, which led to a large explosion causing serious burns to the employee and leaving him in a coma.
Background
In 2022, Hibernian was engaged by Camden Council to redevelop the Council's works depot at Narellan, NSW. Although not originally part of the redevelopment, Hibernian was asked to remove several waste oil tanks from a concrete pit located on site. During the process, Hibernian received waste management plans from Council which identified the presence of waste oil remaining in the tank. During the demolition process, a Hibernian worker used an angle grinder on a pipe which was connected to the tank. The sparks from the angle grinder ignited the residual oil vapour and caused a large explosion and flames. The worker sustained serious burns, which resulted in an induced coma and extensive medical treatment.
Legal issues
The key issue was whether Hibernian breached its primary duty of care under section 19 and committed an offence under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act) by exposing workers to the risk of serious injury or death.
Section 19 of the WHS Act indicates that an employer must ensure the health and safety of their workers as far as reasonably practicable. Section 32 is an offence under the WHS Act and relates to a failure to comply with health and safety duties. Section 32 is a Category 2 offence, meaning it's on the higher end of the spectrum of severity, and relates to a breach of duty of care leading to a risk of death or serious injury or illness.
Decision
Hibernian pleaded guilty to a Category 2 offence under section 19(1) of the WHS Act. The Court found that Hibernian failed to conduct a risk assessment, develop a safe work method statement (SWMS), or ensure proper supervision. Justice Paingakulam rejected the argument that the task was outside of Hibernian's contractual scope, emphasising the non-delegable nature of safety duties. A base fine of $240,000 was determined, with a 25% discount applied for the early guilty plea, resulting in a $180,000 penalty.
Key takeaways
This case highlights the importance of having detailed, targeted and regularly updated WHS plans for sites. The duty of care cannot be avoided by contractual terms. It also emphasises that proactive and voluntary cooperation with regulatory processes is more favourably considered in mitigation than reactive compliance.
More broadly, it shows us that the NSW Industrial Relations Commission is willing to impose hefty fines for unsafe work practices. Employers MUST be conscious about their existing WHS plans and constantly update their plans to specifically target any and all risks to employees.
Need help meeting your WHS obligations?
Coleman Greig's Employment Law team can assist with reviewing and updating your workplace policies, WHS procedures, and compliance strategies. Contact us today.
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