Lack of documentation – no bar to successful defence after fatal incident

28 September 2016

The New South Wales District Court in SafeWork New South Wales v Wollongong Glass Pty Ltd [2016] NSWDC 58 recently found that an employer was not liable for the death of a factory worker under the Work Health and Safety Act 2011 (NSW) (Act) in circumstances where employees had acted outside of established safe work procedures, with a clear disregard for their own health and safety.

Background 

SafeWork NSW prosecuted Wollongong Glass Pty Ltd (ACN 155 908 124) for a breach of section 19 of the Act for allegedly failing to comply with its primary duty of care. The employer pleaded not guilty.

The deceased worker suffered fatal crush injuries at a glass factory in March 2013 attempting to support, by hand, four sheets of glass (weighing approximately 320kg) stacked on an A-frame, while another employee used an overhead crane to access and remove a glass sheet stored behind them.  Despite protest from his fellow employee regarding the safety risks of this method, the deceased insisted on supporting the sheets of glass by hand.

An autopsy report revealed that the deceased had consumed cannabis approximately an hour before his death and, according to expert opinion, his appreciation of danger, judgement and reaction times were significantly impaired at the time of the incident.

Prosecution

HWL Ebsworth Lawyers represented Wollongong Glass at trial.

It was alleged that Wollongong Glass had failed to eliminate or minimise the risk of crush injury by taking the following reasonably practicable measures:

  • Ensuring use of an overhead crane and pinch grab to move glass sheets;
  • Prohibiting workers from attempting to support multiple glass sheets by hand;
  • Warning and directing workers against standing in the fall zone of glass sheets;
  • Informing and training workers; and
  • Providing a system of supervision.

SafeWork NSW alleged that Wollongong Glass’ system of work for handling or moving glass was “informal“, “ad hoc” and was reliant upon individual discretion exercised by workers at the factory as to how glass was to be moved.

SafeWork NSW relied upon a written Safe Work Method Statement (SWMS) which was implemented by Wollongong Glass post-incident as evidence of this informality and the ad hoc system of work. At the time of the incident, Wollongong Glass had no written procedures in place regarding how glass was to be handled and moved around the factory.

Judgement

Wollongong Glass was found not guilty and the charge was dismissed.  The Court was not satisfied beyond reasonable doubt that SafeWork NSW had proved that Wollongong Glass had failed to take reasonably practicable measures to eliminate or control the risk posed by being crushed by the glass sheets.

The Court held that Wollongong Glass had “in place a system of work at the date of the incident“, notwithstanding that it “was not reduced to writing. The system of work consisted of:

  • Toolbox talks;
  • Verbal instruction to workers as to weights of glass sheets according to their size and thickness;
  • On the job training and a buddy system to show new workers how to lift and manoeuvre glass; and
  • Enforced, adequate supervision.

Importantly, it was further agreed by SafeWork NSW in cross-examination that:

“…the buddy system was an accepted method of training and that persons could be considered ‘competent’ within the meaning of clause 5 [of the] Work Health and Safety Regulation 2011 as a result of receiving on-the-job training“.

To the extent that SafeWork NSW relied upon the SWMS as part of its prosecution, Judge AC Scotting concluded that:

  • A SWMS is only required by the Work Health and Safety Regulations 2011 (NSW) (Regulations) for “high risk construction work”;
  • A person is competent within the meaning of the Regulations if they have acquired the knowledge and skills to carry out a task through training, qualification or experience;
  • While a SWMS may provide evidence that a defendant employer has in place a safe work procedure, it does not necessarily follow that its workers have been adequately trained in the content of a SWMS or that they will comply with it; and
  • The Defendant had in a place a system of work, albeit not in writing, which trained workers by oral instruction and on the job training, and was enforced by adequate supervision.

It was for these reasons that the Court found that it was not foreseeable that a drug-impaired worker and a fellow worker with approximately 20 years of experience in the glass industry who believed the procedure adopted on the day of the incident was unsafe, would defy their safety training.

Not one of the witnesses called by SafeWork NSW had ever seen another person attempt to support multiple glass sheets by hand while standing in the fall zone. To this end, the Court noted:

The precise mechanism of the incident occurred by reason of the deceased acting irrationally and by both the deceased and [the colleague] acting against instructions and with a significant disregard for safety. That set of circumstances was… not reasonably foreseeable.”

Notwithstanding previous case law which concluded that an employer must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent, the Court rejected SafeWork NSW’s proposition that the [fellow worker’s] conduct was “conduct also engaged in by the body corporate“, under the deeming provision contained in section 244(1) of the Act.

The Court found that the deceased and the fellow worker acted so far outside the scope of their employment that liability could not be attributed to Wollongong Glass.

Lessons for Employers
  • The New South Wales District Court has been reluctant to find an employer guilty of a breach of the Act for failure to have safe work procedures reduced to writing (see also WorkCover Inspector Battie v Patrick Container Ports Pty Ltd [2014] NSWDC 171).
  • An employer may not be found guilty of a charge of breach of duty under the Act for actions of a disobedient employee who is acting contrary to an established safe system of work.
  • Employers should ensure that all systems of work, whether documented or not, are implemented and effective in practice by way of suitable and adequate training, instruction and supervision, consultation with workers and regular review of those safe work practices to ensure compliance with the Act.
  • Notwithstanding the finding of the Court, it is recommended that employers and duty holders still maintain documented safety systems and procedures and that these systems are monitored and updated where necessary.

This article was written by Michael Connolly, Partner, Justin Le Blond, Special Counsel and Nicholas Mangan, Solicitor of the Sydney Workplace Relation & Safety Group.

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