Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd

District Court of NSW|2015-02-05

The charge

By summons, Siva & Jeya Pty Ltd, trading as The Blue Elephant Restaurant, is charged with a breach of s 8(1) of the Occupational Health & Safety Act 2000 (the Act). At the relevant time, it provided: "An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work."
The event giving rise to the charge occurred on 1 January 2011 at The Blue Elephant Restaurant at the Waldorf Apartments, 2 City View Road, Pennant Hills. An employee of the Company, Ms Anisha Shrestha (Anisha) was badly burned when she attempted to apply methylated spirits to a burner pot for the purpose of keeping food heated in a bain-marie.

Particulars of the charge

The particulars of the charge include: The particulars of Risk are: (a) The 'risk' of employees of the company receiving burns whilst in the process of undertaking the task of topping up fuel holders (which are used to heat bain-marie/chafing dishes) (fuel holders) with methylated spirit at the premises (task), and particularly the risk of adding, or preparing to add, methylated spirit to a fuel holder that is ignited or hot from being ignited previously. The particulars of the acts of omissions in failing to eliminate the risk are that: (b) The company failed to provide safe plant and equipment for the task in that it failed to provide disposable, non refillable fuel containers to heat bain-marie/chafing dishes, such as a gel fuel sealed in a small can; the company failed to provide adequate information, instruction and training to the Anisha Shrestha in respect to the task, in that it failed to undertake measures as follows: (i) providing Ms Shrestha with information and instruction that there was a risk that adding, or preparing to add, methylated spirits to a fuel holder that is ignited or hot from being ignited previously could lead to the ignition of vapours from the methylated spirits fuel, leading to a risk of fire and burns; (ii) providing Ms Shrestha with information and instruction about the material safety data sheet for methylated spirits; (iii) providing Ms Shrestha with a clear direction that she should not perform, or attempt to perform, the task or, in the alternative, providing Ms Shrestha with information, instruction and training in a safe work method for conducting the task; the company failed to provide and maintain a safe system of work with respect to the task, in that it failed to undertake measures as follows: devise a method of replacing the fuel containers to heat bain-marie/chafing dishes that did not involve the task of topping up fuel holders with methylated spirit fuel, such as the use of disposable, non refillable containers, such as a gas fuel sealed in a small can; undertake a formal documented risk assessment that identified the risk associated with re-fuelling the fuel containers with methylated spirit fuel being conducted in the vicinity of fuel burners and/or at buffet tables at the premises; provide Ms Shrestha with a written safe work method or directions for the task; (iv) restrict Ms Shrestha's access to methylated spirits for use in the task; …
Before proceeding to analyse each of the particulars, I make some general observations.
The prosecution is required to prove the case beyond reasonable doubt.
I note the absolute terms of s 8. Where there is a possibility of a detriment to safety, the requirement to ensure safety is breached - Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 [63]-[69].
The element of risk is introduced into the section and the employer's obligation is to eliminate it. The risk in this case was the risk of Anisha suffering burns injuries when re-fuelling burner pots.
The duty under s 8 extends to employees who may be careless, inattentive, disobedient or inadvertent - Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313. The unforeseen behaviour of a disobedient servant might be excepted from this - Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772] and see also WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171.
There must be a causal nexus between the employer's failure to take the measures identified by the prosecutor and the risk. Causation is to be viewed in a common sense way. The identified act or omission need not be the sole cause. Material or substantial contribution is sufficient - Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 [115].

Particular (b) - failure to provide safe plant and equipment in that the defendant failed to provide non-refillable fuel containers

The defendant's answer to this particular is that the bain-marie equipment was safe. The use of methylated spirits was but one way of heating foods using bains-marie. The equipment "when properly used" (s 8(1)(b)) was safe.
I think this submission is made good. There are several ways of heating food using bains-marie. They include the use of methylated spirits, fuel gel or electricity. Each of them can be safe. It is not a breach of the section simply to use one in preference to another. The prosecutor has not proven any failure in respect of the safety of the plant or the equipment. Its case on the evidence goes to how it was used or the instruction and training given to Anisha.
The prosecutor fails on this particular.

i - not providing Anisha with information and instruction as to the risk of adding methylated spirits to an ignited burner pot

ii - not providing Anisha with information and instruction about material safety data sheet for methylated spirits

iii - not providing Anisha with the direction that she should not re-fill burner pots, or alternatively, not providing her with information, instruction and training in the safe work method for doing it.

I am satisfied that Anisha was not provided with any information, training, instruction or direction as alleged in this particular. I reject Siva's evidence that he told Anisha that setting up bains-marie or filling or re-filling burner pots was not part of her duties. I have already dealt with this. However, a little more needs to be said about the material safety data sheet (MSDS).
I reject Siva's evidence about the MSDS. He did not show it to Anisha. He had not shown it to Guru (T251.38-.46). He did not draw any of its contents to Anisha's attention. It was not on display in the chemical room. His evidence to this effect (T424.07) was false.
It was not there when Inspector Reynolds inspected on 2 January 2011 nor when Inspector May inspected on 12 January 2011. The photographs on p6 of Exhibit B, Tab 6 reveal two signs only and neither is the MSDS. Photographs taken by Inspector Shaw later show that Siva had arranged for the MSDS and other documents to be displayed in the chemical room after the event - photographs numbered 13 and 14 in Exhibit B, Tab 5. I thought Siva's evidence about this was frankly misleading.
The failure to provide any of this material to Anisha was a material and significant cause in exposing her to the risk of burns injuries. Common sense says that if she had received the information, instruction, training and direction specified in this particular, she would not have undertaken the task as she did on 1 January 2011. The risk in that event would have been eliminated.
Not one of the steps alleged in this particular was of any difficulty or complexity. Each was easy to implement. Indeed, the defendant went about implementing them after the incident. There can be no defence under s 28.
The prosecution has made the good the case in relation to this particular.

i. - failure to provide a safe system of work in that it did not devise an alternative to re-filling burner pots such as the use of gel fuel in a can

There is a similarity between this particular and particular (b). The difference is that particular (b) is directed to unsafe plant and equipment and this particular is directed to unsafe system.
If the prosecution case on particular (b) is not made good for the reason that the plant and equipment were not unsafe, the same cannot be said in relation to this particular.
This measure of using gel fuel in a can was not taken. Had this step been taken, it would have eliminated the risk to Anisha's safety. She would not have handled methylated spirits. She would not have re-filled the burner pot. If a gel fuel container had been used and its fuel exhausted, the container would have been disposed of and a fresh one used. There would have been no risk of explosion or fire. There was some evidence about toxic effects of gel fuel. The prospects of employees suffering toxic effects was more theoretical than real.
There can be no defence under s 28 to this particular. The use of gel fuel was a practical option. Indeed it was adopted by the defendant after the incident. This really disposes of the defendant's arguments on this point. The principal argument of the defendant was that the fuel gel carried its own risks. It had its own risks of explosion, spilling and consequent ignition and toxicity. These risks were not realistic. Explosion requires a headspace of vapour and it is difficult to imagine how that could occur in any practical way. Ignition requires spilling. The gel is viscous and unlikely to spill. Toxic results are also unlikely. The only evidence as to toxicity is in the MSDS (Exhibit B, Vol 1, Tab 52). The product is toxic by inhalation, contact with skin or swallowing. Contact with skin and swallowing would be most unlikely. In the circumstances of its use, inhalation would also be unlikely.
The prosecution case in relation to this particular is made good.

ii. - failing to undertake a documented risk assessment that identified the risk associated with refilling the burner pot

iii. - not providing Anisha with a written safe work method and directions for the task

These two items may conveniently be dealt with together.
A documented risk assessment was not undertaken by the defendant. Anisha was not provided with a written safe work method or directions for the task. I reject the evidence of Siva to the effect that such assessment was undertaken or any documents or directions were given to Anisha.
Siva's evidence was so unreliable, he was prepared to say whatever suited him at the time. This is illustrated by the following sequence of evidence.

Siva said the safe work instructions for the use of bains-marie (Exhibit B, Tab 40) was not prepared prior to the incident (T393.42, T394.17). Nor was the safe work instructions document (Exhibit B, Tab 41), (T395.26). I shall focus some of these comments in particular on Exhibit B, Tab 40. Siva then gave circumstantial evidence about what he did after the incident and that included getting Sam's help to prepare the documents after the incident (T394.32).
Siva had not done any assessment in relation to the risk of fire with bain-marie equipment (T443.15).
Then Siva said he did have a written assessment before the incident (T446.08). No document was ever produced and Siva had ample opportunity to do so. He claimed, contrary to earlier evidence, he had Exhibit B, Tab 40 before the incident and that when he said otherwise, he was confused (T448). There was nothing to be confused about and the circumstantial evidence he gave about the document belies confusion. He sought to explain the confusion by the fact that he was asked about two documents together (T451.40). In fact, he was not. He was asked about Exhibit B, Tab 40 alone and before he was directed to any other document. Then he sought to explain that getting Sam to help him do the document was for an improvement to the document already in existence and not to create the document (T450.01). That is implausible.
Siva claimed he gave a copy of the written assessment to Inspector May (T447.20). That evidence was false. He claimed this was done on 31 January 2011. It was not (T452.28).
Then an "original" risk assessment in relation to the use of methylated spirits with bains-marie was prepared in February 2011 (Exhibit B, Tab 45).
Then there was the false evidence of Siva that the risk assessments were hanging in the cages in the chemical room. The photographs taken on 31 January 2011 (p 6 of Exhibit B, Tab 60) reveal no such documents in places where they later appeared in photographs taken by Inspector McCarthy (Shaw) on 29 July 2011 (Exhibit B, Tab 5).

I hesitate to make a comment of this nature, but I thought Siva's evidence about these documents was not only false, but was deliberately so.
The failure to undertake a risk assessment and give directions to Anisha for the task significantly contributed to the risk that existed. Had an appropriate assessment been undertaken, it may be inferred that: 1. appropriate alternative measures would then have been implemented, such as the use of fuel gel; or 2. Anisha would have been directed to it and informed of its content and given appropriate instruction and directions and, accordingly, she would not have attempted to re-fill the burner pot as she did.
Further, had Anisha been given directions for the task, it may be inferred that she would have followed them and would not have been re-filling the burner pot from the 5L container of methylated spirits.
I do not think that the case for providing her with a written safe work method is made good. The written document for an immigrant such as Anisha may be difficult to comprehend and follow and may not necessarily be effective. A spoken direction is more likely to be effective.
The task of undertaking a risk assessment was relatively simple. This is demonstrated by the defendant's undertaking of such since the incident. Similarly, the task of giving the appropriate direction was simple.
The defence under s 28 is not made out.
The prosecution case in relation to these particulars, with the exception of the written safe work method, is made out.

iv. - failing to restrict Anisha's access to the methylated spirits

The methylated spirits was meant to be kept in the storage cage. That was not always the case. It was sometimes kept in the kitchen near the restaurant. It was sometimes kept on a table near the buffet tables. Even keeping the methylated spirits in the storage cages did not limit access to it. A key to storage cages was readily available.
The burner pots were not always filled in the storage cages. Sometimes they were filled in the kitchen (T189.25) or at the bench top near the serving tables (T97). Anisha's access to methylated spirits on 1 January 2011 was to a 5L container then kept in the kitchen.
There is a paradox in this particular. If it was part of Anisha's job to re-fill the burner pot as it was, then she needed access to the methylated spirits. There was therefore no point in restricting her access to it. If the burner pot in fact had been extinguished, she would need to obtain access to the methylated spirits. If she had to go to the cage to get it, that might have led to another course of action being taken, namely obtaining a filled burner pot or filling one in the cage. The evidence is most unclear about this. I think Anisha needed access to the methylated spirits. I am not satisfied that restricting her access to it was a practical option.
I do not think this particular has been made out.

i. - failing to adequately supervise Anisha to prevent her from working alone where she had not been provided with adequate information about the risks

ii. - failing to adequately supervise Anisha to prevent her from working alone where she had not been provided with a clear instruction not to perform the task or given adequate instruction or training on how to do it

iii. - failing to ensure direct supervision of Anisha while she was performing the task until the defendant was satisfied that she was sufficiently competent

Anisha was not supervised on the night of 1 January 2011. Siva was present and working in another, though close, part of the premises. In fact, he was not exercising any supervisory role over Anisha that evening. Siva was available to Anisha if she needed his assistance. That does not mean he was supervising.
For reasons I have given earlier, maintaining a lit burner pot under the bain-marie was part of Anisha's duties. She had filled burner pots before. It was part of her duties to see to it that a lit burner pot was in place. That included the task of her doing the filling. She did not have to seek supervision to do it. Supervision is the employer's duty.
The failure of supervision was a significant contribution to the incident. Supervision would have prevented Anisha from pouring the contents of the 5L container into the burner pot.
There are some issues of practicability with this particular. The make up of staff on the night meant that it was not practicable to have more than one staff member in the restaurant. For that reason, I do not think either particular (e) i. or ii. is made good.
The issue with particular (e) iii. is that it required constant supervision or regular roving supervision unless it could be known at what time a burner pot was likely to need re-filling. This could be overcome by a direction that Anisha call upon Siva when that time arose and he could then come and supervise her. However, that is not the way this particular is framed and, accordingly, I do not think this particular is made good.

Order

I find the defendant guilty of the offence charged in the summons and the defendant is convicted accordingly.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2015

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (5)