SafeWork NSW v Scharfe

SafeWork NSW v Scharfe - [2021] NSWDC 260 - NSWDC 2021 case summary — Zoe

[4]

General Background

Hubtex Australia Pty Ltd (Hubtex) operated a business involving the importation, leasing and servicing of forklifts, from premises at Riverstone.
The defendant was employed by Hubtex as a leading hand in the workshop. He had been working at Hubtex for over 10 years at the time of the incident and had been recently promoted to leading hand. His duties included co-ordinating the day-to-day operations of the workshop and supervising approximately five workers.
On 13 February 2017 Mr Blackman was engaged by Hubtex on a 14 day work trial. Mr Blackman hoped to obtain employment as an apprentice mechanic with Hubtex on the completion of the work trial. Mr Blackman had limited work experience and was 16 years of age at the time of the incident, having left school after completing Year 10 at the end of 2016.
Mr Blackman was given an induction to the premises by Allison Campbell. During the course of that induction, Mr Blackman was not taken through any Safe Work Method Statements (SWMS) relating to tasks in the workshop or the content of the Material Safety Data Sheets (MSDS) for chemicals that were used in the workshop. The MSDS were displayed on the wall in the workshop, including a MSDS for the brake cleaner.
During the work trial, Mr Blackman's duties included cleaning, replacing panels on forklifts, assisting with the servicing of forklifts and changing batteries in forklifts.
Concerns were raised with management that Mr Blackman's work prior to the incident was unsatisfactory. It was generally thought that Mr Blackman was keen and had potential, but that he did not follow instructions.
Prior to the incident, Mr Guillaumier spoke to Mr Blackman about him using brake cleaner. Mr Guillaumier observed Mr Blackman using the brake cleaner by spraying it all over an axle housing that he had been asked to dismantle. Mr Guillaumier told Mr Blackman that the brake cleaner was not the correct product for what he was doing, that it was dangerous, expensive and not to be wasted. At the time of speaking to Mr Blackman, Mr Guillaumier was concerned that the brake cleaner could splash back into Mr Blackman's eyes and cause him injury.
On 23 February 2017 a review meeting was held between the defendant, Wayne Guillaumier, the head of the service department, Phil Deka, the operations manager and Mr Blackman. The review meeting was held at the suggestion of William Parry, a director of Hubtex, and its purpose was to explain to Mr Blackman what he had been doing well and what he needed to improve on. The work trial was extended at this meeting to give Mr Blackman the opportunity to improve his performance. On the day after the review meeting, Mr Deka prepared a note of what had been discussed at the meeting, which relevantly stated: POSITIVES: Appearance: Neat and tidy when he arrives at work. Manners: Polite and well mannered. Punctuality: Arrives on time each day. Work Ethic: When asked to perform a task he does do this and does ask for more work when finished. NEGATIVES: Phone: Uses his phone for listening to music and calls during work time. Told not to use the phone as it is a distraction and unsafe in the work place. Attitude: Has a poor attitude with regards to when he is asked to perform a task. He thinks that he knows the best way to do something rather than listening to how we want the task performed. Work Ethic: Performs a task when asked to do it but if asked to do more than one task at a time cannot. He will finish the first task and then ask for more work rather than remember that he had already been given other tasks. Ability to learn: Has the ability to learn but will not learn if he insists on performing assigned tasks his way rather than how he is asked to carry them out.
In his evidence, Mr Blackman said that he could not recall participating in the review meeting.

[6]

Mr Blackman's Evidence

Mr Blackman gave evidence that during the work trial he took instructions from the defendant, who he understood to be his supervisor. The defendant would tell Mr Blackman what to do and then show him what to do, when allocating a task to him. Mr Blackman mostly worked alone on the tasks he was asked to complete, but sometimes worked helping other workers in the workshop.
On occasions during the course of the work trial, Mr Blackman used degreaser and a Gerni to remove dirt and grime from parts in the wash bay. He was shown how to complete that work.
Mr Blackman saw brake cleaner being used in the workshop by a painter who used it to clean up parts that he had painted and by others to spray on something they had spilt to clean it up. The brake cleaner was kept in a spray bottle, which was labelled "BRAKE CLEANER" in texta on the outside of the spray bottle, and it was usually located on a bench in the workshop.
Mr Blackman understood that the brake cleaner was flammable because it was a cleaning product. Mr Blackman was unaware of the contents of the Material Safety Data Sheet (MSDS) for the brake cleaner and he did not know that the MSDS was on display at the premises. Mr Blackman's evidence was that he used the brake cleaner a few times before the incident, but he could not recall what he used it for. Mr Blackman gave evidence that he was not given any warning about the brake cleaner and that when he had used it in the workshop that no-one was supervising him.
Mr Blackman gave evidence that he had used the brake cleaner when working with the defendant, dismantling a motor. On that occasion it was being used to clean grime of the parts, as a degreaser. He could not recall how much brake cleaner was used on that occasion.
On the day of the incident, Mr Blackman was told by the defendant to take the gearbox apart. He could not recall the purpose of the task. Mr Blackman's evidence was that the defendant first told him to dismantle the gearbox using spanners. The defendant did not tell Mr Blackman to use the brake cleaner to remove the grease from the bolts that he had to undo. Mr Blackman took the brake cleaner off the bench and sprayed it on the bolts to use it as a degreaser. He then wiped it off with a rag and tried to undo the bolts using spanners. Mr Blackman could not recall if anyone had seen him use the brake cleaner at this time. He could also not recall how much of the brake cleaner he had used or for how long he had sprayed it onto the gearbox.
After trying for about five minutes, Mr Blackman found that the bolts were too difficult to undo and he went and spoke to the defendant. On that occasion, Mr Blackman gave evidence that he asked for the rattle gun that he had seen on a bench in the workshop and that the defendant told him where to find it. Mr Blackman retrieved the rattle gun and a socket to fit over the bolt and used a spanner in his other hand to stop the nut from spinning. As soon as he depressed the trigger on the rattle gun, the brake cleaner ignited.
At the time of the ignition, Mr Blackman was leaning into the crate to reach the bolt he was trying to undo. He suffered burns to his right arm and face. He ran to the bathroom and got into the shower for about 25 minutes. He was driven to hospital by the defendant. The defendant stayed with Mr Blackman for some time at the hospital.
In cross-examination, Mr Blackman accepted that he knew that degreaser was flammable and should not be used near a source of ignition. Mr Blackman gave evidence that he did not understand that the battery powered rattle gun would create a spark.
Mr Blackman accepted that when the defendant allocated him a task that he would usually tell him what tools to use and that if he did not know how to do a task that he could ask the defendant for guidance.
Mr Blackman gave evidence that the only tools available for him to use at the premises were the personal tools of other workers that were contained in labelled toolboxes lined up against the wall of the workshop. Mr Blackman denied that the defendant had previously told him not to use the defendant's tools.
Mr Blackman did not accept that he was told by Mr Guillaumier not to use brake cleaner because it was dangerous and/or expensive. He denied being told by Mr Guillaumier not to waste brake cleaner. After being taken to his Record of Interview with the SafeWork Inspectors, Mr Blackman accepted that he could have been told not to waste brake cleaner.
Mr Blackman's evidence was that he could not have used the Gerni to clean the gearbox in the wash bay because that would have required the crate be relocated to the wash bay with the use of a forklift due to its weight and that he was not licenced to operate a forklift.
Mr Blackman denied experiencing any difficulty with his memory, but that he had chosen to forget about traumatic experiences, like the incident, because he did not want to think about it.
Mr Blackman did not recall anyone being in the vicinity of where he was working at the time that the brake cleaner ignited.

[7]

Mr Lester's Evidence

Mr Lester was a mechanic working in the workshop on the day of the incident. Mr Lester commenced his apprenticeship with Hubtex in 2010 and worked in the workshop from about 2013 onwards. He was supervised by Mr Deka, Mr Guillaumier, or the defendant, depending on which one of them allocated him a task to perform.
Prior to the incident, Mr Lester saw Mr Blackman pull things apart to salvage parts and for scrap metal. Mr Blackman worked with others on occasions, including with Mr Lester on one occasion.
Mr Lester knew that management were not happy with Mr Blackman because he refused to do things the way he was told. Mr Lester advised Mr Blackman to "pull his head in" a few days before the incident and thereafter avoided interaction with him.
Mr Lester used brake cleaner in the workshop to clean the wax film off brake parts or to clean up spills on the floor. There was a non-flammable degreaser which was caustic that was available to be used to degrease parts. Mr Lester did not use brake cleaner as a degreaser.
Mr Lester gave evidence that the MSDS for the brake cleaner was on display in the workshop. Mr Lester was familiar with the content of the MSDS from his apprenticeship course at TAFE and from reading the MSDS on display in the workshop.
Mr Lester knew that the brake cleaner was highly flammable and should be kept away from sources of ignition because it might explode or catch fire. The brake cleaner was contained in spray bottles in the workshop.
Mr Lester had been told not to waste brake cleaner because it was expensive and in his experience it was only used to clean the wax film off brake parts.
There were a number of rattle guns in the workshop because several workers owned one. Mr Lester had lent his rattle gun to Mr Blackman on one occasion to dismantle something, when Mr Blackman was assisting him.
On the day of the incident, Mr Lester saw the defendant bring parts into the workshop in a crate for Mr Blackman to pull apart. Mr Lester overheard Mr Blackman and the defendant arguing, but he was concentrating on what he was doing. Mr Blackman and the defendant were about 3-4 metres away from where Mr Lester was working.
Mr Lester heard the defendant ask Mr Blackman to dismantle the parts of the machine in the crate. Mr Lester observed that the parts were dirty and had grease on them. Mr Lester did not really hear the discussion between Mr Blackman and the defendant until he noticed that they were arguing.
Mr Lester heard Mr Blackman say words to the effect, "these are filthy", after which Mr Lester said words to the effect, "why don't you just go and Gerni it?" Mr Lester was not sure if Mr Blackman or the defendant heard him say that.
Mr Lester heard Mr Blackman say that he wanted to use a rattle gun, to which the defendant replied in words to the effect, "no you are doing it with a bar and ratchet". Mr Lester saw the defendant leave the workshop area and about 10 minutes later he felt the heat of the flames go up his back when the brake cleaner ignited.
Mr Lester turned around and saw a fire in the crate. Mr Blackman went to the bathroom and got in the shower. Mr Lester put the fire out.
After the incident Mr Lester observed the spray bottle containing the brake cleaner and the rattle gun, and he could smell brake cleaner. He concluded that the brake cleaner had ignited. Mr Lester did not see Mr Blackman use brake cleaner before the incident.
Mr Lester thought that the defendant was frustrated by the way he walked away from Mr Blackman before the incident occurred.
In cross-examination, Mr Lester gave evidence that the Hubtex workers took their own tools in the workshop. They were stored in personal toolboxes, most of which were labelled to the effect that tools were not to be used without the permission of the owner.
Mr Lester thought that the defendant stated "pretty sternly" to Mr Blackman that he was not to use his rattle gun.
Mr Lester described that the crate was well alight when he used the fire extinguisher on it. He thought that it would have "burnt to the ground" if he didn't put it out.

[10]

Available Guidance Material

The rattle gun was owned by the defendant. The instruction manual for the rattle gun relevantly stated: Important! It is essential that you read the instructions in this manual before operating this machine. [1] … WARNING Read all safety warnings and all instructions. Failure to follow the warnings may result in electric shock, fire and/or serious injury. … The term "power tool" in the warnings refers to your mains-operated (corded) power tool or battery-operated (cordless) power tool. 1. WORK AREA SAFETY a. … b. Do not operate power tools in explosive atmospheres, such as in the presence of flammable liquids, gases or dust. Power tools create sparks which may ignite the dust or fumes. [2]
The MSDS for the brake cleaner relevantly provided: 2. HAZARDS IDENTIFICATION Australian Classification Safety Phrase(s) S16: Keep away from sources of ignition … S36/37/39: Wear suitable protective clothing, gloves and eye/face protection New Zealand Classification HSNO Hazard Classification 3.1B Flammable liquid Hazard Statement: H225 Highly flammable liquid and vapour Prevention Statement: P103 Read label before use … p202 Do not handle until all safety precautions have been read and understood P210 Keep away from all sources of ignition. No smoking. … P280 Wear protective clothing, gloves, eye/face protection and suitable respirator 5. FIRE-FIGHTING MEASURES Specific Hazards: Highly flammable liquid … Vapour may travel a considerable distance to source of ignition and flash back. Avoid all ignition sources. All potential sources of ignition (open flames, pilot lights, furnaces, spark producing switches and electrical equipment etc) must be eliminated both in and near the work area. 7. HANDLING AND STORAGE Storage: Store in a cool, dry, well-ventilated place and out of direct sunlight … This material is classified as a dangerous Good Class 3 Flammable Liquid as per the criteria of the Australian Dangerous Goods Code and must be stored in accordance with the relevant regulations. 10. STABILITY AND REACTIVITY Conditions to avoid: elevated temperatures and sources of ignition.

[12]

Credit

I have significant difficulty in accepting Mr Blackman's evidence as a reliable account of the relevant events. On a number of occasions Mr Blackman failed to recall important details. This occurred so often that I formed the impression that he was not doing his best to tell the whole truth. At times, Mr Blackman came across as having a very casual commitment to answering the questions that he was asked. His asserted lack of recall made his evidence very difficult to test. For example, he gave evidence that he had used brake cleaner on a few occasions before the incident but could not recall how. He later gave evidence that he had used it as a degreaser when working with the defendant. I do not accept that evidence. I prefer the evidence of Mr Guillaumier and Mr Lester that brake cleaner was not used in that way in the workshop.
Other evidence demonstrated Mr Blackman's recollection to be faulty. For example, he could not recall the review meeting and told counsel for the prosecutor in conference that it did not happen. I prefer the evidence of Mr Guillaumier and Mr Deka that it did take place and that Mr Blackman was taken through the matters in Mr Deka's note of the meeting. In cross-examination, Mr Blackman denied being told anything by Mr Guillaumier about the use of brake cleaner. After being taken to his record of interview with the SafeWork Inspectors, he then accepted that he was told not to waste brake cleaner.
Mr Blackman's evidence was also inconsistent with the objective evidence. He gave evidence that he sprayed the brake cleaner on the bolts and wiped it off with a rag. He later said he could not recall how much brake cleaner he had sprayed on the gearbox before the incident. I do not accept that evidence. The ignition of the brake cleaner and the resultant fire in the crate occurred in such a way that I find that Mr Blackman sprayed a considerable quantity of the brake cleaner onto the gearbox to the extent that it accumulated in the crate and provided the fuel for the fire that had to be extinguished by Mr Lester. I am satisfied that Mr Blackman was trying to tailor his evidence by seeking to minimise the amount of brake cleaner that he used prior to the incident.
Finally, I do not accept Mr Blackman's evidence that he was unaware during the work trial that Hubtex's managers were unhappy with his performance because he did not follow instructions.
I had no concerns about the credit of the other prosecution witnesses. Each appeared during the course of their evidence to be doing their best to tell the truth. Accordingly, I prefer the evidence of the other witnesses to the evidence of Mr Blackman whenever it was in conflict. I have expressly accepted parts of Mr Blackman's evidence and stated where I have done so, later in the judgment.

[15]

Relevant Provisions of the Act

Section 28 of the Act provides: While at work, a worker must-- (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
The long title of the Act includes "an Act to secure the health, safety and welfare of persons at work".
Section 3 of the Act relevantly provides: (1) The main object of the Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by:
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and' …
(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking (PCBU), including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.
The s 32 offence is a strict liability offence: s 12A of the Act.
A duty imposed by the Act is not transferable: s 14 of the Act.
Section 16 of the Act provides: (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person-- (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
The primary duty of care imposed by s 19 of the Act applies to PCBUs and relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of-- (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable-- (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.
Section 17 of the Act provides: A duty imposed on a person to ensure health and safety requires the person-- (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
Section 18 of the Act provides: In this Act, "reasonably practicable" , in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including-- (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about-- (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
The scope of the primary duty owed by a PCBU under s 19 of the Act is well settled and involves the following: 1. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 2. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. 3. A PBCU must eliminate or minimise all risks if that is reasonably practicable: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304. 4. A PCBU must have a proactive, structured and systematic approach to the elimination or minimisation of risks: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453, WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32]. 5. A PCBU must recognise and plan for the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].

[16]

Extrinsic Materials

In 2008 and 2009 a review into the model occupational health and safety laws was conducted by an advisory panel that provided two reports to the Workplace Relations Minister's Council on the optimal structure and content of a model occupational health and safety act that could be adopted in all Australian jurisdictions.
In relation to the duty of a worker to be imposed by the model Act, the First Report stated at [9.18]-[9.19]: 9.18 The objective of the duty of care placed on a worker is to ensure that the conduct or omissions of the worker do not expose any person to a risk to their health or safety. The role of the worker is more limited than that of the person for whom, or in whose business, the work is being undertaken. The worker has less ability to take active measures for health and safety. The worker's ability to put themselves or others at risk is usually limited to their immediate conduct in acting in their role within the business or undertaking. The risk associated with the conduct of a worker is usually associated with a want of care or, occasionally, misconduct or failure to cooperate in relation to health and safety (e.g. a failure to follow instructions). 9.19 We therefore consider the duty of care to be owed by a worker should have three elements: • to take care of himself or herself; • take care for other persons who may be affected by what the worker does or fails to do at work; and • cooperate with reasonable action taken by the person conducting the business or undertaking (or the relevant person) in complying with the model Act.
In relation to the standard of the duty of care, the First Report stated at [9.20]-[9.21]: 9.20 The duty of care, being subject to a consideration of what is reasonable, would necessarily be proportionate to the control a worker is able to exercise over his or her work activities and work environment. 9.21 The test of reasonable care should not, in our view, be confused with the standard of conduct and proof required in a civil case for damages for negligence. A breach of the duty of care under the model Act would be a criminal offence, with significant penalties. We recommend that the model Act make clear that the requirement for proving negligence in other criminal laws apply to allegations of a breach of the duty of care of a worker. The application of that principle would require that the breach by the worker involved such a great falling short of the standard of care, which a reasonable man in their position would have exercised, as to merit criminal punishment. [5]
The Explanatory Memorandum for the Work Health and Safety Bill 2011 was issued by Safe Work Australia. It relevantly provided: The Bill has been based on the recommendations that were made in the first and second reports of the National Review into Model Occupational Health and Safety Laws. Although many recommendations were accepted by the Workplace Relations Ministers' Council, some were not adopted and others have been modified following consultative processes. For that reason, the first and second reports should only be used as a guide to the policy underpinning the provisions in the Bill. … Clause 28 - Duties of workers 129. Clause 28 sets out the health and safety duties of workers. Workers have a duty to take reasonable care for their own health and safety while at work and also to take reasonable care so that their acts or omissions do not adversely affect the health and safety of other persons at the workplace. 130. The duty of care, being subject to a consideration of what is reasonable, is necessarily proportionate to the control a worker is able to exercise over his or her work activities and work environment. 131. Paragraph 28(c) makes it clear that workers must comply so far as they are able with any reasonable instruction that is given by the PCBU to allow the PCBU to comply with the Bill and regulations. 132. Paragraph 28(d) provides that workers must also cooperate with any reasonable policy or procedure of the PCBU relating to health or safety at the workplace that has been notified to workers. 133. Whether an instruction, policy or procedure is 'reasonable' will be a question of fact in each case. It will depend on all relevant factors, including whether the instruction, policy or procedure is lawful, whether it complies with the Bill.

[17]

Judicial Interpretation of Similar Provisions

The duty owed by an employee pursuant to 19 Occupational Health and Safety Act 1983 (NSW) (the 1983 Act) was expressed in similar, but not identical terms to s 28(b) of the Act, as: Every employee while at work - (a) shall take reasonable care for the health and safety of persons who are at his place of work and who may be affected by his acts or omissions at work…
The duty owed by an employee was similarly expressed but refined in s 20(1) Occupational Health and Safety Act 2000 (the 2000 Act), as: An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work.
The reasonable care expected of a worker is that expected of them in their capacity as an individual worker and must be distinguished from the obligations of the PCBU: WorkCover Authority of New South Wales (Inspector Gordon) v Gregory Ronald Wallis [1994] NSWIRC 163.
The worker is not to be taken as a surrogate for the responsibilities of the PCBU: Stevenson v Hoggard [1992] SAIRC 41 at 16 (Cunningham IM).
However, the fact that an act or omission occurs in the context of the PCBU's system of work does not excuse the worker from the duty owed: WorkCover Authority of New South Wales (Inspector Gordon) v Gregory Ronald Wallis (unreported Full Bench of the Industrial Relations Commission in Court Session 1996) and Inspector Martin v Russell Larkham [2003] NSWIRComm 31 at [7].
In WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 at 475, Marks J concluded that the s 19 duty under the 1983 Act required the application of an objective standard, stating: …the requisite standard to be applied is that which should be reasonably in all the circumstances have been expected of a person holding himself or herself out to be able to undertake that work.
The duty imposed is a positive one, to take reasonable care. The test is an objective one and the act or omission need not be deliberate. All relevant circumstances must be taken into account in determining if reasonable care was taken. For example, matters such as the worker's state of knowledge, qualifications, expertise, experience and status as foreman, supervisor or manager are relevant. The question to be answered is, whether or not the defendant in his or her capacity as a worker, was responsible for an act or omission which an informed objective observer, having regard to all of the circumstances, would reasonably have foreseen would affect the health and safety of another person: WorkCover Authority of New South Wales (inspector Gordon) v Gregory Ronald Wallis (unreported Full Bench of the Industrial Relations Commission in Court Session 1996).
The civil standard of negligence applies: R v Irvine [2009] VSCA 239 at [84]-[85] Neave JA and Cruden at 475.
Examples of a breach by a worker of a similar duty include: 1. The release of a wiring train by a supervisor before ensuring that the track was clear of other workers: Inspector Game v Lucas (unreported Chief Industrial Magistrate's Court of New South Wales 1991). 2. The driving of a train into another stationary train by a driver that failed to stop at a red signal: O'Grady v Fernandez (unreported Magistrate's Court of Victoria 2002). 3. An apprentice mechanic set alight brake cleaner then sprayed it onto another apprentice: R v Matthew Lever (unreported Magistrate's Court of Victoria 2010). 4. Failure to instruct an apprentice to wear a harness while working on a roof: Inspector Dowling v Farmer (unreported Chief Industrial Magistrate's Court 2002). 5. Failure to stop skylarking: Inspector Maddaford v Pontelle (unreported Chief Industrial Magistrate's Court 2003). 6. Hire by a project manager of a painting company of an elevated work platform (EWP) that was not suitable for the sloping site of the work and failure of the project manager to train the worker on the safe use of the EWP, where the worker told the manager that he was not licenced to operate it and was not comfortable in using it: WorkCover Authority of New South Wales v Alameddine [2014] NSWDC 303.
Examples of a breach of s 28 to which a worker pleaded guilty are: 1. Failure by a worker repairing a machine to set up an exclusion zone to keep other workers away from hot rubber that was under pressure and could escape: Safework NSW v Alejandro Bocaz [2017] NSWDC 271. 2. Failure by a worker to conduct testing of gas supply in a hospital, which he certified had been undertaken: SafeWork NSW v Turner [2020] NSWDC 180.

[18]

Conclusions on the Scope of the s 28(b) Duty

Taking into account the language of the Act in context, the extrinsic materials and the interpretation of similar provisions, a worker's duty to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, is a duty not to expose those persons to a risk of injury as a result of the immediate conduct of the worker.
I have come to that view for the reasons that follow.
First, the primary object of the Act is to protect persons against harm to their health and safety through the elimination or minimisation of risks arising from work and that workers and other persons should be given the highest level of protection from hazards and risks arising from work.
Second, the primary duty owed by a PCBU pursuant to s 19 of the Act is to eliminate or minimise risks to a person's health and safety if that is reasonably practicable to do so. The s 28(b) duty is intended to be complimentary to the s 19 duty, by imposing obligations on a worker to assist a PCBU to ensure safety, so far as that is reasonably practicable, by co-operating in the elimination or minimisation of risk.
Third, the scheme of the Act is to ensure the health and safety of workers and other persons by the elimination or minimisation of risks to health and safety. It is clear from the scheme of the Act that it is intended to impose obligations on PCBUs, workers and others to act before a risk arises and well before a person could be injured or killed.
Fourth, the First Report contemplated that the worker's duty would be to exercise reasonable care that his or her acts or omissions did not expose any person to a risk to their health and safety.
Fifth, it is clear that a PCBU's duty to ensure safety by eliminating all risks, if that is reasonably practicable to do so, does not apply to a worker. The s 28 duty is not a duty "to ensure health and safety" and accordingly ss 17 and 18 do not apply to it. It follows that, a worker does not have to exercise reasonable care to eliminate or minimise all risks to another person at a workplace. The s 28 duty requires that a worker must not expose a person to a risk to their health and safety arising from their own acts or omissions.
Sixth, the standard of the s 28 duty is to exercise reasonable care and is a lower standard than that owed by a PCBU to ensure the health and safety of a worker, in so far as that is reasonably practicable. The lower standard of care reflects that a worker has less influence and control over the system of work than that of a PCBU, because a PCBU implements the system of work, provides the plant and determines the conditions in which the workers will work.
Seventh, s 28 of the Act recognises that a worker may put themselves or others at risk by their acts or omissions at work, and a worker whose conduct demonstrates a lack of care or attention or does not comply with a work safety rule or who does not cooperate in safety matters will be in breach of the duty.
Finally, an element of the s 32 offence by a breach of s 28 is that the prosecution must prove that the worker has exposed the person to a risk of death or serious injury.

[22]

Reasonable foreseeability

In Shirt, Mason J went on to state at 48 that: The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.
Mason J cited with approval the comments of Glass JA in the Court of Appeal to the effect that the test was 'undemanding' and that the risk may be described as 'only a remote possibility'.
This is no longer a correct statement of the law.
In Tame v New South Wales (2002) 211 CLR 317 at [97] McHugh J approved the text of Professor Fleming in the 1957 edition of The Law of Torts, as follows: What are the considerations upon which the law supposes the reasonable man will guide his conduct? Negligence consists in conduct involving an unreasonable risk of harm. Almost any activity is fraught with some degree of danger to others but, if the existence of a remote possibility of harm were sufficient to attract the quality of negligence, most human action would be inhibited. Inevitably therefore, a person is only required to guard against those risks which society recognises as sufficiently great to demand precaution. The risk must be unreasonable, before he can be expected to subordinate his own interests to the interests of the other.
McHugh J continued: Many of the problems that now beset negligence law and extend the liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability… [98] I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall… into public disrepute if it produces results that ordinary members of the public regard as unreasonable [101] Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventive action. This is a matter of judgement after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge. [102] When it is necessary to determine foreseeability in the duty context, the development of the law of negligence as a socially useful instrument now requires the rejection of the attenuated test of foreseeability propounded in The Wagon Mound (No 2) and adopted by this Court in Shirt. [104]
In Seltsam v McNeill [2006] NSWCA 158 Bryson JA said at [36]: In my opinion questions of reasonable foreseeability and existence of a duty of care are not correctly decided by applying, as if they express a syllogism, Mason J's references to a risk which is remote, and a risk which is not far-fetched or fanciful. The question of foreseeability must be looked at in the broad. The test of foreseeability is undemanding but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination, it must be approached as a test which exists in reality and operates within the limits of the reasonable.
Reasonable foreseeability of risk is a question of fact that must be determined in light of all of the circumstances prevailing at the time of the act or omission in question: Maloney v Commissioner for Railways (1978) 18 ALR 147 at 148.

[25]

(d) training and instructing Mr Blackman in the contents of the Material Data Safety Sheet for the brake cleaner.

These particulars can be conveniently dealt with together.
It was not in dispute that the defendant did not warn Mr Blackman that the brake cleaner was highly flammable or train him on the content of the MSDS. It was also common ground that the defendant was responsible for supervising Mr Blackman and allocating tasks to him. Mr Blackman's evidence was that the defendant explained to him what to do and showed him what to do when allocating him a task. I am satisfied on the evidence that Mr Blackman did not always follow instructions, but prior to the incident this proclivity had not had an adverse effect on safety.
I am satisfied on the evidence of Mr Blackman that he knew that the brake cleaner was flammable and that if it was exposed to an ignition source that it could catch fire and injure him. I accept Mr Blackman's evidence that what he did not know was that the rattle gun was a potential ignition source.
I am not satisfied that the defendant knew on the day of the incident or at any time during Mr Blackman's work trial that he was using the brake cleaner as a degreaser, or at all. On the day of the incident, the defendant asked Mr Blackman to dismantle the gearbox using spanners. No part of the task given to Mr Blackman by the defendant necessitated the use of brake cleaner and the defendant could not have reasonably foreseen that Mr Blackman would have used the brake cleaner as a degreaser. After giving the task to Mr Blackman the defendant attended to other duties outside the workshop and was not present to observe what Mr Blackman did.
Mr Blackman did not allege that he told the defendant that he intended to use the brake cleaner to clean the bolts on the gearbox. Mr Blackman's evidence was that there was no discussion between himself and the defendant relating to the brake cleaner.
Mr Blackman could not give any other example of when he had been instructed to use brake cleaner or when he had in fact used it. He later gave evidence that he used brake cleaner as a degreaser whilst assisting the defendant to dismantle a motor. For the reasons already given, I do not accept that evidence.
Mr Lester who was present before and during the incident did not see Mr Blackman use brake cleaner. He concluded that Mr Blackman had done so after the incident. He did not hear any conversation between Mr Blackman and the defendant relating to the use of brake cleaner.
Whilst Mr Guillaumier had seen Mr Blackman use brake cleaner inappropriately before the incident, there was no evidence that he told the defendant what he saw.
I am satisfied that the pleaded risk was not reasonably foreseeable to the defendant and the allegation that he failed to exercise reasonable care fails on that point alone.
If I am wrong on the finding that the risk was not reasonably foreseeable, it involved a risk of serious injury, the probability of the risk coming home was extremely low and the steps required to be taken by the defendant to warn or train Mr Blackman on the MSDS did not involve significant inconvenience or expense. Taking into account all of those matters, I am not satisfied beyond reasonable doubt that the reasonable response to the risk was to take the steps particularised in 11 and (d) of the Summons.
I accept that Mr Blackman was permitted to unsafely use the brake cleaner in the workshop because it was available in the spray bottle, it was inadequately labelled and he was not trained on the MSDS. These were matters that were the subject of the Improvement Notices issued to Hubtex, which it subsequently complied with. I am satisfied that these matters came within Hubtex's health and safety duty, but not the defendant's health and safety duty imposed by s 28 of the Act.
I am not satisfied beyond reasonable doubt that the prosecutor has established a breach of the s 28 duty by the failure of the defendant to take the steps particularised in 11 and (d) of the Summons.

[29]

(f) supervising (or arranging for another suitably qualified person to supervise) Mr Blackman whilst he was undertaking the task to ensure that he did not use the brake cleaner and rattle gun to perform the task.

These particulars can be conveniently dealt with together because they both deal with the level of supervision being undertaken of Mr Blackman during the task.
Whether there has been a failure to provide adequate supervision is a question of fact in each case. The circumstances to be considered will ordinarily include, at least: 1. The nature of the work the worker is required to undertake; 2. The extent of the worker's training and prior experience in the performance of such work; 3. The identity of co-workers with whom the worker will be performing the work and the extent of the training and experience of those co-workers: Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [149].
I am satisfied that the task given to Mr Blackman of dismantling the gearbox assembly in the crate situated on the floor of the workshop was a simple, menial task that did not involve any risk to his health and safety. Mr Blackman had been allocated similar tasks during the preceding 14 days without incident from a safety perspective. It was intended that Mr Blackman would work alone and he had some work experience for similar work both before and during the work trial.
I accept Mr Lester's evidence that Mr Blackman had asked if he could use the rattle gun to undertake the task and had been told sternly not to do so. I am satisfied that the defendant was supervising Mr Blackman by giving him directions on how to undertake the task.
The evidence of the defendant's superiors was that they did not expect that he would be standing next to Mr Blackman watching his every move, because that would not have been reasonably practicable for Hubtex.
For the reasons already given, I am not satisfied that the defendant knew or ought to have known that Mr Blackman had sprayed brake cleaner on the gearbox for the purpose of cleaning the bolts he had to remove.
I am satisfied that the pleaded risk was not reasonably foreseeable to the defendant and the allegation that he failed to exercise reasonable care fails on that point alone.
If I am wrong on the finding that the risk was not reasonably foreseeable, it involved a risk of serious injury, the probability of the risk coming home was extremely low and the steps required to be taken by the defendant to warn or train Mr Blackman on the MSDS did not involve significant inconvenience or expense. Taking into account all of those matters, I am not satisfied beyond reasonable doubt that the reasonable response to the risk was to take the steps particularised in 11 and (f) of the Summons.
I am not satisfied beyond reasonable doubt that the prosecutor has established a breach of the s 28 duty by the failure of the defendant to take the steps particularised in 11 and (f) of the Summons.

[31]

Issue 3 Did the defendant's breach of duty expose Messrs Blackman, Goedsir and Lester to a risk of death or serious injury?

The applicable principles of causation were not in issue and are set out at [108] to [112] above.
The prosecutor particularised the charge on the basis that each of Mr Blackman, Mr Goedsir and Mr Lester were exposed to the risk. As a preliminary factual matter I am not satisfied beyond reasonable doubt that Mr Goedsir and Mr Lester were exposed to the risk. Whilst I accept that they were in the vicinity of the point of ignition, I am not actually persuaded by the evidence to the requisite standard that they were sufficiently proximate to be exposed to a risk of death or serious injury. Suffice to say that I have reasonable doubt about whether Mr Goedsir and Mr Lester were exposed to potential danger and accordingly the prosecution of the charge brought by the prosecutor must fail.
I have also decided that the defendant did not breach the health and safety duty owed by him pursuant to s 28 of the Act.
Contrary to those findings and on the assumption that the defendant was in breach of his health and safety duty as alleged by the prosecutor, I am not satisfied beyond reasonable doubt that the alleged failure particularised in 11 of the Summons was causative of Mr Blackman's exposure to the pleaded risk because I am satisfied that he already knew that the brake cleaner was highly flammable.
I would have been satisfied beyond reasonable doubt that the alleged failures particularised in 11, (c) and (d) of the Summons were causative of Mr Blackman's exposure to the pleaded risk because each particular required Mr Blackman to be told that the rattle gun was a potential source of ignition.
I would have been satisfied beyond reasonable doubt that the alleged failures particularised in 11 and (f) of the Summons were causative of Mr Blackman's exposure to the pleaded risk because they would have prevented Mr Blackman from using either or both of the brake cleaner and the rattle gun, both of which were necessary to give rise to the pleaded risk.
I am not satisfied beyond reasonable doubt that the prosecution has established Element 3 of the offence.

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Judgment (34 paragraphs)

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Cases Cited (31)

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