A man employed as a shipwright was working in the hull of a catamaran under construction on 25 August 2008. In order to remove excess adhesives after carpet had been fitted, he was using the solvents acetone and Bostik 9913. Shortly after 2 pm, he was found lifeless, with a red mark on his forehead consistent with a chemical burn from contact with a solvent. He was not wearing a respirator, gloves or safety glasses. Next to him were two solvent containers with punctured lids, which had allowed the solvents to leak out and collect at the bottom of the hull where the shipwright was working.
An investigation of the workplace circumstances that had resulted in the shipwright’s death revealed that the company, had suffered substantially in the global financial crisis, ceased manufacturing in Australia and gone into administration. Its sole director, was prosecuted for breach of s 8(1) of the Occupational Health and Safety Act 2000 (NSW), i.e. for failure to ensure the health, safety and welfare of the company’s employees.
The particulars of the charge included the failure to provide and enforce the use of safe
plant, namely dedicated exhaust/extraction ventilation, as well as personal protective equipment such as respirators and chemical-resistant gloves. The employer had also failed to provide training and instruction in the use of ventilation, respirators and gloves, and supervision to ensure the work was carried out safely according to instructions. The company director pleaded guilty.
What gave rise to the safety breach?
The evidence in the Industrial Court of NSW revealed that the company had been aware of the need for both mechanical ventilation and respirators at least since February 2001. Instead of installing a dedicated ventilation system that would operate whether individual employees switched it on or not, the company had only used domestic-type fans which, apart from depending on whether employees switched them on, did not introduce a sufficient amount of fresh air into the hulls.
Respirators had been acquired, but the purchasing officer had not been aware that they came in three different sizes, nor had he been trained in relation to sizing, fitting and testing them, as required by the Australian/New Zealand standard 1715, Selection, use and maintenance of respiratory protective equipment.
The company had provided two kinds of gloves to its employees – leather and latex. The latex gloves were to be used when employees worked with chemicals, but they were permeable to solvents and did not prevent skin exposure to either acetone or Bostik 9913. Nitrile gloves would have provided adequate protection. The use of fans, respirators and gloves, inadequate as they were, had not been enforced.
The company had not conducted any risk assessment of the use of solvents, and the employees had not been issued with work method statements. Material safety data sheets (MSDS) for various hazardous substances, including Bostik 9913, had been obtained, but employees had not been taught to comply with them and they had not been kept on display.
In 2007, the company had commissioned an occupational hygienist to report on solvent vapours and inhalable dust at the site. The report had recommended additional ventilation in the hulls and training in the use of respirators. Senior managers had discussed the report but they had not reviewed or revised the chemical handling procedures. The company had not provided any formalised training to employees, and no medical surveillance had been carried out on staff who used solvents.
During the investigation, it also came to light that employees had been known to expose themselves to chemical fumes in order to “get high”. Two employees, including the shipwright who died, had previously lost consciousness from chemical exposure on one occasion. Three others had been overcome while working without respirators. Only one of the last three cases had been reported to senior management, and the employee concerned had been issued with a written warning. However, the incident had not given rise to any investigation or review of chemical handling procedures.
Measures taken after the fatality
After the fatality, the company had conducted risk assessments on work with chemicals and commissioned atmospheric testing and monitoring of chemicals inside hulls. Staff had been trained in the correct fitting, use and maintenance of respirators, and documented procedures relating to their use in connection with the use of chemicals beneath the deck of boats under construction had been issued. For the use of solvents, spill-resistant containers had been provided which inhibited the release of fumes, and copies of the MSDS had been put on display close to the work areas where the chemicals were used.
The court’s conclusions
The court established that the offence was serious. The risk to safety had not only been foreseeable but known, yet been left unattended in spite of recommendations by an occupational hygienist. Any information the employer had given to its workers about the hazardous nature of solvents had been entirely inadequate and unsatisfactory.
The court took into account the company director’s strained financial situation and the depression he had developed after the workplace fatality and all the financial difficulties. It also accepted that he had not known about all the previous incidents of irresponsible behaviour by employees, so in this instance the director was not quite the alter ego of the company. However, the court pointed out that an employer’s duty was to provide a risk-free work environment not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that was reasonably foreseeable.
It was the director’s first safety offence. He had cooperated with the investigation and was genuinely remorseful about the accident. For the utilitarian benefit of the guilty plea, the court allowed a 15% discount in the penalty assessment. The director was convicted and fined $6500.
Inspector Cooper v Ward  NSWIRComm 95 (31 October 2013)