Year 10 work experience student, Alex Thomas, lost 75% of his sight from 'flash burns' after welding all day without lowering his UV darkening mask. The employer pleaded guilty to breach of the Work Health and Safety Act 2011. A breach of the Act can carry criminal penalties, fines of up to $1,500,000.00 and result in imprisonment of up to 6 years. The District Court initially dismissed the charges (courts can do this for guilty pleas if there are extenuating circumstances). The NSW Supreme Court of Criminal Appeal decided that this outcome was too lenient, and fined the employer $240,000 for failing to comply with their statutory obligation to take reasonable care.
The Story
When Alex Thomas started work at ‘Tho Services Limited,’ he was taken through a safety induction. After the induction he told his supervisor that he had welded at school. The problem was that the school used automatic welding visors but Tho Services used manual visors – the helmet visor had to be flipped down by hand to protect the welder. The first day on the job, Mr Thomas welded with the helmet flipped up. No one noticed or said anything to Mr Thomas about his visor being up. When Mr Thomas told his supervisor that his vision was blurry he was told to go sit down and rest. When he got home, he could not see. His parents realised the problem and got medical attention. The welding burn cost him 75% of his vision.
The Court of Appeal held the District Court erred because:
1. The Sentencing was inadequate
The Court of Appeal said that the flagrant breach of the Work Health and Safety Act 2011 had resulted from the systemic failure to supervise a young and vulnerable person.
"The magnitude of the risk created by a failure to supervise Mr Thomas alone mandated the need to ensure that he wore a properly adjusted welding helmet at all times. It is difficult to understand how he was permitted to weld without this fundamental protection in place."
2. Deterrence was required
The Court said ‘Tho Services Limited’ should be sentenced in a way that informed the wider industrial community of the need to take an ever vigilant and practical approach to safety.
"If ever there were a case in which the need for general deterrence was obvious and critical, this was the case."
3. The Breach of Duty caused the Risk to Health
The District Court said that there was not enough evidence to show that the failure to tell Mr Thomas how to use the manual helmet caused a risk to Mr Thomas’s health. The Court of Appeal disagreed and said that the failure to instruct Mr Thomas about how to wear the helmet, or to supervise him in doing so, exposed him to the risk of injury.
The Court of Appeal also stated that the obligation to advise and inform Mr Thomas of the safety precautions was a continuing obligation and not one that could be discharged by a single induction.
4. Sentence should account for public interest
Although ‘Tho Services Limited’ had compensated Mr Thomas for his loss, the Court of Appeal held that public interest must be accounted for when determining the punishment for such offences. The employer was fined $240,000.00.
What does this mean for Employers?
Employers must ensure that the correct occupational health and safety procedures are implemented and reaffirmed through training and that all staff are supervised.
The duty of care is high and continuous. Constant education and monitoring is the only way that Employers can manage the risk of criminal sanctions and claims for personal injury by staff and others at or near the workplace.
Contact Peter McNamara for your workplace law advice.
Case: Attorney General of New South Wales v Tho Services Limited (in liquidation) [2016] NSWCCA 221 (17 October 2016):