SafeWork NSW v Grey Colt Pty Ltd (2019)

Facts

Grey Colt Pty Ltd (Company) operated a commercial kitchen attached to a hotel in NSW. The kitchen was staffed by the sole director of the Company, a general manager, chefs and a kitchen hand.

On the day of the incident, the kitchen hand started work at 5pm and was directed to clean up an odourless, clear liquid that had spilled on the kitchen floor. At 8pm, the worker felt a pain in his feet and notified his colleague but continued to work. The kitchen hand returned home at 10:30pm and notified his mother of his foot pain. He removed his socks to discover his feet had turned black.

The kitchen hand was then transported to hospital and was found to have suffered third degree alkali burns to his feet.

Judgment

The Court found the Company to be in breach of its health and safety duty.

The Court found that the risk of serious injury was clearly foreseeable as the kitchen housed hazardous chemicals that were all accompanied by a material safety data sheet. The safety data sheets clearly stated the hazardous nature of the chemical and provided handling instructions.

However, the Court found that the risk was not obvious as the clear and odourless hazardous substance that caused the injury could have easily been mistaken for water.

The Court determined that the Company:

• did not have in place, or failed to implement, a system to identify if a leaked substance was hazardous before a worker came into contact with it;
• did not inform workers of the dangerous nature of the chemicals stored in the workplace, nor did it have any spill containment systems in place; and
• was in breach of the work health and safety regulations as it did not require the kitchen hand to wear chemically resistant footwear.

The Court found the Company to be in breach of its duty to notify SafeWork of notifiable incidents. The Company was aware of the notifiable incident 3 days after it occurred, when the kitchen hand informed the Sole Director that he had suffered an alkali burn and suspected the burn to be caused by the cleaning fluid in the kitchen.

Despite this information, the Company did not notify SafeWork until 2 weeks after the incident, and this was only after the kitchen hand’s mother discovered no report had been filed with the regulator. The Court found that the sole trader incorrectly believed he had satisfied his reporting obligations by reporting the incident to his insurance broker in response to the kitchen hand’s workers’ compensation claim.

After taking into account a 25% reduction for a guilty plea, the Company was fined $22,500 for the section 32 offence and $1,500 for the section 38 offence.

Lessons

Employers must ensure their workers are in a safe environment, especially if there is a high risk of workers coming into contact with hazardous substances. If your business uses hazardous chemicals and materials, you will need to ensure you are using them safely and correctly, as the consequences of non-compliance are expensive and dangerous.

Employers have a clear duty under the work health and safety legislation to notify the regulator of notifiable incidents. You must take all reasonable steps to comply with this duty.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.