Case

SafeWork NSW v Hydromet Corporation Pty Limited; SafeWork NSW v Jeremy Perera (2020)

Hydromet Corporation Pty Limited (Hydromet) specialised in recycling used batteries, processing chemical and industrial waste, and storing and handling large quantities of hazardous chemicals.

Recycling used batteries involved liquid waste treatment, which was required before it could be deemed safe for disposal. The waste was treated with sulphuric acid and hydrated lime using various water treatment tanks in the water treatment plant area.

On 18 March 2017, Mr Tomislav Mandic, a process chemist, was attending to liquid waste treatment by adding the 98% sulphuric acid and lime into the tank. He had completed the treatment of one batch of liquid waste under the team leader’s supervision in the morning, but had not performed this specific task before, as he only worked in the water treatment plant when the area was short of staff.

At the time of incident, he was attending to the treatment of the second batch. He added the 98% sulphuric acid and was about to add hydrated lime when he realised that a flexible hose connected to the tank was broken. Mr Mandic then sought out Mr Peter Riggs, a maintenance fitter, for a replacement hose. Mr Riggs had finished his shift and was on his way out of the site. He instructed Mr Mandic to replace the hose, however, neither Mr Riggs nor Mr Mandic had replaced a flexible hose on the tank before.

When the hose was being removed, it was pressurised and contained 98% sulphuric acid, which both Mr Mandic and Mr Riggs had not known. Mr Riggs was standing behind Mr Mandic as he was providing instructions on how to replace the hose.

When Mr Mandic disconnected the cam locks on the hose, they were both sprayed with the 98% sulphuric acid. Mr Mandic suffered serious second- and third-degree chemical burns to approximately 10% of his body, and Mr Riggs suffered chemical burns to the left side of his body, including face, ear, neck, arm, wrist and eyelid.

Judgment

Hydromet pleaded guilty for failing to comply with its duty under section 19 of the Work Health and Safety Act 2011 (NSW) (Act), thereby exposing Mr Riggs and Mr Mandic to a risk of death or serious injury contrary to section 32 of the Act.

Hydromet director Mr Jeremy Perera pleaded guilty for failing to comply with his duty, as an officer of the company, to exercise due diligence under section 27(1) of the Act to ensure that the company complied with its work health and safety duty.

The District Court found both Hydromet and Mr Perera’s level of culpability to be in the high end of the mid-range after considering the following:

• Hydromet was aware of the risk that its workers could be exposed to hazardous chemicals, and therefore suffer death or serious injury, and there were guidance materials concerning the risk;
• the likelihood of the risk occurring was high and safety standards at the site seemed to have been overlooked for years;
• Hydromet had failed to:
• review and inspect its systems of work properly and regularly;
• deal with damaged flexible hoses;
• require workers to use appropriate personal protective equipment;
• have a documented emergency management plan;
• identify hazardous chemicals within pipes;
• prevent workers from changing flexible hoses containing hazardous chemicals;
• provide adequate instruction and training to workers; and
• permit only properly trained workers to deal with hazardous chemicals, such as 98% sulphuric acid;
• the potential consequences of the risk were catastrophic and any exposure to the hazardous chemical used by the company was very dangerous;
• steps to eliminate or minimise the risk were well known and readily available, and the burden or inconvenience of steps to be implemented was not excessive;
• the injuries to both employees were serious and the disabilities of Mr Mandic are permanent; and
• Mr Perera did not ensure that any review had taken place, direct that steps should take place to eliminate or minimise risk, or enquire whether Hydromet had appropriate processes and resources.

Hydromet was convicted and ordered to pay fine of $300,000. This was reduced to $225,000 with the guilty plea.

Mr Perera was convicted and ordered to pay fine of $60,000, which was reduced to $45,000 with the guilty plea.

Lessons

This case demonstrates the importance of implementing and maintaining safe systems of work by having a documented safety system, and regular inspection and review of the safety system. Employers, especially those dealing with high-risk work such as hazardous chemicals, must be extra cautious in ensuring that workers who are not properly trained do not expose themselves to the risk.

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.