SafeWork NSW v O2 Motorsports Pty Ltd; SafeWork NSW v Weissel (2020)
O2 Motorsports Pty Limited (company) provided mechanical services and repairs for motor vehicles and jet skis. It also operated a small used car dealership and manufactured biofuel. Mr Nathan Weissel was the sole director, head mechanic and manager of the company.
On 11 August 2017, Mr Weissel directed Mr Dylan Cowlishaw, a 19-year-old employee, to make a batch of biofuel. This was only the second time Mr Cowlishaw had undertaken the manufacture of biofuel, although he had previously assisted other workers during the manufacturing process. Mr Cowlishaw had told Mr Weissel that he did not feel competent and was nervous about making biofuel, but Mr Weissel assured him that he would provide training and get Mr Cowlishaw comfortable. However, Mr Weissel only supervised Mr Cowlishaw during the initial steps of the manufacturing process.
During the process, Mr Cowlishaw asked Mr Reece White, a 16-year-old high school student who was participating in a work experience program at the company, to assist him. Mr Cowlishaw and Mr White carried the bucket of methanol/sodium hydroxide mix over to the mixing vat without realising that the burner under the vat was still lit. Before the bucket was poured into the vat, the mixture ignited.
Mr Cowlishaw suffered burns to approximately 7% of his body. Mr White had flash burns that did not require treatment.
The company pleaded guilty to failing to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (Act), and thereby exposing its workers to a risk of death or serious injury contrary to s 32(1) of the Act.
Mr Weissel pleaded guilty to an offence that, as an officer of the company, he failed to comply with his duty under s 27(1) of the Act to exercise due diligence to ensure that the company complied with its duty, and this failure exposed the workers to a risk of death or serious injury contrary to s 32(1) of the Act.
The Court found the company and Mr Weissel’s level of culpability to be in the mid-range, based on the following:
- the risk of ignition of highly flammable chemicals was known to the defendants and the risk was made clear in the guidance material;
- the risk was quite likely to occur;
- the potential consequences of the risk included death and serious injury;
- steps were available to eliminate or minimise the risk, and there was little burden or inconvenience in taking such steps;
- the burns suffered by Mr Cowlishaw were serious enough for him to be intubated and taken to hospital for treatment;
- the fact that the manufacture of biofuel was not the main business of the company is not relevant – the introduction of hazardous chemicals and naked flames in any business premises, whether for profit or personal use, necessitates adherence to appropriate safety standards and precautions;
- the company did not provide proper induction or training generally and with respect to the use of personal protective equipment (PPE), and Mr Cowlishaw and Mr White were not provided with any PPE; and
- Mr White, a 16-year-old school boy on his first day of work experience, was exposed to the risk of an explosion, fire and burns. No one was supervising in this dangerous environment when the accident happened.
The company was convicted and ordered to pay a fine of $180,000 but it was reduced to $135,000 to reflect the guilty plea.
Mr Weissel was convicted and ordered to pay a fine of $30,000 but it was reduced to $22,500 to reflect the guilty plea.
In this case, the Court found that it was most troubling to have a student on work experience be exposed to such a dangerous environment. The Court made it clear that employers that take on a work experience student should be fastidious in ensuring the safety of such a young and vulnerable person. This case emphasises the importance of training and supervising workers, especially when the work involves high risks such as hazardous chemicals.