On 8 September 2020, Oil Tech International Pty Ltd, a company which operated a waste liquid treatment facility at Yatala, was sentenced in the Beenleigh District Court. The defendant pleaded guilty to one offence of reckless conduct pursuant to s31 of the Work Health and Safety Act 2011 (the ‘Act’),related to its duty under s 19(1) of the Act.

At approximately 8:00am on 5 November 2015, a tanker truck arrived at the facility filled with approximately 6,900 litres of waste liquid to deliver. The liquid had been collected from a service station and contained a mixture of water and unleaded petrol. At the time, all the areas at the facility for the storage of liquids were full and had been full for some time. The site manager, employed by the defendant, directed that the waste from the tanker be deposited onto a sloped concrete depression, referred to as the driveway. This direction was conveyed to the truck driver who proceeded to discharge the contents into the driveway. While this occurred, a worker was standing on the driveway attempting to conduct repairs on a pump, which involved using a 240V heat gun to heat up the end of the hose so that it would stretch to fit over the pump attachment.

The liquid initially released into the driveway was that which had settled at the bottom of the tank, consisting predominantly of water. After a time, a pink liquid began to flow from the tanker which smelled of petrol. Vapour from the petrol which had accumulated around the driveway was suddenly ignited. The worker was enveloped in flames and burned to death. Another worker standing nearby was able to run to safety.

An investigation into the incident determined that the formation of flammable vapour was promoted by the release of flammable liquid across the driveway and the objects alongside the driveway allowed it to accumulate. The driveway did not comply with the requirements of Australian Standard 1940:2004. The cause of the ignition was either the radiant heat from the heat gun or a spark from the internal motor of the heat gun.

It was not uncommon for the facility to receive deliveries containing flammable substances and there was no adequate system in place for testing loads of liquid to determine their contents before their reception at the facility. Deliveries of waste liquid had previously been deposited onto the driveway. The defendant had some written procedures concerning receiving and handling flammable goods, but the workers at the facility were generally unaware of those procedures. Workers were not given any specific training in relation to the handling of and use of heat sources around hazardous materials, beyond an instruction that there was to be no smoking, welding or oxy-cutting at the site. Workers would regularly use heat guns at the facility when repairing pumps.

Without reasonable excuse, the defendant engaged in conduct by permitting flammable liquids to be deposited on the driveway, not rejecting the delivery of flammable liquids to the facility when it had no safe storage available, and not having in place a system to prevent the use of ignition sources in proximity to flammable liquids at the facility. That conduct exposed workers to the risk of death or serious injury from flammable liquids or vapours becoming ignited and the defendant was reckless as to that risk.

In sentencing the defendant, Judge Chowdhury had regard to the effect of the offence on the family of the deceased, as outlined in the Victim Impact Statement provided to the court. His Honour accepted general deterrence was an important consideration and had regard to the purpose of the legislation to ensure the provision of safe workplaces. His Honour acknowledged the risk was obvious and would have been entirely avoided by the defendant refusing to accept the delivery. It was observed that there were procedures for the receipt of flammable liquids at the facility, which the direction by the site supervisor clearly countermanded, and the amount of fuel in this delivery was higher than what was usually received at the facility.

His Honour had regard to the decision of Orr v Cudal Lime Products Pty Ltd; Orr v Shannon [2018] NSWDC 27 and to the sentencing remarks of Judge Cash QC in the matter of The Queen v Multi-Run Roofing Pty Ltd, which were noted to be distinguishable from the present case. In mitigation, Judge Chowdhury had regard to the letter of remorse tendered by the director of the defendant company and took into account the timely plea of guilty.

His Honour considered a substantial fine was appropriate in this distressing case, having regard to the catastrophic result. In deciding to record a conviction, his Honour observed that, although the defendant had no previous convictions for work health and safety offences, the circumstances of the offending were serious and the incident could have been easily prevented.

OWHSP contact: enquiries@owhsp.qld.gov.au