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OSH Tracker

Higginson v Buchanan's Foundary Ltd (DC, 14/12/95)

OSH Tracker

Defendant:
Buchanan's Foundry
A company is appealing its conviction under s6 for failure to provide adequate protective clothing. Buchanan's Foundry Ltd was fined $1000 after three employees received burns when a furnace exploded. The Court acknowledged the company's efforts to assess suitable protective clothing but found that in deciding on cotton overalls it had made the wrong decision. (Christchurch DC, 6 December 1995) 
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Burns/explosion
Harm:
Injury
Penalty Amount:
$1000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 37

Judgment Text

JUDGMENT OF JUDGE S G ERBER 
Judge S G Erber
The Charge 
Buchanan's Foundry Limited (“Buchanans”) are charged under the provisions of the Health and Safety in Employment Act 1992 (“the Act”) that on the 11th day of August 1994 it: 
“failed to comply with Section 6 of the Health and Safety in Employment Act 1992 in that being an employer failed to take all practicable steps to ensure the safety of employees while at work, namely failed to ensure that its employees Robert Ngahooro, Andrew Haydon and Tuiongo Rakauruaiti working near its furnace were wearing adequate protective clothing. ”
The events which gave rise to the prosecution 
There is no contest to the proposition that on 11 August 1994 Buchanans was the employer of the three persons named in the information. Buchanans operate a metal foundry in which there is a furnace used for melting metal. In this case the metal in question was iron. The three employees were foundry workers. Messrs Ngahooro and Haydon seem to have been furnacemen working at or about the face of the furnace. Mr Rakauruaiti was not a furnaceman but was employed to sort metal for putting into the furnace. At the time of the accident in question Mr Raukauruaiti was 10 metres away from the furnace. 
On 11 August 1994 there was an explosion in the furnace near to which Mr Ngahooro and Mr Haydon were working. As a result of the explosion a significant amount of the molten iron in the furnace discharged and some of it hit all three workers. The workers were taken to hospital. Mr Rakauruaiti suffered relatively minor burns to the forehead. He was furthest away from the explosion. Messrs Ngahooro and Haydon suffered “serious harm” in the sense that that term is defined in the Act. Mr Ngahooro suffered extensive burning to the left upper body and arm as well as burns to the face. Mr Haydon suffered serious burns and has lost the effective sight of one eye. The other eye was also effected. 
The cause of the explosion 
All three furnacemen gave evidence as well as a Mr Whittaker, Buchanans' Foreman who was the person who, so it appears, was first on the scene. The evidence is clear that if wet metal or boxed sections of metal are introduced into the furnace without in the former case being dried and without in the latter case having holes made in the boxing, a considerable explosion is likely to occur. There is no need for me to go into the scientific reasons why it happened. It is enough to know that it does happen. Buchanans knew that that was a hazard and one which could cause serious harm. In its instruction manual of working procedures to be adopted by employees it drew especial attention to this danger. Mr Ngahooro and Mr Haydon knew of that danger. Mr Ngahooro was the man in charge at the furnace face. When the explosion occurred he was bending down with his left side to the furnace face. He said that before he bent down he had instructed Mr Haydon to place a piece of boxed metal near the lip of the furnace so that it would dry out and not be a hazard. He did not see what happened. Mr Haydon said that no such piece of boxed metal was placed near the furnace face to dry. He did not know what caused the explosion. He did not think that he had been properly trained. The evidence was clear that explosions such as the one which occurred were rare. Mr Smith the foundry director, a man with twenty-seven years experience in foundry work, said that he had experienced only three such explosions in the whole of his working life. He was not present at the time. It was not clear how much metal was discharged from the furnace on this occasion but it was clearly more than 50 kilograms and probably more like three times that amount. The amount discharged was a significant proportion of the contents of the furnace. 
Mr Whittaker who upon learning of the explosion went immediately to the scene found a piece of boxed metal (which was produced) more than a metre in length resting by the lip of the furnace. 
I am in no doubt that the explosion was caused when Mr Haydon, contrary to instructions known by him, inserted into the furnace a piece of boxed metal which was considered to be damp. That act caused the explosion. It was an act which was specifically forbidden by Buchanans. To that extent in terms of s 19 of the Act, Mr Haydon failed to take all practicable steps to ensure the safety of himself and that no action of his caused harm to other workers. He should not have introduced the boxed section of steel into the furnace and knew that he should not have done this. I reject the evidence which he gave in which at the same time he claimed that he did not know what caused the accident but denied that there was any section of boxed steel close to the furnace drying out. The evidence of Mr Whittaker is compelling to the contrary. 
Relevant provisions and scheme of the Act 
There are a number of definitions provided in s 2 of the Act which are important for the understanding of the considerable responsibilities imposed on employers under the Act. Germane to this case are the following definitions: 
‘All practicable steps’, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to: 
(a)
The nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
The current state of knowledge about harm of that nature; and 
(d)
The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each; and 
(e)
The availability and cost of each of those means: 
‘Hazard’ means an activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation, or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause or source of harm. 
‘Safe’, - 
(a)
In relation to a person, means not exposed to any hazards; and 
(b)
In every other case, means free from hazards; - and ‘unsafe’, and ‘safety’ have corresponding meanings”. 
‘Significant hazard’ means a hazard that is an actual or potential cause or source of- 
(a)
Serious harm; or 
(b)
Harm (being harm that is more than trivial) the severity of whose effects on any person depend (entirely or among other things) on the extent or frequency of the person's exposure to the hazard; or 
(c)
Harm that does not usually occur, or usually is not easily detectable, until a significant time after exposure to the hazard”. ”
The term “serious harm” is also defined and includes the harm suffered by Messrs Ngahooro and Haydon - i.e. burns requiring specialist referral, vision impairment and harm necessitating hospitalisation for 48 hours or more. 
Overall the Act is geared to accident prophylaxis by imposing on the employer the duties of identification and elimination or minimisation of hazards and the harm which may arise from those hazards. Specifically this can be seen from the extent of the duties imposed on employers. Examples of these are: 
A general duty to ensure safety (s 6) 
A duty to identify hazard (s 7) 
A duty to eliminate significant hazards (s 8) 
A duty to minimise significant hazards if the latter cannot be eliminated (s 10) 
Duties to monitor employees' exposure to hazards, employee's health in relation to hazard (s 10) 
A duty to fully inform employees about prospective hazards (s 12) 
A duty to adequately train and supervise employees (s 13) 
A duty to record and notify accidents and occasions of serious harm (s 25). 
The scheme of the Act makes it clear that these duties imposed on employees exist quite independently of any accident which might arise. The employer's duty is not only to respond to accidents by taking “all practicable steps” to ensure that that circumstance does not occur again, but also to act prospectively by taking “all practicable steps” to ensure that an accident does not happen in the first place. Employers must anticipate dangers and guard against them. So, it is clear, that the Act provides for the liability of employers based upon failure to take “all practicable steps” to eliminate or minimise hazard, and such liability may attach irrespective of whether or not an accident occasioning harm occurs. 
The case for the prosecution 
The prosecution submit that, consistently with s 53 of the Act, that the offence charged is one of strict liability where it is not necessary to prove mens rea. Once the prosecution have proved the elements of the offence beyond reasonable doubt the burden is then cast upon the Defendant to demonstrate absence of fault. It is important to note that the allegation is not an allegation of unsafe system of work, not an allegation of failure to train or supervise but an allegation of failure to ensure that the workers “were wearing adequate protective clothing”. This allegation postulates the availability of suitable, adequate, protective clothing. 
The prosecution contends that the workers were wearing protective clothing but that it was not adequate and that there was available other clothing which while it would not have been a complete prophylactic against the inherent dangers attending furnace working, would have enhanced the safety of the workers had Buchanans ensured that they wore such clothing. In this case the workers wore helmets with ear protectors, cotton overalls, leather gauntlets, leather aprons and boots. Eye protection was achieved by safety glasses. 
The prosecution contends that the clothing required by Buchanans to be worn was deficient and inadequate in two main areas: 
a.
The combination of helmet and glasses was inadequate to prevent damage to eyes and face and 
b.
The provision of cotton overalls was inadequate to guard against burns arising from the material catching fire
Contrary to defence submissions (below) Mr Lange submitted that the prosecution case is not that the accident could have been averted by the employer, nor that the serious harm that arose could have been wholly prevented by steps taken by the employer, but that the safety of employees (i.e. their non-exposure to actual or potential causes of harm) would have been enhanced (or put another way, the results of the hazard minimised) if employees had been required to wear adequate clothing which was then available. 
Contrary to defence submissions (below) Mr Lange submitted that the prosecution is not using the fact of the explosion as the “base line” for measuring the employer's compliance with its statutory obligations. The explosion is simply the event which drew the attention of the prosecution to a consideration of the overall question of whether at the time of the explosion “all practicable steps” had been taken to ensure the safety of the employees. So, the prosecution argued, if all practicable steps had not been taken to ensure the safety of employees (i.e. their non-exposure to actual or potential harm), it is irrelevant that had “all practicable steps” been taken by the employer the serious harm (or other serious harm perhaps not as extensive as that which did in fact occur) would still have occurred. 
The case for the defence 
Mr James for the defence submitted that the starting point was a consideration of the term “all practicable steps”. He submitted (and his submission was not challenged by Mr Lange) that the term requires a balancing exercise to be undertaken by the employer. The employer must first identify the existence of hazards, and having done that, the risk of such hazards must be weighed against the measures required by the Act to eliminate or minimise that/those hazard/s. Mr James made the following submissions: 
“I.
That the prosecution failed to establish beyond reasonable doubt that the Defendant did not provide a safe work environment for its employees. 
That the relevant hazard was an explosion of molten metal arising from a furnace explosion. 
That the hazard was a known significant hazard 
That apart from the steps already taken by the employer, no protective clothing or equipment existed on the market that could have protected the worker against this hazard. 
II.
That the employee was in breach of section 19 by deliberately disobeying work rules. ”
I will consider first the submission of deliberate disobedience by Mr Haydon of known work procedures. I have already found that this assertion is in fact correct. However it is perfectly clear that this does not provide the employer with a defence. Breaches by employees of s 19 of the Act are, of course, relevant to the degree of the employer's culpability and hence to the imposition of penalty but that the primary duty to ensure safety was imposed on the employer. In Canterbury Concrete Cutting (NZ) Ltd v Department of Labour (High Court, Christchurch, 13 February 1995: AP 245/94) Williamson J while acknowledging that employees have duties to ensure their own safety and that of fellow workers held nevertheless: 
“The primary responsibility to provide a safe working environment and to ensure the safety of employees remains with the employer. The manner in which the sections are arranged in the Act supports that conclusion. It is also in accordance with the practical commonsense of the situation where employers control the manners and costs involved in the carrying out of a particular operation. ”
I now turn to consider the submission that the prosecution has failed to establish beyond reasonable doubt that Buchanans did not provide “a safe work environment” for its employees. As I have already noted the prosecution case is not based upon an allegation of failure to train or supervise, nor upon an allegation which expressed in its widest term is an allegation that there was an unsafe system of work. The allegation is specific and it is an allegation of a failure to provide adequate protective clothing. 
Nor do I consider that the “relevant hazard” was the discharge of molten iron from the furnace consequent upon an explosion of the type which occurred. As I have said the prosecution case is not an allegation that the explosion could have been prevented by the employer nor is it a case that the employer failed to take “all practicable steps” to eliminate or minimise the risk of such an explosion or otherwise to eliminate or minimise discharge of molten metal from the furnace. It is implicit in the prosecution case that furnace working has a risk impossible to eliminate, that there will be discharges from a furnace such as sparks or molten material, and that what the fact of the explosion revealed was that the employer had failed to ensure the wearing of adequate protective clothing which was then available, which, if not in the instant case would in many other cases prevent harm or serious harm arising from working at the furnace face. Also implicit in the prosecution case is an acceptance that had the adequate protective clothing contended for by the prosecution been worn by the employees serious harm would nevertheless have been occasioned to Mr Ngahooro and Mr Haydon although, perhaps (and it is not proved beyond reasonable doubt) the serious harm would not have been quite so extensive as in fact it was. 
In short the prosecution case is that the accident revealed a breach of the employer's duty to provide adequate protective clothing, the proper discharge of which duty would not have affected the question of whether the accident would or would not have occurred, nor whether serious harm of the type (or another type) would or would not have been occasioned, but which would have, generally, enhanced the safety of employees working at the furnace face. 
I am of the opinion that Mr Lange has correctly identified the issue with which I have to deal and that Mr James has too narrowly focussed on such practicable steps as his client had taken to avert an explosion of the type which occurred or the serious harm which was occasioned consequent on it. 
The evidence - what hazards were known? 
The evidence was quite clear upon this point. The hazards, which were identified by Buchanans pursuant to its duty under the Act, which were an actual or potential cause of injury and relevant to my enquiry were as follows: 
1.
The putting of wet or boxed metal into the furnace which would cause an explosion and the consequent discharge of a significant amount of molten metal. 
2.
Molten metal splashing out of the furnace while in the process of liquefaction. 
3.
Sparks discharging from the furnace. 
4.
Radiant heat arising from the furnace. 
5.
Discharge of flame from the furnace (apparently a rare occurrence). 
In each of these cases the harm or injury arising is a burn to the worker. The burns and their degree may arise in different ways depending (largely) on what sort of clothing is worn. The evidence satisfied me that burns can arise in the following ways: 
1.
Where the skin is unprotected the burn is applied directly to the skin. 
2.
Where cotton overalls of the type required by Buchanans to be worn by the workers is worn burns may occur when the material catches fire. Evidence from both prosecution and defence satisfies me that the cotton overalls worn by the workers were prone to catch fire if a heat source was applied to them. 
3.
Where clothing is worn made from material which does not shed molten iron (or aluminium) but does not catch fire, burns may arise to the skin from the continued presence of the molten metal on the material. 
4.
Where very heavy protective clothing is worn, it was clear from the evidence, that the worker would sweat under it as a consequence of which when the clothing came in contact with molten metal the perspiration would turn to steam and steam burns would arise. In this connection it was convincingly demonstrated by Dr Laing that while very heavy clothing would often prevent burns arising from the direct application of molten metal to the fabric, there were attendant and almost as serious problems which were that the clothing was cumbersome, inhibited the movement of the worker, but more importantly cause the body to overheat with consequent physiological sequelae namely disorientation and heat stress. 
As I have said the hazards above were known to Buchanans. 
The evidence - protective clothing generally 
As Mr James pointed out most of the witnesses called by the prosecution and one (Mr Podmore) called by the defence in relation to the question of what protective clothing was available as at 11 August 1994, had something to sell. They were all persons in the business of testing, manufacturing or marketing safety products. To that extent therefore it is hardly surprising that each should have contended for the product/s he was involved with. 
The defence however called Dr Laing, Senior Lecturer at the University of Otago in the specialist area of research relating to clothing. She is a director of the Clothing and Textile Centre and a member of the Council of Standards for New Zealand. She is New Zealand's representative on a joint Australia New Zealand body considering protective clothing. A summary of the evidence which she gave (and which I accept) is as follows: 
1.
Clothing protection arises through the interaction of the clothes worn by the worker, the body of the worker and the air spaces between clothing components and the body. 
2.
The maximisation of protection against all of the hazards identified in this case simultaneously cannot be done. Moreover no protective clothing exists now which offers unlimited protection against heat and fire. 
3.
Clothing protection therefore involves a compromise among the available solutions for the protection of the various identified hazards. 
4.
In determining the efficacy of protective clothing consideration must be had not only to the properties of the material used but also to the construction of the garment. The high fire resistant properties displayed by a particular material may be rendered significantly ineffective if the garment is not manufactured properly so as to eliminate, for example, pockets in which molten material may gather. 
5.
If protection is maximised by the use of very heavy fire resistant material the worker may be safe from being burned but would be exposed to highly undesirable physiological effects (dizziness, heat stress) and may not be able to function properly because body movement is impeded with consequent risks to safety. 
6.
So far as the Protek fabric, which the prosecution contends should have been worn by the workers was concerned, Dr Laing noted that the garments made from that material did not comply with the New Zealand Standard Specification because of their construction. Nevertheless it appeared to her that the Protek fabric is suitable for use as protective clothing so long as “large quantities of molten metal” do not come into contact with it. 
The upshot of Dr Laing's evidence was that there was and is no available clothing which gives unlimited protection from burns in the circumstances which obtained at the time. Her conclusion was: 
“Improvements to virtually all clothing systems can be made. However, it is unlikely that any employer would use the atypical catastrophic event in this case as the base line for clothing performance because of the impracticality of such a system in the generally predicated work environment. ”
However, as I have said the prosecution does not contend that Buchanans should have used “the atypical catastrophic event” as the base line for measuring the discharge by it of its duties under the Act. 
The evidence - what protective headgear was available as at 11 August 1994? 
The headgear worn by the workers consisted of a hard hat with attached earmuffs. Protective glasses were also worn. The force of the explosion was sufficient to blow off Mr Haydon's helmet and glasses. All workers received facial burns to a greater or lesser degree. 
The evidence given by Mr Ngahooro and by Mr Smith (for the defence) and others (though to a less pronounced degree) was clear that Buchanans was constantly in touch with the suppliers of protective equipment and had “trialled” many forms of protective headgear and in particular masks attached to the helmet. It was contended for the prosecution that the failure of Buchanans was a failure to provide a helmet with a mask attached. Generally speaking there were two types of masks available. 
a.
Wire mesh masks which gave good visibility. 
b.
Various forms of masks made of synthetic materials. 
As to the former the workers found them ineffective because they become very hot under radiant heat and because molten splashes adhered to the surface of the mask causing more heat and impeding vision. 
As to the latter a number of synthetic material masks had been experimented with and all of them either buckled within a very short time thus creating distorted vision for the wearer (a considerable danger in itself at the furnace face), or melted when coming in contact with molten splash. One witness said that, in addition, while melting the material gave off fumes. Mr Smith and Mr Ngahooro said that the glasses with which they were equipped at the time, while not perfect, were the best eye protection which they had tried. While they did not provide protection for the face they did provide protection for the eyes. 
The evidence satisfies me and I so conclude that “all practicable steps” were taken by Buchanans to protect the head of the worker from the known hazards. Any kind of headgear was likely to have been blown off in an explosion such as that which occurred. The prosecution contended for the use by Buchanans of a helmet and visor which it produced, or a helmet known as the Draegar helmet used by fireman. As to the former I am not satisfied that the visor did not display the same properties as the visors trialled and rejected by Buchanans and as to the latter I am satisfied that it is too cumbersome and, over an extended period, creates problems of heat stress with accompanying problems of visual distortion for the worker. In short I am satisfied that the head gear provided by Buchanans while neither it nor any demonstrated head gear was effective against all hazards, was overall, the best available protection. 
The evidence - what protective body clothing was available as at 11 August 1994? 
A large body of the evidence tendered to me had to do with this question. The main thrust of the prosecution case was that the Protek product was available and was known by Buchanans to be available and should have been used by workers in clothing worn by it. This product had in fact been tested at Buchanans foundry in 1993 and the test clothes had been left with Buchanans. Indeed Mr Ngahooro was wearing a pair of trousers made out of the clothes on the day in question. He was not burned on the lower half of his body but I conclude from the evidence that this was not because of the protective quality of the clothing but because in the position in which he was struck by the molten metal that part of his body was not exposed to the molten metal. A considerable amount of evidence was given by a Mr Wynn from the factory which produced the material and from a Dr Ingham an expert in the textile chemical industry. The conclusion which I draw from the evidence of these two witnesses is that a product called Protek ETU would in normal circumstances protect a worker better than cotton overalls. Cotton overalls had a tendency to catch fire whereas Protek did not catch fire and indeed when molten metal fell upon it it caused the material to expand enhancing its protective qualities. Dr Ingham concluded that in the events which occurred on 11 August 1994 had the workers been wearing garments made of Protek the garment itself would not have ignited and while in the particular circumstances the worker would have been badly burned the extent of the injury would, perhaps, not have been so great. In short, the conclusion I draw from that body of evidence is that Protek is not a complete prophylactic against burns, but that when used in the ordinary course of events by the worker (i.e. excluding explosions such as that which occurred) the safety of the worker would be enhanced to the extent that while burn injuries would not be eliminated by the product, certainly they would be significantly less bad than burns occasioned when the worker was wearing cotton overalls. 
The Department of Labour inspector, Mr Higgison, gave considerable evidence of the literature available from Canada, Britain and in New Zealand which related to the safety of workers in foundries and which considered the question of appropriate protective clothing. He did not, and could not, demonstrate that much of this material was known by him at the time of the accident to exist, and certainly I find that much of it was not known by Buchanans to exist. He gave evidence (confirmed by Mr Ngahooro) that since the accident clothing worn by the workers was made out of a fabric called Pyrotek which had flame resistant qualities (as does Protek) but which did not prevent burns from molten metal splash. He gave evidence of what the Managing Director of the foundry (Mr Hurst) told him about the systems which the foundry had put in place in order to ensure the safety of workers and he took a copy of part of the working procedure manual in which the worker is very explicitly told what the dangers are and how to minimise them. He said that at the time of the accident a firm called Spacetime Industries Limited had available garments made out of Pyrotex and other materials. He gave evidence that a firm called Protector Safety Limited had available “suitable type of eye protectors” such as face shields and wire mess screens with plastic lenses. 
In cross-examination he agreed that in August 1994 after the accident he had issued Buchanans with an improvement notice in terms of the Act which was in fact complied with. There was cross-examination as to why, if the hazards were known to the Occupational Safety and Health wing of the Labour Department (OSH), and why if the existence of the protective clothing and literature relating to it was known to OSH, no earlier improvement notice had been issued to Buchanans. His response, consistently with the Act, was that the duty lay not upon OSH to identify hazards and take prophylactic steps but upon the employer to do that. The cross-examination of Mr Higgison, and indeed a great deal of the evidence led for the defence, was designed to demonstrate that there was no effective protective clothing which would protect against molten metal splash. 
In cross-examination (and in evidence) the defence focussed on the many steps Buchanans had taken to identify hazards, warn workers against them and protect workers from them. Evidence was given by Mrs Dobré (who is Buchanans Materials Manager) about the Hazard Management Plan which had been virtually completed at the date of the accident and which was undertaken in conjunction with advice from OSH. She emphasised that at no time had OSH “criticised our safety equipment and clothing in the furnace area”. She pointed out that the foundry had been inspected on three occasions since 1992 and no improvement notices had been issued. 
Lastly, of note in the evidence is the fact that at one point (whether or before or after the accident the evidence is uncertain upon) a worker (identity unknown) had been wearing an upper garment made of Protek material when molten metal splashed on it. The garment was produced. One arm of the garment showed that the material had been burned. The evidence in relation to this was that the worker had not been injured when that burn occurred. Mr Ngahooro gave evidence that while nothing “stands the heat” of molten metal he had on one occasion worn an upper garment made of Protek when a “small amount” of molten metal landed on his forearm which he shucked off. The material was burned but he did not receive any injury. That evidence and the evidence of Dr Ingham indicates to me quite clearly that while a garment made of the Protek material (or Pyrotek) might not have afforded any significantly greater protection against the injuries sustained by the men on the day from the event which occurred, nevertheless in the ordinary course of working at the furnace face such material did not catch fire and cause burns (which I am satisfied happens in the case of untreated cotton protective clothing) so that while harm from burning could not be eliminated, in the ordinary course of work the harm might be significantly reduced. 
Conclusions 
The steps taken by Buchanans to ensure the safety of furnace workers, so far as the requirement to wear protective clothing is concerned, were that Buchanans required its workers to wear protective boots, leather spats, cotton overalls, leather apron, leather gauntlets, safety helmet with ear muffs and safety glasses. Those steps were taken by Buchanans after it had identified the hazards which I have described at page 11 of this judgment. Buchanans undertook an adequate safety training and education programme and all furnace workers were aware of the existence of the hazards which had been identified and were instructed in what could be done to minimise the effects of those hazards. 
The elimination or minimisation of hazards or significant hazards depends to a significant extent upon the current state of knowledge about and availability of protective clothing. At the time of the accident there was available better protective clothing than the cotton overalls required to be worn, namely treated cotton (whose life span was very limited) and certainly garments made out of Protek or Pyrotek materials. Indeed, before the accident the company had available at least one garment made from Protek. Buchanans knew that the material was available and that garments could be made from it. It is clear that Protek (or Pyrotek) did not protect against significant molten metal splash, but depending upon the degree of the event which occurred its use might lessen the harm flowing from such a splash. The major property of Protek (or Pyrotek) was that it was flame retardant. Unlike cotton overalls it did not catch fire. The effect of that property (depending upon the event which occurs) is the elimination of harm arising from discharge from the furnace or minimisation of that harm. Buchanans concluded that because the garment did not provide for the elimination of harm from significant molten metal splash, that it would not require furnace workers to wear garments made form that material. In coming to that decision Buchanans deprived furnace workers of the enhanced protection which Protek or Pyrotek garments would have afforded in the case of every day hazards arising from sparks and minor discharges from the furnace. However, nothing Buchanans could have done would have either prevented the accident which occurred nor the serious harm which flowed from it. 

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