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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Eastern Auto Spares (NZ) Ltd (DC, 07/06/95)

OSH Tracker

Defendant:
Eastern Auto Spares (NZ)
After an oxyacetylene set caught fire from a flashback believed to have been caused by a leaky hose, Eastern Auto Spares (NZ) Limited was fined $4500 for failing to ensure an employee was not exposed to harm. No flashback arrestor was fitted to the welding set. The Court accepted the need for a general deterrence penalty, noting encouragement must be given to OSH inspectors to take action and that they must be able to advise employers what the view of the Court is. (Auckland DC, 7 June) 
Industry:
Retail Trade
Sub-Industry:
Motor Vehicle Retailing and Services
Risk:
Burns/explosion
Harm:
None
Penalty Amount:
$4500.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 33

Judgment Text

ORAL DECISION OF JUDGE P.F. BOSHIER 
P.F. Boshier Judge
The defendant company Eastern Auto Spares (New Zealand) Limited is charged under s 6 and s 50 of the Health and Safety in Employment Act 1992 specifically with being an employer it failed to take all practicable steps to ensure the safety of its employee, namely Peter Whitehouse, while at work in that it did fail to take all practicable steps to ensure that the said Peter Whitehouse was not exposed to injury from an oxy-acetylene set. The defendant company pleaded not guilty to this charge and today the matter has proceeded as a not guilty hearing with Mr Golder, a director of the company, representing the interests of the defendant company. 
It is important to stress that this is a criminal prosecution and the onus is on the Informant to prove the ingredients of the charge to the requisite standard. The requisite standard here is beyond reasonable doubt. 
The facts in this case are very simple and indeed I detect no great dispute at all with what occurred. It is really only whether it can be said that the defendant company failed to take all practicable steps that is in issue. 
The informant called three witnesses. The first was Peter Whitehouse who said that on the 10th of August he was working as an employee for Greyhound Nissan Spares which is a business operated by Eastern Auto Spares (New Zealand) Limited. He said that he had been working with oxy-acetylene equipment for some 30 years. He said that he had been working for Eastern Auto Spares since about August 1994. On the 10th of August he was cutting parts off a car. He had noticed that the acetylene valve in the oxy-acetylene equipment was leaking. He said that he had told “Greg” who was in charge that the leak was there. He said nothing had been done about it. He said that the oxy-acetylene equipment was about 6 metres or 20 feet away from where he was applying the actual cutter, that is the torch. As he was using the torch on the Ford Fairmont car the gauge on the oxy-acetylene equipment caught fire. Specifically though it was the valve or gauge which led onto the acetylene bottle and which is situated between the bottle itself and the hoses. He said that he tried to put the fire out using water but could not. He said that he then went to tell Greg that the fire had occurred. He said that flames then began to leap high into the air. He said that the oxy-acetylene equipment had not been fitted with flashback arrestors. As a result of the accident he said that he had not been harmed. When asked some questions by Mr Golder, Mr Whitehouse said that he had told Greg about three weeks before that the equipment was leaking and that nothing had been done. 
The next witness was Bruce Coyle who was the sales centre manager for British Oxygen Company, otherwise known as BOC Gases, and he worked at Penrose. He gave evidence as to the type of equipment that was involved here. He told of having been called by the fire department to the scene of the fire on the 10th of August He said that the acetylene bottle had been placed into a drum of water. He prepared an “occurrence report” and reported in that that it was his view that the fire had occurred because there were no flashback arrestors on the hoses and that this had enabled the flame to travel from the torch back up to the pipes and to ignite at that where the valve was. He said that his company provided oxy-acetylene equipment but that the flashback arrestors were not mandatory and were sold as part of a ready made kit in conjunction with selling oxy-acetylene equipment. Put another way, it was optional for the purchaser, they were not mandatory, they were not part of the pre-made kit. 
The third witness was David Myron Coon who is a safety inspector with the Department of Labour. Mr Coon gave evidence of having visited the scene of the fire. He gave quite detailed evidence as to the operation of this oxy-acetylene equipment He concluded that the acetylene bottle caught fire because a flashback had occurred. Flashbacks can occur in equipment such as this he said and usually because the pressure in say supply coming from the oxygen bottle was greater than the supply coming from the acetylene bottle. This could mean that fire occurring at the pipe of the cutter torch could in some circumstances complete a circuit and be forced to travel back down the other hose leading to and from the acetylene bottle. If the pressure in the acetylene bottle was less than the oxygen this could be conducive to flashback. The fact that the acetylene gauge leaking could have invited a flashback because of lower pressure. Mr Coon said that he had confiscated the equipment and checked various items through. He said that he had noted that no arrestors were present on either of the hoses. He detailed what an arrester was and said that it was a device which ensured that only gas passed one way through the hoses and that the event of the flashback the flame was doused before it went past the flashback and back in the bottle. He said that he had visited many factories and that arrestors were now reasonably common. He said that they were available and that they should have been used on equipment such as this. He referred to a Labour Department booklet which was produced first in 1982 and then revised in 1984 which, rather deplorably, it seems is now out of print. He referred to page 7 of that booklet which shows the correct way to assemble oxy-acetylene equipment and referred to on that page is the need to use arrestors so as to avoid the possibility of flashback. He said that flashback was recognised as a risk and that it was reasonable to take the precaution of fitting arrestors to stop the impact of flashback. In addition he referred to the New Zealand Standard's Code of Practice for Safety in Welding and Cutting and in particular he referred to 3.5.3.5 and 3.5.3.6 which are specific paragraphs aimed at the prevention of flashback and steps which must be taken in that regard. Mr Coon said that he had gone to the office of Eastern Auto Spares and asked why of Mr Golder, this equipment had not been fitted with flashback arrestors. In response he said that Mr Golder had in turn asked a question as to whether it was mandatory to have them. Mr Golder had said that he had purchased the business of Greyhound Nissan Spares two or three months previously and that the oxy-acetylene equipment that was in question here had simply had been transferred to him. 
The defence, which as I have said Mr Golder conducted, called Gregory Clement who was the parts sales person at Greyhound Nissan Spares. Mr Clement said that he knew that the oxy-acetylene equipment involved had a leak. He said he did not know or believe that it was serious. He said the first that he knew of the fire on the 10th of August was when Mr Whitehouse came running up to tell him that the fire had occurred. Mr Clement said that it was Mr Whitehouse's choice to use the oxy-acetylene equipment. He said that he knew, that is Mr Whitehouse, of what the options were. He said Mr Whitehouse knew that the bottle was leaking but chose to use it all the same. He said that Mr Whitehouse could have used other means of attacking the dismantling job that he was doing. He said that Mr Whitehouse was not forced to use the bottle. In short, it was his view that the responsibility was really on Mr Whitehouse. It was Mr Clement's view that the use of flashback arrestors was not widespread and indeed he said that over seven years and in some 20 car wrecking yards he had not seen them used before, but he knew of their existence. 
Mr Golder also gave evidence and said that he was one of the directors of the company. Mr Golder's whole theme was that arrestors are not widely in use. He said that as far as he was concerned they were not mandatory and that he was under no real obligation to provide the arrestors. As to whether he should have or not he did not feel that that was so. He referred to the practice which he regarded as widespread of their non-use. He was critical of the Labour Department for not making it clear by the sending out of brochures or otherwise, what standards were required. He said he attended a workshop which he had been asked to attend by Mr Coon and was critical that there was no real concentration on use of oxy-acetylene equipment and furthermore he was critical that no brochures at all were available. He questioned why, if the arrestor should have been used, it was not mandatory to provide them when the gear was sold. 
I turn now to the law. S 6 provides a very broad obligation indeed on employers. The whole thrust of the section is to ensure, in the very words of the section itself, that employers “take all practicable steps to ensure safety”
There is not only an obligation on employers. I see that s 19 imposes an employee to take all practicable steps to ensure his or her own safety as well. “All practicable steps” is defined in s 2 and five criterion are set out as referring to what is practicable in circumstances. S 50 of the Act is the penalty section and records that for a failure to comply with an offence such as s 6, the Court may impose a fine where there is no serious harm not exceeding $25,000. It is clear then that the legislature intended to take the question of safety in the workforce extremely seriously. 
I turn to the charge to see what ingredients are easily established. There is no dispute that Eastern Auto Spares (New Zealand) Limited was an employer and that Mr Whitehouse was, at the material time, an employee. There is no doubt that Mr Whitehouse was at work at the time. There is no doubt at all from the evidence, for it is not in dispute, that a large fire occurred emanating from the acetylene bottle as a result of a flashback. I think it most likely that the flashback occurred as a result of a diminution of pressure in the hose leading from the acetylene bottle to the torch, that pressure being lessened by leakage from the valve. It followed that it's more likely than not that the oxygen pressure was much more than the acetylene pressure and that this forced the flame back along the acetylene hose causing a fire where the valve occurred. There was no harm to Mr Whitehouse other than perhaps fright and certainly no serious harm to any person. 
The sole question, accordingly, that the case gives rise to is whether the employer failed to take all practicable steps by not fitting arrestors or ensuring that arrestors were fitted to the oxy-acetylene equipment Some further matters of fact need to be found. Regrettably I find no evidence that BOC exhorts purchasers of this equipment or users of it to purchase the arrestors. They are available and brochures recommend their use but I find little evidence that the need for their use is impressed upon employers as much as it should be. Equally, I would have to say of the Labour Department that whihle the merit of arrestors are well known to people such as Mr Coon who works in the industry, I am not convinced that much has been done to promote the use to employers of which there must be many thousands, such as Mr Golder. The fact that this helpful booklet of the Labourt Department has not, it seems, been revised since 1984 and is now totally out of print, reinforces my impression that the Labour Department could do more to promote safety steps that could be taken. 
Having made those observations did Eastern Auto Spares (New Zealand) Limited take all practicable steps to ensure that Peter Whitehouse was not exposed to injury from an oxy-acetylene set? The answer can only be that it did not There can be no other answer in this case. Because it has been established that it was the acetylene equipment that gave rise to the fire, and that the most likely cause of the fire was flashback, it is logical for me to look at what steps could have been taken to avoid what occurred and to evaluate whether such steps that could have been taken were practicable. While I have some sympathy with Mr Clement that Mr Whitehouse chose to use the equipment, nevertheless it is my view that it was the employer's obligation to act on the leaky valve and not leave the decision up to Mr Whitehouse. It is easy to say that it is the employee's responsibility and his or her risk but that is not the way this Act of Parliament sees the situation. 
I find, firstly, then that Eastern Auto Spares (New Zealand) Limited was duty bound to act to reduce the possibility of flashback once it knew that the valve from the acetylene bottle was leaking. In the second place, it would have been practicable to have fitted these arrestors. I accept the genuineness of what Mr Golder says, that he has not used them in the past and does not believe that they are widely used. What that tells me is that there was no malicious intent on his part to deliberately avoid fitting the flashback arrestors but the fact is they are available and are a practical way of avoiding flashback. It seems to me that the Court must look at what is practicable and reasonable, not by looking over at the past, and what may have been questionable practices in the past, but looking at developments in technology and what expections are in the 1990s. I find then that the charge is proved. 
I turn now to the question of penalty and Ms Scott has kindly taken me through the criteria which is set out in the leading High Court decision of Despar which was a decision of the High Court undertaken to regularise penalties imposed in the District Court particularly so far as the establishment of the relevant criteria applying to penalty are concerned. 
I make these comments just in passing in relation to the criteria As to the degree of culpability of the defendant company, Ms Scott has suggested that this be placed at medium to high. I would not put it that high myself and would accept much of the sincerity of what Mr Golder has said and put the degree of culpability at low to medium. Secondly, I accept that no harm occurred here but that there was serious potential harm. That is important in this case. Oxy-acetylene equipment which catches fire is extremely hazardous. Thirdly, the financial circumstances of the company satisfy me that the company can afford a reasonable fine. The company has six employees to it's credit It employed Mr Whitehouse on a training scheme and gave him the opportunity for employment However the company is not impecunious and I am duty bound to impose a fine which is other than nominal. The fourth matter is attitude and I accept here, as does the Informant, that remedial steps were taken, new equipment was purchased (largely because it had to be) and that with the new equipment flashback arrestors were purchased. The next matter is as to plea and here no credit can be given for a guilty plea. The next submission of the Informant is to impose a fine which acts as a deterrent I agree in general terms with this, but to what extent this Court sitting here today will deter other employers, remains to be seen. I certainly think for the benefit of the Informant, particularly for Mr Coon whose job it is to ensure that safety standards are met, that encouragement must be given to take action against employers who have not conformed and that he is given the licence to advise employers what this Court's view is as to non-compliance. The next matter is the safety record of the defendant concerned and here there is no suggestion of any previous bad safety record. The final matter goes to other matters which may be of relevance. I think Ms Scott is correct when she says that the onus is on employers to put in place conscious over-view of business activities in a pro-active sense to be identifying any problems and to rectify them. I cannot help but feel that Mr Golder has himself conceded that this did not occur because in his own words he is extremely busy. I think in reality in this case, far more could have been done to firstly, fix the leak in the valve and secondly, to ask the question what more could be done to ensure that the equipment being used is reasonably safe? 
Having regard to all of those factors, on this charge I fine the defendant company $4,500. To this I add Court costs of $95 and costs to the Informant in the sum of $400. 

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