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Prosecution Details

Defendant Primepower Engineering Pty Ltd (ACN 084 264 479)
Section 19(1), 19A(2) and 3A(3)(b)(i)
Offence Date 11 November 2011
Description of Breach(es)

The Accused, being an employer, failed so far as was practicable to provide and maintain a working environment in which its employees were not exposed to hazards and by that contravention caused serious harm, contrary to sections 19(1) and 19A(2) of the Occupational Safety and Health Act 1984.

Background Details

Primepower Engineering Pty Ltd has a business premises located at 53 Great Eastern Highway, Kalgoorlie in the State of Western Australia. The Accused's business is, predominantly, carrying out mechanical and electrical repairs to engines, most of which are generator engines.

The Accused's business premises are comprised of a number of different areas and buildings including offices, workshops, outside storage areas, a bar and a wash pad area.

The Accused employs approximately 30 people.

In the days leading up to 11 November 2011, the day of this incident, arrangements were made to celebrate Remembrance Day and the Director's birthday on 11 November 2011 at the Accused's work premises.

On 10 November 2011, the Accused held a toolbox meeting at the business premises. There were 16 people in attendance, which included the workshop leading hand and the workshop foreman.

At the toolbox meeting, the workshop foreman raised the issue of "early knock off Friday for celebrating the Director's birthday". The attendees at the toolbox meeting were notified that all employees could knock off work at 11:00am the next day, Friday the 11th of November 2011. The early knock off was to be followed by drinks and food at the Accused's business premises.

In addition to celebrating Remembrance Day and the Director's birthday, the Director also described the Friday afternoon event as being to "thank the guys for the hard times that we'd had leading up to then".

On Friday, 11 November 2011 the employees started work at their normal times which was usually around 6:00 or 7:00am. At approximately 11:00am all employees finished work. Employees were not required to attend the Friday afternoon event and a number of employees chose not to, or attended periodically.

All employees were paid their ordinary wage, mostly being a 40 hour week, whether they attended the Friday afternoon event or not. That meant, that most employees were still being paid to around 3:00 or 4:00pm in the afternoon, dependent upon their start time.

Those employees that chose to stay at the Accused's business premises attended the celebrations. The Accused supplied all of the alcohol, about 8 or 9 kegs of beer, soft drink and food.

In the early part of the afternoon, some apprentices decided that they would attempt to seize an engine by over revving the engine until it failed. Over revving an engine in an attempt to fail it had been done before at the Accused's premises, approximately 5 years prior when a group of the fitters attempt to seize a Detroit engine, without success.

Seizing the engine on this occasion was described by the Director as "a challenge" to the apprentices.

When determining which engine was to be seized, the workshop foreman told the apprentices that they could use a Caterpillar 3360 engine which was located in the storage area next to the workshop, referred to as the "graveyard".

The apprentices, using the Accused's forklift, took a Caterpillar engine.

The Director directed the apprentices to take the Caterpillar engine into the workshop in order to do the work to get it running.

The apprentices used the parts from a 2nd Caterpillar engine in the graveyard to get the first one running.

After doing some work on the engine such as changing the belts, transferring the alternator over, filling it with coolant and putting a fuel filter on, the engine was taken outside to the wash pad area using the Accused's forklift.

Once the engine was on the wash pad the apprentices attempted to start the engine, eventually getting it to start around 3:00pm. Whilst this was occurring, the workshop foreman and the workshop leading hand visited the wash pad area, from time to time, to see what progress was being made and offer advice on getting the engine started.

Whilst the Director didn't go over to the wash pad area, he knew that the engine was being worked on to get it started with intent to attempt to seize it.

The noise of the engine was described as loud and clearly audible at the bar area where other employees, including the Director, were socialising.

Once the engine was running, the apprentices went about trying to seize it by introducing different products into the turbo air intake. The apprentices included the victim, two apprentice mechanics and an apprentice electrician. A worker, on work experience also participated.

To facilitate the process the throttle of the engine had been fixed in the full open position.

The products being introduced into the air intake of the turbo included brake cleaner, water, compressed air, thinners, methanol and ultimately petrol. With the exception of the methanol and the petrol, each of those products came from the Accused's workshop.

It is not clear where the methanol came from.

The petrol came from someone's personal vehicle late in the afternoon or early evening. The petrol was brought to the wash pad area in a 20 litre container.

When the petrol arrived, the workshop leading hand told the apprentices then working on the engine to stop while he went and retrieved two fire extinguishers from the workshop. The workshop leading hand said he didn't know why he went and got the fire extinguishers, he just had a gut feeling.

In a record of interview, the Director stated that when he saw the container of petrol being carried over to the engine he had decided that he would tell the guys to "leave it at that and call it quits". However, the incident occurred before he did so.

The process of trying to seize the engine wasn't constant. The apprentices and the supervisors went back and forth between the social area and the wash pad during the afternoon. Most people were drinking throughout the afternoon.

The victim was squatting near the engine pouring the petrol from the open container, about the size of a Milo tin into the base of the second container. The open container was filled with the petrol.

The workshop leading hand was on the way back to the engine with the two fire extinguishers and the second apprentice, an apprentice electrician was spraying a substance into the intake of the engine. It is not known whether the workshop leading hand indicated the go ahead or whether the apprentice electrician saw him coming back from the workshop with the fire extinguishers in hand.

The apprentice electrician cranked, that is, tried to start the engine. He was spraying a flammable substance into the intake of the engine. It is not known what that substance was other than to say it was flammable. He was situated to the other side of the engine and to the other side of the victim.

There was a spark from the engine. The spark was a source of ignition resulting in a fireball.

A fireball came out of the engine. It is not known with certainty from which part of the engine the fireball came only that it came from the engine.

The victim flinched holding the open container of petrol and he was engulfed in flames. Spot fires also occurred close to the engine.

At the time of the cranking of the engine the Director again got up from the bar area to tell the apprentices to stop. He was too late. The victim was coming towards him engulfed in flames.

The victim suffered burns to approximately 61% of his body, comprised of superficial to full thickness burns (1st degree to 3rd degree burns).

As a result of the burns, the victim has:

a) impairment of function of his bilateral upper limbs;
b) severe scaring with discomfort;
c) pain and itching;
d) the need to wear pressure garments; and
e) ongoing orthopaedic treatments, including surgery, for his heterotopic ossification of his elbows.

Without medical intervention, the victim would have died. He had at least 8 rounds of surgery and continues to see a Plastic Surgeon for ongoing treatment including steroid injections and surgery.

Being burnt as a result of the ignition of a flammable substance that was being poured and/or sprayed into the air intake of the turbo of the Caterpillar 3360 engine was a hazard.

On 11 November 2011, the victim was exposed to the hazard.

It was practicable for the Accused to have eliminated the hazard by:

a) instructing its employees not to pour and/or spray flammable substances into the air intake of turbo of the Caterpillar 3360 engine; and
b) enforcing that instruction.

The Accused failed to take those practicable measures. There was no cost in implementing the practicable measures.

 




Outcome Summary

The Accused entered a guilty plea and was convicted. The Magistrate fined the accused an initial fine of $110,000.00 less $30,000.00 for mitigating factors to a final fine of $80,000.00 and ordered costs of $6,000.00

Conviction Date 13 Jul 2015
Court Magistrates Court of Western Australia - Kalgoorlie
Fine $80,000.00
Costs $6000.00
Charge Number KA3326/14