Inspector McCarthy (nee Shaw) v Siva and Jeya Pty Ltd

[2015] NSWDC 15

District Court

New South Wales

Medium Neutral Citation:	Inspector McCarthy (nee Shaw) v Siva & Jeya Pty Ltd [2015] NSWDC 15
Hearing dates:	05/08/2015, 07-08/08/2015, 11-14/08/2014, 18-19/08/2014, 29/09/2014, 13-14/11/2014
Decision date:	05 February 2015
Jurisdiction:	Criminal
Before:	Kearns, DCJ
Decision:	I find the defendant guilty of the offence charged in the summons and the defendant is convicted accordingly.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY – accident in restaurant – burns injuries to waitress – waitress re-filling burner pot for bain-marie with methylated spirits - resultant explosion and fire – whether part of waitress’ duties to handle bain-marie or burner pot – whether burner pots with methylated spirits constituted safe plant and equipment – whether the use of methylated spirits in burner pots constituted safe system of work – whether alternatives such as gel fuel in a can ought to have been used – gel fuel in a can used immediately following the incident – whether information and instruction provided to waitress – whether risk assessment undertaken
Legislation Cited:	Occupational Health and Safety Act 2000
Cases Cited:	Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313, Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772], WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171, Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Category:	Principal judgment
Parties:	Inspector Sandra McCarthy (nee Shaw) (WorkCover Authority of New South Wales) (Prosecutor) Siva & Jeya Pty Ltd t/a The Blue Elephant Restaurant (Defendant)
Representation:	Counsel: Mr C Magee, instructed by DLA Piper Australia, appeared for the prosecutor Mr D O’Neil, instructed by Gnana-Karan Solicitors, appeared for the defendant
File Number(s):	12/163779

Judgment

The charge

1. By summons, Siva & Jeya Pty Ltd, trading as The Blue Elephant Restaurant, is charged with a breach of s 8(1) of the Occupational Health & Safety Act 2000 (the Act). At the relevant time, it provided:

“An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a)   ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b)   ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c)   ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d)   providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e)   providing adequate facilities for the welfare of the employees at work.”

2. The event giving rise to the charge occurred on 1 January 2011 at The Blue Elephant Restaurant at the Waldorf Apartments, 2 City View Road, Pennant Hills. An employee of the Company, Ms Anisha Shrestha (Anisha) was badly burned when she attempted to apply methylated spirits to a burner pot for the purpose of keeping food heated in a bain-marie.

The evidence

3. The Blue Elephant Restaurant was located in a building known as the Waldorf Apartments. The Company operated a restaurant, a bar and a function centre in that building. The Company also operated a catering business outside of the building. The Company had two directors. One was Mr Siva Kumaran Mathiaparanam. Throughout the case he has been called “Siva” and it is convenient to continue to do so. No discourtesy is intended in doing so. Indeed, he preferred to be called that. He was the manager of the Company and responsible for the day to day running of the Company. The other director was his wife who had no active part in the running of the Company.

4. At the time of Anisha’s accident, the Company had three full time staff and about ten casual employees. The full time staff were Siva, Mr Gurindah Singh (Guru) and Premasiri Egodagedara, a chef.

5. Anisha commenced work with the defendant in September 2010. Anisha was employed as a waitress and she worked about 20 hours per week.

6. Siva made an issue as to Anisha’s start date. He asserted she started on 18 October 2010 and Anisha was cross-examined about that. It had a significance. The significance was a health inspector from Hornsby Shire Council had inspected the restaurant, made some unsatisfactory findings and made some recommendations. One of the unsatisfactory findings and recommendations related to food temperature. Anisha said she was present and was privy to these matters. She could not have been if she started on 18 October 2010 as the inspection was on 11 October 2010. It is sufficient to note that Siva’s evidence about the start date was most unsatisfactory and, at times, contradictory. It also turned out to be wrong.

7. Mr O’Neil’s acknowledgment that, when it came to the documents, Siva’s evidence was unacceptable, was realistic. This evidence about the start date and other evidence demonstrates that the unacceptability of his evidence was not limited to documents. His evidence overall was unreliable and I cannot rely on it. It will be apparent from these reasons that I do not accept Mr O’Neil’s submission that when it came to matters aside from the documents, especially the work system, Siva’s evidence was compelling.

8. When Anisha was employed by the Company, she was given no written material relating to matters of safety. She was given no formal instruction or training by Siva or by anybody else in relation to matters of safety. One of Siva’s points was that in relation to bains-marie, there was nothing to instruct her on as it was no part of her function to handle them in any way. It will be apparent from these reasons that I reject that case. Anisha’s method of learning was to observe other workers doing a task and then undertake it herself.

9. On 1 January 2011, in the evening, Anisha was working as a waitress at the restaurant. The restaurant was open for dinner. On this particular evening, it was a buffet style meal. This style had been used on occasions before during Anisha’s employment. It was routinely the style of meal for lunch. The buffet meal involved the food being set out in bains-marie along a couple of serving tables. The food was placed in a tray. The tray was placed over a compartment filled with water. A burner was placed under that. Methylated spirits was the fuel used for the burner.

10. On 1 January 2011, a number of other staff was on duty. Kieran was working in the kitchen. Jenny Cipili was working in the bar area. Siva was working in the function room. Ranjith Gunawardena was in the kitchen near the function centre, washing dishes. Diana Semaan was in the function room preparing for a wedding. There were a few customers in the restaurant and several in the bar area. Anisha was the only member of staff in the restaurant.

11. The usual method the Company used for filling the burner pots for the bains-marie was to decant methylated spirits from a 5L plastic container into a smaller bottle using a funnel. The fuel was then poured from the smaller container into the burner pots. Filling of the burner pots was usually done away from the food serving area. Guru said it was done in the cages, being an area that stored chemicals. The burner pots were brought to the serving tables and placed under the bains-marie. They were lit there.

12. Whilst this was the usual method, it was not the universal practice. Anisha said she saw Guru set up the bains-marie on the bench top near the small kitchen. The small kitchen was near the restaurant. She saw Guru put cotton wool and methylated spirits in the burner pots. She also noted that the 5L container of the methylated spirits was stored in the small kitchen or beside the bench top (T97-99). This last fact obtains corroboration from the fact that that is where she obtained it on 1 January 2011.

13. Anisha also saw Guru filling the burner pots and he explained the process to her (T100.05). Evidence from Diana Semaan corroborates this departure from the usual method (T175-178, T189.45, T196, T197.17). That evidence includes the fact of Anisha setting up the bains-marie and, it may be inferred, filling the burner pots. Ms Semaan was told by Siva not to fill “them” as that was done by “other wait staff”. It also obtains some corroboration from Mr Egodagedara (T216.40) and also from Guru (T254.20). Mr Egodagedara’s evidence includes his telling Anisha how to fill the burner pots, an unlikely event if all staff except Guru had been told not to touch them. I accept Anisha’s evidence about this.

14. At about 8.50pm on 1 January 2011, Anisha was working in the restaurant as a waitress. She noticed one of the burner pots appeared to have been extinguished. She decided to re-fuel the pot. She did this because she was aware that the food had to be kept warm to ensure compliance with food safety requirements. This had followed an inspection by an officer from Hornsby Shire Council where this very matter was raised.

15. I accept that Anisha was present when the health inspector from the Council inspected on 11 October 2010. It is true that the WorkCover inspector, following an interview with Anisha on 8 February 2011, has recorded that she stated on the interview that the food inspector came before she started work (Exhibit B, Tab 15, p78), but that is wrong. Anisha denied that she told the inspector this. I think it is likely that she did tell the inspector this. In doing so, she was wrong. This shows that one must take some care with the statements attributed to her in that interview. In denying that she told the inspector this, she has demonstrated that her recollection of the details of that interview is faulty. It might be noted that the interview was about five weeks after her injury where she suffered severe burns. She underwent significant skin grafting. It is notorious that burns and grafting can be extremely painful and can be painful over a long period of time.

16. Siva denied that Anisha was present when the health inspector inspected, but I cannot rely on his evidence and I do not accept it. Siva held a meeting after the food inspector had inspected. Anisha was not present at it (T228.15). That would be consistent with Anisha having learned of the inspector’s requirements from being present at the inspection.

17. On 1 January 2011 when Anisha decided to re-fuel the burner pot, she did so at the serving table. There was an issue as to whether it was part of Anisha’s duties to re-fuel the burner pots. It was Siva’s evidence that it was no part of Anisha’s duties to do so or indeed to have anything to do with setting up the bains-marie. In this, his evidence is in conflict with that of Anisha. Again, I prefer the evidence of Anisha where it conflicts with that of Siva. Further, on this issue, Anisha had seen Guru setting up the bains-marie and he had explained the filling of the burner pots to Anisha (T100.01-.09). She had also before 1 January 2011 set up the bains-marie herself (T101-103). This was corroborated by Ms Semaan and that included filling the burner pots with methylated spirits (T175.20, T177.17). With that evidence, I think the evidence given by Anisha that on at least one occasion Siva asked her to set up the bain-marie equipment was likely to be correct (T101.42-.47). Siva denies this, but again, I prefer Anisha’s evidence.

18. Siva maintained that he was always present or readily contactable. I accept that. He maintained that Anisha could contact him in respect of any matter that was beyond her duties or that she was unsure of. I accept that also. However, that did not take the re-filling of the burner pots on 1 January 2011 out of the course of Anisha’s duties or require her to approach Siva about it. The perceived need to re-fill the burner pot arose in circumstances where:

• Anisha was the only employee working in the restaurant;

• Anisha perceived that one of the burner pots had been extinguished. It had not, but the expert evidence explained that that was an understandable error;

• Anisha was aware that burner pots must be lit to maintain the food at a required temperature;

• The methylated spirits for re-filling the burner pots was stored in the nearby kitchen and not in the storeroom or cages as asserted by Siva.

19. Accordingly, a perceived need had arisen. Anisha was the only person in the restaurant to attend to it. The equipment for fulfilling the need was nearby and Anisha had set up bains-marie before including filling burner pots with methylated spirits. What she did was very much part of her duties.

20. Siva gave very unsatisfactory evidence about whether it was part of Anisha’s duties to keep an eye on the temperature of the food. At one point, the evidence reached a ludicrous level when Siva suggested that the factor that would cause a waitress to be concerned about the food temperature would be a customer’s complaint (T399.30, T585.01-586.27). Clearly staff, not customers, had to be responsible for the temperature of the food and Anisha, being the only one in the restaurant on 1 January 2011, that task must have fallen to her. I do not accept Siva’s evidence that this was no business of Anisha.

21. Anisha collected the 5L container of methylated spirits from the kitchen. She took it to the serving tables. She took the burner pot from under the bain-marie and moved its lid to pour the methylated spirits in. As she attempted to pour the fuel into the burner pot, its vapours ignited and exploded and surrounding materials including Anisha’s clothing caught fire. Anisha suffered serious burns injuries.

22. The only plausible explanation for the vapour igniting is that the flame in the burner pot had not been extinguished. There is no doubt that Siva was aware of the dangers of methylated spirits (T362.21). Specifically, he was aware of the risk of fire from re-filling the burner pots (T499.39-500.09).

23. After the incident, the Company did not continue to use methylated spirits. It changed to a system involving the use of gel fuel sealed in a can. When used and emptied, the can was disposed of. The cans were inexpensive.

Particulars of the charge

24. The particulars of the charge include:

The particulars of Risk are:

(a)   The ‘risk’ of employees of the company receiving burns whilst in the process of undertaking the task of topping up fuel holders (which are used to heat bain-marie/chafing dishes) (fuel holders) with methylated spirit at the premises (task), and particularly the risk of adding, or preparing to add, methylated spirit to a fuel holder that is ignited or hot from being ignited previously.

The particulars of the acts of omissions in failing to eliminate the risk are that:

(b)   The company failed to provide safe plant and equipment for the task in that it failed to provide disposable, non refillable fuel containers to heat bain-marie/chafing dishes, such as a gel fuel sealed in a small can;

the company failed to provide adequate information, instruction and training to the Anisha Shrestha in respect to the task, in that it failed to undertake measures as follows:

(i)   providing Ms Shrestha with information and instruction that there was a risk that adding, or preparing to add, methylated spirits to a fuel holder that is ignited or hot from being ignited previously could lead to the ignition of vapours from the methylated spirits fuel, leading to a risk of fire and burns;

(ii)   providing Ms Shrestha with information and instruction about the material safety data sheet for methylated spirits;

(iii)   providing Ms Shrestha with a clear direction that she should not perform, or attempt to perform, the task or, in the alternative, providing Ms Shrestha with information, instruction and training in a safe work method for conducting the task;

the company failed to provide and maintain a safe system of work with respect to the task, in that it failed to undertake measures as follows:

devise a method of replacing the fuel containers to heat bain-marie/chafing dishes that did not involve the task of topping up fuel holders with methylated spirit fuel, such as the use of disposable, non refillable containers, such as a gas fuel sealed in a small can;

undertake a formal documented risk assessment that identified the risk associated with re-fuelling the fuel containers with methylated spirit fuel being conducted in the vicinity of fuel burners and/or at buffet tables at the premises;

provide Ms Shrestha with a written safe work method or directions for the task;

(iv)   restrict Ms Shrestha’s access to methylated spirits for use in the task; …

25. Before proceeding to analyse each of the particulars, I make some general observations.

26. The prosecution is required to prove the case beyond reasonable doubt.

27. I note the absolute terms of s 8. Where there is a possibility of a detriment to safety, the requirement to ensure safety is breached – Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252 [63]-[69].

28. The element of risk is introduced into the section and the employer’s obligation is to eliminate it. The risk in this case was the risk of Anisha suffering burns injuries when re-fuelling burner pots.

29. The duty under s 8 extends to employees who may be careless, inattentive, disobedient or inadvertent - Dunlop Rubber Australia Limited v Buckley (1952) 87 CLR 313. The unforeseen behaviour of a disobedient servant might be excepted from this – Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No.2) [2008] NSWIRComm 246 [772] and see also WorkCover (Inspector Battye) v Patrick Container Ports Pty Ltd [2014] NSWDC 171.

30. There must be a causal nexus between the employer’s failure to take the measures identified by the prosecutor and the risk. Causation is to be viewed in a common sense way. The identified act or omission need not be the sole cause. Material or substantial contribution is sufficient - Simpson Design Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 [115].

Particular (b) – failure to provide safe plant and equipment in that the defendant failed to provide non-refillable fuel containers

31. The defendant’s answer to this particular is that the bain-marie equipment was safe. The use of methylated spirits was but one way of heating foods using bains-marie. The equipment “when properly used” (s 8(1)(b)) was safe.

32. I think this submission is made good. There are several ways of heating food using bains-marie. They include the use of methylated spirits, fuel gel or electricity. Each of them can be safe. It is not a breach of the section simply to use one in preference to another. The prosecutor has not proven any failure in respect of the safety of the plant or the equipment. Its case on the evidence goes to how it was used or the instruction and training given to Anisha.

33. The prosecutor fails on this particular.

Particular (c) – i, ii and iii

i – not providing Anisha with information and instruction as to the risk of adding methylated spirits to an ignited burner pot

ii – not providing Anisha with information and instruction about material safety data sheet for methylated spirits

iii – not providing Anisha with the direction that she should not re-fill burner pots, or alternatively, not providing her with information, instruction and training in the safe work method for doing it.

34. I am satisfied that Anisha was not provided with any information, training, instruction or direction as alleged in this particular. I reject Siva’s evidence that he told Anisha that setting up bains-marie or filling or re-filling burner pots was not part of her duties. I have already dealt with this. However, a little more needs to be said about the material safety data sheet (MSDS).

34. I reject Siva’s evidence about the MSDS. He did not show it to Anisha. He had not shown it to Guru (T251.38-.46). He did not draw any of its contents to Anisha’s attention. It was not on display in the chemical room. His evidence to this effect (T424.07) was false.

35. It was not there when Inspector Reynolds inspected on 2 January 2011 nor when Inspector May inspected on 12 January 2011. The photographs on p6 of Exhibit B, Tab 6 reveal two signs only and neither is the MSDS. Photographs taken by Inspector Shaw later show that Siva had arranged for the MSDS and other documents to be displayed in the chemical room after the event - photographs numbered 13 and 14 in Exhibit B, Tab 5. I thought Siva’s evidence about this was frankly misleading.

36. The failure to provide any of this material to Anisha was a material and significant cause in exposing her to the risk of burns injuries. Common sense says that if she had received the information, instruction, training and direction specified in this particular, she would not have undertaken the task as she did on 1 January 2011. The risk in that event would have been eliminated.

37. Not one of the steps alleged in this particular was of any difficulty or complexity. Each was easy to implement. Indeed, the defendant went about implementing them after the incident. There can be no defence under s 28.

38. The prosecution has made the good the case in relation to this particular.

Particular (d)

i. - failure to provide a safe system of work in that it did not devise an alternative to re-filling burner pots such as the use of gel fuel in a can

40. There is a similarity between this particular and particular (b). The difference is that particular (b) is directed to unsafe plant and equipment and this particular is directed to unsafe system.

41. If the prosecution case on particular (b) is not made good for the reason that the plant and equipment were not unsafe, the same cannot be said in relation to this particular.

42. This measure of using gel fuel in a can was not taken. Had this step been taken, it would have eliminated the risk to Anisha’s safety. She would not have handled methylated spirits. She would not have re-filled the burner pot. If a gel fuel container had been used and its fuel exhausted, the container would have been disposed of and a fresh one used. There would have been no risk of explosion or fire. There was some evidence about toxic effects of gel fuel. The prospects of employees suffering toxic effects was more theoretical than real.

43. There can be no defence under s 28 to this particular. The use of gel fuel was a practical option. Indeed it was adopted by the defendant after the incident. This really disposes of the defendant’s arguments on this point. The principal argument of the defendant was that the fuel gel carried its own risks. It had its own risks of explosion, spilling and consequent ignition and toxicity. These risks were not realistic. Explosion requires a headspace of vapour and it is difficult to imagine how that could occur in any practical way. Ignition requires spilling. The gel is viscous and unlikely to spill. Toxic results are also unlikely. The only evidence as to toxicity is in the MSDS (Exhibit B, Vol 1, Tab 52). The product is toxic by inhalation, contact with skin or swallowing. Contact with skin and swallowing would be most unlikely. In the circumstances of its use, inhalation would also be unlikely.

44. The prosecution case in relation to this particular is made good.

ii. – failing to undertake a documented risk assessment that identified the risk associated with refilling the burner pot

and

iii. – not providing Anisha with a written safe work method and directions for the task

45. These two items may conveniently be dealt with together.

46. A documented risk assessment was not undertaken by the defendant. Anisha was not provided with a written safe work method or directions for the task. I reject the evidence of Siva to the effect that such assessment was undertaken or any documents or directions were given to Anisha.

47. Siva’s evidence was so unreliable, he was prepared to say whatever suited him at the time. This is illustrated by the following sequence of evidence.

• Siva said the safe work instructions for the use of bains-marie (Exhibit B, Tab 40) was not prepared prior to the incident (T393.42, T394.17). Nor was the safe work instructions document (Exhibit B, Tab 41), (T395.26). I shall focus some of these comments in particular on Exhibit B, Tab 40. Siva then gave circumstantial evidence about what he did after the incident and that included getting Sam’s help to prepare the documents after the incident (T394.32).

• Siva had not done any assessment in relation to the risk of fire with bain-marie equipment (T443.15).

• Then Siva said he did have a written assessment before the incident (T446.08). No document was ever produced and Siva had ample opportunity to do so. He claimed, contrary to earlier evidence, he had Exhibit B, Tab 40 before the incident and that when he said otherwise, he was confused (T448). There was nothing to be confused about and the circumstantial evidence he gave about the document belies confusion. He sought to explain the confusion by the fact that he was asked about two documents together (T451.40). In fact, he was not. He was asked about Exhibit B, Tab 40 alone and before he was directed to any other document. Then he sought to explain that getting Sam to help him do the document was for an improvement to the document already in existence and not to create the document (T450.01). That is implausible.

• Siva claimed he gave a copy of the written assessment to Inspector May (T447.20). That evidence was false. He claimed this was done on 31 January 2011. It was not (T452.28).

• Then an “original” risk assessment in relation to the use of methylated spirits with bains-marie was prepared in February 2011 (Exhibit B, Tab 45).

• Then there was the false evidence of Siva that the risk assessments were hanging in the cages in the chemical room. The photographs taken on 31 January 2011 (p 6 of Exhibit B, Tab 60) reveal no such documents in places where they later appeared in photographs taken by Inspector McCarthy (Shaw) on 29 July 2011 (Exhibit B, Tab 5).

48. I hesitate to make a comment of this nature, but I thought Siva’s evidence about these documents was not only false, but was deliberately so.

49. The failure to undertake a risk assessment and give directions to Anisha for the task significantly contributed to the risk that existed. Had an appropriate assessment been undertaken, it may be inferred that:

1. appropriate alternative measures would then have been implemented, such as the use of fuel gel; or

2. Anisha would have been directed to it and informed of its content and given appropriate instruction and directions and, accordingly, she would not have attempted to re-fill the burner pot as she did.

50. Further, had Anisha been given directions for the task, it may be inferred that she would have followed them and would not have been re-filling the burner pot from the 5L container of methylated spirits.

51. I do not think that the case for providing her with a written safe work method is made good. The written document for an immigrant such as Anisha may be difficult to comprehend and follow and may not necessarily be effective. A spoken direction is more likely to be effective.

52. The task of undertaking a risk assessment was relatively simple. This is demonstrated by the defendant’s undertaking of such since the incident. Similarly, the task of giving the appropriate direction was simple.

53. The defence under s 28 is not made out.

54. The prosecution case in relation to these particulars, with the exception of the written safe work method, is made out.

iv. – failing to restrict Anisha’s access to the methylated spirits

55. The methylated spirits was meant to be kept in the storage cage. That was not always the case. It was sometimes kept in the kitchen near the restaurant. It was sometimes kept on a table near the buffet tables. Even keeping the methylated spirits in the storage cages did not limit access to it. A key to storage cages was readily available.

56. The burner pots were not always filled in the storage cages. Sometimes they were filled in the kitchen (T189.25) or at the bench top near the serving tables (T97). Anisha’s access to methylated spirits on 1 January 2011 was to a 5L container then kept in the kitchen.

57. There is a paradox in this particular. If it was part of Anisha’s job to re-fill the burner pot as it was, then she needed access to the methylated spirits. There was therefore no point in restricting her access to it. If the burner pot in fact had been extinguished, she would need to obtain access to the methylated spirits. If she had to go to the cage to get it, that might have led to another course of action being taken, namely obtaining a filled burner pot or filling one in the cage. The evidence is most unclear about this. I think Anisha needed access to the methylated spirits. I am not satisfied that restricting her access to it was a practical option.

58. I do not think this particular has been made out.

Particular (e)

i. – failing to adequately supervise Anisha to prevent her from working alone where she had not been provided with adequate information about the risks

ii. – failing to adequately supervise Anisha to prevent her from working alone where she had not been provided with a clear instruction not to perform the task or given adequate instruction or training on how to do it

iii. – failing to ensure direct supervision of Anisha while she was performing the task until the defendant was satisfied that she was sufficiently competent

59. Anisha was not supervised on the night of 1 January 2011. Siva was present and working in another, though close, part of the premises. In fact, he was not exercising any supervisory role over Anisha that evening. Siva was available to Anisha if she needed his assistance. That does not mean he was supervising.

60. For reasons I have given earlier, maintaining a lit burner pot under the bain-marie was part of Anisha’s duties. She had filled burner pots before. It was part of her duties to see to it that a lit burner pot was in place. That included the task of her doing the filling. She did not have to seek supervision to do it. Supervision is the employer’s duty.

61. The failure of supervision was a significant contribution to the incident. Supervision would have prevented Anisha from pouring the contents of the 5L container into the burner pot.

62. There are some issues of practicability with this particular. The make up of staff on the night meant that it was not practicable to have more than one staff member in the restaurant. For that reason, I do not think either particular (e) i. or ii. is made good.

63. The issue with particular (e) iii. is that it required constant supervision or regular roving supervision unless it could be known at what time a burner pot was likely to need re-filling. This could be overcome by a direction that Anisha call upon Siva when that time arose and he could then come and supervise her. However, that is not the way this particular is framed and, accordingly, I do not think this particular is made good.

Order

64. I find the defendant guilty of the offence charged in the summons and the defendant is convicted accordingly.

**********

Decision last updated: 26 February 2015