Schools and teachers beware!  What is taught in that course?

On 18 May 2004 a year 11 student at All Souls St Gabriels School in Charters Towers, Queensland, was killed when a 205 litre metal drum that he was cutting with a plasma arc cutting torch exploded.  The drum had previously contained diesel engine oil and the student was cutting it to make a feed bin as part of an agricultural skills course supervised by his teacher, Mr Beneke.

The school was prosecuted by Workplace Health and Safety Queensland, part of the Department of Industrial Relations, under s28 of the Workplace Health and Safety Act 1995 (Qld) (Act).

The Industrial Magistrates Court referred to the obligation of the school prescribed under s28 of the Act: “an employer has an obligation to ensure other persons are not exposed to risks to their health and safety arising out of the conduct of the employer’s business or undertaking’.

The School pleaded guilty to a breach of the Act. 

Industrial Magistrate Mr Ross Mack found the cutting of the drums was extraordinarily dangerous; there were clear warnings of the dangers of the activity on the drums; residual oil in the drum was not purged; there was little instruction to students to prevent the hazard and there was no supervision of the student while using the cutting torch. 

Mr Mack found the circumstances of the incident were “in all respects damming” of ASSG School Incorporated and imposed a penalty of $80,000 but did not record a conviction.  (The maximum penalty that could have been imposed was $375,000.)  In imposing the penalty, Mr Mack took into account the deep remorse expressed by the school over the incident; the fact that the school had fully cooperated with the investigation; the school’s good character and that it had no previous workplace health and safety incidents.

The school appealed against the severity of the fine on the basis of an early plea of guilty, remorse and the absence of a prior conviction.

On appeal the school asserted that:

• the plasma torch had been intended for use in the engineering course under rigorous observance of the Risk Management Advisory Standard;
  
  
• neither the teacher responsible for the engineering course nor any other person at the school had known that Mr Beneke had decided to use the torch;
  
  
• the use of a plasma arc cutting torch had not been part of the agricultural course or within Mr Beneke’s job description nor was indicated from his curriculum vitae.

However, the Industrial Court again stressed the ‘absolute’ obligation of the school to ensure the safety of the pupils within its care. The teacher had been subject to the schools’ authority, yet he had been permitted to develop a module within his course curriculum without any scrutiny by the school of its content. On the basis of the warning labels on the drums, the teacher’s action had involved reckless exposure of his students to an extreme danger and the Court considered that the school’s ignorance of such a risk had determined the size of the fine.  It held that the fine of $80,000 was not excessive and was in fact less than a quarter of the maximum penalty available and the appeal was dismissed.

Separate Workplace Health and Safety Queensland prosecution proceedings were also commenced against the teacher.

David Beneke pleaded guilty to breaching section 36(d) of the Workplace Health and Safety Act 1995 in that he wilfully placed at risk the workplace health and safety of another person. He received a 12 month suspended prison sentence. This is the first time a suspended prison term has been imposed for a breach of Queensland workplace health and safety laws.

This decision demonstrates that a particular employee’s own culpability for a health and safety breach will not save an employer from prosecution. More particularly, the case confirms an active obligation on the part of the school to scrutinise the nature of courses and activities intended to be offered by its teachers to prevent safety risks to its pupils. 

This publication was written by Bree Buxton and Susan Norton and settled by Michael Bruce. For further information please contact Michael Bruce, Partner on 08 9288 6865

http://www.lavanlegal.com.au/publications/riskwatch/February2007.html