What happened?

A Disability Services Officer, responsible for providing support to residents with intellectual and physical disabilities, has been convicted of breaching safety laws following a “serious departure” from the requirements of her role as a carer after a resident with epilepsy and limited communication skills received serious burns from bathing in very hot water in a bath run by the employee.

The employee was employed as a Disability Services Officer, and was responsible for providing residential support to residents with intellectual and physical disabilities who lived full time at the residence.

A resident, with epilepsy and limited communication skills, received serious burns to over 30 per cent of her skin as a result of bathing in very hot water which the employee had run in a bath for the resident to bathe in.  The resident was hospitalised and eventually endured a number of painful skin graft operations.

The employer had a specific work instruction in place that all employees were required to follow in relation to bathing residents which included an instruction that the employee was to not allow a resident to get into a bath before adjusting the water temperature.   Further, the employer kept a Personal Profile document relating to the resident which stated that water temperature must be closely monitored to avoid burning.  The employee was aware of these documents.

The employee was prosecuted for breaching the now repealed South Australian Occupational Health, Safety and Welfare Act 1986 (SA) (OHSW Act) for failing to “take reasonable care to avoid adversely affecting the health or safety of another person through an act or omission at work”. 

Decision

The Court found that the employee breached the OHS Act because:

  • the employee had completely failed in a very basic task of checking the temperature of the bathwater that the employee had prepared for the resident; and
  • the employee’s actions were a “serious departure” from what was required of her in her role as a carer for residents with intellectual and physical disabilities.

The employee was fined $6,300, after being given a 30 per cent discount for an early guilty plea and contrition shown for the offence.   Also, a criminal conviction against the employee was recorded.

Lesson for Employers

Although to date the employer has not been prosecuted directly for the employee’s actions the case raises a number of work, health and safety issues employers must be aware of.  Significantly, it highlights that work, health and safety liability applies to risks arising to residents themselves not just workers.Therefore, employers may be:

  • exposed to liability for breaches of work, health and safety legislation arising out of incidents that occur directly with residents;
  • subject to WorkCover bringing a prosecution against them as a result of the incident; and
  • exposed to a criminal conviction and monetary penalty as a result of any Workcover prosecution before the Courts.