Director of Public Prosecutions v Nordic Elevators (Ruling No 1)

[2024] VSC 813

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0307

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
NORDIC ELEVATORS PTY LTD	Accused

S ECR 2023 0308

DIRECTOR OF PUBLIC PROSECUTIONS	Crown
v
NORDIC ELEVATOR SERVICES PTY LTD	Accused

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2024
DATE OF RULING:	20 December 2024
CASE MAY BE CITED AS:	DPP v Nordic Elevators (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2024] VSC 813

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CRIMINAL LAW – Workplace manslaughter – Where deceased was apprentice electrocuted while servicing car elevator – Whether accused companies fell short of duty of care – Admissibility of prior ‘safety concerns’ evidence – Whether evidence of work safety issues that did not involve electrical work admissible – Whether evidence of safety issues involving electrical work not reported to management admissible – Swan v R (2013) 234 A Crim R 372 – Occupational Health and Safety Act 2004 (Vic) – Evidence Act 2008 (Vic) ss 55, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Livermore SC with Mr D Chisholm	Office of Public Prosecutions
For the Accused Companies	Mr R O’Neill SC with Ms A Dixon	Moray & Agnew

HIS HONOUR:

A.  Background and areas of common ground

1. Adam Pasek died on 22 March 2021 when he was attempting to repair a car elevator at premises in West Melbourne.  He was doing so pursuant to his employment with Nordic Elevators Pty Ltd (‘NE’), although the work itself was for the benefit of the related company Nordic Elevator Services Pty Ltd (‘NES’).  It seems that he was electrocuted while in the process of changing a piece of equipment on a switchboard.  The switchboard had not been isolated prior to his attempting to do so.  He was a 21-year-old 4^th year apprentice electrician and was working alone.  The Director of Public Prosecutions (‘the DPP’) has charged NE and NES with various offences under the Occupational Health and Safety Act 2004. They are planning to plead guilty to some of those charges. The charges which will go to trial are for ‘workplace manslaughter’, that is, that each of NE and NES, in breach of s 39G(1) of the Occupational Health and Safety Act 2004, engaged in conduct that was negligent and constituted a breach of an applicable duty it owed to Mr Pasek and caused his death.

1. NE, as Mr Pasek’s employer, owed to him a duty to provide and maintain a working environment that was, so far as was reasonably practicable, safe and without risks to health.[1]  The DPP alleges that NE is guilty of workplace manslaughter because it failed to provide Mr Pasek with effective supervision at the jobsite by an electrician holding an A Grade licence, who, it is alleged, would have ensured that the switchboard was isolated.[2]  Similarly, NES owed to Mr Pasek a duty to ensure, so far as is reasonably practicable, that he was not exposed to risks to his health or safety arising from the conduct of its undertaking.[3]  The DPP alleges that NES is guilty of workplace manslaughter because it failed to provide and maintain a system whereby only licensed A Grade electricians carried out, or at least supervised, its electrical work.[4]

   [1]Occupational Health and Safety Act 2004 (Vic), s 21. NE intends to plead guilty to breaching that duty.

   [2]Charge 2 on the indictment.

   [3]Occupational Health and Safety Act 2004 (Vic), s 23. NES intends to plead guilty to breaching that duty.

   [4]Charge 5 on the indictment.

1. In order to made good the charges under s 39G(1) of the Occupational Health and Safety Act 2004, the prosecution will have to prove that the companies owed a duty to Mr Pasek, that their conduct involved a ‘great falling short of the standard of care that would have been taken by a reasonable person in the circumstances’ and involved a ‘high risk’ of death or serious injury, and caused Mr Pasek’s death.[5]

   [5]Occupational Health and Safety Act 2004 s 39E(1).

1. To put the discussion below in context, I note that:

(a)   NE installed elevators, and that involved both electrical and non-electrical (or mechanical) work;

(b)  NES serviced elevators, and that could involve both electrical and non-electrical work;

(c)   NE and NES employed both qualified electricians and persons who were not so qualified but were mechanics who were able to repair problems with elevators that were not electrical (as well as having some skills in relation to electrical work); and

(d)  Some of the persons employed by or associated with NE and NES were critical of the companies’ health and safety performance across all categories of their work.

1. The DPP has prepared a summary of his opening that identifies evidence that he proposes to lead.  The summary allows for the possibility that the prosecution might have been intending to lead evidence that was critical of the health and safety behaviour by NE and NES over time and in relation to matters other than the performance of electrical work.  NE and NES have indicated that they will object to that evidence being opened or led.  These reasons concern whether those objections should be upheld.  In the course of argument, it emerged that the area of dispute between the parties was in fact quite narrow.  In this respect, I record that the parties were in agreement including that, as I understood it:

(a)   The prosecution could open, and lead, evidence as to health and safety processes throughout the period covered by the indictment – that is, between 1 March 2020 and 22 March 2021 – relating to risks associated with electrical work performed by NE and NES, but not health and safety processes relating to non-electrical work;

(b)  The prosecution would not (and could not) open, or lead, evidence from co-workers as to their opinions on, or ‘concerns’ about, the health and safety standards, processes or performance of NE and NES during the period between 1 March 2020 and 22 March 2021, unless those concerns were conveyed to management prior to Mr Pasek’s death; and

(c)   The prosecution would not (and could not) open, or lead, evidence about any faults found with the installation or servicing of elevators by NE or NES that was not associated with unsafe electrical work, or that had not been relayed to the management of NE or NES during the period between 1 March 2020 and 22 March 2021.

B.  The area in dispute

1. NE and NES sought a ruling that would broaden the position set out in para 5(c) above; they sought a ruling that:

Any evidence, including as to there being complaints to management, about safety issues arising from the way lifts have previously been installed or serviced, is inadmissible.

1. The issue arises because the prosecution has evidence (no doubt disputed) that NE installed elevators poorly and in a way that created an additional risk for those whose job it was to service, or to fix, those elevators.  In particular:

(a)   Mr Soderlund, an electrician, has said in a statement that NE installed elevators in a ‘substandard’ manner that was ‘not compliant to current regulations or any standards’ including in relation to the way they had been wired; and

(b)  Mr Vella, another electrician, said in a statement that he attended a site in October 2020 where electrical devices were full of water following a flood as a direct result of faulty work, and that he received an electrical shock when he pushed a button at that site.  He says that he passed that concern on to management, and produced a text message and photos.  He also refers to an occasion in March 2021 where he found a elevator to be ‘of a very poor standard’ and the wiring ‘rough and messy’ with a ‘lift pit stop switch’ bypassed by a bridge of wire that meant the stop button could not be activated.  He says he rectified the problem, took photographs, and informed management.

1. The prosecution accepted that evidence falling within the description of the ruling sought that was not to do with electrical faults, or which was not conveyed to management, is not admissible (as noted in para 5(c) above).  The prosecution contended, however, that evidence of problems experienced with the servicing of elevators relating to electrical safety, which had been conveyed to management, was admissible.

1. The ruling sought by NE and NES is too broad.  These charges concern the risks associated with an apprentice electrician attending to service a broken elevator without supervision by a qualified electrician, and whether NE’s failure to provide supervision and NES’s failure to ensure that work was only carried out by qualified electricians constituted a ‘great falling short’ of the standard of care that would have been taken by a reasonable person in the circumstances and involved a ‘high risk of death or serious injury’.  Whether NE or NES fell ‘greatly short’ is a fact in issue.  Evidence that management of NE or NES were on notice of risks associated with electrical faults with elevators on which their employees (or people performing work on their behalf) were to work on is relevant.  It is relevant to the evaluative process by which a jury is to measure the extent to which by allowing an apprentice electrician to attend to perform that work without supervision, NE or NES ‘fell short’ in fulfilling their duties. 

1. The point may be made by considering a hypothetical example: if an elevator repair company were told, every day month after month, that there were problems with the electrical wiring at elevators that were being serviced by it, and that the persons it employed to repair the elevators had received electrical shocks, then it is more likely that a jury would find that by failing to ensure the presence of a qualified electrician the company ‘greatly’ fell short of the standard required than would be the case if the company had never before had a situation where there had been anything unexpected about the wiring and no one had ever before received a shock from performing that work. In this way, evidence that NE and NES were on notice of problems experienced with the electrical systems when repairing elevators could rationally affect the assessment of the probability of a fact in issue, and so is relevant and admissible under s 55 of the Evidence Act 2008 (Vic).

1. Counsel for NE and NES submitted that evidence of that type was not relevant, absent some evidence linking the particular complaint or experience and an increased risk that would be faced by an unqualified electrician.  They relied on Swan v R,[6] where the Court refused to admit evidence that a driver charged with culpable driving after failing to stop at a red light had earlier injected heroin when there was no evidence that the presence of heroin in the blood could cause the fatigue that the prosecution contended was the cause of the driver’s failure to stop (and there was no suggestion that he was under the influence of heroin at the time).  I do not consider that the logic that applied in Swan v R applies in this case.  In my view, it is a matter of commonsense that the presence of electrical faults in elevators, or faults that have caused unexpected electrical shocks to those who have serviced elevators, are more likely to be safely negotiated by a qualified electrician than someone who is not a qualified electrician, or at least it is open to the jury to so reason.  That conclusion is open to be drawn even in the absence of detailed evidence about the nature of the fault under consideration.  It follows that evidence that NE or NES were aware of such problems, or the extent to which they were aware of such problems, will be relevant to an assessment as to the extent to which NE and NES fell below the standard of care required of them by having or allowing the deceased to perform unsupervised electrical work servicing elevators.

   [6](2013) 234 A Crim R 372.

1. Further, any prejudicial effect of such evidence, so long as it is limited to issues relating to the electrical systems of the elevators, does not outweigh its probative value.[7]  If the prosecution were to try to lead evidence that referred not just to the fact that persons relayed to management experiences they had with electrical wiring when servicing elevators, but sought to include criticisms of the way in which NE had initially installed the elevators, which I did not understand the prosecution intends to do, the question of whether the prejudicial value would outweigh the probative value may have to be determined.

   [7]Evidence Act 2008 (Vic), s 137.

C.  Disposition

1. For the above reasons, I will not make the ruling sought by NE and NES.  I will rule instead that:

(a)   Evidence about safety issues associated with electrical wiring experienced in the course of servicing or repairing elevators that were reported to management during the period between 1 March 2020 and 22 March 2021 is admissible.

(b)  Evidence about safety issues experienced in the course of servicing or repairing elevators not associated with electrical wiring, or not reported to management during the period between 1 March 2020 and 22 March 2021, is inadmissible.

1. Finally, I note that:

(a)   NE and NES, through their lawyers, answered questions asked by WorkSafe in which they asserted that their systems of work were that the deceased was to do electrical work when a qualified electrician was on site.  The prosecution wishes to lead evidence of those answers.  Its counsel submitted that ‘it’s an admission that the company knew that it should have had that system of work in place and asserts that it did have it in place and it didn’t happen’.  Counsel for NE and NES raised the prospect that this was post-offence conduct governed by Div 1 of Pt 4 of the Jury Directions Act 2015 (Vic). The parties agreed to communicate further with each other to see if some agreement could be reached about the admissibility of this evidence now that the use to which it is sought to be put has been identified; and

(b)  TradeCloud is a software program used by NE and NES to record job assignments to employees. The prosecution seeks to rely on data within it as evidence of the number of occasions on which persons who were not licensed electricians would perform electrical work.  Further material has recently been provided relating to that program and its reliability.  The prosecution and defence will give further consideration to whether an agreement may be reached on whether and if so what evidence may be led in relation to the TradeCloud data.

1. I otherwise note that if agreement is unable to be reached in relation to the outstanding issues, there will need to be further argument.