Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd

[2017] NSWDC 66

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66
Hearing dates:	28, 29, 30 November, 1, 2 December 20166, 7, 8, 9, 10 March 2017
Date of orders:	27 March 2017
Decision date:	27 March 2017
Before:	Judge AC Scotting
Decision:	1 The elements of the offence have been proved beyond reasonable doubt against each defendant. 2 I find Activate Fire Pty Ltd guilty of the offence. 3 I find Unity (NSW) Pty Ltd guilty of the offence. 4 I will list the matters for mention on 3 April 2017 together with the matter of Hanna Plumbing with a view to listing the matters for sentence on a day convenient to the parties. It appears to me that the defendants and Hanna Plumbing may wish to take issue with the causation of the injury to Mr Gumbleton and if that was the case, it would be convenient to hear all of the parties as to penalty at the same time.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee - elements of the offence – not guilty – labour hire – labour hire worker – supervision – safe work method statement PROCEDURAL – charge particularised – amendment – proof of elements of charge – burden of proof – proof beyond reasonable doubt - onus WORK HEALTH AND SAFETY – safe work system –– employee training – previous compliance notices – duty
Legislation Cited:	Work Health and Safety Act 2011 ss. 12A, 19(1), 19(3), 32 Evidence Act 1995 s.144
Cases Cited:	Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Bulga Underground Operations v Nash [2016] NSWCCA 37 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 R v ACR Roofing Pty Ltd (2004) 11 VR 187 R v Saffron (No 1) (1988) 17 NSWLR 395 Onetech Pty Ltd v Shaw [1999] WASCA 28 Fitzpatrick v Job [2007] WASCA 63 M R and R C Smith Pty Ltd trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110 GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 R v Henry [1999] NSWCCA 111
Category:	Principal judgment
Parties:	Safe Work (NSW) (Prosecutor) Activate Fire Pty Ltd (Defendant) Unity (NSW) Pty Ltd (Defendant)
Representation:	Counsel: Mr M Moir (Prosecutor) Mr C O’Neil (Activate Fire Pty Ltd) Mr C Magee (Unity (NSW) Pty Ltd)     Solicitors: Safe Work (NSW) (Prosecutor) SBC Legal Services (Activate Fire Pty Ltd) Dettmann Longworth Lawyers (Unity (NSW) Pty Ltd)
File Number(s):	2016/00077856 (Safe Work (NSW) v Activate Fire Pty Ltd)2016/00077902 (Safe Work (NSW) v Unity (NSW) Pty Ltd

Judgment

1. Unity (NSW) Pty Ltd (Unity) and Activate Fire Australia Pty Ltd (Activate Fire) pleaded not guilty to an offence contrary to section 32 of the Work Health and Safety Act 2011 (the Act). It is alleged that the defendants breached a health and safety duty owed pursuant to section 19(1) or (2) of the Act and thereby exposed Dwayne Gumbleton, an employee of Hanna Plumbing Pty Limited (Hanna Plumbing), to a risk of death or serious injury.

2. At about 11.30am on 14 March 2014 Mr Gumbleton suffered an electric shock while working in the roof space of the administration area (the roof space) of an aged care facility known as Kularoo Aged Care Facility at Forster (the facility) operated by Baptist Care Services Pty Limited (BCS). At the time of the incident Mr Gumbleton was with other employees of Hanna Plumbing installing a fire sprinkler system (the system).

The facts

3. The facility provided residential accommodation for aged persons in a number of buildings. The buildings were interconnected by covered walkways. The facility had a kitchen to provide meals for the residents, an on-site registered nurse and a number of its residents required high dependency care. One of the buildings at the facility contained a number of offices where the administration staff of BCS had offices (the administration wing). Stage 2 of the facility that included the administration wing, had been completed in or about 2004. A change in legislation required BCS to install the system at the facility before a certain date. BCS invited tenders for the installation of the system.

4. Unity had previously subcontracted the installation of a fire sprinkler system to Hanna Plumbing for an aged care facility in Grafton. Peter Gurtner, the director of Unity, approached Heinz Stalder, [1] the director of Hanna Plumbing, to be involved in the tender process for the work. Mr Stalder brought in Glen Chapman the director of Activate Fire to assist because size of the project. Mr Stalder had previously worked on projects with Mr Chapman when Mr Chapman was employed by Wormald.

   1. Known as “Hanna”.

5. During the course of the tender process, David Gurtner a foreman employed by Unity, Mr Chapman and Mr Stalder were given access to the roof spaces at the facility for the purpose of preparing a quote to be included in the tender.

6. Following a successful tender, Unity entered into an agreement with BCS dated 27 September 2013 (the Agreement) to design and install the system at a cost of $520,744.

7. Activate Fire entered into an agreement with Unity to design and install the system. Hanna Plumbing entered into an agreement with Activate Fire to supply the labour to fabricate and install the system. Activate Fire retained the responsibility for providing a Safe Work Method Statement (SWMS) for the work, certifying the system and for arranging materials to be ordered and delivered to site.

8. BCS appointed EPM Projects Pty Ltd (EPM) to act on its behalf as a project manager and to liaise with Unity as to the progress of the work. [2] EPM were the designated Superintendent in the Agreement.

   2. The activities of EPM are of marginal relevance to the determination of the charge.

9. Peter Wells was the Property Asset Manager of BCS and its onsite representative for the work. Mr Wells was based at the facility and usually present for 2-3 days a week. He had responsibility for 9 aged care facilities operated by BCS between Forster and the Queensland border. David Watt, the Maintenance Supervisor of BCS and Nathan Don reported to Mr Wells. Deidre Moylan was the Manager of the facility and responsible for its overall operation.

10. It was agreed at the commencement of the work that Mr Wells was to be notified if the work would affect the operation of the facility. Mr Wells would then consult the necessary BCS personnel and notify Unity if there were any conditions to be placed on when or how that work could take place. For example, on one occasion approval was given to perform work in the kitchen area after 6.30pm when the kitchen no longer required for the day.

11. Activate Fire prepared a Safe Work Method Statement (SWMS) dated 9 September 2013 because some of the work to be performed in the installation of the system was high risk construction work as defined by clause 291 Work Health and Safety Regulations 2011 (the Regulations). The SWMS was forwarded to Unity and reviewed by David Gurtner on 30 October 2013.

12. The SWMS identified the risk of electric shock when moving in or working in a roof space. The SWMS identified the relevant control measures to respond to the risk as:

1. noting the location of services and avoiding them; and

2. avoiding dropping tools or equipment.

13. Before commencing work at the facility the employees of Hanna Plumbing were required to sign the SWMS prepared by Activate Fire to indicate that they had read and understood it. They were also required to undergo a site induction conducted by David Gurtner.

14. The installation of the system began in about October 2013.

15. From that time, David Gurtner, Mr Chapman and Mr Stalder had further access to the roof spaces of the facility for the purpose of measuring up to design and fabricate parts of the system.

16. The administration wing was one of the last areas to have the system installed.

17. The roof of the administration wing was constructed of metal trusses covered by metal roof sheeting. Steel furring channels were attached to the underside of the roof trusses. The furring channels were made of sheet metal, bent into a U-shape. The furring channels were affixed perpendicular to the roof trusses. The gyprock ceiling of the administration wing was fixed to the flat underside of the furring channels with self-tapping screws (the screws). The furring channels had sharp edges and there were a number of screws that protruded through the gyprock, the furring channels and in places pieces of timber that had been installed to support the inclusion of air-conditioning vents and other structures.

18. The installation work in the roof space took place over 7 days. The first 2 days involved the installation of the sprinkler heads and then fitting them with a flexible hose connection that would be ultimately connected to the main. That work was completed a few weeks or months before the installation of the main. This work required one of the Hanna Plumbing employees to be present in the roof space to determine the correct positioning of the sprinkler heads in the ceiling.

19. During this work, Mr Stalder gave evidence that he assessed the roof space for risks to safety. He determined that when the main was to be installed that he would he need an extra manhole installed in the ceiling of the administration wing to provide a safe means of accessing the roof space and that he would remove the metal roof sheets to provide natural light, ventilation and better access to an alternate method of access to the roof space at that time.

20. Mr Stalder observed that the wiring in the roof space as “sloppy”. The wires were everywhere, not contained in conduit or cable trays, lying on top of one another and going in all different directions. Mr Stalder identified the risk of cutting the wires by standing on them and causing them to come in contact with the sharp edges of the furring channels. Mr Stalder did not notice the sharp points of the screws in the roof space.

21. Mr Stalder discussed his assessment with Mr Chapman and David Gurtner.

22. He told Mr Chapman that the installation of the main in the roof space was going to take more time because the workers would have to be extra careful because of the risk posed by the location of the wires on top of the steel furring channels. He told Mr Chapman that it was worse than the Triangle (another roof space) because of the presence of the furring channels. The Triangle roof space was constructed from timber and did not present as serious a risk of cutting the wires by treading on them. The roof space was the only area constructed using the furring channels and it presented a “definite” risk of the wires being cut.

23. Mr Stalder told David Gurtner that the wiring was really sloppy and that the workers were going to have to be really careful and to take extra measures.

24. On 20 January 2014 Mr Chapman rang Mr Stalder and asked for his input into an email to be sent to Peter Gurtner. Earlier that day, Mr Stalder and Mr Chapman had been in the Triangle roof space measuring up for the installation of the main in that area. Mr Stalder told Mr Chapman in that telephone conversation that it was going to be a difficult install because of the location of the cables in the roof space.

25. The email [3] was sent on 20 January 2014 at about 11.45pm by Mr Chapman to Peter Gurtner, David Gurtner and copied to Mr Stalder. The email relevantly read, after making reference to being in the Triangle roof space earlier in the day:

I have great concerns from an EH&S prospective (sic) due to the amount of electrical cable, mechanical duct work and just the extreme difficulty within this roof space and the heat conditions in which the subcontractors are working in.

Hanna and his team have done a fantastic job and have worked extremely hard, however, extreme caution needs to be seriously taken into consideration here as I’m very concern (sic) for their safety. I have reiterated the need to make sure tool box talks are held every day and review there (sic) JSA whilst working in both roof spaces going forward for the Triangle and the administration building which is even a higher risk.

Both of us do not want to see anyone get hurt “As safety comes first” but once you have an actual walk around in this roof space you would really get an appreciation on how difficult it is from both a design perspective to fabricate pipe & installation prospective (sic).

Peter, we are continuing to do the best possible job for you with the same interest in BCS but we cannot afford to question the safety aspects of these last 2 areas to be completed as one serious accident will undo all the good work which has been done to date… [4]

3. Exhibit 1, Tab 12.

4. I infer that the reference to “H&S” in the term “EH&S” was a reference to health and safety. Peter Gurtner gave evidence that he understood Mr Chapman’s reference to “JSA” to mean “Job Safety Analysis”.

26. On 21 January 2014 Peter Gurtner replied, relevantly including the paragraph, “Lets ensure that we carry out those meetings as necessary and ensure the safety of the staff and workers at all times”.

27. After at least the end of January 2014 a tool box talk was held each morning before work commenced at the site. Present were the Hanna Plumbing employees, Mr Stalder, Dylan Stalder, Tom Rayward and Mr Gumbleton and David Gurtner. At those meetings the scope of the work to be performed and how it was going to be done was discussed. Dylan Stalder gave evidence that the risk of an electric shock from damage caused to the wires by treading on them and severing them on the furring channels was a matter that was discussed in the daily tool box talks held with David Gurtner.

28. The remaining 5 days of work in the roof space involved the fabrication of and the installation of the main. That work began on Monday 10 March 2014 and continued until about 11.30am on 14 March 2014 when Mr Gumbleton was injured.

29. The system of work adopted in the roof space to install the main can be described as follows. The workers removed the metal roof sheets of the administration wing to provide for natural light, ventilation and access to the roof space for workers and to allow the steel pipe that was to be installed as the main to be carried in. Access for the workers to the roof space was also provided via the manhole that had been installed in the ceiling of the administration wing as part of the works. The workers placed pieces of timber on top of the furring channels and between them to stand and walk on. These pieces of timber were referred to as “walkboards”. The workers then moved any wiring out of the way with their hands and secured it with pieces of timber, referred to as “noggins”. Noggins were pieces of timber about 90mm by 35mm and about 1200mm long [5] that were placed against the wires and secured in place by the weight of the noggin. The noggins were recycled by moving them to a different location when the workers had completed the installation of the main in a particular area.

    5. The dimensions of a noggin were an estimate taken from a picture of a noggin securing a red cable in the roof space in close proximity to the duct.

30. On the morning of the incident, Mr Gumbleton was assisting Dylan Stalder to install the main in the roof space. Dylan Stalder was a licensed plumber and Mr Gumbleton was employed as a labourer.

31. About 1.5m away from the manhole in the ceiling to the roof space there was a screw protruding through a piece of timber installed to support an air-conditioning duct (the duct). At an earlier point in time, a double insulated electrical lighting cable (the cable) had become positioned on top of the sharp point of the screw and underneath the duct. When Mr Gumbleton leant on the duct, the cable was punctured by the screw and electrical current was conducted through the duct. Mr Gumbleton suffered an electric shock because at the time he was touching the steel pipe that he had been installing as part of the system. The steel pipe acted as an earth and allowed the electrical current to flow through Mr Gumbleton’s body.

32. Dylan Stalder alerted Mr Stalder to the fact that Mr Gumbleton had collapsed in the roof space. Dylan Stalder left the roof space to turn off the power supply. He was shown where it was in the office and he turned off the main switch.

33. CPR was commenced in the roof space and an ambulance was called. During the course of CPR, Mr Gumbleton fell through the gyprock ceiling and onto the floor of the administration wing.

34. Mr Gumbleton suffered serious injury as a result of the electric shock that included hypoxic brain damage.

35. At about 1.50pm on 14 March 2014, William Barlin, an electrical inspector employed by Essential Energy, attended the facility to make the site safe following a report that there had been an electrical accident. Mr Barlin was eminently qualified and had been employed by Essential Energy or its predecessors for 46 years. [6] Mr Barlin checked that the 2 distribution boards that had been danger tagged were properly isolated to ensure that it was safe to go into the roof space. Mr Barlin conducted a visual inspection from on top of the roof, but could not identify any problem from that view. He then proceeded to use a step ladder to gain access into the roof space through where the gyprock ceiling had collapsed. From that perspective, Mr Barlin identified the cable that had been pierced by the screw underneath the duct. Mr Barlin observed that the wiring in the roof space was not protected from the sharp edges present. Mr Barlin prepared a report dated 18 March 2014 requiring that the wiring in the roof space be rectified on the basis that the cables were in a located in areas where they were likely to become damaged and that they were not protected from the sharp edges of the building materials used. Both of those matters were reported by Mr Barlin to be in breach of Australian Standard AS/NZS 3000:2007 (the Wiring Rules).

    6. At the time he gave evidence.

36. After the incident, Unity engaged an electrician to tidy up the wiring in the roof space. The wires were bundled together and placed in conduit and hung up off the ceiling. The work was completed in an area of about 2m2. Unity did not seek payment for the completion of that work.

37. Unity recommended to BCS that it install residual current devices (RCDs) on the lighting circuits throughout the facility. That work was completed for the lighting circuits to the administration wing by electricians retained by BCS. I infer that it was accepted by BCS that the installation of the RCDs was outside the scope of works provided for by the Agreement.

38. Activate Fire directed Hanna Plumbing not to complete the work in the roof space until the RCDs were installed on the lighting circuits.

39. Unity also made a request to BCS that the power to the administration wing be isolated prior to the resumption of the installation work in the roof space. That request was approved on condition that the work be completed after 12.30pm on 28 March 2014.

40. The work in the roof space was completed 28 March 2014 within about 4 hours.

Issues

41. The issues to be determined are;

1. Did the defendants owe a health and safety duty?

2. Did the defendants fail to comply with their health and safety duties by failing to take the steps particularised in the Summons?

3. Did the defendants’ breach of duty expose Mr Gumbleton to a risk of death or serious injury?

The elements of the offence

42. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt.

43. Section 32 of the Act provides:

A person commits a Category 2 offence if:

1. the person has a health and safety duty, and

2. the person fails to comply with that duty, and

3. the failure exposes an individual to a risk of death or serious injury or illness.

44. The elements of the offence are:

Element 1   The defendant was conducting a business or undertaking;

Element 2   The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, to ensure the health and safety of;

1. workers engaged by it or caused to be engaged by it and workers whose activities in carrying out work are influenced or directed by it;

2. while the workers were at work in the business or undertaking;

Element 3   The defendant failed to comply with its health and safety duty; and

Element 4   The failure exposed an individual to a risk of death or serious injury.

45. The defendants conceded that Element 1 was established in respect of each of them.

The relevant law

46. The offence is one of strict liability: section 12A of the Act.

47. A person is a “worker” if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.

48. A health and safety duty is owed to “workers” as provided for by section 19(1) of the Act that provides:

1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

1. workers engaged, or caused to be engaged by the person, and

2. workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

49. A health and safety duty is owed to “other persons” as provided for by section 19(2) of the Act that provides:

1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

50. The term “other persons” when used in section 19(2) is a reference to persons other than “workers” who are provided for by section 19(1): SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237.

51. The content of the duty is set out in section 19(3) of the Act that relevantly provides:

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a)   the provision and maintenance of a work environment without risks to health and safety, and

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling and storage of plant, structures and substances, and

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

52. The inclusive list of specific obligations set out in section 19(3) of the Act has each been identified at common law.

53. The prosecution bears the onus of proving as an element of the offence that at the time of the offence that it was reasonably practical to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practical to eliminate the risk, or if not, if it was reasonably practical to minimise it. In this way the application of reasonable practicability may arise more than once. [7]

    7. Section 17 of the Act.

54. “Reasonably practicable” is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including;

1. the likelihood of the risk concerned occurring, and

2. the degree of harm that might result from the risk, and

3. what the defendant knows or ought reasonably to know about;

1. the risk, and

2. (ii)   ways of eliminating or minimising the risk, and

4. the availability and suitability of ways to eliminate or minimise the risk, and

5. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.

55. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

56. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

57. The word “risk” is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of section 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the section 32 offence is a risk of death or serious injury.

58. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.

59. The phrase “exposed to risks” contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94.

60. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].

61. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

62. The words reasonably practicable indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment, does not without more demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

63. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

64. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

65. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

66. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.

67. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant was the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

Did the defendants owe Mr Gumbleton a health and safety duty? (Element 2)

68. The prosecution pleaded that the business or undertaking of each of the defendants included the design, supply and installation of the system at the facility: [2] of the Summons.

69. It was common ground that Unity entered into the Agreement to design, supply and install the system at the facility. I am satisfied that the work conducted pursuant to the Agreement was part of Unity’s business or undertaking.

70. It was common ground that Activate Fire entered into a contract with Unity to design, install and certify the system at the facility. I am satisfied that the work done by Activate Fire pursuant to that contract was part of Activate Fire’s business or undertaking.

71. Mr Gumbleton was an employee of Hanna Plumbing. Hanna Plumbing was a contractor to Activate Fire and a sub-contractor to Unity. Accordingly, Mr Gumbleton was a “worker” within the definition provided for in section 7(1)(c) of the Act, being an employee of a contractor or subcontractor.

72. Mr Gumbleton was owed the health and safety duty provided for by section 19(1) of the Act if he was engaged or caused to be engaged by the one or both of the defendants, or if his activities were influenced or directed by one or both of the defendants.

73. The words “engaged” and “caused to be engaged by” are not defined in the Act. In R v ACR Roofing Pty Ltd (2004) 11 VR 187, the Victorian Court of Appeal decided that the term “engaged” has a number of meanings according to the context in which it is used. In the legislation, “engaged” was not used lightly and it was clearly intended to have a meaning different to the word “employ” that was also used in the legislation. The definition of “engage” includes “to secure or obtain the services of” whether or not there is some contractual arrangement between the provider of the services and the person who makes use of them: per Ormiston JA. Nettle JA (as his Honour then was) with whom the other members of the Court agreed, said at [54]:

I consider that it would make little sense to interpret "engaged by" so as to restrict the operation of the section to contractors with whom the employer is in contractual relations. It does, however, make evident sense, and in my view it was intended that the expression include the engagement of any contractor in relation to matters over which the employer has control, either (a) under a contract entered into between the contactor and the employer; or (b) under a contract entered into between the contractor and some other person. Thus in my opinion a contractor could just as well be regarded as engaged by the employer in relation to matters over which the employer has control if the contractor were engaged directly by the employer under a contract with the employer, or by another contractor under a sub-contract, or by a sub-contractor under a sub, sub-contract, or under a sub, sub, sub-contract or some remoter species of sub-contract; regardless of the layers of contractual relations that might separate the contractor from the employer.

74. The evidence was that Unity approached Hanna Plumbing with a view to contracting with it to design and install the system, based on their previous dealings relating to the installation of a similar system in an aged care facility in Grafton. Activate Fire was involved in the project at the request of Mr Stalder because of Mr Chapman’s expertise in designing and certifying the system, the need to provide a SWMS and the size of the project. The parties accordingly entered into the following contractual relationships. Unity contracted with Activate Fire to design, install and certify the system. Activate Fire then contracted with Hanna Plumbing to provide the labour to install the system. Activate Fire retained the responsibility for the provision of and implementation of the SWMS, the design and certification of the system and the ordering of and the delivery of the necessary materials to the site. At all times Unity and Activate Fire were reliant on Hanna Plumbing to provide the labour of its employees to install the system, to satisfy their respective contractual obligations.

75. Adopting the reasoning of the Victorian Court of Appeal, I am satisfied that Mr Gumbleton was a worker engaged by Activate Fire and Unity because each of them contemplated at the time of entering into contracts obliging them to install the system that they would be using the services of the Hanna Plumbing employees to undertake the necessary work to do so.

76. The phrase “cause to be engaged by” is a wider concept by reference to the ordinary meaning of those words. In my view the concept would extend to the facts of this case.

77. If I am wrong in relation to my finding that Mr Gumbleton was engaged by the defendants then I am satisfied that he was caused to be engaged by the defendants for the same reasons.

78. In the alternative, I am also satisfied that the activities of Mr Gumbleton in carrying out work were influenced or directed by the defendants for the reasons that follow.

79. Mr Gumbleton’s activities in installing the system were influenced or directed by Unity in the following ways.

80. Unity’s Project/Site Safety Plan (the Safety Plan) [8] provided that the Site Foreman, David Gurtner, was responsible for assessing the ability of sub-contractors to comply with occupational health and safety requirements and to ensure that safe working practices were implemented and adhered to. That included encouraging all contractors in achieving a safe and healthy workplace by arranging tool box talks and inviting input from people relating to work processes and health and safety. The Safety Plan required the employees of contractors to have completed a General Construction Induction and to have undertaken a site specific induction. The Safety Plan provided that all electrical work onsite must be carried out by a licensed electrician.

    8. Exhibit 1, Tab 17.

81. David Gurtner of Unity provided the site specific induction to the Hanna Plumbing employees, including Mr Gumbleton.

82. Unity required Mr Gumbleton to sign a document entitled “Site Employee Induction and Registration” on the day of his site specific induction. The form required Mr Gumbleton to acknowledge that he had undertaken the site specific induction and to indicate that he agreed to accept the direction of Unity’s officers regarding the provision of a “hazard free working environment”. [9]

    9. Exhibit 1, Tab 9.

83. David Gurtner of Unity arranged the daily tool box meetings with the Hanna Plumbing employees where safety matters were discussed, including the risk that was posed by the state of the wiring in the roof space and the materials used to construct it.

84. Finally, David Gurtner was present onsite and monitored the progress of the work carried out by the Hanna Plumbing employees. He often directed them to undertake tasks such as cleaning up after finishing a task. He was also responsible for liaising with Mr Wells as to the timing of certain parts of the work or concerning under what conditions certain parts of the work could be done. For instance, if the Hanna Plumbing employees needed to go into resident’s rooms to fit the sprinkler heads, David Gurtner was responsible for obtaining BCS’s consent from Mr Wells to that course and communicating the results of those matters to the employees of Hanna Plumbing.

85. Mr Gumbleton’s activities in installing the system were influenced or directed by Activate Fire in the following ways.

86. Hanna Plumbing was contracted to Activate Fire to provide the labour necessary to install the system. It can be inferred from the conduct of the parties to the contract that the Hanna Plumbing employees installed the system in accordance with the design provided for by Activate Fire.

87. Activate Fire produced the SWMS that governed the work of the Hanna Plumbing employees at the facility. A SWMS was required for the installation work because it was high risk construction work. The SWMS was required to describe the measures to be implemented to control any risks identified and how those measures would be implemented, monitored or reviewed. It had to be prepared taking into account the circumstances at the workplace that may affect the way the high risk construction work was carried out; clause 299 of the Regulations. The work was required to be carried out in accordance with the SWMS: clause 300 of the Regulations. This was the clearest indication that the activities of Mr Gumbleton involved with installing the system were influenced or directed by Activate Fire, because Hanna Plumbing was required by law to perform the work in accordance with the content of the SWMS that was prepared by Activate Fire. If it did not do so it exposed itself to criminal sanction, being a maximum fine of $30,000.

88. Mr Chapman also attended the facility from time to time and was in regular telephone contact with Mr Stalder about how to undertake the work. This included consulting with Mr Stalder and devising the system of work referred to in the email to Peter Gurtner dated 20 January 2014 that required the daily tool box talks to review the safety requirements of the work in the Triangle and the roof space.

89. Finally, Mr Chapman was responsible for ordering the materials required to fabricate the system and have them delivered to site.

90. I am satisfied beyond reasonable doubt that Mr Gumbleton that each of the defendants owed Mr Gumbleton a health and safety duty pursuant to section 19(1) of the Act.

91. Having determined that Mr Gumbleton was a “worker” of the kind provided for by section 19(1), I would apply the decision of Judge Kearns SC in Rawson Homes, to the effect that Mr Gumbleton could not be an “other person” provided for in section 19(2) of the Act.

92. I am satisfied beyond reasonable doubt that the prosecution has established Element 2.

93. It follows that in determining the balance of the case that I have only had reference to the particulars pleaded in Annexure A to the Summons, that relate the health and safety duty provided for by section 19(1) of the Act.

The pleading relating to the issue of risk

94. The prosecution particularised the risk in [6] of the Summons as:

The risk was the risk of persons being electrocuted by coming into contact with live electrical wiring whilst working in the roof space of the administration wing at the premises.

95. The prosecution went on to plead at [9] of the Summons that, “[T]he injuries sustained by Mr Gumbleton were a manifestation of the risk”.

96. Activate Fire [10] complained that the pleaded risk did not exist in the roof space because at no time did Mr Gumbleton come into direct contact with live electrical wiring. Rather, he came into contact with the duct that had been energised which was at best indirect contact with live electrical wiring.

    10. Whose submissions on this point were adopted by Unity and are hereafter referred to as the defendants’ submissions.

97. The defendants contended that it was clear from the pleading that the prosecution relied on the incident to prove the existence of the risk. It was submitted that the prosecution should not be permitted to depart from the particulars pleaded if to do so would result in an unfair trial: R v Saffron (No 1) (1988) 17 NSWLR 395 at 448.

98. The unfairness relied on was an ambiguity in the pleaded risk, because it was said that the risk and measures to be taken are related in that one informs the other: Kirk Group Holdings Pty Ltd v Workcover Authority (NSW) (2010) 239 CLR 531 at [14].

99. The defendants urged the Court to restrict the case to one dealing with direct contact rather than indirect contact with live electrical wiring so as not to expand the particulars beyond the case that the defendants could meet.

100. I response the prosecution made 2 submissions. First, it contended that it was a matter of common knowledge that a person was at risk of an electric shock by coming into indirect contact with live electrical wiring.

101. Section 144 Evidence Act 1995 provides that proof is not required of a matter that is not reasonably open to question and is capable of verification by reference to a document of authority that cannot reasonably be questioned.

102. The prosecution then referred me to paragraphs 1.5.3 and 1.4.35 of the Wiring Rules. The effect of those extracts is that the Wiring Rules identify that protection is required form both direct and indirect contact with conductive parts, including electrical wiring. Indirect contact is defined as coming into contact with a conductive part that is not normally live but has become live under fault conditions, including an insulation failure. Whereas direct contact is defined as contact with a conductor or conductive part that is live in normal service.

103. The Wiring Rules were published by Standards Australia on 12 November 2007. Australian Standards are well recognised as a consensus of professional opinion and practical experience to sensible, safe precautions and a standard of reasonable conduct. An Australian Standard can assist a court in determining whether a danger exists that must be guarded against by the exercise of reasonable care: Onetech Pty Ltd v Shaw [1999] WASCA 289 at [17], Fitzpatrick v Job [2007] WASCA 63 at [94] and M R and R C Smith Pty Ltd trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110 at [70].

104. Section 144 Evidence Act 1995 permits the Court to notice certain notorious facts of which ordinary persons are aware. It can do so after being reminded of those facts by reference to appropriate information or evidence. The Court may make reference to works of reference or authority to remind it of what it knows. “Knowledge” of which proof is not required under section 144 is not strictly evidence: R v Henry [1999] NSWCCA 111 at [75]-[76] per Spigelman J with whom the other 4 members of the Court agreed.

105. Second, the prosecution submitted that the evidence served in the prosecution brief could be relied on to inform the adequacy of the particulars in determining whether the particulars were sufficient to inform a defendant of the case it was required to meet: GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 at [39] per Hodgson JA, Allsop P reserving his position and Basten JA not deciding the point.

106. The evidence demonstrated that the workers understood that they were at risk of electric shock by damaging the wiring as a result of the cables to coming into contact with the sharp edges of the furring channels. Objectively viewed, there was also a risk of damaging the cables as a result of them coming into contact with the sharp points of the screws. Notwithstanding that none of the witnesses who gave evidence noticed the screws in the roof space they presented an obvious risk of causing damage to the cables in the roof space. The photographs of the roof space depict that there were numerous screws that posed that hazard. The risk identified by the evidence was not one of electric shock caused by indirect contact.

107. Mr Barlin’s evidence confirmed that the workers in the roof space were at risk of electric shock by coming into wiring that had its insulation damaged by any means, including being gnawed on by rodents.

108. I would understand the pleading in [9] of the Summons to be an allegation that the injury to Mr Gumbleton was caused by the breach of duty alleged against each of the defendants. That is not an element of the offence and is not required to be pleaded or proven. It is irrelevant except as to penalty or to indicate that the prosecution intended to rely on the incident as evidence of the existence of the risk. Section 16(2) Criminal Procedure Act 1986 provides that no objection can be taken or allowed the Summons [11] on the grounds of any variance between it and the evidence adduced in the proceedings for the offence.

     11. In this case, see the definition of Indictment in section 15 Criminal Procedure Act 1986 and the opening words of section 16(2) that refer to summary proceedings.

109. In this case, the injury to Mr Gumbleton was not evidence of the existence of the pleaded risk, but it was evidence that the risk of electric shock was a real one. The evidence of the injury to Mr Gumbleton is available to reject the submission advanced by the defendants that Mr Gumbleton was “a bird on a wire” when working in the roof space and unlikely to suffer an electric shock, because he would not have been earthed. I will return to this point shortly.

110. The evidence of the existence of the pleaded risk comes from the identification of the risk in the SWMS prepared by Activate Fire, the conditions of the roof space, the ensuing discussions and correspondence about those matters between Mr Stalder, Mr Chapman, Peter Gurtner and David Gurtner and the knowledge of the pleaded risk by the Hanna Plumbing employees.

111. Whilst the first submission of the prosecution has considerable force and is capable of acceptance, it is only relevant to the causation of Mr Gumbleton’s injury and that is not a matter I have to decide in coming to a verdict. It may become relevant when determining the extent of the extent of the injury, loss or damage caused by the offence when and if I am required to sentence one or both of the defendants, if I find either or both of them guilty of the offence.

112. The issue should be determined in favour of the defendants and I will decide the case on the basis that the risk pleaded was one of electric shock caused by direct contact with live electrical wires in the event that the wires were damaged in the course of the work.

Did the defendants fail to comply with their health and safety duty by failing to take the steps particularised in [7] of the Summons? (Element 3)

113. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].

114. In order to find the defendant guilty of the offence I must be satisfied beyond reasonable doubt that it failed to comply with its health and safety duty in that it failed to take one of the reasonably practicable steps set out in the particulars of breach in [7](a)-(f) of the Summons.

115. In order to understand the matters pleaded in [7] of the summons it is necessary to set out the following matters.

116. The cable that was responsible for Mr Gumbleton’s electric shock was a lighting cable connected to distribution board 9. When Stage 2 was completed in 2004 the Wiring Rules did not require the installation of RCDs to be installed on lighting circuits. An RCD is designed to break the circuit it is attached to within 0.4 of a second of the device detecting a leakage of one 30,000th of an ampere.

117. The likelihood of the pleaded risk occurring was moderate. It was more likely to occur in the roof space because of the presence of the furring channels and the screws. The potential consequences were grave in that an electric shock was likely to cause serious injury or even death to any worker in the roof space. I do not accept the submission that the workers in the roof space were “birds on a wire” meaning that they were unlikely to receive an electric shock because of they were unlikely to have been earthed. First, the evidence did not support the submission that in particular Activate Fire knew that to be true. The evidence does not establish what Mr Chapman knew about this issue. Second, it was the risk that the worker could receive an electric shock that needed to be eliminated or minimised and as was demonstrated by the incident that risk could come home.

118. Activate Fire and Unity had actual knowledge of the risk involved with the work in the roof space by reason of the information provided to them by Mr Stalder that was discussed in person, in correspondence, on the telephone and in tool box talks. Mr Stalder also advised Activate Fire and Unity of the steps he was taking to minimise the risk by using walkboards and noggins and by directing the Hanna Plumbing employees to proceed with the work slowly and carefully (the behavioural controls).

119. I will now turn to each of the particulars of breach.

7(a)      Ensuring a competent person (such as a licensed electrician or an experienced electrical engineer) was engaged to conduct an electrical safety assessment, which included an inspection of the wiring in the roof space of the administration wing and the lighting circuits on distribution board 9, before the installation work commenced in the roof space of the administration wing at the premises.

120. It is clear that if the electrical services in the roof space needed to be inspected then that had to be done by a qualified person such as a licensed electrician.

121. The defendants contended that because the wiring in the roof space would have had to have been certified after the completion of Stage 2 that conducting an electrical safety assessment was not reasonably practical. I reject that submission. The ad hoc location of the wiring of the roof space, together with the presence of the sharp edges of the furring channels and the sharp points of the screws protruding through the ceiling in numerous places presented a specific danger to workers in the roof space against which precautions were required to be taken and the defendants could not merely rely on the fact that the electrical work had been certified.

122. The problem with particular (a) is that the prosecution did not lead to evidence to define what was meant by an “electrical safety assessment”. The evidence was that there were a number of services present in the roof space that used electricity or otherwise were energised. There were powered components of the air-conditioning system, data and telecommunications cables, general power outlets (GPOs), lighting cables and other power cables. The circuitry diagrams for the roof space indicated that some of the power supplied to the administration wing for which the cabling ran through the roof space was connected to distribution board 1 as well as distribution board 9. The defendants successfully demonstrated in cross-examination that an electrical safety assessment if it was conducted with a view to ensuring safety may have been a lengthy, complex and expensive task. The prosecution did not lead evidence as to the cost involved with the electrical safety assessment.

123. The particular does not demonstrate what effect conducting an electrical safety assessment would have had on the provision of a safe working environment. I am not satisfied that the carrying out of an electrical safety assessment would have detected the cable that was responsible for the electric shock suffered by Mr Gumbleton, although that was possible. The cable was located under the duct and in an area that was not visible from the manhole or from above. Mr Barlin gave evidence that it was not readily apparent to him on his inspection of the roof space after the incident, notwithstanding he knew that he was looking for a problem. Mr Barlin located the problem through the hole in the ceiling caused by Mr Gumbleton’s fall. I would infer that the cable was not in a position that could have been readily seen by a person working in the roof space. Merely conducting an electrical safety assessment, would not have affected the provision of a safe working environment unless the cable had been detected in the precarious position that it was.

124. The particular did not require the defendants to implement any suggestion provided for by the licensed electrician after conducting the electrical safety assessment. There is no evidence as to what a licensed electrician may have suggested was required to be done after the completion of an electrical safety assessment or whether those matters were reasonably practical.

125. I am not satisfied beyond reasonable doubt that the prosecution has established particular (a).

7(b)   Ensuring a competent person (such as a licensed electrician or an experienced electrical engineer) was engaged to install residual current device protection on the lighting circuits on distribution board 9 before the installation work commenced in the roof space of the administration wing at the premises.

126. This particular is of narrower compass to particular (a). It required the defendants to identify that the workers were at risk from the lighting cables in the roof space. There is no evidence that any of the relevant personnel from Unity, Activate Fire or Hanna Plumbing had the requisite specialised knowledge to identify that the risk identified was posed by the lighting cables from distribution board 9. The evidence was that there were also lighting cables running through the roof space that were connected to distribution board 1.

127. The particular focusses on the precise risk rather than the pleaded risk. The pleaded risk was posed by all of the electrical cabling in the roof space, although I note that the power circuits relating to the GPOs in the administration wing were already fitted with RCDs. There is an identifiable element of hindsight involved with particular (b).

128. The Wiring Rules did not require the installation of RCDs on the lighting circuits for the administration wing at the time of their installation or subsequently.

129. The installation of RCDs would have cost about $200 per lighting circuit plus the cost of having a licensed electrician to install them. There were 5 lighting circuits connected to distribution board 9. There is no evidence of the quantum of the installation costs, but the evidence is that the work was completed shortly after the incident. The work was completed by an electrician retained by BCS and paid for by them because that work was not within the scope of works covered by the Agreement. The installation of the RCDs was required by the defendants, particularly Unity, before the installation work could recommence. I am satisfied that the cost incurred by the defendants to require BCS to install the RCDs was not grossly disproportionate to the risk.

130. I am not satisfied that it was reasonably practical for the defendants to have identified the need for the installation of RCDs on the lighting circuits to distribution board 9 because none of the relevant personnel were qualified to identify that the risk was posed by those particular cables.

131. I am not satisfied beyond reasonable doubt that the prosecution has established particular (b).

7(c)   Ensuring that the power to the administration wing of the premises was isolated and proven dead (de-energised) prior to the commencement of the installation work in the roof space of the administration wing at the premises.

132. The evidence was that Mr Wells and Mr Watt had been trained on how to isolate the distribution boards at the facility. Mr Wells gave evidence that he had been required to do that from time to time, which he estimated to be once or twice a year during his 14 years of service with BCS.

133. The administration wing had its own electricity supply and it could be isolated at the distribution boards in the administration wing or at the main distribution board in the service quarters. Mr Wells gave evidence that he had isolated the power supply to the administration wing every 6 months since the completion of the building in 2004, to allow the RCDs to be tested by an electrician. The isolation of the power for the administration wing did not affect the other areas of the facility, including the residential buildings.

134. Following the incident, David Gurtner on behalf of Unity made a request to Mr Wells to shut down the power to the administration wing during the completion of the installation work in the roof space. Mr Wells responded in an e-mail dated 24 March 2014 [12] that the request was approved from 12.30pm on Friday 28 March 2014. Mr Wells asked David Gurtner to liaise with Mr Watt about the shut down and asked Unity to ensure that certain isolation procedures were followed. Mr Watt was copied in on the e-mail sent by Mr Wells.

     12. Exhibit 4.

135. Mr Wells also verbally instructed Mr Watt to make sure that when the power was shut down that the distribution board was “tagged out” by Unity. Mr Watt had the keys to the distribution boards and the requisite knowledge as to how to isolate the power.

136. On 28 March 2014 Mr Wells was not present at the facility. Mr Wells had a telephone conversation with Mr Watt on 28 March 2014 and Mr Wells had no reason to respond to what he had been told. I infer from that evidence that Mr Watt had complied with Mr Well’s instruction to participate in the isolation of the power to the administration wing on 28 March 2014 and to ensure that the relevant isolation procedures were followed.

137. Mr Stalder gave evidence that he believed that the power to the administration wing was off when the work recommenced. Mr Chapman said in his record of interview that the power was not isolated for the remainder of the installation work after the incident. I would prefer the evidence of Mr Stalder on this issue because it was corroborated by the evidence of Mr Wells and Mr Chapman did not state the basis for his understanding, including whether or not he was present onsite on 28 March 2014.

138. There were 4 or 5 administration staff that worked in the administration wing. The staff were either relocated to other offices throughout the facility or they worked in the administration wing, with no power, during the time that the power was isolated on 28 March 2014. There was no need to relocate any of the office equipment because there was other equipment available for them to use in the other offices.

139. The installation work was completed in about half a day. The power shut down involved no cost to BCS. There was no impact to the power supply to other parts of the facility.

140. The Hanna Plumbing workers removed the roof sheets to provide natural light and ventilation when the work was completed. Power was not required to operate the tools that the Hanna Plumbing workers were using in the roof space to carry out the work.

141. Prior to the incident, there was no request made of BCS to isolate the power to the administration wing.

132. The defendants contended that particular (c) was not reasonably practical for the following reasons:

1. the Agreement required Unity to conduct the work with minimum nuisance to the residents and to ensure their safety;

2. that there were a number of other services present in the roof space that used electricity or were energised, and that to eliminate the risk the power to all of those services needed to be shut down, which would in turn have affected the residents. This may have included the shut-down of essential medical equipment required by the residents of the facility; and

3. to effect a complete isolation would have required the hire of a portable generator at a cost of approximately $180,000, together with the costs associated with connecting it and disconnecting it as required.

143. I am not satisfied that the risk could have been eliminated by isolating the power to the administration wing by reason of the presence of the other powered services running through the roof space.

144. However, the relevant enquiry does not stop there: section 17 of the Act.

145. Particular (c) requires the isolation of the power to the administration wing. That would have resulted in the de-energising of the lighting cables in the roof space that serviced the administration wing. The GPO circuits in the administration wing were protected by RCDs and isolation of the power to those circuits would not have added much more protection, if the RCDs operated as they were designed to. The isolation of the power to the administration wing would have had the effect of removing the risk of an electric shock from some of the cabling running through the roof space and that was a step that in combination with the behavioural controls that would have minimised the risk.

146. It was submitted by Activate Fire that the behavioural controls provided more protection than was usually provided by similar controls because they created distance between the worker and the cabling by elevating the worker above the wiring on the walkboards and by moving the wiring aside by using the noggins. I do not accept that submission. The workers were still exposed to the risk if they were careless or inadvertent in carrying out the work and that is the usual position with systems of work that involve only behavioural controls.

147. The isolation of the power was an engineering control that removed the risk from inadvertent or careless departure from the behavioural controls by the workers. In the present case the workers were in a confined space and in close proximity to sharp edges and screws that could damage the wiring. If the power to a cable was isolated, the worker would have been protected if despite their best efforts to avoid it and/or handle it carefully it was severed by the worker accidentally treading on it, falling on it or by hitting it with a tool. That protection against inadvertent contact was not and could not be provided for by the behavioural controls.

148. The installation work took place over 7 days. The isolation of the power to the administration building would have required the relocation of the staff for that period. I am satisfied the administration staff could have been relocated at no cost to BCS because there were other offices and other equipment available for them to use at the facility.

149. Mr Wells and Mr Watt had the requisite knowledge to undertake the isolation of the relevant distribution boards. I am satisfied that Mr Watt undertook that task on 28 March 2014 when the installation work resumed.

150. The isolation of the power to the administration wing did not affect any other parts of the facility. Accordingly there was no need for the hire of a generator. I would pause to note that I have not relied on the bulk of Peter Gurtner’s evidence. His evidence was exaggerated and unreliable. He gave evidence that was intended to advocate Unity’s cause, of which the evidence about the hire of the generator was a prime example. He failed in his response to the section 155 notice or in his evidence to differentiate what measures may have been reasonably practicable as opposed to what he believed to be practicable. Further, by reference to his demeanour in the witness box I was not satisfied that he gave reliable or truthful evidence.

151. There was some evidence that the lighting in the car park and the emergency lighting in the administration area could have been affected. The work was being completed during the day with the use of natural light. There is no evidence to suggest why the power could not have been restored when the work was completed at the end of each day.

152. The work could have been completed without the provision of power in the roof space, as it was after the incident.

153. The defendants both relied on evidence to the effect that it was their collective experience that isolation of the power to services running through a roof space was not something that was done. Unity, for its part accepted that the risk had to be determined according to the conditions in a particular location [13] and that the risk posed by the sharp edges could not be eliminated. [14] The prevailing conditions in the roof space included the wiring not being bundled together and lying across the sharp-edged furring channels, passing through un-bushed holes in the furring channels together with the presence of numerous sharp-pointed screws protruding through the materials on the horizontal plane. The defendants were aware that the workers were required to move throughout the roof space in close proximity to the cables that were themselves in close proximity to the sharp items that could puncture or sever them and that the workers were required to move the cables to perform the work. The defendants both recognised the need for precautions to be taken to minimise the risk. The fact that the isolation of the power was not a precaution that the defendants had actually taken in the past does not determine if it was reasonably practicable. It was reasonably foreseeable that the risk of electric shock could be minimised, even if not eliminated, by the isolation of the power to the administration wing.

     13. Exhibit 1 Tab 14 paragraph 8 – Unity’s response to section 155 request for information.

     14. Ibid, paragraph 2.

154. The particular required the isolation of the power to the administration wing and to check that it was proven to be dead. I am satisfied that Mr Watt oversaw that process on 28 March 2014 by isolating the power and tagging out the distribution boards, which was a process to ensure that the cables had been de-energised. In other words, I am satisfied that the process required by the particular was possible and it required little effort.

155. There was no cost to either of the defendants in asking BCS to isolate the power to the administration wing. Based on the evidence relating to BCS’s approval of other requests made by Unity to shut down parts of the facility to complete various aspects of the work and the evidence of the minimal disruption caused to BCS by closure of the administration wing, I would infer that BCS would have approved a request to isolate the power to the administration wing if such a request had been made prior to the incident.

156. I am satisfied that having considered all of the relevant circumstances that the cost of implementing particular (c) was not grossly disproportionate to the risk.

157. I am satisfied beyond reasonable doubt that the isolation of the power to the administration wing prior to the commencement of the installation of the system in the roof space was a reasonably practicable step to minimise the pleaded risk.

7(d)   In the alternative to (c), ensuring that the power to lighting circuit 13 on distribution board 9 was switched off and proven dead (de-energised) before the installation work was undertaken in the roof space of the administration wing at the premises.

158. Particular (d) is pleaded in the alternative to particular (c). It is only necessary to consider particular (d), If I am wrong in my conclusion on particular (c).

159. This particular suffers from the same identifiable element of hindsight involved on particular (b). It required the identification of the particular circuit that was responsible for Mr Gumbleton’s injury by personnel who did not have the requisite specialised knowledge.

160. I am not satisfied beyond reasonable doubt that the prosecution has established particular (d).

7(e)   Implementing a system of supervision, review and/or auditing of the installation work conducted by the sub-contractor Hanna Plumbing Pty Ltd to ensure adequate safety measures such as those identified in paragraphs (a)-(d) above were in place prior to the commencement of the work in the roof space of the administration wing at the premises.

161. I am satisfied on the evidence that both defendants were intimately familiar with the work and the safety concerns being raised in relation to the roof space. It was not through lack of supervision that the incident occurred, but the lack of a proactive approach to minimising the risk arising from conducting the work in a distinct area (the roof space) of the facility, where there was a specific risk.

162. Both of the defendants and Hanna Plumbing acted on the basis of their experience, rather than determining if the isolation of the power to the administration wing was reasonably practicable.

163. I am not satisfied that the prosecution have proven beyond reasonable doubt that a system of supervision, review or auditing of the installation work would have had resulted in the pleaded measure being implemented. In any event I am satisfied that the defendants had a system of close supervision of the workers in place, through the daily tool box talks held between David Gurtner and the Hanna Plumbing employees and the regular contact between Mr Stalder and Mr Chapman when matters of safety were always discussed and in the circumstances where Mr Chapman assumed responsibility for the provision and implementation of the SWMS.

164. I am not satisfied beyond reasonable doubt that the prosecution have established particular (e).

7(f)   Checking that a safe work method statement included adequate safety measures such as those identified in paragraph (a)-(d) above was in place prior to the commencement of the installation work by Hanna Plumbing Pty Ltd in the roof space of the administration wing at the premises.

165. A SWMS was required for the installation work because it was high risk construction work.

166. The SWMS was required to be reviewed and revised in accordance with clause 38 of the Regulations; clause 302 of the Regulations.

167. The SWMS was prepared by Mr Chapman on behalf of Activate Fire and provided to Unity as the principal contractor. Hanna Plumbing relied on Activate Fire to prepare the SWMS and I am satisfied that it was subject to the ongoing obligations provided for by the Regulations in relation to the SWMS.

168. It is common ground that the SWMS was not reviewed before the incident, notwithstanding that the defendants decided it was wise to take extra precautions in the roof space, being control measures that were not identified in the SWMS.

169. I am not satisfied that had Activate Fire undertaken the formal process of revising the SWMS after it became aware of the conditions in the roof space, as it was required to by the Regulations, that it would necessarily have included the control measure that the power to the administration wing should be isolated.

170. Similarly, I am not satisfied that if Unity had reviewed the SWMS after it became aware of the conditions in the roof space, as it was required to by the Regulations, that it would include the control measure that the power to the administration wing should be isolated.

171. Without that link, I am not satisfied that the pleaded measure would have had any effect on the provision or maintenance of a safe working environment.

172. I am not satisfied beyond reasonable doubt that the prosecution have established particular (f).

Conclusion on Element 3

173. Based on my findings relating to particular (c) I am satisfied beyond reasonable doubt that the defendants breached their health and safety duty.

Did the defendants breach expose Mr Gumbleton to a risk of death or serious injury? (Element 4)

174. Mr Gumbleton was exposed to the risk because he was required to work in the confines of the roof space in close proximity to the energised cables, in the presence of the sharp edges of the furring channels and the sharp points of the screws.

175. That risk could have been minimised if the power to the administration wing of the facility was isolated because there would have been less cables that posed the pleaded risk by reason of the movement of the workers and/or the work being conducted in the roof space.

176. I am satisfied beyond reasonable doubt that there was a causal relationship between the defendants’ failures to isolate the power to the administration wing and the exposure of Mr Gumbleton to the pleaded risk.

177. I am satisfied beyond reasonable doubt that the prosecutor has proved Element 4.

Conclusion

178. The elements of the offence have been proved beyond reasonable doubt against each defendant.

179. I find Activate Fire Pty Ltd guilty of the offence.

180. I find Unity (NSW) Pty Ltd guilty of the offence.

181. I will list the matters for mention on 3 April 2017 together with the matter of Hanna Plumbing with a view to listing the matters for sentence on a day convenient to the parties. It appears to me that the defendants and Hanna Plumbing may wish to take issue with the causation of the injury to Mr Gumbleton and if that was the case, it would be convenient to hear all of the parties as to penalty at the same time.

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Endnotes

Amendments

08 June 2017 - Under heading Issues - paragraph formatting corrected

Decision last updated: 08 June 2017