Safe Work (NSW) v WGA Pty Ltd

[2017] NSWDC 91

District Court

New South Wales

Medium Neutral Citation:	Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 91
Hearing dates:	3, 4, 6 April 2017
Date of orders:	10 April 2017
Decision date:	10 April 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The elements of the offence have been proved beyond reasonable doubt against WGA. 2 I find WGA Pty Ltd guilty of the offence.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker – contractor liability PROCEDURAL – finding of guilt – burden of proof – standard – ex parte hearing OTHER- building site – power lines – safe working distance – safety protocol – procedure – improvement notices – work health and safety – code of practice – high voltage electricity – prohibition notice – safe work method statement
Legislation Cited:	Occupational Health and Safety Act 2000 s.8(2) Work Health and Safety Act 2011 ss.5, 7(1)(b), 12A, 18, 19(1), 19(3), 32, 195 Environmental Planning and Assessment Act 1979
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 at 320 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 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 R v ACR Roofing Pty Ltd (2004) 11 VR 187 John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
Category:	Principal judgment
Parties:	Safe Work (NSW) (Prosecutor) WGA Pty LTD (Defendant)
Representation:	Counsel: Mr B Docking (Prosecutor) No Appearance (Defendant)     Solicitors: Safe Work (NSW) (Prosecutor) No Appearance (Defendant)
File Number(s):	2016/00184863
Publication restriction:	None

Judgment

1. On 27 September 2016 WGA Pty Ltd (WGA) entered a plea of not guilty to an offence contrary to section 32 of the Work Health and Safety Act 2011 (the Act). The matter was listed for hearing on 3 April 2017 with an estimate of 5 days.

2. On 15 March 2017 the solicitor on the record for WGA advised the Court and the prosecutor that he was no longer retained by WGA.

3. On 3 April 2017 when the matter was called on for hearing there was no appearance on behalf of WGA. The matter proceeded ex parte.

4. It is alleged that WGA breached a health and safety duty owed pursuant to section 19(1) of the Act and thereby exposed Christopher Cullen to a risk of death or serious injury.

5. At about 12.00pm on 19 June 2014 Mr Cullen suffered an electric shock while working on a window ledge of a residential apartment building being constructed at 823-829 King Georges Road, South Hurstville (the site). Mr Cullen was installing a piece of aluminium angle measuring 32mm x 20mm and 2720mm long (the angle) to the outside of a window installed in unit 12. The building had been constructed in close proximity to power lines that ran along King Georges Road. The lower power lines were owned by Ausgrid and conducted 415 volts. The upper power lines were owned by RailCorp and conducted 33,000 volts (33Kv) as a supply feed to the Illawarra train line. The lower power lines and the upper power lines were supported by different poles. The window ledge was in close proximity to the upper power lines. In completing the work, Mr Cullen brought the angle close to or in contact with the upper power lines allowing electricity to pass through the angle and into his body.

The facts

6. On the basis of the evidence called and the exhibits tendered, the following facts are established.

7. In or about October 2013 Mark Hassan was issued with a Construction Certificate pursuant to the Environmental Planning and Assessment Act 1979 for the construction of a residential/commercial development at the site. Mr Hassan was named as the applicant for the Construction Certificate and the owner of the site.

8. In 2014, Mr Hassan was the sole director of WGA. WGA was the entity with management control of the site. It acted as the builder and the work was supervised by Mr Hassan. Mr Hassan used the email address [email protected] to correspond with various persons in relation to the building project at the site.

9. On 26 February 2014 Inspector Sascha-Lynne Newton of SafeWork received an email from Stephen Bursill of Ausgrid informing her that there was a possible breach of the Code of Practice Working Near Overhead Power lines (the Code of Practice) at the site because the scaffolding had been erected close to the power lines, without the installation of non-conductive hoarding. Inspector Newton recorded the matter in the as a Request for Service (RFS) No 1-319464 in the computer system.

Site visit 6 March 2014

10. On 6 March 2014 Inspector Newton attended the site and spoke to Mr Hassan and George Khouzame. Mr Hassan identified himself as the Principal Contractor on the site and Mr Khouzame as the scaffolder. Mr Hassan told the Inspector that he was not a builder, that this was the first construction project he had undertaken and that he had a business to run so he was not on site all of the time to supervise the work.

11. At that time the building was at level 2 which was a suspended concrete slab. There were 2 levels of power lines running along King Georges Road. The lower lines had ‘tiger tails’ installed on them. [1] Inspector Newton was of the opinion, based on her experience, that the upper lines were likely to be high voltage lines.

    1. A Tiger tail is black and yellow striped plastic sheath that is fitted over a power line to mark its presence.

12. Mr Hassan advised the Inspector that he did not have information from Ausgrid as to what controls were necessary to manage the risks of working in close proximity to the lower power lines.

13. Inspector Newton formed the opinion that the work in close proximity to the lower power lines presented an immediate risk to safety. The lower lines were about 1.2m horizontally from the handrail installed on the edge of the concrete slab of level 2 that ran parallel to King Georges Road. There was no hoarding to prevent persons or objects coming into contact with or in close proximity to the lower power lines. There was no exclusion zone marked to prevent a person coming within 3m of the lower power lines.

14. Inspector Newton told Mr Hassan of her concern about the proximity of the power lines. Mr Hassan replied in words to the effect, “I don’t really see it as such a problem” and “why would someone reach out and touch it”.

15. Present on level 2 were reinforcement steel bars about 5m in length. Inspector Newton said to Mr Hassan words to the effect, “All it would take is for a worker to pick up materials, such as scaffolding or those lengths of steel, turn around and they could easily come into contact with the power lines. It is unrealistic to expect busy construction workers to simply remember the power lines and stay away from them. That’s why you need to have physical and visual barriers, particularly if you are not always on site when work is taking place. Tiger tails are not a control measure and do not provide protection against electric shock or electrocution.”

16. Inspector Newton discussed the control measures required by the Code of Practice that there needed to be 3m clearance the persons and nonconductive materials and 4m clearance for scaffolding. Inspector Newton said to Mr Hassan words to the effect. “It will be necessary for the power to the lower level power lines to be temporarily isolated and a non-conductive hoarding installed to prevent anything extending beyond the building line towards the power lines. You will need to contact Ausgrid to obtain the minimum clearance distances from the power lines to the hoarding and adhere to any other requirements they may have.”

17. Inspector Newton issued a prohibition notice pursuant to section 195 of the Act (the first prohibition notice) to prevent the immediate danger from workers being required to work too close to the lower power lines.

18. Inspector Newton had further discussions with Mr Hassan about the complexity of installing scaffolding for the proposed upper levels of the building due to the close proximity of the building to the power lines. Inspector Newton said to Mr Hassan words the effect, “It may be difficult to achieve the minimum safe clearances. You will need to consult with Ausgrid to obtain written site specific information before installing any scaffolding. It’s likely the higher level power lines are high voltage, which usually require greater clearance distances.”

19. Inspector Newton installed WorkCover barrier tape 3m from the handrail on the edge of the level 2 concrete slab facing King Georges Road as well as the scaffold’s stair access at the ground level because the stairs were in close proximity to the lower power lines without appropriate hoarding.

20. On 7 March 2014 Inspector Newton received a telephone call from Mr Hassan. Mr Hassan told Inspector Newton that Ausgrid had told him that the lower power lines were 415 volts and he could install non-conductive hoarding without isolating the power. Mr Hassan said that he would install the hoarding to the existing handrails and not erect further scaffolding because he was trying to source a suitable solution.

21. Based on further enquires made with Ausgrid on 10 and 12 March 2014, Inspector Newton was satisfied that the non-conductive hoarding had been installed at a clearance distance approved by Ausgrid and the first prohibition notice had been complied with.

Site visit 19 March 2014

22. On 18 March 2014 Inspector Newton received an email from Stephen Ashton a senior engineer with Ausgrid. Mr Ashton reported the erection of scaffolding close to the upper power lines that were high voltage power lines owned by Sydney Trains. Mr Ashton expected that Sydney Trains had similar clearance requirements to Ausgrid and it did not appear to him that the power to those lines had been isolated.

23. Inspector Newton telephoned Mr Hassan who agreed to cease all work at the site until a site meeting could take place the following day.

24. On 19 March 2014 a site meeting was held. Present were Inspector Newton, Mr Hassan and three representatives from Ausgrid; Stephen Burke, Brian Huckstep and Robert Bedford. Further scaffolding had been erected at the site that was 600mm wide and extended approximately 2m above the level 2 concrete slab. Its presence reduced the clearance distance to the lower power lines from approximately 1.2m to approximately 900mm.

25. The Ausgrid representatives advised Mr Hassan of the required control measures, including that the power would need to be isolated for scaffolding to be completed and a timber hoarding to be installed. Inspector Newton issued 2 further prohibition notices (the second and third prohibition notices) relating to the lower level power lines. Inspector Newton advised Mr Hassan that a Safe Work Method Statement (SWMS) needed to be developed incorporating the Ausgrid requirements. The Ausgrid representatives advised Mr Hassan that the upper power lines were owned by Sydney Trains. Inspector Newton told Mr Hassan that he would have to contact Sydney Trains to obtain written advice regarding the control measures that would be required when working within 4 m of those power lines.

26. On 26 March 2014 Mr Hassan telephoned Inspector Newton, stating that the power had been isolated by Ausgrid and that the timber hoarding had been installed on the scaffold. Inspector Newton confirmed that information with Ausgrid and was satisfied that the second and third prohibition notices had been complied with.

27. On 9 April 2014 Mohamed Soukie of Synergy Scaffolding sent an e-mail to Bruce Leishman of Sydney Trains attaching a risk assessment for the installation of screens at the site. The email was copied to Mr Hassan.

Mr Cullen’s engagement to work at the site

28. On or about 11 April 2014 Mr Cullen attended the site at the request of Mr Hassan to see if he was interested in quoting on the installation of the windows at the site. Mr Cullen was a customer of Mr Hassan’s window business. Mr Cullen usually did residential and renovation work that included the installation of windows. He had not previously done high density residential work or worked in the vicinity of power lines.

29. On 14 April 2014 Mr Cullen again attended the site to measure up in order to provide a quote.

30. On 17 April 2014 Mr Cullen provided a quote by text message sent to Mr Hassan. He then prepared a written quote addressed to Graphic Glass on the letterhead of his business, Platinum View Windows and Doors.

31. On 9 May 2014 Mr Cullen commenced work at the site. He did not receive an induction or attend any tool box talks during the course of his time on site. Between 9 May 2014 and mid June 2014 Mr Cullen installed the windows at the site from the inside with the assistance of a labourer provided by Mr Hassan.

Involvement of Mr Leishman from Sydney Trains

32. On 9 May 2014 Mr Leishman replied by email to Mr Soukie and copied that response to Mr Hassan. Mr Leishman advised that the Safe Approach Distance (SAD) to the 33Kv power lines was 4m. The SAD could be reduced to 1.5m horizontally and 3.5m vertically if a continuous rigid barrier was installed. Mr Leishman noted that the requested reduction was to 700mm. Mr Leishman advised that a SWMS would need to be formulated based on the requirements of the NSW Transport System Guide “Working around Electrical Equipment” (the System Guide) a copy of which he attached to the email and that the power would have to be isolated under the supervision of an authorised Electrical Mains Officer from Sydney Trains. Mr Leishman stated that is was of the highest importance to ensure that no workers or materials came within 3m of the 33Kv power lines because of the risk of electrocution, and that control measures including, warning, induction, tool box talks, the development of a SWMS and the demarcation of an exclusion zone, should be put in place.

33. On 21 May 2014 Inspector Newton received notice of a complaint by Mr Leishman of Sydney Trains about workers at the site undertaking work within 3m of the high voltage power lines owned by RailCorp that ran along King Georges Road. The complaint alleged that the workers were within 600mm of the upper power lines. Mr Leishman forwarded the email correspondence with Mr Soukie and Mr Hassan to Inspector Newton. A site meeting was arranged for 22 May 2014.

Site visit 22 May 2014

34. On 22 May 2014 a site meeting was held. Present were Mr Hassan, Inspector Newton and Mr Leishman. The building had progressed to being of 4 levels. The top slab was the roof of the building. The scaffolding along King Georges Road was higher and was now about 3m below the upper lines. The scaffolding could not be used by a person without putting that person within 3m of the upper power lines.

35. Inspector Newton said to Mr Hassan words to the effect, “Workers can’t use the scaffold at this level without encroaching the 3 m clearance required by Sydney Trains. In fact I would say that any works conducted on the outside of the building along King Georges Road side on this level would place the worker within 3m of the power lines.”

36. Inspector Newton was very concerned that the window ledge fronting onto King Georges Road could be easily accessed by workers from the completed rooms, and she suggested preventing access to those rooms altogether to avoid the risk.

37. After discussions with Mr Hassan and Mr Leishman it was agreed that isolation of the power to the upper level high voltage power lines would be required on least two occasions to allow for the work within 3 m to be completed. Those works included brick cleaning, rendering, window finishing and scaffold removal. On 22 May 2014 the windows (frames and glass) had not been installed.

38. Inspector Newton issued two improvement notices in relation to the upper level power lines. Improvement notices were issued because there was not enough evidence for her to form an opinion that work had been or was about to occur on the scaffold and thereby there was not an immediate risk to health and safety.

39. A conversation took place about the installation of the windows. Mr Hassan stated that he could install the windows from the inside of the building. Inspector Newton said words to the effect, “I find it hard to believe that can be done. Not only would it be incredibly awkward, but what about cleaning, installing the flashing, waterproofing and trims etc?” to which Mr Hassan responded in words to the effect, “I make windows for a living. They come fully integrated and can be installed from one side”. Inspector Newton then said to Mr Hassan words to the effect, “if you are compliant with the clearance distances then we can’t stop you. However, in my experience the workers will do the job the easiest way and you have that ledge on the outside that presents a perfect platform for workers to access the outside. You would need to directly supervise every move to ensure they don’t go out there. Additionally, I have concerns that a worker could pick up something conductive, like trims, and if it protrudes outside the window, it could come in contact with the power lines. For this reason, I think you need to monitor work inside the rooms as well.”

40. Mr Hassan was advised by Inspector Newton that the presence of a worker on the ledge would constitute a breach of the improvement notices, unless the power was isolated. Mr Hassan accepted that the power would have to be isolated and that he would have to liaise with Sydney Trains to affect that.

41. Mr Hassan was also advised that he needed to demarcate the exclusion zone of 3m by the use of barrier tape and signage. Inspector Newton advised Mr Hassan where to put the barrier tape and signage. Mr Hassan told Inspector Newton that he would immediately go to the hardware store to buy the tape and the signage.

42. Inspector Newton then contacted Sam of Synergy Scaffolding. She was told that Synergy was no longer doing the job because they would not install the hoarding without an approval from Sydney Trains.

43. Later in the day Mr Hassan telephoned Inspector Newton. He told her that the barrier tape had been installed on the doorways to the rooms facing King Georges Road and on the roof level and that any other work would occur when the power was isolated. Inspector Newton asked Mr Hassan to advise her when the isolation was to take place so she could discuss with him the other measures to be taken relating to the removal of the scaffolding including the isolation of the lower level power lines to allow that to occur.

44. On 5 June 2014 Mr Leishman advised Mr Hassan by email that the upper power lines would be isolated on the weekend of 21 and 22 June 2014, from 7.00am on Saturday to 5.00pm on Sunday.

45. Later on 5 June 2014 Mr Hassan sought a permit from Kogarah Council (the Council) to conduct the works on Sunday 22 June 2014 at the site because of the need to isolate the 33Kv power lines. Council approved that request on 6 June 2014. On 11 June 2014 Mr Leishman advised Mr Hassan by email of the cost of the electrical isolation would be $4,902.24 payable to Sydney Trains. He was also advised that WGA would have to engage a contractor with an Electrical Permit.

46. On 18 June 2014 Mr Leishman telephoned Mr Hassan and advised him that the proposed isolation of the power on 21 and 22 June 2014 could not take place because the building had been constructed too close to the upper power lines and the conditions for turning the power back on could not be met.

The incident

47. On or about 18 June 2014 Mr Hassan asked Mr Cullen to install angles on the outside of the windows. The installation of angle finishes the presentation of the windows to cover any gaps left after their installation. That work was not part of Mr Cullen’s original quote. Mr Hassan pleaded with Mr Cullen to install the angles on the windows of the units facing King Georges Road because it needed to be done before the scaffolding was removed on the following weekend. Mr Hassan did not say anything to Mr Cullen about the risk posed by the power lines, that he was not permitted to go onto the window ledge to install the angles, or that he should not do so unless the power was isolated.

48. On 19 June 2014 Mr Cullen attended the site to install the angles to the units fronting King Georges Road. The work involved measuring the window, cutting the angle to size and then gluing it onto the window using a silicone based product. There was no barrier tape or signage in place warning Mr Cullen of the risk posed by the high voltage power lines. Mr Cullen was not told that the lines were high voltage lines. He did not notice they were there because he was concentrating on his work. Mr Cullen accessed the scaffolding to do the work and was within 3m of the 33Kv power lines when he did so. Mr Cullen was not told by Mr Hassan that he had been issued an improvement notice for the work. Mr Cullen commenced installing the angle to the windows of unit 12. Mr Cullen does not recall the incident.

49. Megan Evers was working as a receptionist for a real estate agency on King Georges Road across the road from the site. Ms Evers heard an explosion and then saw a worker thrown backwards on the scaffolding. The worker appeared to be on fire and his head was hanging over the fourth storey of the worksite. Emergency services were called.

50. Inspector Leonie Ball attended the site after the incident was reported to SafeWork. Inspector Ball was a qualified electrician and had previously worked for Sydney Trains (or its predecessor). Inspector Ball recovered the angle from the ground on King Georges Road. She observed 2 burn marks on it consistent with an electrical incident. She also observed burn marks on the window frame of unit 12 and asked a police officer present to take photos of it.

51. Mr Cullen suffered burns to 30 percent of his body.

52. Based on the primary facts, I infer that Mr Cullen suffered an electric shock when the angle he was holding came into contact with or in close proximity to the 33Kv power line adjacent to the window ledge to unit 12.

53. Inspector Ball did not observe any barrier tape or signage present at the site to indicate the presence of the power lines or to demarcate an exclusion zone. Inspector Ball also observed other workers doing rendering work inside Unit 12 after she arrived at the site.

54. On 19 June 2014 Mr Leishman advised Inspector Newton that there had been an electrical incident at the site.

The elements of the offence

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

56. Section 32 of the Act provides:

57. A person commits a Category 2 offence if:

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

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

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

61. The elements of the offence are:

62. Element 1   The defendant was conducting a business or undertaking;

63. 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;

64. 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;

65. (ii)   while the workers were at work in the business or undertaking;

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

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

The relevant law

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

69. A person can conduct a business or undertaking alone or with others and it does not need to be for profit or gain: section 5 of the Act.

70. 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.

71. 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:

(a)   workers engaged, or caused to be engaged by the person, and

(b)   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.

72. 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.

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

74. 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. [2]

    2. Section 17 of the Act.

75. “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;

4. the risk, and

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

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

7. 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.

76. 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].

77. 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.

78. 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 is 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.

79. 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.

80. 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.

81. 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].

82. 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.

83. 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.

84. 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.

85. 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.

86. 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].

87. 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.

88. 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].

Was the defendant conducting a business or undertaking? (Element 1)

89. In the answers provided in response to the section 155 notices, Mr Hassan on behalf of WGA admitted that it was conducting a business or undertaking at the site, WGA being the builder.

90. There was also signage at the site on the date of the incident and earlier when Inspector Newton attended, describing WGA as responsible for the site.

91. I am satisfied beyond reasonable doubt that the prosecutor has established Element 1.

Did the defendant owe Mr Cullen a health and safety duty? (Element 2)

92. Mr Hassan negotiated with Mr Cullen to provide his services at the site. I am satisfied that the contract entered into, was between Mr Cullen and Mr Hassan on behalf of WGA in its capacity as the builder at the site.

93. Mr Cullen satisfied the definition of a worker because he was a contractor to WGA: section 7(1)(b) of the Act.

94. Mr Cullen 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 WGA, or if his activities were influenced or directed by WGA.

95. The words “engaged” and “caused to be engaged by” are intended to be wider than the term “employ”. 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. The words also extend to remoter forms of contractual relationships where the person engaging the services retains some control over the activities of the person engaged: R v ACR Roofing Pty Ltd (2004) 11 VR 187.

96. Based on the evidence I am satisfied beyond reasonable doubt that Mr Cullen was a contractor engaged by WGA, because WGA entered into a contract with Mr Cullen to provide his services at the site.

97. 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.

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

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

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

100. 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)-(d) of the Summons.

101. The likelihood of the pleaded risk occurring was high if the control measures were not adopted. The potential consequences were catastrophic in that an electric shock was likely to cause death or serious injury because the upper power lines were carrying 33Kv. WGA had actual knowledge of the risk and the control measures that were required to alleviate the risk including the need to isolate the power when work was required to be performed on the window ledge. Mr Hassan had been provided with that information in writing through the provision of the Code of Practice and the System Guide as well as being provided with clear and unequivocal instruction from qualified persons about the control measures that were required to be implemented to avoid the risk.

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

7(a)      The defendant should have prevented Mr Cullen undertaking the work of measuring and then installing angles on the external part of the windows in the absence of the supply of electrical power to the high voltage overhead power lines being isolated or de-energised.

103. On 9 May 2014 Mr Leishman informed Mr Hassan in an email that the power to the 33Kv power line would have to be isolated to allow the encroachment of the SADs indicated to be necessary to complete the work at the site.

104. On 12 May 2014 Mr Leishman sent to Mr Hassan the System Guide. It provided that the most effective control measure was to isolate the power supply under an Electrical Permit.

105. On 22 May 2014 Mr Hassan acknowledged to Mr Leishman and Inspector Newton that the power would have to be isolated before undertaking the work that Mr Cullen was required to perform.

106. On 5 June 2014 Mr Leishman advised Mr Hassan that the power would be isolated on 21 and 22 June 2014 and Mr Hassan sought a permit from Council to perform work at the site on Sunday 22 June 2014.

107. The isolation of the power was required to eliminate the risk of electric shock because any worker on the window ledge was encroaching on the SAD required by the high voltage of the upper power line.

108. On 18 June 2014 Mr Hassan was informed by Mr Leishman that the power could not be isolated on the following weekend or for the foreseeable future, because the building had been constructed too close to the upper power lines to allow the power to be turned back on if was turned off.

109. Particular (a) then required WGA to prevent Mr Cullen from undertaking work on the window ledge.

110. In this case, stopping work on the window ledge was the only way to eliminate the risk. That could have been effected by either:

1. not asking Mr Cullen to do the work unless and until the power was isolated; or

2. directing Mr Cullen not to work on the window ledge unless the power was isolated.

111. The fact that the power could not be isolated does not in my view affect the reasonably practicability of this measure. That circumstance arose because of WGA’s actions in constructing the building too close to the 33Kv power lines. Mr Leishman continued to try to find a solution to the problem that WGA had created. WGA should have delayed the work until a solution was found.

112. Cessation of work can be a reasonably practicable measure, and whether it is or not is a question of fact: John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 at [114].

113. Taking into account the extent of the risk and the fact that the isolation of the power was a way of eliminating the risk, I find that the cost to WGA was not grossly disproportionate to the risk.

114. I am satisfied beyond reasonable doubt that the prosecution has established particular (a).

7(b)   The defendant should have prevented Mr Cullen working on the external area that was near or in close proximity to or in the vicinity of the overhead power lines by enforcing a no go zone.

115. The concept of a no go zone is referred to in the Code of Practice. It is defined as “the area around overhead power lines into which no part or a person… may encroach without the approval of the network operator”. The definition of “person” includes hand tools, equipment or any other material held by a person. The relevant distances are set out in the Code of Practice and are based on the voltage of the power line.

116. On 6 March 2014 Inspector Newton issued prohibition notices to WGA for working within 3m of the lower power lines.

117. On 9 May 2014 Mr Leishman informed Mr Hassan in writing that the SADs for the 33Kv power lines were 3m for workers and materials.

118. On 22 May 2014 Inspector Newton issued an Improvement Notice requiring the delineation of a physical exclusion zone. Inspector Newton identified the areas where tape and signage should be installed. Mr Hassan told Inspector Newton that he was going to the hardware store to buy barrier tape and signage and later that he had done so.

119. Mr Hassan did not tell Mr Cullen that the scaffolding or the window ledge was a no go zone.

120. The tape and signage required to delineate the no go zone were inexpensive and readily available from the hardware store. What Mr Hassan said Inspector Newton was indicative of that and that the delineation of a no go zone was reasonably practicable. The particular also required Mr Hassan to enforce that no go zone. This could have been done simply and cost effectively by verbal instruction and intermittent supervision.

115. I am satisfied beyond reasonable doubt that the prosecution has established particular (b).

7(c)   The defendant should have installed and maintained physical barriers, in particular barrier tape, to prevent access by Mr Cullen to the external area and/or to prevent anything being held by Mr Cullen coming near or in close proximity to or in the vicinity of the overhead power lines.

122. Particular (c) is closely related to particular (b) it requires the installation of barrier tape to delineate the no go zone.

123. I will not repeat the evidence recited in relation to particular (b). The provision of barrier tape was a simple and inexpensive measure that would have minimised the pleaded risk.

124. I am satisfied beyond reasonable doubt that the prosecution has established particular (c).

7(d)   The defendant should have installed and maintained signs at the premises warning that there was danger, to keep clear of or beware of overhead power lines and which prohibited work near or in close proximity to or in the vicinity of them.

125. Particular (d) is also closely related to particulars (b) and (c) and I will not repeat the relevant evidence that I have set out.

126. Mr Hassan accepted that he was required to install signage and he told Inspector Newton that he was going to do so and that he had in fact done so. The signage was not present on the day of the incident.

127. The installation of signage was a simple and inexpensive measure that would have minimised the pleaded risk.

128. I am satisfied beyond reasonable doubt that the prosecution have established particular (d).

Conclusion on Element 3

129. I am satisfied beyond reasonable doubt that the prosecutor has proved Element 3.

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

130. Each of the breaches of the defendant’s health and safety duty particularised in [7](a)-(d) were a substantial and significant cause of Mr Cullen being exposed to a risk of death or serious injury from an electric shock suffered by reason of his proximity to the 33Kv power lines.

131. WGA knew of the risk of electric shock posed to workers on the window ledge or the scaffolding around it. The pleaded measures, which WGA did not implement, would have eliminated or minimised the risk posed to Mr Cullen, by preventing or advising him to remain a safe distance from the 33Kv power lines.

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

Conclusion

133. The elements of the offence have been proved beyond reasonable doubt against WGA.

134. I find WGA Pty Ltd guilty of the offence.

135. I will list the matter for sentence on a date convenient to the prosecutor.

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Endnotes

Decision last updated: 05 May 2017