SafeWork NSW v BSA Limited (No.2) - [2023] NSWDC 73

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73
Hearing dates: 13, 14, 15, 16, 17, 22, 28 February, 1, 3, 6, 7, 9, 10 March
Date of orders: 31 March 2023
Decision date: 31 March 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt.
(2)   I find the defendant BSA Limited guilty.
(3)   The matter will be listed for sentence hearing on a date convenient to the parties.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of person conducting a business or undertaking – risk of death or serious injury
CRIMINAL LAW – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether the failure exposed a worker to the risk of death or serious injury – manifestation of the risk is not an element of the offence
PROCEDURAL – reasonably practicable measures – whether the defendant knew of, or ought to have known of, the risk
PROCEDURAL – sentence hearing – dispute as to facts – dispute as to the existence of risk – dispute as to failure to take reasonably practicable measures to eliminate or minimise the risk – determination of disputed matters upon a sentencing hearing
OTHER – worker installing Foxtel satellite dish and set top boxes – existing dangerous fault in wiring of house – worker electrocuted when he came into contact with live wires and an earth underneath the house

Legislation Cited:
Work Health and Safety Act 2011, s 3, 7,12A, 16, 17, 18, 19, 32, 244, 274, 275
Work Health and Safety Regulations 2017, reg 156

Cases Cited:
Alameddine v R [2020] NSWCCA 232
Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
BC v R [2020] NSWCCA 329
Bulga Underground Operations v Nash [2016] NSWCCA 37
Chiang v R [2016] NSWCCA 45
Cowling v R [2015] NSWCCA 213
Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
KMC v Director of Public Prosecutions (SA) [2020] HCA 6
Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA
R v AB [2011] NSWCCA 229
R v Kirkland [2005] NSWCCA 130
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Pearce [2020] NSWCCA 61
R v Wang [2020] NSWSC 1335
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337
Strbak v The Queen [2020] HCA 10
Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
The Queen v Baden-Clay [2016] HCA 35 at [46], [50]; (2006) 258 CLR 308
Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288

Texts Cited:
Australian Standard AS/NZS 4836: 2011 Safe Working On Or Near Low-Voltage Electrical Installation and Equipment
Electrical Hazards When Working in Ceiling Spaces Safety Alert, 11 December 2017
NSW Government Code of Practice, How to Manage Work Health and Safety Risks, August 2019
SafeWork NSW Code of Practice, Managing Electrical Risks in the Workplace, September 2016
WorkCover Code of Practice, How to Manage Work Health and Safety Risks, December 2011

Category: Principal judgment
Parties: SafeWork NSW (Prosecutor)
BSA Limited (Defendant)
Representation:
Counsel:
J Agius SC with B Docking (Prosecutor)
A Moses SC with M Shume (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw Australia (Defendant)

File Number(s): 2020/351444

Table of Contents

Judgment

Introduction
Procedural History
Further Amended Summons
The Risk
Reasonably Practicable Measures
Exposure to a Risk of Death or Serious Injury
Manifestation of the Risk

The Relevant Law
Legal Approach to Resolution of Disputed Facts on a Sentencing Hearing
General Principles
Section 244 of the Work Health and Safety Act

Agreed Facts
Documentary Evidence for the Prosecutor
Code of Practice: Managing Electrical Risks in the Workplace
Code of Practice: How to Manage Work Health and Safety Risks
Electrical Hazards When Working in Ceiling Spaces Safety Alert
Cabac Power Point Tester
Volt Stick
Foxtel Domestic Installation Manual
Foxtel Cable to Satellite Transition Technician Training
Foxtel Customer Installations Command Centre on the Day for Technicians
BSA Connect SWMS and WAH Presentation
BSA SWMS for Installation of Satellite Products
BSA Safe Work Instruction Electrical Isolations
BSA Safe Work Instruction Work in Ceiling or Under Floors
Audits in Relation to Mr Hooper
First Line Manager Position Description
Foxtel BSA Agenda/Minutes
Telephone Calls by Customers to Foxtel and Visits by BSA Technicians
Service Order for Work to Done on 14 December 2018
Marvel Risk Assessment
Guidance Material
Post-Incident SWMS
Post-Incident SWI “Electrical Isolations”
Post-Incident Risk Assessment

Witnesses Called by the Prosecutor
Lucas Lithgow
Mark Hooper
Amber McKenzie
Francis Tropman
Amy Tropman
Police Photographers
Police Officers
Inspector Charles
Inspector Scott
Inspector Wright
Bruce Mewjork

Expert Evidence
James Graham
Neil Roberts
Trevor Blackburn

Disputed Facts
The Foxtel Command Centre
BSA Workers
Guidance Material in Relation to Electrical Risks and Risk Assessments
Foxtel Systems Documents Available to BSA
Pre-14 December 2018 BSA Business Records
Post-14 December 2018 BSA Business Records
Guidance Material for Energy Regulators and Providers
Pre-14 December 2018 BSA Actions that Were Not Implemented

The Risk to Workers
Reasonably Practicable Measures
Reasonably Practicable – Section 18
The Likelihood of the Risk Occurring – Section 18(a)
The Degree of Harm that Might Result from the Risk – Section 18(b)
What the Defendant Knew or Ought Reasonably to have Known – Section 18(c)
Availability and Suitability of Ways to Eliminate or Minimise the Risk – Section 18(d)
The Cost Associated with Available Ways of Eliminating or Minimising the Risk – Section 18(e)

Reasonably Practicable Measures – As Pleaded
Stopping Work – Paragraph 9(a) of the Further Amended Summons
Providing Information to Technicians about Shocks or Tingles – Paragraph 9(b) of the Further Amended Summons
Implementing and Maintaining Isolation of Power – Paragraph 9(c) of the Further Amended Summons
Providing and Maintaining a System of Work Requiring the Use of a Volt Stick – Paragraph 9(e) of the Further Amended Summons
Adequate Risk Assessment – Paragraph 9(f) of the Further Amended Summons
Use of a GPO Power Point Tester – Paragraph 9(g)(iv) and 9(h) of the Further Amended Summons
Information, Training, Instruction and/or Supervision Concerning the Mandatory Isolation of Power when working under the House – Paragraph 9(g)(i) of the Further Amended Summons
Information, Training, Instruction and/or Supervision Concerning the Mandatory Use of a Volt Stick – Paragraph 9(g)(iii) of the Further Amended Summons
Adequate information, training, instruction and/or supervision concerning the conduct of an Adequate Risk Assessment – Paragraph 9(g)(v) of the Further Amended Summons
Conclusion on Reasonably Practicable Steps

Causation: Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury
Conclusion on Causation

Manifestation of the Risk
Conclusions
Orders

Judgment

Introduction

On 14 December 2018 Mr Jayden Hooper, aged 22, died at work. Mr Hooper was employed by the defendant BSA Ltd (BSA) as a Customer Service Technician (CST). On 14 December 2018, in the course of that employment, he was installing a satellite dish and associated cabling at the house of a Foxtel customer in Malabar. While underneath the floor of the house, dealing with the connection of cables, Mr Hooper received a fatal electric shock.
SafeWork NSW prosecutes BSA alleging that BSA, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers, in particulars Mr Jayden Hooper, to a risk of death or serious injury, contrary to s 32 of the Act.

Procedural History

Proceedings were commenced in this court by a Summons filed on 9 December 2020.
The matter came before the court many times for directions hearings and interlocutory hearings.
On 23 December 2021 I granted leave to the prosecutor to amend Annexure A to the Summons in respect of particulars 9(g) and (h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021.
On 7 April 2022 I listed the matter for hearing before me, on a plea of not guilty, for four weeks commencing on 13 February 2023.
On 6 December 2022 BSA entered a plea of guilty on the basis of a document marked on that occasion as MFI 5. That document has now been marked as MFI 1 in these proceedings. The hearing date was confirmed.
The hearing proceeded on the basis of a Further Amended Summons filed in court on 1 March 2023. BSA adhered to its plea of guilty entered on 6 December 2022 on the basis of the document now marked as MFI 1. The matter then proceeded as a disputed facts sentence hearing. The court is required to make findings in relation to the disputed facts. Further, once the facts are found, the court is required to make findings as to the risk which existed, and which of the pleaded measures should have been taken by the defendant, over and above those admitted by the plea of guilty.

Further Amended Summons

The Risk

Paragraph 8 of the Further Amended Summons pleads that there was a risk to a worker of death, shock or other serious injury caused directly or indirectly by electricity arising from two sources.
The plea of guilty entered by BSA accepted that a risk did arise from the first source, which was pleaded as follows:

“(i) Entering and working under the house and coming into contact with energised (live) Foxtel cable, copper pipe and/or other conductive materials”

BSA disputed that the second pleaded risk existed. Paragraph 8 of the Further Amended Summons pleaded the second possible source of electricity as follows:

“(ii) Coming into contact in bed room 1 of the house with the Foxtel box including the rear ports, floor mount outlets, attached cables, television including the rear ports, HDMI cable and/or socket outlet 1.”

Reasonably Practicable Measures

Paragraph 9 of the Further Amended Summons pleaded eight measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it was not reasonably practicable to eliminate) the risk.
BSA entered a plea of guilty on the basis of failing to take two of the pleaded measures, being those alleged in pars 9(d) and 9(g)(ii) in the Further Amended Summons concerning the failure to provide locks and tags.
BSA pleaded guilty to failing to provide and maintain a system of work requiring the placement of a lock on the main switch or the meter box itself or, in the alternative, using a recognisable tag, where BSA’s workers were required to isolate power.
BSA pleaded guilty to failing to provide Mr Hooper with adequate information, training, instruction and/or supervision concerning the “mandatory use of lock and/or tag when isolating power” – par 9(g)(ii). BSA did not accept that it needed to provide information, training, instruction and/or supervision in relation to the remaining subpars of par 9(g).
In the end result, the prosecutor sought to prove that BSA should have also taken one or more of the following measures pleaded in par 9 of the Further Amended Summons:

“a.   Stopping the defendant's workers from undertaking any Foxtel work at the house until a qualified and competent electrician and/or a qualified and authorised energy provider worker checked and cleared the safety of the house's wiring,
b.   As part of the work allocation process allocating work to Mr Hooper and/or Ms McKenzie and before any Foxtel Subscription Television Installation and Maintenance Services at the house were undertaken, the defendant obtaining, providing and highlighting or red flagging information and instruction to these workers of the house's prior history of any one or more of any tingle, hazardous set top unit, hazardous shock, the need to safely disconnect the Foxtel set top unit, damage complaint, electrical or electric shock, electrical zap and/or power surging,
c.   Implementing and maintaining the isolation of power at the house by switching off the power at the electricity meter box,
d.   …..
e.   Providing and maintaining a system of work requiring the use of a volt stick, non-contact proximity voltage tester and/or multimeter to check on power isolation and de-energisation of one or more of the following:
(i)   Foxtel cables, the copper pipe and/or any other conductive material under the house; and/or (ii) The Foxtel set top unit or box including the rear ports, floor mount outlets, attached cables, television including the rear ports, HDMI cable, socket outlet 1 in bed room 1 and a general power outlet (GPO) in the house,

f.   Conducting and documenting an adequate risk assessment concerning the Foxtel work at the house that: (i) Identified the general electrical risk associated with Foxtel work and the specific electrical risk associated with Foxtel work at the house arising from the history at the house of any one or more of any tingle, hazardous set top unit, hazardous shock, the need to safely disconnect the Foxtel set top unit, damage complaint, electrical or electric shock, electrical zap and/or power surging; (ii) Assessed the identified general risk and specific electrical risk; and (iii) Identified the most appropriate control measures that should be implemented to eliminate or minimise the general risk and specific electrical risk,
g.   Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following:
(i)   mandatory requirement of isolation of power, when working under the house,
(ii)   ……
(iii)   mandatory use of a volt stick (also known as a non-contact proximity voltage tester)
(iv)   to test any power outlet used to supply power to a television or to any Set Top Unit (also known as a STU or Set Top Box), mandatory use of a GPO (power point) tester and/or multimeter, and
(v)   conduct of an adequate risk assessment.

h. In the alternative to (g), providing Mr Hooper with a GPO (power point) tester to test any power outlet used to supply power to a television or to any STU, together with adequate information, training, instruction and/or supervision concerning the use of such a tester.”

Exposure to a Risk of Death or Serious Injury

BSA pleaded guilty on the basis, as pleaded in par 10 of the Further Amended Summons, that as a result of its admitted failures, Mr Hooper was exposed to a risk of death or serious injury.

Manifestation of the Risk

In par 11 of the Further Amended Summons, the prosecutor pleaded that the death of Mr Hooper on 14 December 2018 was a manifestation of the risk. BSA put this matter in issue.
While a plea of guilty to the charge was entered on the limited basis indicated to the court and set out in MFI 1, the prosecutor wished to prove additional facts and submit that additional reasonably practicable measures should have been taken, as those matters are relevant to assessing the objective seriousness of the offence, on a sentencing hearing. Paragraph 11 does not elevate manifestation of the risk to make it an element of the offence.

The Relevant Law

Legal Approach to Resolution of Disputed Facts on a Sentencing Hearing

The standard of proof of contested or disputed facts required in a sentencing hearing depends upon which party is seeking to rely on a particular fact. In R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27] the High Court said:

“[A] sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.”

The High Court has since applied this approach in KMC v Director of Public Prosecutions (SA) [2020] HCA 6 at [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [64] – [66] (French CJ, Bell, Keane and Nettle JJ), and Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [23] (Gleeson CJ).
Any disputed fact that the prosecutor seeks to rely on must be proved beyond reasonable doubt: Strbak v The Queen [2020] HCA 10 at [32] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); R v Pearce [2020] NSWCCA 61 at [69] – [73] (Leeming JA, Rothman J, N Adams J); Alameddine v R [2020] NSWCCA 232 at [46] (Bathurst CJ); Cowling v R [2015] NSWCCA 213 at [13] (Leeming JA); R v AB [2011] NSWCCA 229 at [30] (Johnson J); R v Kirkland [2005] NSWCCA 130 at [13]-[16] (Hunt AJA, Grove and Hall JJ agreeing).
In contrast, any disputed fact which the defendant seeks to rely on must be proved on the balance of probabilities: BC v R [2020] NSWCCA 329 (Gleeson JA, Price J, Wright J); Chiang v R [2016] NSWCCA 45 at [13] (Beazley P, Harrison J and R A Hulme J); R v Wang [2020] NSWSC 1335 at [5] (Beech-Jones J).

General Principles

The objects clause in s 3 of the Act provides:

“(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by —
(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…
(h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

The offence is one of strict liability: s 12A of the Act.
The content of the duty is set out in s 19 of the Act which 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.
(2)   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.
(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.”

The meaning of “worker” is dealt with by s 7(1) of the Act which provides:

“(1)   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—
(a)   an employee, or
(b)   a contractor or subcontractor, or
(c)   an employee of a contractor or subcontractor, or
(d)   …”

Section 16 of the Act provides that more than one person can have a duty, and says:

“(1)   More than one person can concurrently have the same duty.
(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.
(3)   If more than one person has a duty for the same matter, each person—
(a)   retains responsibility for the person’s duty in relation to the matter, and
(b)   must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

Section 17 of the Act deals with the management of risks and provides:

“A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable, and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

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 s 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 s 32 offence is a risk of death or serious injury: s 32(c) of the Act.
An incident causing injury may be evidence of the presence of a risk and may be relevant in due course 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.
The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable 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 practicable to eliminate the risk, or if not, it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
“Reasonably practicable” is defined in s 18 of the Act which provides:

“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including—
(a)   the likelihood of the risk concerned occurring, and
(b)   the degree of harm that might result from the risk, and
(c)   what the defendant knows, or ought reasonably to know, about;
(i)   the hazard or the risk, and
(ii)   ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. 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; (2001) 110 IR 57 at [68].
The reasonable foreseeability of an incident is relevant to whether the pleaded measures were reasonably practicable, but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.
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.
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 the 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 Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA at [9] and [35].
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.
A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (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] HCA 34; (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.
The prosecution must prove that 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].
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] HCA 27; (1991) 172 CLR 378.
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 were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga at [130].

Section 244 of the Work Health and Safety Act

Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 of the Act provides:

“Imputing Conduct to Bodies Corporate
(1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.”

In Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 the Court of Criminal Appeal explained the operation and scope of s 244 as follows:

“84 Section 244 is clear in its terms. Any conduct engaged in by an employee acting within the actual or apparent scope of his or her employment is conduct also engaged in by the body corporate for the purposes of the WHS Act. There is no limitation in s 244 on the type of employee or the level of authority that the employee might have.
85 The only limitation expressed in s 244 is that it must be conduct engaged in on behalf of a body corporate by an employee acting within the actual or apparent scope of his or her employment.
…..
88 There is no qualification to s 244(1) to the effect that if the conduct of the employee ….. was not foreseeable ….., s 244 would not apply. Section 244 has the effect of attributing the conduct of one person to another, having regard to their relationship, not having regard to employer’s state of knowledge of the possibility of the conduct occurring.
…..
90 The question is not whether the appellant could have foreseen that Mr Dart would act in the way that he did but merely whether in acting the way in which he did, Mr Dart was engaged in conduct within the actual or apparent scope of his employment.
91 If so, then that conduct is deemed to have been engaged in by the appellant and the appellant may be liable for a breach of s 32 WHS Act, even if only because of that conduct.”

Agreed Facts

The parties produced a Statement of Agreed Facts which was marked as Exhibit PX 8. That Statement of Facts is reproduced as Annexure A to this judgment. There are blanks in the document. I infer that this is where the prosecutor alleged a fact and the defendant did not agree to that fact. Rather than re-number the paragraphs, Annexure A sets out precisely what is in PX 8.

Documentary Evidence for the Prosecutor

Code of Practice: Managing Electrical Risks in the Workplace

The prosecutor tendered the SafeWork NSW Code of Practice: Managing Electrical Risks in the Workplace, September 2016 (PX 1, Tab 5). This Code is an approved code of practice under s 274 of the Act. It applies to all workplaces where a PCBU has management or control of electrical equipment, including electrical installations, or carries out electrical work on or near energised electrical equipment, including electrical installations.
Page 8 of the Code says:

“This Code includes guidance on how to manage electrical risks in the workplace by following a systematic process that involves:
•   Identifying hazards.
•   If necessary, assessing the risks associated with these hazards.
•   Implementing and maintaining risk control measures (eg inspecting and testing electrical equipment, using RCDs), and
•   Review risk control measures.
Guidance on the general risk management process is available in the Code of Practice: How to Manage Work Health and Safety Risks.”

Part A of the Code deals with “General electrical safety at the workplace”. Clause 2.1 of the Code deals with identifying hazards, and includes the example of work carried out in a confined space.
Page 13 of the Code lists factors to be taken into account in identifying hazards including:

“•   The conditions under which the electrical equipment is used, for example, wet conditions outdoors or confined spaces.
•   Work practices and procedures, for example isolation, to carry out maintenance.
•   The capability, skill and experience of relevant workers.”

Clause 2.3 of the Code deals with control of risks. One of the means of control is isolation which means “Preventing workers from coming into contact with the source of an electrical hazard” (p 13).
Clause 5 of the Code (p 28) deals with the need to perform electrical work on equipment which is de-energised. Under the heading “General Principles – Verification of De-energised Electrical Equipment”, cl 5.1 of the Code provides as follows (p 28):

“Regulation 152–156
A person conducting a business or undertaking must ensure that electrical work is not carried out on electrical equipment while the equipment is energised, subject to the prescribed exceptions discussed in Section 7 of this Code.
These provisions do not apply to work carried out by or on behalf of electricity supply authorities on the electrical equipment, including line-associated equipment, controlled or operated by the authority to generate, transform, transmit or supply electricity. This exemption does not extend to the electricity generation sector.
A person conducting a business or undertaking carrying out electrical work must ensure that, before electrical work is carried out on electrical equipment, the equipment is tested by a competent person to determine whether or not it is energised.
The person conducting a business or undertaking must ensure that:
• each exposed part is treated as energised until it is isolated and determined not to be energised; and
• each high-voltage exposed part is earthed after being de-energised.
A person conducting a business or undertaking must ensure that electrical equipment that has been de-energised to allow for electrical work to be carried out cannot be inadvertently re-energised.
The safe work principle ‘TEST FOR ‘DEAD’ BEFORE YOU TOUCH’ must be applied at all times.
Even if the electricity supply is believed to have been isolated, it must be assumed that all conductors and electrical components are energised until they have been proven de-energised.
Testing for ‘dead’ must be undertaken as appropriate for the duration of the electrical work. Testing is undertaken prior to touching, taking into account all relevant factors including the nature of the conductor, nature of the isolation, nature of work, if there has been a change or the area has been left idle (unattended) for a period.”

Paragraph 5.3 of the Code (p 29) says as follows:

“5.3 Work on cables (including cutting cables)
Where work is to be carried out on a cable, the cable should be de-energised.
Cables must be treated as energised and the procedures for working on energised electrical equipment followed until positive tests can be made that prove the cable is de-energised.
If the cable’s connections are exposed the connections and attached live parts should be proved to be de-energised and identified before work starts.”

Paragraph 6.1 of the Code (p 30) deals with “Securing the isolation”. It provides a summary of reg 156 of the Work Health and Safety Regulations 2017 (the Regulations) which says:

“A person conducting a business or undertaking must ensure that electrical equipment that has been de-energised to allow electrical work to be carried out on it is not inadvertently re-energised while the work is being carried out.”

Paragraph 6.1 says that the isolation “should be secured by locking off and tagging the electrical equipment”.
Whether or not this Code applied to the work done by Mr Hooper on 14 December 2018, the statements concerning safety when working with electricity (particularly the need to de-energise) could not be in dispute.

Code of Practice: How to Manage Work Health and Safety Risks

The prosecutor tendered the WorkCover Code of Practice: How to Manage Work Health and Safety Risks, December 2011 (PX 1, Tab 6).
This is an approved Code of Practice under s 274 of the Act. It is admissible in the proceedings as evidence of whether or not a duty or obligation under the Act has been complied with – s 275(2). Section 275(3) of the Act provides:

“The court may:
(a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and
(b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.”

The Code provides that to manage risks in the workplace a PCBU must identify hazards, assess risks if necessary, control risks and review control measures (p 6).
The Code says that identifying hazards in the workplace involves finding things and situations that could potentially cause harm to people. Electricity is specifically mentioned as a hazard. The potential harm from electricity includes “exposure to live electrical wires can cause shock, burns or death from electrocution” (p 9).
The Code says that a risk assessment involves considering what could happen if someone is exposed to a hazard and the likelihood of it happening. The Code says that a risk assessment can help a PCBU to determine: how severe a risk is; whether any existing control measures are effective; what actions you should take to control the risk; and how urgently the action needs to be taken (p 11).
The Code provides for a hierarchy of risk control (p 15). This hierarchy ranks risk controls as follows:

Level 1: Eliminate the hazards.

Level 2: Substitute the hazard with something safer; isolate the hazard from people; reduce the risks through engineering controls.

Level 3: Reduce exposure to the hazard using administrative actions; use personal protective equipment.

The highest level of health and safety protection is provided at Level 1. Level 1 is also the most reliable of the control measures.
The prosecutor tendered the NSW Government Code of Practice: How to Manage Work Health and Safety Risks, August 2019 (PX 1, Tab 7).
This is also an approved Code of Practice under s 274 of the Act. There was no significant difference between this Code and the Code in PX 1, Tab 6.

Electrical Hazards When Working in Ceiling Spaces Safety Alert

The prosecutor tendered the Electrical Hazards When Working in Ceiling Spaces Safety Alert, 11 December 2017 which was available on the SafeWork NSW website (PX 1, Tab 8).
The alert commences with the reminder that “electric shock arising from contact with damaged or exposed energised (live) wiring or equipment could lead to serious injury or death”.
On p 2 of the Alert the following is stated under the heading “Action Required”:

“Prior to entering any ceiling space:
1. Identify and confirm all sources of electricity to the property. There may be more than one source or multiple properties powered from the same meter box.
2. Identify any hazards that may be introduced as a result of isolating the power to the affected property.
3. Switch OFF all power at the electricity meter box and place a lock on the MAIN SWITCH or on the meter box itself. This will prevent inadvertent re-energisation. If it is not reasonably practicable to use a lock, use a recognisable lock-out tag.
4. For non-electrical workers, before entering the ceiling space confirm the power is isolated by turning on lights or appliances within the property. A non-contact proximity voltage tester commonly known as a volt stick can be used as an additional check on wiring and any exposed metallic material. If you are not sure power has been isolated, contact a licensed electrician to confirm power has been disconnected.

5. For electrical workers entering the ceiling space, always Test Before You Touch prior to undertaking any electrical work.
6. Check if the property has a solar/battery storage system. If so, consult with the system owner regarding the proper isolation procedure and follow that procedure.”

The Alert refers to more information being available in the Code of Practice: Managing Electrical Risks in the Workplace (p 2).

Cabac Power Point Tester

The prosecutor tendered trade documents in relation to the Cabac Power Point Tester (PX 1, Tabs 9, 12 and 13). This device plugs directly into a household power point and tests for polarity, earth connection, incorrect wiring and RCD trip. Throughout the evidence, a household power point was referred to as a General Power Outlet (or GPO for short) or a power socket.

Volt Stick

The prosecutor tendered trade material in relation to a device known as a volt stick (PX 1, Tab 14). This is a non-contact voltage tester which provides an instant indication of the presence of a live AC voltage in circuits, cables and power outlets. A volt stick provides an indication that live voltage is detected by a light, a beep or both.

Foxtel Domestic Installation Manual

The prosecutor tendered the Foxtel Domestic Installation Manual Version 5.3.1 dated March 2015 (PX 1, Tab 15). Under the heading “Work Health And Safety (WH&S)” on p 7, the Manual says:

“In regards to WH&S requirements Foxtel expects all Customer Service Technician’s to:
•   Follow appropriate safe work practices when working at customer premises
•   Determine what is required to complete the job
•   Thoroughly investigate the hazards associated with the type of work to be performed before working in, on, or around the customer’s premises &
•   Carefully plan the work to minimize the hazards encountered.
For further information Customer Service Technician’s are to refer to their supply company’s relevant safe work instructions”

Foxtel Cable to Satellite Transition Technician Training

The prosecutor tendered a Foxtel document entitled “Cable to Satellite Transition Technician Training” dated 1 February 2018 (PX 2, Tab 16). The following appears in par 3.6.9.2 (p 54):

“Prior to plugging in the screening (earth) lead to the nominated power outlet, ensure the power outlet is safe to use by testing it with GPO power point tester.”

The reference to a screening (earth) lead is a reference to a “Twin F Type” wall plate depicted in the second box on p 53. The explanation for a Twin F Type wall plate says that it is “used to eliminate electrical shock (tingling sensation caused via the build-up of leakage currents generated by TV, DVD and STU power supplies)”. The photographs taken in Bedroom 1 (referred to below) show that Mr Hooper was not dealing with a Twin F Type wall plate in Bedroom 1. The photographs show two F Types fitted to the skirting board. These do not have a screening lead.
The reference to testing a power point with a GPO power point tester, prior to plugging in the screening (earth) lead, is the only reference in the document to use of such a device. Further, it is noted that there is no recommendation to use a GPO power point tester to guard against the risk of faulty mains voltage electrical wiring in the house of a customer.

Foxtel Customer Installations Command Centre on the Day for Technicians

The prosecutor tendered the Foxtel “Command Centre on the Day for Technicians” document (PX 2, Tab 17). Page 12 of this document referred to a risk assessment which the technician had to complete before starting any work. The technician was asked a series of Yes/No risk-related questions. The questions in the standard risk assessment are as follows:

I have completed a full site inspection and discussed hazards with the customer.

I have assessed that I will not disturb ACM during my work on site.

Will you be working at heights?

Will you be securing ladder in accordance with your company SWMS?

Do I have the correct equipment?

I am physically capable to carry out the task.

Have you controlled all other hazards in accordance with your company SWMS?

If all hazards have been controlled and you deem it safe to proceed please select. If not contact your leader.

Would you like to attach photos?

It can be seen that the risk assessment asks specific questions about “ACM” being asbestos cement materials, working at heights and securing a ladder. There was no specific question about isolation of electricity. That hazard presumably fell under the question about controlling “all other hazards in accordance with your company SWMS”.
The risk assessment was to be done on a mobile phone provided to each CST, using an app called Marvel. Marvel was a Foxtel app, not a BSA app.

BSA Connect SWMS and WAH Presentation

The prosecutor tendered the BSA Connect SWMS and WAH Presentation dated June 25-July 1 2018 (PX 2, Tab 22). Mr Lithgow gave evidence that this was the presentation he gave during the induction he conducted for Mr Hooper and others on 3 October 2018 (see below). The presentation deals with the Safe Work Method Statement (SWMS) and with Working at Heights (WAH).
Page 11 of the Presentation deals with working at customer premises. Under the heading “Safe Set Up” there is a list of steps to be taken in order. The steps include: “Complete a risk assessment for the scope of the works”.
Page 12 of the Presentation is headed “Electrical Isolations”. It says as follows:

“ELECTRICAL ISOLATIONS
Follow the below to ensure safe work methods
Before entering ceiling/under floor, ensure you have isolated power.
•    Ensure the customer is aware of the requirement to isolate power and impacts
•    Allow the customer time to save or complete any critical tasks prior to isolating
-   If the customer refuses to isolate power, stop work and contact your FLM

•    Turn off electricity at the box
•    Apply a lock/tag to prevent someone from turning power back on
•    Prior to entering, hand your BSA ID card to the customer and ask them to check on you regularly while in ceiling or under floor
•    Inform the customer if they do not get a response to call the number on the back of the BSA ID card
•    Once job task has been completed, advise the customer and turn power back on”

Below those words is a photograph of a padlock which carries the words “DANGER LOCKED OUT DO NOT REMOVE” and a tag which says “DANGER DO NOT OPERATE”.
It is common ground that such padlocks and tags were not supplied by BSA to the technicians, including Mr Hooper.

BSA SWMS for Installation of Satellite Products

The prosecutor tendered the BSA Safe Work Method Statement (SWMS) for installation of satellite products (PX 2, Tab 25). The document was issued on 13 June 2018 and is thus the SWMS applicable to the work being done by Mr Hooper on the day of the incident.
The SWMS has a number of columns with the following headings:

Job Step

Potential Hazard

Initial Risk

Control Measures to Reduce Risk

Residual Risk

Responsible Person

Job step 6 is “Working inside roof spaces (eg running cables)”. One of the potential hazards is:

“Electricity – live electrical parts, damaged components, potentially live conducting materials (eg insulation foil).”

The initial risk is rated as “H18” and the column is coloured red. This refers back to a Risk Assessment Matrix on p 3 of the SWMS. H18 means that there is a risk of a life-threatening injury that might occur at some time in the future.
Under the heading “Control Measures to Reduce Risk” the reader of the SWMS is referred to:

“BSA – CONNECT – HSE – 06 – SWI – 133 – WORK IN CEILING OR UNDER FLOOR
BSA – CONNECT – HSW – 06 – SWI – 136 – ELECTRICAL ISOLATIONS.”

After taking the required control measures, the residual risk is assessed as “M10”, which by reference to the Risk Assessment Matrix means a life-threatening injury, which “may occur but only in exceptional circumstances”.
Finally, the responsible person for carrying out the control measures to reduce risk is the “Worker”.
The acronym “SWI” refers to a BSA Safe Work Instruction.

BSA Safe Work Instruction Electrical Isolations

The prosecutor tendered the BSA Safe Work Instruction (SWI) for Electrical Isolations (PX 2, Tab 26). This is the document SWI – 136, referred to in the SWMS as previously discussed.
On p 2 of the document is the heading “Work Safe”. The left hand column indicates that such work is “high risk” and the column is coloured red. Next to that warning are three photographs which appear to show a residual current device (RCD), a padlock on a safety switch and a volt stick.
Next to these three photographs the following appears:

“Isolate the Power
•    Ensure locks are applied in line with the manufacturer’s recommendations.
•    Ensure a tag is installed to warn persons of isolations.
•    Confirm isolations in place using a tester at a GPO.
Perform a physical inspection of the meter box with the customer at the commencement of the isolation.
The mains power must be isolated not the residual current device (RCD).”

BSA Safe Work Instruction Work in Ceiling or Under Floors

The prosecutor tendered the BSA Safe Work Instruction for Work in Ceiling or Under Floors (PX 2, Tab 28). This is SWI – 133, referred to in the SWMS as previously discussed.
Under the heading “Safe Set Up” the words “high risk” appear in a column coloured red. Next to that is a photograph of a padlock applied to a switch which looks like a fuse. Next to that picture are the following words:

“Isolate Electricity
•    Advise customer that you will be turning off the power.
•   Turn off the electricity at the meter box.
•   Apply a lock and/or tag to prevent someone inadvertently turning it back on.
Do not conduct work near live electrical sources. Contact your supervisor if you are unable to isolate electricity prior to starting work.
Refer to SWI – 136 Electrical Isolations”

Under the heading “Hazards” the words “high risk” appear in a column marked in red. The words associated with that hazard include the following:

“Even though you have isolated the electricity, treat all cabling and electrical terminals as live. Do not touch.
Refer to SWI – 136 Electrical Isolations.”

Audits in Relation to Mr Hooper

An audit in relation to the work of Mr Hooper was carried out on 20 September 2018 by Mr Tran, who was a First Line Manager (FLM). Mr Hooper scored 100% on the audit (PX 3, Tab 60).
Mr Hooper was also audited by Mr Bui, another FLM, on 22 October 2018 (PX 3, Tab 61). Mr Bui recorded that Mr Hooper had completed a site risk assessment which included setting up a safe working zone including power isolation where required.
An audit of Mr Hooper was conducted on 15 November 2018 in relation to PPE and safety equipment. Mr Tran conducted the audit and Mr Hooper obtained a score of 95% (PX 3, Tab 62).

First Line Manager Position Description

The prosecutor tendered the BSA Position Description for a First Line Manager (also occasionally referred to in evidence as a Front Line Manager) (PX 2, Tab 33). An FLM reports to the Field Area Manager and receives direct reports from Field Technicians. The purpose of the role is expressed on p 1 as follows:

“The First Line Manager will provide direction/support to Foxtel Technicians and supervise delivery of field based installation and fault repair of Satellite/Cable TV services across a defined Team
This position will include HSE inspection, quality and compliance accountabilities aligned to the field based tasks and suppliers. This position will also handle field technical support for technicians and customers where required, including complaint resolution.”

Page 2 of the document says that an FLM has specific WHS responsibilities including:

“•   Lead by example in promoting a safe work culture. Reward and recognise the right behaviours being demonstrated
•   Develop and drive team compliance with BSA’s HSE practices ensuring all PPE is present and in perfect operating condition, while ensuring safety is at the forefront of every action and reaction
•   Take reasonable care to prevent injuries to self and others”

Foxtel BSA Agenda/Minutes

The prosecutor tendered the Foxtel BSA Field Experience Ops Meeting Agenda/Minutes dated 6 December 2018 (PX 2, Tab 36). Item 3 in the Minutes is as follows:

“DF – risk assessment amendment in Marvel to include Power Isolation – Flagged with Jon. 24/5 WiP 20/6 Not currently covered – JB and us to also work with Tandem to review requirements. JB advised all good to be added to Risk Assessment and has been updated in SWMS. JB to provide update. AB requested transition to roof be added to Risk Assessment in Marvel. 2/8 JB, CR agreed to be added to Marvel. AB has spoken to Clay and will be added. 16/8 Power Isolation questions confirmed and added to rapid request. KK to provide update on 13/9 with eta on rapid request. 13/9 Update to be provided on rapid request. 27/9 Still in rapid request. No update. 11/10. Still in rapid request.”

This item was said to be due on 31 December 2018 and its status was “Ongoing”.
Mr Mark Hooper gave evidence (see below) to explain these rather cryptic Minutes. It can be seen that the Minutes record that by June 2018 BSA was of the view that questions in relation to power isolation were to be added to the Risk Assessment to be completed by technicians. The Minutes also note that the SWMS was to be updated to reflect this. By August 2018 the power isolation questions had been “confirmed” but by October 2018 consideration of amendment of the Risk Assessment was still at the “rapid request” stage.

Telephone Calls by Customers to Foxtel and Visits by BSA Technicians

From time to time Mr and Mrs Tropman, who lived at the Malabar house, rang Foxtel when they had problems with the Foxtel service. The prosecutor tendered the transcripts of these telephone calls (PX 3, Tabs 48-52). The prosecutor also tendered the sound files recording these calls (PX 5, tabs 14-18).
The prosecutor also tendered the Account History Notes generated by the Foxtel operator who took each telephone call (PX 6, Tab 23, pp 6-18). Mr Mark Hooper explained in his evidence (discussed below) that both Foxtel and BSA personnel worked in the Foxtel Command Centre in Victoria which received and dealt with telephone calls from Foxtel customers. BSA employees in the Foxtel Command Centre had access to the Account History Notes. Mr Hooper also said that BSA employees could request access to the sound recordings of telephone calls.
Foxtel generated a Work Order which was passed on to a BSA employee at the Foxtel Command Centre. These BSA employees were either Routers (who allocated the work for technicians to perform) or Optimisers (who ensured that work was carried out on the appointed day). The prosecutor tendered the Work Orders for work done prior to the incident (PX 5, Tabs 9-12) and the Work Order for Mr Hooper for 14 December 2018 (PX 3, Tab 56).
On 10 July 2018 Mrs Tropman rang Foxtel and asked for a replacement Set Top Unit (STU). She said that the STU had “died”. Foxtel arranged to send a DIY STU swap (PX 6, Tab 23, p 6, item 5).
On 15 July 2018 Mrs Tropman rang Foxtel and requested an upgrade because the new STU which had been delivered was not working (PX 6, Tab 63, p 6, item 11).
On 21 July 2018 Mr and Mrs Tropman rang Foxtel with a problem. The transcript of that telephone call is at PX 3, Tab 48. Mr Tropman said that they were changing a Foxtel Box over and got an electrical “zap” off the cable. He said that there was power in the Foxtel cable. Mr Tropman said that when the cable was swapped to another box, there was electric shock received from the cable on the second box. The response of Foxtel was to say that they would send out a technician and note that there was a hazardous STU shock. Foxtel told the customers to make sure the box was unplugged. Mrs Tropman spoke to the Foxtel operator and said that her son thought that there was live power coming out of the Foxtel cable. The son had tried to plug in the Foxtel cable and it “zapped him”. Once again the Foxtel operator said that they would arrange a technician to come and look at it. The technician was booked to come on 24 July 2018. Mrs Tropman said that even though they had unplugged the box, it was still live.
The account history notes for this telephone call (PX 6, Tab 23, p 7, item 21) record the following:

“HAZARDOUS/SHOCK STU, SAFELY DISCONNECT SET TOP BOX – COMPLETE, BOOK SERVICE CALL AND ESCALATE – COMPLETE, RAISE A DAMAGE COMPLAINT.”

Mrs Tropman rang Foxtel again on 23 July 2018 with a different problem. The transcript is at PX 3, Tab 49. The problem caused a Code F325 to display on the screen which Foxtel advised meant that “the box’s hard drive is giving out”. Mrs Tropman said that a technician was already booked in for 24 July 2018. Once again she said that there was power “surging from the Foxtel cable that’s the reason why we’re getting someone to come out tomorrow”.
The account history notes for 23 July 2018 record:

“DESCRIPTION OF ISSUE/WHY DID THE CUSTOMER CALL? ELECTRICAL SHOCK ON STD STU.”

(PX 6, Tab 23, p 8, item 28)

The Work Order created for the visit to Take place on 24 July 2018 (PX 5 Tab 9) said nothing about electrical shock.
On 24 July 2018 a BSA technician attended the Malabar property and replaced the STU. The technician confirmed that the Foxtel services were working at the property. The account history notes record that it was Hong Jie Zhang from BSA who attended the property. The notes record:

“JOB COMPLETED… REPLACE STU ONLY”

(PX 6, Tab 23, p 8, item 35 and PX 5 Tab 9)

Mr Zhang was not called to give evidence. Presumably he would have been able to give evidence about what work he was requested to do at the house, what he observed about the electricals at the house, and what work he did at the house.
Foxtel made a telephone call to Mrs Tropman after the visit by the technician and made a note that the problem had been “resolved” (PX 6, Tab 23, p 9, item 37).
Mrs Tropman rang Foxtel again on 26 July 2018. The transcript of that telephone call is at PX 3, Tab 50. She had a problem recording anything and was receiving an error message saying that there was insufficient disc space. The technician took Mrs Tropman through a series of steps to try to reboot the box. But ultimately Foxtel said that the box needed to be replaced. The technician was booked to come on 27 July 2018.
The Work Order created for this visit (PX 5 Tab 10) says nothing about electrical shock.
On 27 July 2018 a technician Mr Harvey Li attended the property and replaced a faulty STU. The account history note records:

“JOB COMPLETED… REPLACED FAULTY IQ2, COULD NOT RECORD. ALSO INSTALLED A 3DB ATTENUATOR SINCE THE SIGNAL STRENGTH TOO HIGH”

(PX 6, Tab 23, p 9, item 48 and PX 5, Tab 10)

Mr Li was not called to give evidence. Presumably he would have been able to give evidence about what work he was requested to do at the house, what he observed about the electricals at the house, and what work he did at the house.
It is to be noted that neither technician who attended on 24 July 2018 or 27 July 2018 experienced any electrical shock or tingle, or made any recording of such a phenomenon.
Mrs Tropman rang Foxtel again on 13 August 2018 and said “We also would like a technician to come out here and check the cable because it’s giving out electricity shock”. The transcript of that telephone call is at PX 3, Tab 51. She also wanted a technician to come out and install a new box. Mrs Tropman reiterated that someone had come out before about the cable providing an electric shock, but the cable kept giving out electric shocks. Foxtel said that a technician would come out with a new box and “sort everything out for you”. The technician was booked to come on 20 August 2018. That was changed later in the conversation to 21 August 2018.
The Work Order created for this visit (PX 5 Tab 11) said nothing about electrical shock.

The technician Mr Pawel Swoboda attended the Malabar house on the morning of 21 August 2018. The account history notes (PX 6, Tab 23, p 11, items 59-64) are brief, but indicate that Mr Swoboda installed items of “inventory” and recorded “job completed” (PX 5, Tab 11).
There was no note made in relation to any shock or tingle suffered or noticed by Mr Swoboda.
Mr Swoboda was not called to give evidence. Presumably he would have been able to give evidence about what work he was requested to do at the house, what he observed about the electricals at the house, and what work he did at the house.
Mrs Tropman rang Foxtel on 21 August 2018, after the technician had left, because she had lost access to her sports channels. The transcript is at PX 3, Tab 52. She said that a technician had been to the property only 20 minutes ago but now she could not get the sports channels. She was taken through a series of steps to try to fix the problem. Eventually the Foxtel operator proposed to upgrade the Foxtel box to an IQ3 and to change the connection from cable to satellite. Mrs Tropman said that she would have to think about that and discuss it with her husband.
On 10 December 2018 Mrs Tropman rang Foxtel. No transcript of this call was in evidence. The Account History Notes record: “NO SIGNAL BEING RECEIVED.” A technician was booked to come out on 13 December 2018 (PX 6, Tab 23, p 13 items 81-83).
On 13 December 2023 a technician Mr Patryk Seget attended the house and recorded “NETWORK OUTAGE” in the Account History Notes (PX 6, Tab 23. P 13, item 88). There were apparently issues with the cable connection to the property and arrangements were made for a satellite dish to be installed on the roof of the house on 14 December 2018. This was the work which brought Mr Hooper to the house on that date.

Service Order for Work to Done on 14 December 2018

The prosecutor tendered one page relating to the activity details for Mr Hooper for the job to be done at Malabar on 14 December 2018 (PX 2, Tab 56). The document tendered was a screenshot from the Marvel app to which Mr Hooper had access. Halfway down the page are a number of tabs which the evidence shows the technician could have accessed. The only tab reproduced in the Exhibit is the service orders. There were three Foxtel boxes at the Tropman house in Malabar. The Marvel system showed three service orders. The first was for “Install 10mm lead, move address, critical list, install IQ4K”. The second service order was “Install Multiroom, install IQ4K”. The third service order was “Install Multiroom, install IQ4K”. The service order contained the numbers of each Foxtel box and the card inside the box.

Marvel Risk Assessment

The prosecutor tendered a printout of the Marvel risk assessment carried out by Mr Hooper on the day of the incident (PX 3, Tab 64). The document tendered is a printout of the electronic risk assessment carried out by Mr Hooper through the Marvel app, which Mr Hooper had on his phone.
In response to the question “Have you controlled all other hazards in accordance with your company SWMS?”, Mr Hooper answered “Yes”. In response to the question “If all hazards have been controlled and you deem it is safe to proceed please select. If not contact your leader.” Mr Hooper answered “Yes”. There were other questions concerning disturbing asbestos or working at heights.

Guidance Material

A considerable quantity of guidance material was admitted into evidence (PX 5, Tab 3; PX 6, Tabs 24, 26-35, 37, 38, 40-45, 47, 49, 50; PX 7, Tabs 52, 55).
The prosecutor helpfully summarised this material in MFI 17. Put broadly, the material contains warnings and advice concerning what to do if a person suffers an electric shock or a tingle. The advice in the guidance material is to treat a tingle or a shock as a warning and to contact a registered electrical contractor or the electricity supply authority. Persons are warned never to touch an appliance that caused a shock until it has been disconnected from the power source.
This material, while directed primarily at householders, is a warning to everyone to treat shocks and tingles as a sign that something is seriously wrong and that equipment should not be touched until inspected and corrected by an electrician or a supply authority.

Post-Incident SWMS

The prosecutor tendered the post-incident version of the SWMS for Installation of Satellite Products (PX 3, Tab 41). The pre-incident SWMS in relation to item 6 “Working Inside Roof Spaces” listed electricity as a hazard, and listed the control measures by referring to the SWIs in relation to “Work in Ceiling or Under Floor” and “Electrical Isolations”. There was no other detail provided in the pre-incident SWMS.
By contrast, the post-incident SWMS in relation to item 6 has been amended to refer not only to working inside roof spaces but under a floor. There is reference to the two relevant SWIs. However, there is also a step-by-step checklist provided in relation to control measures in relation to electricity when working inside roofs or under floors. That checklist is as follows (PX 3, Tab 41 pp 9-10):

“•    All workers must carry a functioning volt stick to ensure no work is completed on live circuits
•    Ensure the customer is aware of the requirement to isolate power and impacts
•    Allow the customer time to save or complete any critical tasks prior to isolating
•    Always check if other trades are working on or are scheduled to work on the same premises. When in doubt stop work and seek clarification
•    Where a customer refuses to isolate power you shall top work and contact your supervisor immediately
•    Turn off electricity at the meter box
•    Apply isolation lock and tag to control hazardous energy. If not reasonably practicable tag to prevent someone from turning power back on
•    Perform a physical inspection of the meter box with the customer at the commencement of the isolation
•    The mains power must be isolated not the residual current device (RCD)
•    Confirm isolations in place using a tesler/Volt Stick at a GPO
•    Prior to entering ceiling/under floor hand your BSA ID card to the customer and ask them to check on you regularly while in ceiling or under floor
•    Inform the customer I they do not get a response to call the number/s on the back of the BSA ID card
•    When working in a restricted space it is important to establish a safe work corridor to get to and from the place where you will work and around the actual work site itself. This requires check for hazards such as live cable runs by using a volt stick. Once the safe corridor is established it is important to keep all work activities within the safe work corridor
•    Before drilling visually inspect the area and discuss any services with the customer
•    Once job task has been completed advise the customer and turn power back on. Only the person who installs the isolations is permitted to remove the isolation Tag
•    Perform a physical inspection of the metre box with the customer at the completion of the de-isolation”

Post-Incident SWI “Electrical Isolations”

The prosecutor tendered the post-incident SWI “Electrical Isolations” (PX 2, Tab 26. This document provides extra detail regarding locks and tags on p 2 under the heading “Right Tools for the Job”. The following additional words have been added to that part of the SWI:

“Red personal locks and a danger tag must be used at residential premises for the purpose of electrical isolations at all times.”

Post-Incident Risk Assessment

The prosecutor tendered the Post-Incident Marvel Risk Assessment, which was part of the HSEQ Induction document (PX 4, Tab 47, p 20). The risk assessment now included additional questions specifically about electrical isolation as follows:

“Will you be conducting any activity where your SWMS require isolating power?
In regards to electrical safety, have you implemented all appropriate electrical controls in accordance with your SWMS?”

Further down on the risk assessment, the original question about hazards still appears. It says:

“Have you controlled all other hazards in accordance with your company SWMS?”

At the foot of the Marvel risk assessment in red and large letters appears the following:

“If you have chosen yes to power isolation a photo must be attached in Marvel.”

Witnesses Called by the Prosecutor

Lucas Lithgow

Mr Lithgow is the Health Safety and Environment Advisor for BSA. He held that position in 2018.
Mr Lithgow was aware of the incident involving the death of Mr Hooper. As the HSE advisor, he became aware of changes to the electrical isolation procedures which were made after the incident. All of the technicians were given a lock and a device which had been trialled and tested. There were also changes to the risk assessments conducted in the field by technicians. Mr Lithgow gave evidence that these risk assessments were carried out in an electronic programme called Marvel. An additional question was added to the risk assessment concerning isolation. Another change to the risk assessment process was that technicians were asked to upload a photograph of the isolation which they had carried out upon the electricity supply.
Mr Lithgow said that he inducted Mr Hooper into relevant processes at BSA. This was done in early October 2018 and included induction into the SWMS, the SWIs and the BSA induction pack. Education about the dangers of asbestos was part of that pack. The induction for Mr Hooper took place on Wednesday, 3 October 2018 at the BSA premises.
Mr Lithgow was taken to a document which he said recorded the induction carried out in relation to Mr Hooper (PX 3, Tab 55). This document referred to asbestos awareness training, but Mr Lithgow said that he pre-wrote the record, and had the attendees at the induction sign it. His evidence was that this document was, in spite of its heading, a record of the general induction carried out, which included the SWMS and the SWIs (Tcpt 62/18-63/23).
Mr Lithgow said that he was not experienced in carrying out inductions, and he had not been given any training in how to give inductions. He had previously worked as a technician being a Foxtel satellite installer, then went to other similar organisations. He came back to BSA as a subcontractor, and then became an SHEQ advisor. Mr Lithgow had, by 2018, completed a Certificate IV in Work Health and Safety.
Mr Lithgow said that in carrying out an induction in relation to the SWMS and the SWIs he took the inductees through those documents, explained what they were, explained how the technicians could read and reference them if they needed to.
Mr Lithgow had never himself used a GPO tester on a power point, and had never inducted any worker into the use of such a device.
The attention of Mr Lithgow was drawn to the fact that the SWMS in evidence (PX 2, Tab 25) signed by Mr Hooper, was dated 20 November 2018. This was well after the induction date. Mr Lithgow said that if employees were found, during an audit, not to have a SWMS in their vehicle, then the document was reissued to them and they had to re-sign it. He did not know whether or not this happened with Mr Hooper, but it was a possible explanation for why the SWMS was signed several weeks after the induction. Workers were not re-inducted in relation to the SWMS, they were just given a new copy and asked to sign it. This was usually done by a First Line Manager (FLM).
In cross-examination Mr Lithgow said that during his time as a subcontractor he had received training in respect of risk assessments. One of the key rules that he learned during that training was to ensure that power was isolated before undertaking work under a house or in a roof.
Mr Lithgow was taken to a copy of the presentation which he gave to the workers on 3 October 2018 (PX 2, Tab 22). Page 12 of the document dealt with electrical isolation. It said that before entering the ceiling or under a floor a technician must ensure that they had isolated the power. It said that electricity had to be turned off at the meter box. Mr Lithgow agreed that this was a critical feature of the training of BSA workers on 3 October 2018. It was important because dealing with electrical energy was a high risk task.
Mr Lithgow was taken to p 15 of the document. This referred to using a volt stick to test an appliance prior to installation or removal of a set top box (also known as a set top unit or STU). He said that he told technicians to isolate them from the power point and check the STU with a volt stick before touching it.
In cross-examination Mr Lithgow was taken to the SWI for working in a ceiling or under floors (PX 2, Tab 28). He said that he took the workers through this document on 3 October 2018. He agreed that under the heading “Safe Set Up” the document directed workers to isolate electricity by turning off the electricity at the meter box. It also said:

“Even though you’ve isolated the electricity, treat all cabling, electrical terminals as live.”

Mr Lithgow said that he explained to the inductees that as a matter of practice they should use their volt stick to test anything metallic before they isolated it. After they had isolated the power, he told them to go back inside and check the power point where they were installing the box. If the workers went inside a roof or under the house, he told them to carry to volt stick with them to make a clear work corridor. He warned the workers that plumbing in old houses might be connected to the earth of the electricity so they should not touch the plumbing but should check it with a volt stick.
Mr Lithgow was taken to the SWI for electrical isolations (PX 2, Tab 26). He agreed that there was a reference in the document as follows:

“Where a customer refuses to isolate power, you shall stop work and contact the supervisor immediately.”

Mr Lithgow was taken to page 2 of the document which said “Confirm isolations in place using a tester at a GPO”. He said that the tester there being referred to was a volt stick.
Mr Lithgow was asked about the risk assessment being completed in the Marvel program. Once the job was completed, the risk assessment could not be changed.
Mr Lithgow said that prior to the incident on 14 December 2018 involving Mr Hooper, managers had completed safety and quality on site audits in relation to Mr Hooper.
Mr Lithgow agreed that locks and tags were provided after the incident. The Marvel risk assessment was changed by adding additional questions which he recalled being: Do you need to isolate; have you checked the board; do you have the tools. Mr Lithgow said that in relation to the need to isolate, that was part of the training which BSA gave both before and after the incident – by telling workers they are to isolate power if they are working under the floor or in a roof space. There is no discretion as to whether this was done, they had to do it.
Mr Lithgow clarified in re-examination that the Marvel system was not a paper system, but an electronic system. Technicians opened up an app on their mobile phone and completed the risk assessment by using the Marvel app.
I accept Mr Lithgow as a credible witness. I accept his explanation for the later date appearing on the SWMS signed by Mr Hooper. It was apparently a regular occurrence for technicians to have lost their copy of the SWMS, or to have left it in another vehicle. When that happened BSA required the technician to be issued with a new SWMS and to sign it. I accept that Mr Lithgow carried out an induction on 3 October 2018 for Mr Hooper, as part of a group of inductees. I accept his evidence about the explanation of the documentation which he gave. I accept his evidence concerning the statements he made about isolation of electricity when performing Foxtel installations for BSA.

Mark Hooper

Mr Mark Hooper is the father of the late Mr Jayden Hooper. In summarising the evidence of Mr Mark Hooper, I will refer to him only as Mark and I will refer to Mr Jayden Hooper, in this section of the judgment, as Jayden.
Mark was employed by BSA at the time of the incident but ceased that employment on 30 June 2022. Jayden started with BSA on 27 August 2018 while he was in Queensland. His contract required him to work in New South Wales. He picked up his vehicle, tools and equipment in Brisbane and drove to Sydney. He started work in Sydney on 4 September 2018.
On 25 November 2018 Jayden went back to the family in Brisbane for two weeks. He returned to Sydney on 10 December 2018.
Mark and other BSA managers received an email on 22 November 2018 from Mr Simon Parkinson (PX 7, Tab 68). Mr Parkinson requested Mark and other managers to forward the email on to their FLMs and technicians.
On the same date Mark forwarded the email to his NSW FLMs (Mark was at the time the State Manager for NSW). The recipients included Ms Amber McKenzie.
The attachment to the email was a BSA Quality Alert and Advice (PX 7, Tab 68, pp 3-4). This was headed “Marvel Photo Requirements”. The Alert dealt with a number of matters, including a requirement to send “Safety Photos”. In dealing with that topic, the Alert said: “If isolating power a photo of the lock out tag”.
It is common ground that at this time technicians were not issued with locks or tags to be used when isolating power.
Mark was asked about the Agenda/Minutes dated 6 December 2018 (PX 2, Tab 36). As he understood the Minutes, they concerned power isolation questions which were to be inserted into the Marvel system. The understanding that Mark had was that the opening question would have been “Are you working around, or near, in the vicinity of power?” If the answer to that question was “Yes”, then more questions would drop down to be answered on the screen. He could not recall the dropdown questions that were proposed.
Mark confirmed that as State Manager for NSW, there were no locks or lock out tags provided to technicians.
Mark said that the technicians were issued with a mobile phone on which they could receive emails and text messages, and access the Marvel app. He said that the technicians had very limited access. He said that all they could access was their work. They could see what work they had been issued and any technician notes that were associated with that work. Any information about the job was sent to the technicians over the Marvel app. There was space on the app to upload as many as 10 photographs.
Mark said that the ticket of work that the technicians would perform was generated by Foxtel. The customer contacted Foxtel, explained what they wanted, and a ticket of work was then created by a Foxtel agent and given to BSA to be completed. That work was then allocated by a BSA router to a BSA technician. All this was done in the Foxtel Command Centre in Victoria. This was a site where Foxtel and BSA employees worked collaboratively to receive customer phone calls and process the work required as a result of those calls.
Mark said that BSA had access to records kept by Foxtel in relation to incoming calls made by customers. If BSA needed that access, the Foxtel staff would be able to access it and provide it to BSA on request. During the course of his employment with BSA, Mark often saw entries made by Foxtel in the customer notes.
Mark said that technicians did not see the customer notes or the Foxtel notes. If they needed them, they would send a request to their FLM and their FLM would contact the command centre and get that information and email it back to them.
Mark said that as an Operations Manager, he did not have direct access to the data bank of recordings of telephone calls. However, if he ever needed to listen to a recording of a particular call, he would contact a Foxtel staff member and would be permitted to listen to the recording. Employed technicians did not have access to the recorded telephone conversations.
Mark was asked whether, if there was an electrical problem discovered by an FLM, what would the BSA response be. He said: “We would hand that job back as hazardous, and instruct that an electrician rectify any issues prior to us returning”.

Within par 9(f) of the Further Amended Summons a distinction is drawn between the “general electrical risk” and the “specific electrical risk associated with Foxtel work at the house arising from the history of the house”.
So far as general electrical risk is concerned, the evidence of Mr Roberts is to the effect that a person is entitled to assume that the house has been wired in accordance with good practice. If it were otherwise, one would expect that there would be guidance material to say that no-one should trust the wiring in any power point unless it is first risk assessed. There is no Standard which says this. There is no Code which says this and there is no guidance material which says this. This aspect of par 9(f) of the Further Amended Summons fails.
In relation to the “specific electrical risk” this is a specific risk associated with the history of the house concerning shocks and tingles. I have already found that there was no history, at least in the four months prior to December 2018, which would have put BSA on notice of such problems in the house, and therefore this aspect of the prosecution case also fails.

Use of a GPO Power Point Tester – Paragraph 9(g)(iv) and 9(h) of the Further Amended Summons

Paragraph 9(g)(iv) pleads that the step which should have been taken by BSA was:

“g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following:
…
(iv) to test any power outlet used to supply power to a television or to any Set Top Unit (also known as a STU or Set Top Box), mandatory use of a GPO (power point) tester and/or multimeter, and.

Paragraph 9(h) pleads that the step which should have been taken by BSA was:

“h. In the alternative to (g), providing Mr Hooper with a GPO (power point) tester to test any power outlet used to supply power to a television or to any STU, together with adequate information, training, instruction and/or supervision concerning the use of such a tester.”

There was evidence in the case from all of the experts that a GPO power point tester, if plugged into GPO 9, would have detected the earthing fault. The only point in the BSA documentation where a GPO power point tester is required is where a twin F type wall outlet is being installed. This was not the job on which Mr Hooper was engaged. There is nothing else in the BSA documentation requiring use of a GPO power point tester. Again, reference is made to the evidence of Mr Roberts that people are entitled to rely upon the assumption that wiring in a house has been carried out in accordance with appropriate practice and has been duly verified.
There is nothing in a Standard, a Code or the guidance material requiring the use of a GPO power point tester to check for faults in a power point. If it were otherwise, then anyone coming into a house to do work, such as a cleaner or carpenter, would have to have such a tester and use it, before plugging their equipment into a power point. To take an extreme example, a lawyer who came into court with a laptop and a charger would have to have a GPO power point tester and test the power point in the court room, before plugging their charger into the power point.
I find that this aspect of the prosecution case has not been made out.

Information, Training, Instruction and/or Supervision Concerning the Mandatory Isolation of Power when working under the House – Paragraph 9(g)(i) of the Further Amended Summons

Paragraph 9(g)(i) of the Further Amended Summons pleads that the step which should have been taken by BSA was:

“g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following:
(i) mandatory requirement of isolation of power, when working under the house.”

Information, Training and Instruction

The training provided at the induction in relation to electrical isolations is recorded in PX 2, Tab 22, p 12, reproduced in par 81 above. That training provided a type of checklist for a technician to run through, including consulting with the customer, before turning off electricity at the meter box. The training did suffer from the defect that it included an instruction to apply a lock or tag to prevent someone from turning the power back on, and this was an instruction observed in the breach, given that BSA did not supply locks or tags to its technicians.
The pre-incident SWMS did not supply a checklist, but simply referred the reader to SWI-133 Work in Ceiling or Under Floors and SWI-136 Electrical Isolations.
SWI-136 Electrical Isolations did not provide a checklist, but under the heading “Isolate the Power”, simply said that locks or tags had to be installed and isolations have to be confirmed using a tester at a GPO.
SWI-133 Work in Ceiling or Under Floors did provide a checklist, although it was a truncated version of the checklist provided at p 12 of the induction document.
Thus while at the induction a worker was referred to a type of checklist or step-by-step guide as to what to do to isolate power, on the job a technician had to refer to three documents (the SWMS and the two SWIs), which between them did not add up to a step-by-step checklist, let alone one with the detail which had been provided during the induction.
The post-incident SWMS was a much-improved document which provided a step-by-step checklist of control measures in relation to electricity when working under floors. That checklist, which is longer and more detailed than the checklist provided at the original induction, and is certainly much more detailed than a reading of the pre-incident SWMS and the two SWIs, is set out in par 139 above.
I find that BSA did not provide adequate instruction concerning the mandatory isolation of power when Mr Hooper was working under the house. Mr Lithgow provided a wise induction concerning the risks posed by electricity and the precautions which should be taken to control such risks. But once the inductees left the training room and were out on the job, BSA’s safety documentation (discussed immediately above), copies of which were issued to Mr Hooper, left a lot to be desired.
Safety could only be ensured by repeating and reinforcing good practice, and it was inadequate to hold a training course but not provide appropriate documentation to repeat and reinforce what was taught at the induction. I find that the step pleaded in par 9(g)(i) of the Further Amended Summons, in relation to instruction, did constitute a reasonably practicable measure which the defendant should have taken.

Supervision

BSA had a supervisor attend the premises on the day. Part of her job description was to supervise the safe carrying out of work by technicians under her command. Further, that supervisor had her own personal interest in checking that the power was isolated, as she handled cables on the day to assist Mr Hooper. The supervisor actually walked past the meter box, which was immediately above the open door to the under-floor area, where Ms McKenzie could see cables and a multi-switch which was work needing to be completed. It would have been a simple and effective check on the isolation to look at the meter box and see that the circuits were switched off.
I have already made a finding that the supervision of Mr Hooper by Ms McKenzie was conduct which she engaged in as an employee of BSA, when she was acting within the actual scope of her employment. By force of s 244(1) of the Act, such conduct by Ms McKenzie was also conduct engaged in by BSA. Her failure is its failure.
I find that BSA did not provide adequate supervision concerning the mandatory isolation of power when Mr Hooper was working under the house, and thus there was a failure by BSA to properly provide such supervision. I find that the step pleaded in par 9(g)(i) of the Further Amended Summons, in relation to supervision, did constitute a reasonably practicable measure which the defendant should have taken.

Information, Training, Instruction and/or Supervision Concerning the Mandatory Use of a Volt Stick – Paragraph 9(g)(iii) of the Further Amended Summons

I repeat then findings made in pars 315-323 above concerning volt sticks. Apart from what Mr Lithgow said at the initial induction, there was no evidence of further information, instruction or supervision concerning the use of volt sticks, let alone the mandatory use of volt sticks.
I find that the step pleaded in par 9(g)(iii) of the Further Amended Summons, in relation to information, instruction and supervision, did constitute a reasonably practicable measure which the defendant should have taken.

Adequate information, training, instruction and/or supervision concerning the conduct of an Adequate Risk Assessment – Paragraph 9(g)(v) of the Further Amended Summons

Paragraph 9(g)(v) of the Further Amended Summons pleads that the step which should have been taken by BSA was:

“g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following:
…
(v) conduct of an adequate risk assessment.”

The risk assessment carried out by Mr Hooper at the Malabar property was conducted on the Marvel app. This was a Foxtel system and not a BSA system. It is no answer to the notion that the risk assessment was inadequate, to say that BSA could not change the Marvel risk assessment without having Foxtel change it. BSA sent technicians to suburban homes to do Foxtel installations, and had an independent duty to its workers to provide an adequate risk assessment process.
Evidence has been referred to above to the effect that BSA, during 2018, saw the need to increase the specificity of the questions in the risk assessment to deal more fully with isolation of electricity. This was escalated to “Rapid Response”, which proved to be less than rapid, as the risk assessment had not been upgraded by the time of the incident on 14 December 2018.
In late November 2018 Mr Parkinson sent an email to Mr Mark Hooper and other BSA managers with a BSA Quality Alert and Advice (PX 7, Tab 68). This alert required a photo of the lockout tag to be sent if a technician was isolating power. That was never implemented, and could not have been implemented since technicians were not provided with locks or tags at that date.
BSA had taken positive steps to improve safety in relation to working on ladders and working at heights. There were a number of specific questions in the Marvel risk assessment concerning these matters and there was a requirement for photographs to be taken to demonstrate that technicians were working safely at heights.
The only question asked in relation to risks other than working at heights, was that part of the risk assessment which said, “Have you controlled all other hazards in accordance with your company SWMS?” Such a question, covering all other risks in the SWMS, apart from working at heights, in one hit, was hardly likely to direct the attention of a technician to the steps which had to be taken to properly isolate electricity at the site. The risks of the job were many and varied, including spiders, rats, needles, poor ventilation, heat, parking, bush fires, dogs and aggressive customers (PX 2, Tabs 28 and 29).
After the incident, the risk assessment was updated and improved, to ask a specific question about isolation of electricity. Further, the risk assessment was improved by adding in red and large letters the following:

“If you have chosen yes to power isolation a photo must be attached in Marvel.”

The post-incident risk assessment asked a specific question about power isolation and required a photo of the power isolation to be uploaded in Marvel. Thus the risk assessment in relation to isolation of electricity then took steps similar to those taken, prior to the incident, in relation to working at heights.
I find that the risk assessment required to be completed as at 14 December 2018 was an inadequate document, particularly when compared to the post-incident risk assessment which took steps to draw to the attention of a technician the need not only to isolate power, but to prove that power had been isolated, before doing work. A paper system (or as in this case an electronic system) cannot eliminate a risk, but it can be a reasonably practicable step to minimise a risk.
I find that the step pleaded in par 9(g)(v) of the Further Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

Conclusion on Reasonably Practicable Steps

I find that the prosecution has proved the case pleaded in subpars 9(e), 9(g)(i), 9(g)(iii) and 9(g)(v) of the Further Amended Summons. I am satisfied beyond a reasonable doubt that the defendant failed to comply with its health and safety duty in these regards, as well as the admitted failings in relation to subpars 9(d) and (g)(ii).

Causation: Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

The relevant question on causation is not whether the failures of the defendant were the cause of the death of Mr Hooper, but whether the act or omission of the defendant was a substantial or significant cause of Mr Hooper being exposed to the risk of injury – Bulga Underground Operations at [127], [130].
That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers – Bulga Underground Operations at [129]-[130].
The Court of Criminal Appeal recently considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established.
The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the court did so is best expressed by Simpson AJA at [2] as follows:

“I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd (‘GCE’) gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld.”

Justice Walton agreed with the conclusion reached by Justice Cavanagh saying at [12]:

“I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised.”

Justice Cavanagh set out the principles in relation to causation at [229]-[235] as follows:

“229 In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person.
230 As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed.
231 It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause.
232 Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause.
233 This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk.
234 Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof).
235 In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk.”

The conclusion reached by Justice Cavanagh was expressed at [241]-[243] as follows:

“241 The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work.
242 It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown.
243 In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work.”

As set out above, I have found that the defendant breached its health and safety duty by failing to take the measures pleaded in subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v). If the electricity was isolated prior to Mr Hooper working underneath the house, then he would not have been electrocuted. I find that a substantial cause of Mr Hooper being exposed to the risk of death was the failure by the defendant to provide a clear SWMS, a more adequate risk assessment and locks and tags. Used together, all of those systems and devices would have operated to make it more likely that Mr Hooper would have isolated the power.
Further, had there been better procedures, reinforced by appropriate instruction and supervision, then the risk would have been minimised.

Conclusion on Causation

I am satisfied beyond a reasonable doubt that the breach of duty by the defendant exposed Mr Hooper to a risk of death or serious injury.

Manifestation of the Risk

Paragraph 11 of the Further Amended Summons pleaded that the death of Mr Hooper on 14 December 2018 was a manifestation of the risk. This is not an element of the offence. The fact that it is pleaded in the Further Amended Summons does not and cannot elevate it to be an element of the offence.

It is a matter relevant to the objective seriousness of the offence, a factor which has to be considered upon a sentencing hearing. The parties should consider the findings made in this judgment, and can address manifestation of the risk as part of submissions on objective seriousness, when there is a sentencing hearing.

Conclusions

I find that the prosecutor has not established the risk pleaded in par 8(ii) of the Further Amended Summons.
I find that the prosecutor has proved that the defendant committed an offence by failing to take the steps pleaded in subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) of the Further Amended Summons.
I find that the prosecutor has not proved that the defendant committed an offence by failing to take the steps pleaded in subpars 9(a), 9(b), 9(c), 9(f), 9(g)(iv) and 9(h) of the Further Amended Summons.
I find that the defendant BSA Limited committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 (NSW) because:

BSA owed the worker Mr Jayden Hooper a health and safety duty under s 19(1) of the Act.

BSA failed to comply with that duty.

The breach of duty by BSA exposed Mr Hooper to a risk of death or serious injury.

I find the offence set out in the Further Amended Summons filed on 1 March 2023 proved beyond a reasonable doubt.
I will hear the parties on sentence.

Orders

The orders of the court are:

The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt.

I find the defendant BSA Limited guilty.

The matter will be listed for sentence hearing on a date convenient to the parties.

Annexure A Statement of Facts (1102977, rtf)

**********

Decision last updated: 31 March 2023

Medium Neutral Citation:	SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73
Hearing dates:	13, 14, 15, 16, 17, 22, 28 February, 1, 3, 6, 7, 9, 10 March
Date of orders:	31 March 2023
Decision date:	31 March 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons filed on 1 March 2023 have been proved beyond reasonable doubt. (2) I find the defendant BSA Limited guilty. (3) The matter will be listed for sentence hearing on a date convenient to the parties.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of person conducting a business or undertaking – risk of death or serious injury CRIMINAL LAW – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether the failure exposed a worker to the risk of death or serious injury – manifestation of the risk is not an element of the offence PROCEDURAL – reasonably practicable measures – whether the defendant knew of, or ought to have known of, the risk PROCEDURAL – sentence hearing – dispute as to facts – dispute as to the existence of risk – dispute as to failure to take reasonably practicable measures to eliminate or minimise the risk – determination of disputed matters upon a sentencing hearing OTHER – worker installing Foxtel satellite dish and set top boxes – existing dangerous fault in wiring of house – worker electrocuted when he came into contact with live wires and an earth underneath the house
Legislation Cited:	Work Health and Safety Act 2011, s 3, 7,12A, 16, 17, 18, 19, 32, 244, 274, 275 Work Health and Safety Regulations 2017, reg 156
Cases Cited:	Alameddine v R [2020] NSWCCA 232 Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 BC v R [2020] NSWCCA 329 Bulga Underground Operations v Nash [2016] NSWCCA 37 Chiang v R [2016] NSWCCA 45 Cowling v R [2015] NSWCCA 213 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 KMC v Director of Public Prosecutions (SA) [2020] HCA 6 Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA R v AB [2011] NSWCCA 229 R v Kirkland [2005] NSWCCA 130 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Pearce [2020] NSWCCA 61 R v Wang [2020] NSWSC 1335 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 Strbak v The Queen [2020] HCA 10 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 The Queen v Baden-Clay [2016] HCA 35 at [46], [50]; (2006) 258 CLR 308 Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288
Texts Cited:	Australian Standard AS/NZS 4836: 2011 Safe Working On Or Near Low-Voltage Electrical Installation and Equipment Electrical Hazards When Working in Ceiling Spaces Safety Alert, 11 December 2017 NSW Government Code of Practice, How to Manage Work Health and Safety Risks, August 2019 SafeWork NSW Code of Practice, Managing Electrical Risks in the Workplace, September 2016 WorkCover Code of Practice, How to Manage Work Health and Safety Risks, December 2011
Category:	Principal judgment
Parties:	SafeWork NSW (Prosecutor) BSA Limited (Defendant)
Representation:	Counsel: J Agius SC with B Docking (Prosecutor) A Moses SC with M Shume (Defendant) Solicitors: Department of Customer Service (Prosecutor) Seyfarth Shaw Australia (Defendant)
File Number(s):	2020/351444