VWA v Paper Australia Pty Ltd
[2018] VMC 1
•12 JANUARY 2018
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No.G11322477
| RUSSELL TOMLIN - VWA | Informant |
| V | |
| PAPER AUSTRALIA PTY LTD | Accused |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 29 NOVEMBER & 6 DECEMBER 2017 |
DATE OF DECISION: | 12 JANUARY 2018 |
CASE MAY BE CITED AS: | VWA V PAPER AUSTRALIA PTY LTD |
MEDIUM NEUTRAL CITATION: | [2018] VMC001 |
REASONS FOR DECISION
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Catchwords: Alleged Breach Of S 21(1) & 21(4) Of Occupational Health And Safety Act 2004 – ‘Arc Flash’ Incident On 24 June 2015 Whereby Employee Sustained Burns To Face And Hands Whilst Working On A Switchboard In Sub-Station.
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APPEARANCES: | Counsel | Solicitors |
| For The Plaintiff | Ms Taylor QC | Worksafe |
| For The Accused | Mr Livermore | Dreher Legal |
HIS HONOUR:
1 Paper Australia Pty Ltd Is Charged With Having Breached S 21(1) And S 21(4) Of The Occupational Health And Safety Act 2004 In That On Or About 24 June 2015, It As An Employer Failed, So Far As Was Reasonably Practicable, To Provide And Maintain For Its Employees A Working Environment That Was Safe And Without Risks To Health When, In Contravention Of S 21(2)(A), It Failed To Provide And Maintain Systems Of Work That Were, So Far As Was Reasonably Practicable, Safe And Without Risks To Health.
2 The Matter Proceeded As A Summary Contest And The Court Heard Evidence From Mr Johnson, A Compliance And Enforcement Officer (Electrical Installation Safety Section) From Energy Safe Victoria, Mr Tulloch, A Worksafe Inspector And The Informant, Mr Tomlin. In Addition, Numerous Documents And Photographs Of The Worksite And Switchboard In Question Were Tendered.
3 The Charges Were Laid As A Result Of An Incident Occurring At The Number 2 Effluent Plant Switchboard At The Company’s Site On 24 June 2015 When An Employee, Royce Tatterson, Suffered Arc Burns To His Face And Hands.
4 The Evidence Revealed That On 23 June 2015, Mr Tatterson, An A Grade Electrician, Was Tasked With Replacing An Existing Metal Clad Combined Fuse Switch Unit With A New Combined Fuse Switch Unit In A Low Voltage Switch Room Of The Substation. On 24 June, A Problem Occurred With The Unit And Mr Tatterson Was In The Process Of Identifying The Cause Of It. Whilst Working On The New Unit He Was Using A Socket And Spanner To Remove Nuts And Bolts That Attached The Load Cables To The Switch And Whilst Doing So He Dropped The Spanner Behind The Switchboard Which Made Contact With Live And Earthed Parts Causing An ‘Arc Flash’ To Occur Which Resulted In Intense Radiant Heat To Be Produced By The Arc Causing His Face And Hands To Be Burnt.
5 The Prosecution Allege That The Company Failed To Provide And Maintain A Safe System Of Work In That It Failed To Ensure That Live Components Of The Switchboard Were Isolated Or That Access To Those Live Components Was Restricted So That Objects Could Not Come Into Contact With Them. It Also Alleges That It Was ‘Reasonably Practicable’ For The Company To Have Reduced The Risk To Its Employees By:
a. Requiring The Isolation Of The Entire Switchboard Prior To Allowing Mr Tatterson To Commence Work, Or By Ensuring That He Had Isolated The Entire Switchboard Before He Commenced Work; Or
b. Requiring The Isolation Of The Entire Switchboard Prior To Allowing Him To Commence Work, Or By Ensuring That He Had Isolated The Entire Switchboard Before He Commenced Work, Unless The Following Applied:
i. Any Live Components Of The Switchboard Were Constructed In A Manner That Achieved Form 3b (Or Greater) Separation; And
ii. The Outgoing Connections To The Switchboard Were Not Located Above The Incoming Connections To The Switchboard.
6 The Company Acknowledges That The Job Task Performed By Mr Tatterson Involved A Risk To His Health And Safety But Submitted That It Had An Isolation System And Procedure In Place And The Evidence Does Not Disclose That A Reasonable Employer In Its Position Would Have Had In Place Any Other Or Additional Systems That What It Had In Place At The Time Of The Incident. In Short, It Submitted That Its System Was A ‘Reasonably Practicable’ Way Of Addressing The Risk.
7 Mr Johnson, Compliance And Enforcement Officer From Energy Safe Victoria Told The Court That He Attended The Worksite During The Afternoon On The Day Of The Incident And Prepared A Report Based On His Observations And Findings Which Was Tendered In Evidence. He Reported That He Observed That A New Combined Fuse Switch Unit Was Fitted With A Perspex Guard Which Allowed The HRC Type Fuses To Be Removed Without The Complete Isolation Of The Switchboard. He Noted That The Switch Part Of The Unit Was Mounted In A Metal Enclosure With The Supply Cables Entering Through The Bottom Of The Enclosure. He Observed That The Load Side Cables Were Connected To The Top Of The Switch And Had Been Tested Prior To Supply Being Turned On And Found To Have A Low Resistance. He Reported That He Was Informed That In Order To Confirm If The Low Resistance Was In The Cable Or In The Switch Unit, The Cables Were In The Process Of Being Disconnected By Mr Tatterson When The Incident Occurred.
8 In His Expert Opinion, The Contributing Factors To The Incident Occurring Were:
a. The Perspex Guard Installed On The Unit Was Designed To Prevent Electric Shock When Removing Or Replacing The HRC Type Fuses;
b. The Switch Mechanism Mounted In The Enclosure Was Mounted On Stand-Off Brackets That Left A Gap Of Approximately 40mm Between The Rear Of The Switch And The Rear Wall Of The Metal Enclosure;
c. Mr Tatterson Was In The Process Of Using A Socket And Spanner To Remove The Nuts And Bolts That Attached The Load Cables To The Switch And During This Process The Spanner On The Nut At The Rear Of The Connection Tag Was Dropped By Him Behind The Switch;
d. As The Switch Was Mounted With A Vertical Orientation And The Load Connections Were At The Top Of The Switch Mechanism, Gravity Allowed The Spanner To Drop Onto The Line Side Of The Switch;
e. The Spanner Made Contact At Various Locations Behind The Perspex Cover Making Contact With Live And Earthed Parts;
f. This Contact In Multiple Locations Caused An ‘Arc Flash’ To Occur.
9 Mr Johnson Reported That The Portion Of The Installation That Mr Tatterson Was Working On Was Isolated And Presented No Risk Of Electric Shock. He Said That This Was Achieved By The Use Of The Perspex Guarding Installed Over The Line Terminal Of The Switch Unit.
10 In His Opinion, Mr Tatterson Failed To Identify The Hazard Associated With Dropping The Spanner Through The Gap At The Rear Of The Switch Mechanism And His Failure To Take Adequate Precautions Was In Breach Of S 43(4)(B) Of The Electrical Safety Act 1998. Mr Johnson Recommended That No Enforcement Action Be Taken Against The Company.
11 When Giving Evidence He Said That The Switch Unit Could Have Been Fully Isolated From Another Location Which Would Have Prevented The Incident From Occurring. He Also Told The Court That The Isolation Switch Is Activated When The Door Of The Switch Unit Was Opened So That When Opened The Person Faced An Isolated Area Of The Switchboard. He Noted That The Perspex Guard Provides Additional Protection To The Person Facing The Switchboard But The Fuses At The Back Of It Remain Live,
12 Mr Tulloch, A Worksafe Inspector Gave Evidence That He Attended The Worksite On 24 June 2015 At 4.45pm And Ultimately Gave Authority For The Area In Question To Be Energised At 7pm. He Took A Number Of Photographs Which Were Tendered. He Also Obtained A Number Of Documents From The Company Which Were Also Tendered And Comprised:
- A Job Safety Analysis (JSA) Dated 23 & 24 June 2015 Completed By Mr Tatterson;
- A Pre-Start Checklist For Job Safety And Environment Analysis Dated 24 June 2015 Completed By Mr Tatterson;
- A Work Order Document Dated 18 June 2015 In Relation To The Installation Of The New CFS Which Was To Commence On 23 June; And
- A Work Procedure Document – Electrical Work – Low Voltage: Version Date 30 August 2011 – Review Date: 18 August 2014.
13 The Focus Of His Evidence Was In Regards To Conversations He Had With Others About The Need For Him To Allow The Plant To Be Re-Energised Due To Apparent Environmental Concerns.
14 Mr Tomlin, The Informant, Told The Court That He Also Attended The Worksite On 24 June And Ascertained From Others That The Switch Unit Could Have Been Entirely Isolated From The Adjoining Sub-Station Which Would Have Taken Approximately 15 Minutes. He Also Took Photographs And Obtained A Number Of Documents Which Were Tendered And Comprised:
- A Power/Recovery E/I Electrical Printout Verifying That Mr Tatterson Had Completed All The Necessary Training For Electrical Isolations;
- A Worksafe Improvement Notice – ARC Flash Incident Which Amended The Work Procedure Document When Working On Electrical Work – Low Voltage;
- A Modified Work Procedure Electrical Work – Low Voltage Document Dated 25 August 2015;
- An Energy Safe Pamphlet: ‘Stay Alive, Never Work Live’;
- A Daily Pulp – Shift Manager Report Dated 24 June 2015;
- Training Records Of Mr Tatterson; And
- Training And Assessment Records Of Mr Tatterson.
15 The Court Was Provided With Written Submissions By The Parties With Reference To Various Authorities And These Were Supplemented By Oral Submissions On 6 December.
Relevant Legal Principles
16 The Offence Of Failing To Provide And Maintain A Safe Working Environment Has Four Elements:
i. The Company Was An Employer At The Relevant Time;
ii. There Was A Risk In The Working Environment To An Employee’s Health And Safety;
iii. The Company Failed To Take An Identified Measure Which Would Have Eliminated Or Reduced The Risk;
iv. It Was Reasonably Practicable In The Circumstances For The Company To Have Taken Those Measures.
17 In Determining (Ii), An Employer Is Not Entitled To Assume That Its Employees Are Highly Trained And Experienced. See DPP V Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 At Para 59.
18 The Prosecution Has The Onus To Identify The Measures It Claims Were Necessary To Eliminate Or Reduce The Risk. See Baiada Poultry Pty Ltd V R [2012] HCA 14.
19 In Determining (Iv), In Relation To What The Company Knew Or Reasonably Ought To Have Known, The Prosecution Must Demonstrate That A Reasonable Employer In The Position Of The Company Could Have Foreseen The Risk. See R V Powercor (Australia) Ltd [2005] VSCA 163.
20 It Is Not Necessary That The Precise Incident Was Foreseeable. See DPP V Vibro-Pile Para 56.
21 The Test Of ‘Reasonable Practicability’ To Be Applied Is Objective. I.E. What Would A Reasonable Employer Placed In The Same Circumstances Or Situation As The Company Have Done? See R V Australian Char Pty Ltd [1995] VSC 168 Referring To Holmes V RE Spence & Co Pty Ltd 1992 VIIR 119.
22 The Prosecution Bear The Onus Of Proof That The Identified Measure Would Have Obviated The Identified Risk. See Kirk & Anor V IRC & Workcover Authority [2010] HCA 10.
Prosecution Submissions
23 The Prosecution Particularised The Charge By Alleging That The Company Failed To Ensure That Live Components Of The Switchboard Were Isolated Or That Access To Those Live Components Was Restricted So That Objects, In This Case, A Spanner, Could Not Come Into Contact With Them. The Prosecution Asserted That The Measure Of ‘Reasonable Practicability’ Were Those As Set Out In Paragraph 5 Above.
24 It Is Not In Dispute That There Existed A Risk Of Serious Injury From Objects Making Contact With Live Components Of The Switchboard Nor Is It In Dispute That The Prosecution Has The Onus Of Proving That The Proposed Measures As Set Out In Paragraph 5 Would Have Eliminated Or Reduced The Risk. It Contends That Isolation Of The Entire Switchboard Or A Barrier To Prevent Any Tool To Fall Through A Gap Coupled With Incoming (Live) Connections Being Above Outgoing Connections Would Have Eliminated The Risk Of Serious Injury.
25 When Considering The Issue Of ‘Reasonably Practicable’, It Submitted That The Following Matters Are Relevant;
a. The Likelihood Of The Hazard Or Risk Eventuating;
b. The Degree Of Harm That Would Result If The Hazard Or Risk Eventuated;
c. What The Company Knew Or Reasonably Ought To Know About The Hazard Or Risk And Any Ways Of Eliminating Or Reducing The Hazard Or Risk;
d. The Availability And Suitability Of Ways To Eliminate Or Reduce The Hazard Or Risk; And
e. The Cost Of Eliminating Or Reducing The Hazard Or Risk.
26 The Prosecution Acknowledge That When Considering What The Company Knew Or Reasonably Ought To Have Known, It Must Demonstrate That A Reasonable Employer In The Position Of The Company Would Have Foreseen The Risk. The Test Is An Objective One. Apart From The Well-Known Risks Associated With Contact With Live Electrical Components, The Prosecution Refer To The Following Factors:
a. The Perspex Guard Was Made ‘In-House’ And Therefore The Company Knew There Was A Gap Of Approximately 40mm At The Rear Of The Switch Through Which Objects Could Pass;
b. The Company Knew That The Incoming (Live) Connections Were Located Below The Outgoing Connections, Hence The Reason For The Perspex Guard To Prevent Contact From The Front Of The Switch;
c. Mr Tatterson Did Not Know Where The Fault Was Situated And Needed To Use Tools To Assist In Identifying The Problem; And
d. The Fact That He Was Using A Ladder At The Time Increased The Chance Of Dropping The Tools He Was Using.
27 The Prosecution Also Refer To And Rely On The Post Incident Amendment To The Work Procedure Electrical Work – Low Voltage Document. On 25 August 2015, The Document Was Amended By The Insertion Of A New Paragraph 4.2.2.6 Which Stated; For Connection Or Disconnection Of Outgoing Cables From Switchboard Modules, Unless The Module Is Constructed To Meet Form 3b (Or Greater) Separation And The Outgoing Connection Is Not Located Above The Incoming Connection, Then The Incoming Supply To The Module Shall Be Isolated. This May Require Isolation Of The Switchboard. The Prosecution Submitted That This Also Demonstrates ‘Reasonable Practicability’ Of The Pleaded Alternative Measures If Isolation Of The Entire Switchboard Was Not Possible.
Company Submissions
28 The Company Submitted That When Determining The Issue Of ‘Reasonable Practicability’ To The Facts In This Case, The Following Matters Are Relevant:
a. The Likelihood Of The Hazard Or Risk Eventuating Was Low As It Had Never Happened Before Nor Had Any ‘Near Miss’ Occurred Which Would Have Alerted The Company That There Was Such A Risk;
b. The Company Had Systems In Place Which Included; Using Mr Tatterson, A Qualified And Experienced A-Grade Electrician To Complete The Task; The Provision Of Full And Proper Training, Information, Instruction And Supervision In Addition To A Documented Pre-Start Assessment, Job Safety Analysis And Automated Isolation System Before The Door Of The Switchboard Could Be Opened;
c. The Fact That The Prosecution Is Unable To Adduce Any Evidence That The Company Knew Or Ought To Have Known About The Hazard Or Risk And Ways Of Eliminating It Or Reducing The Hazard Or Risk By Reliance On:
- Prior Incidents Or ‘Near Misses’ That Would Have Alerted A Reasonable Employer To Modify Its System;
- Regulations Or Guidelines That Required The Company To Do What It Failed To Do;
- Safety Or Industry Alerts Recommending Or Requiring A Particular Practice That The Company Failed To Adhere To;
- Evidence From Other Industry Operators That Prior To 24 June 2015 They Used Other Systems Or Practices; And
- Expert Evidence As To What Measures A Reasonable Employer Would Have Implemented So As To Eliminate Or Reduce The Risk.
29 The Company Submitted That The Prosecutions Reference To Form 3b (Or Greater) Separation As Contained In The Post Incident Amended Work Procedure Electrical Work – Low Voltage Document Is Arbitrary And Is A Matter Of Hindsight Which Is Not A Relevant Matter For The Court To Take Into Account. Furthermore, It Submitted That The Prosecutors Description Of The Meaning Of ‘Form 3b (Or Greater) Separation’[1] Is Not Accepted By It As Being Accurate And Should Be Disregarded By The Court As It Did Not Form Part Of Any Admissible Evidence. It Also Submitted That, In Any Event, The Prosecution Has Not Proven That The Company Failed To Have An Isolation Requirement Or That The ‘Form 3b (Or Greater) Separation’ Measure Would Have Made Any Difference.
[1] The description given by the prosecutor when questioned by me was that it meant the Australian Standards set the level of the gap at 12.5mm.
30 The Company Also Submitted That When Determining The Issue Of Practicability, The Question Of Foreseeability Has To Be Considered. It Contended That If The Existence Of The Risk Or The Happening Of An Incident Relied Upon To Demonstrate The Risk Is Not Reasonably Foreseeable, Then It Is Not Practicable For An Employer To Make Provision Against It. The Company Submitted That There Is No Evidence That The Incident Was Foreseeable.
31 The Company Submitted That When Regard Is Had To The Procedures It Had In Place, As Evidenced By The Job Safety Analysis Prepared By Mr Tatterson On 23 And 24 June, The Pre-Start Checklist For Job Safety Completed By Him On 24 June And The Work Procedure Electrical Work – Low Voltage Document Version 30 August 2011 That Its Systems Required Mr Tatterson To Isolate The Switchboard As A Control Measure. It Submitted That The Incident Did Not Occur Because Of Its Omission But, As Was Identified By Mr Johnson, A Mistake By Mr Tatterson. The Company Referred To The Fact That It Has Not Been Charged With Failing To Properly Instruct, Inform, Train Or Supervise Mr Tatterson.
Conclusion
32 After Considering The Evidence Presented, The Written And Oral Submissions Made By The Parties And The Authorities Referred To, I Am Not Satisfied Beyond A Reasonable Doubt That Paper Australia Pty Ltd Breached S 21(1) And S 21(4) Of The Act.
33 I Have Reached This Conclusion For The Following Reasons:
a. As At 24 June 2015, The Company Had A System Of Work In Place When Tasks Of This Nature Were Being Performed, That Is, Isolation Of The Switchboard;
b. The Likelihood Of The Incident Occurring Was Low As There Was No Evidence Of Similar Or Like Incidents In The Past;
c. There Was No Evidence Of Any Failure Of The Company To Adhere To Or Be In Contravention Of Any Regulations, Guidelines Or Industry Practices;
d. Mr Tatterson Was A Qualified And Experienced A-Grade Electrician;
e. There Was No Expert Evidence Presented To The Court To Support A Conclusion That The System Of Work And Work Practices Were Deficient Or That Alternative Systems Should Have Been Implemented By The Company;
f. There Was No Evidence Presented To The Court As To The What Is Meant By ‘Form 3b (Or Greater) Separation’ Or Whether This Identified Standard Would Have Obviated The Identified Risk Or The Effectiveness (If Any) Of This Measure;
g. The Only Expert Opinion Which Was Given By Mr Johnson Did Not Identify Fault With The Company’s Work System And Procedures And He Was Not Asked About The Meaning Of The Form 3b (Or Greater) Separation Or Its Possible Effectiveness;
h. The Expert Opinion Of Mr Johnson Concluded That Mr Tatterson, A Qualified And Experienced A-Grade Electrician, Failed To Identify The Hazard Which Placed Him In Breach Of The Electricity Safety Act 1998 And He Recommended That No Enforcement Action Be Taken Against The Company;
i. The Evidence Does Not Support A Finding That The Incident Was Foreseeable Or That The Company’s Practices And Procedures At The Time Were Deficient;
j. The Evidence Does Not Support A Conclusion That A Reasonable Employer In The Position Of The Company Should Have Had Any Different System Or Procedures In Place As At 24 June 2015.
Accordingly, I Will Dismiss The Charge.
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