Citation: Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66
Court: District Court of New South Wales
Date: 27 March 2017
Judge: Judge AC Scotting
Background
A worker employed by a labour hire plumbing subcontractor suffered a fatal electric shock while installing a fire sprinkler system in the roof space of an aged care facility at Forster, NSW, in March 2014. The roof space contained extensive uncontained electrical wiring running across sharp-edged metal furring channels and exposed screw points. The worker, employed by Hanna Plumbing Pty Ltd, was part of a crew installing the main sprinkler pipework when the incident occurred.
The contractual chain ran from the facility operator Baptist Care Services, through head contractor Unity (NSW) Pty Ltd, to subcontractor Activate Fire Australia Pty Ltd, which in turn engaged Hanna Plumbing to supply the installation labour. Activate Fire retained responsibility for the Safe Work Method Statement (SWMS), while Unity supervised the overall project through its foreman.
Safe Work NSW prosecuted both Unity and Activate Fire under section 32 of the Work Health and Safety Act 2011, alleging each had breached a health and safety duty under section 19 of that Act by failing to ensure, so far as reasonably practicable, that the worker was not exposed to a risk of death or serious injury.
Legal Issues
- Whether each defendant owed a health and safety duty to the worker under section 19 of the Work Health and Safety Act 2011, notwithstanding that the worker was employed by a subcontractor further down the contractual chain.
- Whether the prosecution had properly particularised the offence, and whether any amendment to the charge was permissible.
- Whether the risk pleaded by the prosecution (exposure to electric shock from energised cables) had been established beyond reasonable doubt.
- Whether there was a sufficient causal connection between each defendant's alleged failures and the worker's exposure to that risk.
- Whether the failure to isolate electrical power to the administration wing constituted a breach of the relevant duty.
Decision
Duty of care and the worker's status. The court found that both Unity and Activate Fire owed a health and safety duty to the worker under section 19 of the Act, even though he was not their direct employee. The worker had been engaged through a labour hire arrangement and was performing work that formed part of each defendant's undertaking. The court rejected arguments that the defendants' duties did not extend to workers employed further down the contractual chain.
The risk and the SWMS. The SWMS prepared by Activate Fire identified the risk of electric shock in roof spaces and nominated control measures, but those measures focused on noting the location of services and avoiding dropping tools. The court found that the actual risk presented by the administration wing roof space was known, or should have been known, to both defendants well before the incident. The director of Hanna Plumbing had specifically warned both Activate Fire's director and Unity's foreman about the hazardous condition of the wiring in that space, and Activate Fire's director had separately communicated concerns to Unity in a written email. Despite this, no steps were taken to isolate the electrical power to the administration wing before work began.
Causation. The court was satisfied beyond reasonable doubt that isolating the power to the administration wing would have materially reduced the number of energised cables in the roof space and thereby minimised the worker's exposure to the risk of electric shock. The failure to take that step by either defendant was causally connected to the worker's exposure to the pleaded risk.
Verdicts. The court found both Activate Fire Pty Ltd and Unity (NSW) Pty Ltd guilty of the offence under section 32 of the Act. The matters were listed for mention on 3 April 2017 with a view to fixing a sentence hearing, to be conducted alongside the related proceedings against Hanna Plumbing. The court noted that the defendants and Hanna Plumbing might wish to contest issues of causation of the actual injury at the penalty stage.
Orders Made
• Activate Fire Pty Ltd found guilty of the offence
• Unity (NSW) Pty Ltd found guilty of the offence
• Matters listed for mention on 3 April 2017 together with Hanna Plumbing with a view to listing for sentence on a day convenient to the parties
Key Takeaways
- Under section 19 of the Work Health and Safety Act 2011, a head contractor and a principal subcontractor can each owe a health and safety duty to a worker employed by a lower-tier labour hire subcontractor, where that worker is performing work forming part of their undertaking.
- A Safe Work Method Statement that identifies a risk in general terms does not discharge the duty where the specific hazard conditions are known to be more acute than those contemplated by the SWMS's control measures.
- The District Court held that isolating electrical power to a work area is a reasonably practicable control measure where the risk of contact with energised cables in a confined roof space has been identified and communicated to those in control of the site.
- Known warnings communicated up and down the contractual chain, whether orally or in writing, are relevant to establishing that a defendant had actual knowledge of a risk, which bears on whether the defendant's failure to act was a breach of duty.
- Where multiple defendants in a contractual chain face related charges arising from the same incident, the court indicated a preference for a consolidated penalty hearing to address issues of causation and proportionate responsibility simultaneously.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 12A, 19(1), 19(3), 32
- Work Health and Safety Regulation 2011 (NSW), cl 291
- Evidence Act 1995 (NSW), s 144
- Criminal Procedure Act 1986 (NSW), ss 15, 16
Cases
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Royall v The Queen (1991) 172 CLR 378
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- R v ACR Roofing Pty Ltd (2004) 11 VR 187
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
- WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
- Smith v Broken Hill Pty Ltd (1957) 97 CLR 337
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- R v Saffron (No 1) (1988) 17 NSWLR 395
- Onetech Pty Ltd v Shaw [1999] WASCA 28
- Fitzpatrick v Job [2007] WASCA 63
- M R and R C Smith Pty Ltd trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110