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District Court 10 April 2017

Safe Work (NSW) v WGA Pty Ltd

[2017] NSWDC 91

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF DEATH OR SERIOUS INJURY

Citation: Safe Work (NSW) v WGA Pty Ltd [2017] NSWDC 91
Court: District Court of New South Wales
Date: 10 April 2017
Judge: Judge AC Scotting

Background

WGA Pty Ltd was the builder and principal contractor for a residential and commercial development in South Hurstville, NSW. The construction site was located in close proximity to two sets of overhead power lines running along King Georges Road: lower lines carrying 415 volts and upper lines carrying 33,000 volts (33kV), the latter owned by RailCorp and supplying the Illawarra train line. The sole director of WGA managed and supervised the site.

In the lead-up to the incident, SafeWork NSW inspectors visited the site on multiple occasions following complaints from Ausgrid. Prohibition notices were issued, and the director was repeatedly advised of the need to maintain safe clearance distances, install non-conductive hoarding, develop a Safe Work Method Statement (SWMS), and implement appropriate signage and barrier tape near the high-voltage lines.

On 19 June 2014, a worker, Christopher Cullen, was installing a length of aluminium angle on a window ledge of unit 12. The ledge was close to the upper 33kV power lines. The aluminium piece came into contact with or very close to those lines, causing an electric shock to pass through the metal and into Mr Cullen's body. WGA was subsequently charged with breaching its health and safety duty under the Work Health and Safety Act 2011 (the Act), thereby exposing Mr Cullen to a risk of death or serious injury, contrary to section 32 of the Act.

  • Whether WGA, as the person conducting a business or undertaking (PCBU), owed a health and safety duty to Mr Cullen under section 19(1) of the Act.
  • Whether WGA breached that duty by failing to implement adequate control measures in relation to the risk posed by the 33kV power lines.
  • Whether those breaches exposed Mr Cullen to a risk of death or serious injury.
  • Whether the offence was established to the required standard (beyond reasonable doubt), in circumstances where the hearing proceeded ex parte (without WGA appearing or being represented).

Decision

WGA's solicitor came off the record shortly before trial, and WGA failed to appear when the matter was called on 3 April 2017. The court proceeded ex parte. Judge Scotting was satisfied that the prosecution was still required to prove the offence beyond reasonable doubt, notwithstanding the absence of the defendant.

The court found that WGA was a PCBU under the Act and that Mr Cullen was a worker whose work was influenced or directed by WGA, giving rise to a duty under section 19(1). The upper 33kV power lines were identified as a risk to which workers on the upper levels of the building were exposed, and WGA had been made aware of that risk through repeated engagement with SafeWork inspectors and Ausgrid representatives.

The court assessed four specific particulars of the alleged breach. First, WGA failed to arrange for the 33kV power lines to be de-energised or have a non-conductive barrier installed before work proceeded near them. Second, it failed to develop and implement a SWMS addressing the risk from those lines. Third, it failed to install barrier tape to delineate an exclusion zone. Fourth, it failed to install and maintain warning signage. The court was satisfied beyond reasonable doubt that each of these failures was established by the evidence.

On the fourth element of the offence, the court found that each of the four breaches was a substantial and significant cause of Mr Cullen being exposed to a risk of death or serious injury. WGA had actual knowledge of the risk, and the measures it failed to implement were straightforward and inexpensive steps that would have eliminated or minimised that risk. A finding of guilt was entered, and the matter was listed for sentencing.

Orders Made

• WGA Pty Ltd is found guilty of the offence
• The matter is listed for sentence on a date convenient to the prosecutor

Key Takeaways

  • The District Court confirmed that an ex parte hearing in a WHS prosecution does not reduce the prosecution's burden: guilt must still be established beyond reasonable doubt on all elements of the offence.
  • A PCBU's duty under section 19(1) of the Work Health and Safety Act 2011 extends to workers whose work is influenced or directed by that PCBU, including contractors engaged on a building site.
  • Repeated engagement with regulators and the issuing of prohibition notices can establish that a defendant had actual knowledge of a specific risk, which is relevant to whether control measures were required and feasible.
  • Where a defendant had been expressly told of required control measures (de-energisation, non-conductive hoarding, SWMS, barrier tape, and signage) and failed to implement them, those failures can each independently constitute a breach exposing workers to risk.
  • Under section 32 of the Act, the prosecution must prove not only a breach of a health and safety duty but that the breach exposed the relevant person to a risk of death or serious injury; the court applied a "substantial and significant cause" test in linking each particular breach to that exposure.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 5, 7(1)(b), 12A, 18, 19(1), 19(3), 32, 195
- Occupational Health and Safety Act 2000 (NSW), s 8(2)
- Environmental Planning and Assessment Act 1979 (NSW)
- Code of Practice: Working Near Overhead Power Lines

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
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
- 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
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453
- Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313
- Smith v Broken Hill Pty Ltd (1957) 97 CLR 337