Citation: SafeWork NSW v Spectra Plumbing Pty Ltd [2019] NSWDC 415
Court: District Court of NSW
Date: 12 August 2019
Judge: Scotting DCJ
Background
Spectra Plumbing Pty Ltd was a plumbing subcontractor engaged to carry out pipe installation work at a five-storey residential apartment building under construction in Kogarah. The building's Gray Street facade sat in close proximity to overhead power lines, including high-voltage lines carrying 11,000 volts located approximately 3.3 metres from the building's balconies.
On 21 November 2016, three of the company's employees were tasked with lifting six-metre copper pipes from ground level up to the fourth-floor balcony on the Gray Street side of the building. As the injured worker received a pipe on the level 4 balcony, he levered it against the balustrade railing, causing it to contact the energised high-voltage power lines. The contact triggered an electrical explosion, throwing him back into the building. He sustained an electric shock, arc flash injuries to his eyes, and severe burns to his left hand and fingers.
The company had no Safe Work Method Statement or safe work procedure in place for transporting copper pipes in this way. It had also provided no training, information, or instruction to its workers about the hazards of working near the overhead power lines at the site.
Legal Issues
- Whether the company, as a person conducting a business or undertaking, failed to comply with its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011 by exposing a worker to a risk of death or serious injury, contrary to section 32 of that Act
- What penalty was appropriate, taking into account objective seriousness, mitigating factors, and the utilitarian value of a guilty plea
Decision
Spectra Plumbing pleaded guilty to the charge. Scotting DCJ identified the key failure as the company's absence of any documented safe work procedure or risk assessment for the specific task of moving long copper pipes near energised overhead power lines. There was also a complete failure to train or inform workers about the power line hazard, despite that hazard being physically prominent and well-known to others on the site.
On objective seriousness, his Honour found the offence fell in the low to mid range. The risk of serious injury or death from contact with 11,000-volt power lines was significant and obvious. Adequate risk control measures, including a safe work procedure and basic worker training, were available at low cost. However, the court accepted that the company faced genuine practical difficulties on site, including the removal of scaffolding by the principal contractor and restricted access to the preferred, safer side of the building.
Regarding mitigating factors, the court accepted that the company had no prior convictions, had cooperated with the SafeWork investigation, demonstrated genuine remorse (including facilitating the injured worker's return to employment), and had introduced improved safety systems following the incident. A guilty plea warranted a 25% discount on the penalty.
The court set the base fine at $200,000, reduced it by 25% to $150,000 to reflect the guilty plea, and ordered that 50% of the fine be paid to the prosecutor under the Fines Act 1996.
Orders Made
- The offender was convicted of the offence under section 32 of the Work Health and Safety Act 2011
- A fine of $150,000 was imposed (reduced from a base of $200,000 by a 25% guilty plea discount)
- 50% of the fine ($75,000) was ordered to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996
- The offender was ordered to pay the prosecutor's costs in the agreed sum of $23,000
Key Takeaways
- A plumbing subcontractor's failure to prepare any safe work method statement or conduct any risk assessment for a task performed in proximity to high-voltage power lines, combined with a total absence of worker training on that hazard, satisfied the elements of a section 32 offence under the Work Health and Safety Act 2011.
- Objective seriousness was assessed as low to mid range where the hazard was obvious, the potential consequences severe, and the risk controls required were neither complex nor costly.
- Mitigating factors recognised by the District Court included no prior convictions, cooperation with the regulator's investigation, genuine remorse evidenced by concrete post-incident conduct, and timely steps to improve the company's safety management systems.
- Under the principles in R v Thomson & Houlton and R v Borkowski, a guilty plea attracted a 25% reduction in the financial penalty, reflecting both its utilitarian value to the justice system and its significance as evidence of remorse.
- Practical site difficulties, such as the removal of scaffolding by the principal contractor and restricted site access, were relevant to the overall circumstances but did not eliminate the subcontractor's independent obligation to assess and manage the risks faced by its own workers.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), sections 19(1) and 32
- Work Health and Safety Regulation 2011 (NSW), clause 309
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 21A(3)(e), (h), (i), (k), (m) and section 22
- Fines Act 1996 (NSW), section 122(2)
Cases
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
Other References
- WorkCover NSW Work Near Overhead Power Lines Code of Practice (2006)
- AS/NZS 4576 Guidelines for Scaffolding