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District Court 19 May 2023

SafeWork NSW v Ausgrid Management Pty Ltd

[2023] NSWDC 164

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS OBJECTIVE SERIOUSNESS MITIGATING FACTORS

Citation: SafeWork NSW v Ausgrid Management Pty Ltd [2023] NSWDC 164
Court: District Court of New South Wales
Date: 19 May 2023
Judge: Strathdee DCJ

Background

The defendant was the appointed agent of a public-private partnership licensed to operate an electricity distribution network in New South Wales. It supplied agency and employment services to that partnership and was responsible for managing work health and safety across its operations, including live low voltage electrical work performed by overhead line workers.

On 2 April 2019, at Riverview in New South Wales, a worker employed by the defendant suffered serious electric shock burns to the front and back of his body while performing a live low voltage pole changeover. The injury occurred when the worker, operating from an elevated work platform, appears to have made contact with a live conductor while transferring energised overhead conductors to a replacement pole using a method known as the "coach screw" method.

Critically, this was not the first such incident. A near-identical event had occurred on 29 January 2019 at a different worksite, during the same type of task. Despite that earlier incident prompting internal investigations and draft position papers, the defendant had not implemented adequate changes to its system of work by the time of the 2 April 2019 incident. SafeWork NSW prosecuted the defendant for failing to comply with its duty as a person conducting a business or undertaking under section 19(1) of the Work Health and Safety Act 2011 (NSW), with the failure exposing workers to a risk of death or serious injury contrary to section 32 of that Act.

  • Whether the defendant failed to comply with its duty under section 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers while at work.
  • What penalty was appropriate having regard to the objective seriousness of the offence, applicable aggravating and mitigating factors, and the utilitarian value of an early guilty plea.
  • Whether the defendant was entitled to a 25% discount on the fine for the utility of its early guilty plea.
  • What costs order was appropriate in favour of the prosecutor.

Decision

The defendant pleaded guilty to the charge. The court proceeded to sentence having regard to the agreed facts and relevant sentencing principles, including those applicable to work health and safety offences.

On objective seriousness, the court treated the offence as moderately to seriously grave. Several features elevated the seriousness of the breach: the defendant had received a regulatory Safety Alert from IPART in May 2017 regarding the risks of live low voltage work; a substantially similar incident had occurred at a different site on 29 January 2019, just ten weeks before the offence in question; and despite initiating internal investigations after that earlier incident, the defendant had not introduced adequate controls or modified its work procedures before the Riverview incident occurred. The risk of death or grievous injury from live electrical contact was well-known, and the defendant was a sophisticated, large-scale operator in a high-risk industry.

On mitigating factors, the court accepted several matters in the defendant's favour. The defendant had no prior convictions under work health and safety legislation, and given its size and industry risk profile, the court gave significant weight to that clean compliance history. The court also accepted that the defendant had co-operated with SafeWork during the investigation, demonstrated remorse and contrition through an affidavit filed on its behalf, and had good prospects of rehabilitation. The defendant was entitled to the maximum 25% discount for the utilitarian value of its early guilty plea, consistent with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383.

Before applying the plea discount, the court assessed the appropriate base fine at $800,000. After the 25% reduction, the final fine imposed was $600,000.

Orders Made

  • The defendant was convicted of the offence.
  • The defendant was ordered to pay a fine of $600,000 (being a base fine of $800,000 reduced by 25% for the early guilty plea).
  • Pursuant to section 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the prosecutor.
  • The defendant was ordered to pay the prosecutor's costs in the agreed sum of $87,052, pursuant to section 257B of the Criminal Procedure Act 1986 (NSW).

Key Takeaways

  • The District Court confirmed that where a sophisticated operator in a high-risk industry fails to implement adequate corrective measures following a prior substantially similar incident, that prior incident is a significant aggravating feature in assessing the objective seriousness of the offence.
  • A regulatory Safety Alert issued by an industry regulator, in this case IPART's 2017 alert on live low voltage work, can contribute to the objective seriousness of a subsequent breach by demonstrating that the defendant had formal notice of the risk category involved.
  • An early guilty plea by a corporate defendant can attract the maximum 25% utilitarian discount, consistent with R v Thomson & Houlton, where the plea is entered at the earliest available opportunity.
  • Clean compliance history carries meaningful weight for large corporate defendants in high-risk industries, provided the court is satisfied that the absence of prior convictions reflects genuine compliance culture rather than merely the statistical expectation of fewer incidents.
  • Under section 122(2) of the Fines Act 1996 (NSW), 50% of a fine imposed in a WHS prosecution is payable to the prosecutor, a costs structure that applies independently of any separate costs order.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 230(1)(a)
- Work Health and Safety Regulation 2017 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW), s 257B
- Fines Act 1996 (NSW), s 122(2)
- Electricity Act 1995 (NSW)
- Electricity Supply (Safety & Network Management) Regulation 2014 (NSW)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Bulga Underground Operations v Nash (2016) 93 NSWLR 338
- Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Morrison v Powercoal Pty Ltd (No 3) (2005) 147 IR 117
- Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
- SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
- SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
- Kirk v Industrial Commission of New South Wales [2010] HCA 1