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2
District Court 31 March 2023

SafeWork NSW v BSA Limited (No.2)

[2023] NSWDC 73

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY ELEMENTS OF OFFENCE REASONABLY PRACTICABLE MEASURES SENTENCE HEARING

Citation: SafeWork NSW v BSA Limited (No.2) [2023] NSWDC 73
Court: District Court of New South Wales
Date: 31 March 2023
Judge: Russell SC DCJ

Background

BSA Limited (BSA) employed a 22-year-old Customer Service Technician, Jayden Hooper, to install Foxtel satellite dishes and set-top boxes at residential premises. On 14 December 2018, Mr Hooper was working underneath the floor of a customer's house in Malabar when he received a fatal electric shock. The house had a pre-existing dangerous fault in its wiring, and Mr Hooper came into contact with live wires and an earth while connecting cables below the floorboards.

SafeWork NSW prosecuted BSA as a person conducting a business or undertaking (PCBU) under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act). The regulator alleged that BSA failed to comply with its duty to ensure the health and safety of workers so far as reasonably practicable, and that this failure exposed Mr Hooper to a risk of death or serious injury, contrary to s 32 of the Act.

BSA entered a plea of guilty in December 2022, but only in relation to two of the pleaded failures: not requiring workers to use locks and tags when isolating power, and failing to provide adequate information and training about that requirement. The parties disputed a range of other facts, including the scope of the risk and whether additional safety measures were reasonably practicable. The February 2023 hearing proceeded as a disputed facts sentencing hearing to resolve those outstanding matters.

  • Whether the second pleaded source of electrical risk (contact with equipment in Bedroom 1 of the house) was established by the prosecution
  • Which of the eight pleaded safety measures BSA failed to implement were proved beyond reasonable doubt
  • Whether BSA's breach of duty exposed Mr Hooper to a risk of death or serious injury
  • Whether the death of Mr Hooper was a "manifestation of the risk" and, if so, whether that was an element of the offence or merely a sentencing consideration
  • The correct legal approach to resolving disputed facts at a sentencing hearing

Decision

The risk: The court found that the prosecution established the first pleaded source of risk (coming into contact with energised Foxtel cabling, copper pipe, or other conductive materials under the house) beyond reasonable doubt. The second pleaded risk, relating to contact with equipment in Bedroom 1, was not established.

Reasonably practicable measures: Russell SC DCJ found that BSA failed to take several measures beyond those already admitted. The court found proved the failures relating to: not maintaining a system requiring the use of a volt stick to detect live conductors (par 9(e)); failing to provide adequate information, training, instruction and supervision about mandatory power isolation (par 9(g)(i)); failing to do the same in relation to mandatory use of a volt stick (par 9(g)(iii)); and failing to provide adequate information, training, instruction and supervision about conducting an adequate risk assessment (par 9(g)(v)). The court was not satisfied that the remaining disputed measures (stopping work pending an electrician's inspection, red-flagging prior reports of tingles or shocks, implementing power isolation as a stand-alone system, providing a GPO power point tester, or conducting an adequate risk assessment as a standalone measure) were proved.

Causation and exposure to risk: The court was satisfied beyond reasonable doubt that BSA's breach of duty exposed Mr Hooper to a risk of death or serious injury. The reasoning included that, had appropriate procedures been in place and properly reinforced through instruction and supervision, the power would have been isolated and the risk minimised.

Manifestation of the risk: Russell SC DCJ confirmed that the death of Mr Hooper was not an element of the Category 2 offence under s 32 of the Act. The fact that the risk manifested as a fatality was characterised as a sentencing consideration going to objective seriousness, to be addressed at the subsequent sentence hearing.

Orders Made

  • The allegations in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) of the Further Amended Summons filed 1 March 2023 were proved beyond reasonable doubt
  • BSA Limited was found guilty
  • The matter was listed for a sentence hearing on a date convenient to the parties

Key Takeaways

  • A Category 2 offence under s 32 of the Work Health and Safety Act 2011 requires proof of a health and safety duty, a failure to comply with that duty, and that the failure exposed a worker to a risk of death or serious injury. The actual manifestation of that risk (such as a death) is not an element of the offence.

  • Where a defendant enters a guilty plea but disputes the factual basis of the prosecution case, the court must conduct a disputed facts hearing and make findings on each contested matter to the criminal standard of proof before proceeding to sentence.

  • The District Court applied the s 18 framework for "reasonably practicable" measures, assessing the likelihood and degree of harm, what the defendant knew or ought to have known, and the availability, suitability, and cost of ways to eliminate or minimise the risk. Not all pleaded measures were found to have been reasonably practicable, illustrating that each measure requires individual analysis.

  • Under s 18 of the Act, what a PCBU knew or ought reasonably to have known about a risk is central to whether a particular control measure was reasonably practicable. The court examined BSA's own documentation, training materials, and post-incident changes in assessing this question.

  • The death of a worker, where pleaded as a "manifestation of the risk," remains relevant to the sentencing process as a factor bearing on objective seriousness, even though it forms no part of the offence itself.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 7, 12A, 16, 17, 18, 19, 32, 244, 274, 275
- Work Health and Safety Regulations 2017, reg 156

Cases:
- Alameddine v R [2020] NSWCCA 232
- Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
- BC v R [2020] NSWCCA 329
- Bulga Underground Operations v Nash [2016] NSWCCA 37
- Chiang v R [2016] NSWCCA 45
- Cowling v R [2015] NSWCCA 213
- Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313
- Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
- Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57
- KMC v Director of Public Prosecutions (SA) [2020] HCA 6
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
- Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA
- R v AB [2011] NSWCCA 229
- R v Kirkland [2005] NSWCCA 130
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Pearce [2020] NSWCCA 61
- R v Wang [2020] NSWSC 1335