News & Views

Three PCBUs have escaped high WHS fines for power-isolation breaches that seriously injured a worker, because of the NSW Attorney-General's less than expeditious appeal against their "manifestly inadequate" penalties.

 

The NSW Court of Appeal upheld the Attorney-General's claim that District Court Judge Andrew Scotting erred in reading down the pleaded risk, so it only applied to electric shock from direct contact with live wires, and not to the "indirect" contact that caused the injuries.

 

This resulted in the Judge not taking the worker's injuries into account when sentencing PCBUs Unity (NSW) Pty Ltd, Activate Fire Australia Pty Ltd and Hanna Plumbing Pty Ltd. The Court of Appeal stressed that the test of a duty breach was prospective, meaning the precise circumstances of an incident "should not be relied on to define the risk".

 

However, it concluded that it should not intervene with Judge Scotting's orders because the Attorney-General embarked on seven months of "bureaucratic decision-making" before advising the PCBUs it intended to appeal their sentences.

 

Unity was contracted to install a fire sprinkler system at a Baptist Care Services Pty Ltd aged care facility and engaged Activate to design and install the system. Activate engaged Hanna Plumbing Pty Ltd to supply labour to fabricate and install it.

 

In March 2014, a Hanna labourer was helping install the water main in the roof of the facility's administration wing when he leaned on an air conditioning duct, causing a screw to puncture an insulated electrical lighting cable underneath, and electricity to be conducted through the duct.

 

The worker suffered an electric shock and, while receiving CPR, fell through the gyprock ceiling onto the floor of the wing. He sustained serious injuries including hypoxic brain injury, burns and cardiac arrest. 

 

In March last year, Judge Scotting found Activate and Unity guilty of breaching the State WHS Act in failing to ensure the health and safety of workers in the roof space by shutting down power to the administration wing before the installation work began (see related article). He subsequently fined the two PCBUs $10,000 each, and fined Hanna $4,250 after it pleaded guilty to WHS breaches.

 

In the proceedings at hand, the Attorney-General told Justices Margaret Beazley, John Basten and Helen Wilson that Judge Scotting wrongly found the only risk to workers pleaded by SafeWork NSW was of electrocution through direct contact with electrical wires, and he could not take the worker's indirect-contact injuries into account when sentencing the PCBUs.

 

Justice Basten agreed, saying the "essential element of the risk was a risk of electrocution". It was sufficiently defined to identify the measures that should have been taken to prevent the risk, and the Judge erred in declining to treat the injuries as a materialisation of the pleaded risk, he found.

 

"It is not entirely clear where the boundary lies between direct and indirect contact with a live electrical wire", and any distinction should not affect the assessment of culpability, he said.

 

Justice Basten found the appropriate penalties for Activate and Unity were about $50,000 and added that Hanna's fine was also manifestly inadequate.

 

He said the sentences imposed by Judge Scotting must not be accepted as demonstrating an appropriate range in future cases, but dismissed the Attorney General's case for its "implicit failure to recognise the importance of a prosecution appeal being lodged expeditiously".

Justices Beazley and Wilson agreed with his findings.

 

In the same proceedings, Unity appealed against its conviction, arguing Judge Scotting impermissibly modified the risk pleaded by the prosecutor, but the bench found Unity failed to demonstrate any relevant error in the Judge's reasoning or conduct at trial. 

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 (26 November 2018)