Two recent work health and safety prosecutions highlight to employers the importance of following adopted safety plans and having regard to available guidance material when developing safety documents and the serious consequences for safety offences.
The harmonized work health and safety legislation creates three categories of offences, the most serious of which is a Category 1 offence, which attracts maximum penalties of
In Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27, the NSW District Court convicted a person conducting a business or undertaking (PCBU) with a Category 1 offence – the first prosecution of its kind - where an electrical shock lead to a fatality.
Cudal Lime Products Pty Ltd (CLP) operated a mineral mining and processing operation at an open cut limestone quarry in Cudal, NSW. Near the mine was a cottage in which Mr Barry Perceval, Plant Operator and his partner, Ms Liehr resided. On 27 August 2014, Ms Leihr was electrocuted after she came into contact with the metallic flexible shower hose and metallic waste drain in the shower which had become electrically charged due to a fault in the electrical system at the nearby mine.
The mine had a history of electrical issues and the mine safety plan (MSP) required electrical work to be undertaken by a qualified electrician or electrical engineer in accordance with the Australian Electrical Standard. At the beginning of 2014 the switchboard at the cottage was replaced after an arc fault damaged the old switchboard. At the time, CLP directed its Production Officer / Team Leader, Simon Shannon, who was not a qualified electrician or electrical engineer to perform electrical work on the switchboard.
CLP was charged with and pleaded guilty to the Category 1 offence of, without reasonable excuse, engaging in conduct that exposed Ms Liehr to a risk of death or serious injury and was reckless as to the risk of death. Mr Shannon also pleaded guilty to a Category 2 offence of failing to comply with his health and safety duty and exposing Ms Liehr to a risk of death or serious injury.
In setting the penalty, the Court held that the offence was in the mid-range of objective seriousness. The Court found that there were simple and easy steps which were reasonably practicable for CLP to have taken to eliminate or minimize the risk to Ms Liehr and Mr Perceval, including ensuring that electrical work was carried out by qualified persons and having a multiple earth neutral connection. The Court also found that CLP recklessly disregarded the risk of safety by directing Mr Shannon to install the switchboard to save costs.
CLP was convicted and fined $900,000 while Mr Shannon was also convicted and fined $48,000.
In Safe Work NSW v Universal Property Group Pty Ltd [2018] NSWDC 19, a PCBU constructing a residential apartment complex was charged with and convicted of a Category 2 offence of failing to comply with a health and safety duty and exposing a worker to the risk of death or serious injury after a Surveyor’s Assistant fell through a penetration and became impaled by a concrete reinforcing bar.
The worker attended the site with his colleague to survey a deck and found unmarked plywood covering a penetration. The worker thought that the plywood was a spare piece and after moving it, he fell through the penetration void, suffering injury.
The Court noted that the Safe Work Australia Guide to Formwork (the Guide) provided that only using plywood covers was not a satisfactory control measure and recommended that they be painted and marked and secured to concrete to carry different loads. The Court noted that the relevant Safe Work Method Statement only referred to the Guide generally, assumed knowledge and did not set out the required procedure.
The Court held that the risk of injury was obvious and control measures to cover the penetration were well known, simple and available and that the PCBU failed to properly supervise the contractors who installed the formwork.
The PCBU was fined $135,000 and ordered to pay the prosecutor’s costs.
Lessons for employers
The CLP matter is the first Category 1 offence which has been prosecuted and a conviction recorded. The significant maximum penalty that may be imposed under this category indicates the seriousness of the reckless conduct.
Both cases highlight that employers should have regard to Codes of Practice and other guidance material issued by work health and safety regulators to manage risks. Codes set out the minimum standards to meet work health and safety requirements and are admissible in WHS prosecutions. Guides and Australian Standards will also be relevant safety material that employers should consider when creating safety documentation.
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