Inspector Ken Evans v Country Energy

Inspector Forster v Northpower [2002] NSWIRComm 92) Inspector Mason v Country Energy [2003] NSWIRComm 206 CASES CITED: Inspector Reynolds v North Power [2001] NSWIRComm 106 Veen v the Queen (No 2) (1988) 164 CLR 465 Weininger v the Queen (2003) 212 CLR 619

PROSECUTOR: Mr R Reitano of counsel Legal Services Branch WorkCover Authority LEGAL REPRESENTATIVES:

DEFENDANT: Mr B Hodgkinson SC SOLICITORS: Deacons

• 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 3 February 2006

Matter No IRC 4439 of 2005 INSPECTOR KEN EVANS V COUNTRY ENERGY Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

1 On 27 August 2003 Brian Edwin Goss was employed by Country Energy as an electrical line worker. On that day he was employed in that capacity at a property on Coonamble Road Gilgandra. The circumstances surrounding the nature of the work have been explained in the evidence and will be referred to later in the course of this judgment. In the course of performing this work Mr Goss came into contact with energised electrical lines and was fatally electrocuted.

2 The matters surrounding this incident were investigated and in due course Inspector Evans of the WorkCover Authority commenced proceedings alleging a breach of s 8(1) of the Occupational Health and Safety Act 2000 by Country Energy

3 In November 2005 when the matter was for the second time before the Court the prosecutor filed in Court an amended application for order and that amended application was accepted. On the acceptance of the amended application for order by the court, the defendant entered a plea of guilty.

4 The amended application for order particularised the charge under section 8(1) of the Act as, in essence, the defendant's failure to provide and maintain a safe system of work in relation to electric line work, in that it failed to ensure that all electrical lines were properly examined, tested, de-energised and isolated prior to anyone commencing work upon them. 5 I have heard submissions from the prosecutor and the defendant in relation to that amended charge. The evidence of the prosecutor constituted an agreed statement of facts, a factual report prepared by Inspector Evans, a bundle of photographs, and a certificate of prior convictions showing that between 1992 and 2003 the defendant - also formerly known as North Power and Northern Rivers Electricity - had six convictions ranging from $2,000 to $160,000. I will return to these matters in due course. 6 In relation to the Agreed Statement of Facts it is appropriate to set out its terms in substance: ... 2. At all material times Country Energy [ABN NO: 37 428 185 226] was a State owned corporation whose registered office is situated at 8 Buller Street, Port Macquarie in the State of New South Wales (defendant). 3. At all material times, the defendant was an employer and employed Brian Edwin Goss (Mr Goss) as an electrical line worker. 4. On 27 August 2003 Mr Goss was required to perform electrical line work at a property known as "Lyondale" on Coonamble Road, Gilgandra. 5. On 27 August 2003 a rural 22-kilowatt high voltage circuit was to be isolated at high voltage fuses 3211, tested, earthed, and short-circuited. Two crews were required to work on the high voltage circuit under access permits. 6. The first crew comprised Mr Goss and James Wood (Mr Wood), another employee of the defendant. Mr Goss and Mr Wood were required to: (1) isolate the overhead high voltage spur line at high voltage fuses 3211; (2) prove that the high voltage mains were de-energised; and (3) earth and short circuit the high voltage mains on the load side of fuses 3211; (4) issue access permit; and (5) notify Country Energy network control of isolation/de-energising and issue of the access permit. 7. In addition to this task, Mr Goss and Mr Wood were to replace a defective high voltage cross arm on pole 16-402 which had previously been verbally reported as defective. The pole supported both high voltage and low voltage mains. 8. The second crew, consisting of Ross Coxhedge, Darrol Eason and Mark Colwell were to construct a new rural pole mounted substation approximately two kilometres further down the high voltage line. 9. As the two crews would be working remotely from each other, each worked under separate access permits and communicated between the crews via radio and the defendants network control. 10. The pole that Mr Goss and Mr Wood were working on contained two pairs of wooden cross arms approximately 1.5 metres below the top cross arm. These cross arms supported high and low voltage circuits and had four circuits connected to them via porcelain insulators. 11. A distribution pole located some distance to the south east of the pole held and electrical transformer mounted on it. The transformer was mounted between the top and second cross arms on that distribution pole. 12. Circuits from the top cross arm were connected to the transformer. Circuits leading from the transformer were connected to the circuits on the second cross arms. 13. A switchboard was also mounted on the distribution pole at a lower level. 14. Prior to commencing the work of replacing the cross arm on the pole, Mr Goss and Mr Wood switched the circuit breaker in the switchboard box into the "off" position. The switchboard box was then locked and danger tagged. 15. Mr Goss and Mr Wood then took a morning tea break. 16. At the end of the morning tea break, Mr Goss went up in an elevated work platform (EWP) and commenced some preliminary work in relation to the defected high voltage cross arm on the pole. At this time Mr Wood was constructing the new cross arm. After a short period of time, Mr Goss returned to the ground in the EWP and asked Mr Wood to assist him. Mr Goss and Mr Wood then went up in the EWP to the area of the cross arm on the pole. Mr Goss exited the EWP and supported himself on the pole by means of a harness. In the course of the cross arm being replaced, Mr Wood had his back to Mr Goss when he heard a sound. Mr Wood turned around and saw one of Mr Goss' hands clenched on the low voltage line. Mr Wood prised Mr Goss' hand free with a stick and descended the EWP. Upon arriving at the ground Mr Wood immediately attempted to resuscitate Mr Goss. Mr Goss was later declared dead on arrival at Gilgandra Hospital. 17. A documented risk assessment was undertaken at the site prior to work commencing. In the documented risk assessment the hazards identified were: - elevated work platform - working at heights - low voltage mains 18. The control to be put in place for the low voltage main hazard was noted as "isolated via c/b (control box)" locked plus + dt (danger tagging) attached, tested dead." 19. Mr Goss and Mr Wood signed the risk assessment. 20. After the incident it was established that the low voltage 3 phase mains at the work site had remained energised. 21. While the circuit in the switchbox had been isolated, another low voltage circuit in the transformer on the distribution pole had not been isolated. Switching off the circuit breaker in the fuse box switch did not de-energise the low voltage circuits fed from the transformer on the distribution pole. This was because the low voltage circuits had been hard wired into the transformer. 22. The low voltage circuit on the load side of the transformer was "hard wired" into the transformer. To de-energise the low voltage lines hard wired into the transformer, it was necessary to de-energise the low voltage circuit at the transformer which may have been done by either removing the transformer's high voltage fuses or by physically disconnecting the low voltage circuit where it connected to the transformer. This would have completely isolated those low voltage circuits. 23. "Hard wired" circuits is not uncommon on multiple low voltage circuits. As a result, the defendant's code of practice, Electrical Safety Rules CEK8030 provided, at rule 4.3, in relation to work on or near de-energised low voltage exposed conductors, that before work is commenced those conductors were required to be identified, isolated and proved de-energised. That rule was not complied with at the work site in that the low voltage circuits on the pole had not been isolated and all the low voltage circuits had not been tested to check that they were de-energised, before the work commenced . 7 The evidence for the defendant was constituted by an affidavit of Mark Andrew Mulligan, who was the chief safety officer of the defendant. His affidavit was extensive and there were four volumes of material accompanying the affidavit and constituted much of the records of the system of occupational health and safety implemented by the defendant.

8 Without attempting to set out in full detail the contents of Mr Mulligan's affidavit, it is sufficient if I note the following matters. His position as the defendant's chief safety officer involved, amongst other things, effectively managing the safety function of the defendant by leading the team of regional safety co-ordinators and corporate resources and developing strategic OHS management plans, systems and programs in safety and maintaining a strong safety culture. He also referred to facilitating safe practices in all Country Energy workplaces to achieve the highest standard of safety management and creating an environment of productivity for all employees. Mr Mulligan himself had a number of qualifications specifically in relation to occupational health and safety.

9 In relation to the entity Country Energy, that body was established in July 2001 as the result of the merger of three electricity companies, Great Southern Energy, Advanced Energy and North Power. Country Energy was described as a statutory owned corporation owned by the New South Wales government and having approximately 3,300 employees as at January 2006. 10 It was said by Mr Mulligan that the defendant owned and operated the world's second largest electricity supply network, with 195,000 kilometres of power lines, 1.4 million power poles, 321 zoned substations, 115,000 distribution substations, 115,000 street lights, and these facilities were owned across 95 per cent of New South Wales. In addition the defendant had extensive gas and water networks comprising of 1,000 kilometres of gas mains and approximately 577 kilometres of raw sewerage mains.

11 The nine distribution regions for electricity distribution were identified as well as the way in which the defendant provided electricity supply to its customers by way of field service centres. Such a centre was located at Gilgandra. In broad terms the general operations of the Gilgandra field service centre involved attending to general maintenance of above ground and underground power lines, electricity poles, infrastructure and other electricity supply issues as requested by customers.

12 Mr Mulligan's affidavit dealt with the background of the two workers who were involved in this incident in August 2003, Mr Goss and Mr Wood. Mr Goss had been employed since May 1999 as a live electrical line worker at the Gilgandra field service centre. His duties were set out, as was what was described as his extensive prior experience as an electrical linesman, some of that experience being obtained through employment with the State Rail Authority going back to 1987. Mr Goss had a number of qualifications, including line worker certificates, national occupational health and safety certificates for forklifts and working on platforms and those certificates were set out in the evidence.

Mr Goss was said to have been assisted on the day of the accident by Mr Wood, and Mr Wood's experience and certificates were also set out in the evidence. It was said by Mr Mulligan that both Mr Goss and Mr Wood received extensive training from Country Energy.

13 In describing the defendant's approach to occupational health and safety Mr Mulligan referred to a statement by Mr Murray, managing director of Country Energy as contained in the defendant's current "Health and Safety Policy Statement": Country Energy is Australia's largest regional utility business. The health, safety and well being of our employees, customers, contractors and visitors and the public is our highest priority. Our aim is to integrate health and safety into all that we do. What then follows in Mr Mulligan's affidavit are a number of references to policies and documentation adopted by the defendant. Annexed to the affidavit was the current "Health and Safety Policy Statement". There was a description and annexures dealing with the defendant's occupational health and safety management system and it was noted that this system had been certified as compliant with Australian Standards for occupational health and safety management systems, a certification that had been achieved in December of last year and was due to be conferred in February this year. There had also been NATA certification.

14 In relation to the defendant's commitment to occupational health and safety management practices a number of things were pointed out, but in particular the fact that Country Energy's board, executive and senior management were extensively involved in occupational health and safety, including senior management being represented on each tier of the Country Energy safety committee structure. All position descriptions for the executive and senior management included commitment and accountability for safety performance, and there was said to be a sophisticated and comprehensive structure in relation to employee safety personnel.

15 There was a board safety and environment committee, a peak health and safety steering group and associated support structures that were set out and their functions described in some detail by Mr Mulligan. His affidavit also dealt with planning, review and evaluation, the operation of risk management, the various codes of practice adopted and implemented by the defendant including the Electrical Safety Rules which were relevant to this particular incident. Those rules required that before commencing work on or near de-energised low voltage exposed conductors they were to be identified as the conductors to be worked on or near, isolated and proved de-energised. There is then an explanation given by Mr Mulligan of his appreciation of how the accident involving Mr Goss and Mr Wood occurred.

16 The affidavit also dealt with the means by which the defendant not only developed information, training and supervision, but how those matters were disseminated amongst its workforce. In relation to training there was induction training, there was competency based training and assessment and there was training in relation to authorisation as well as reassessment of operations. Those various elements were described again in detail in the affidavit evidence.

17 Of some significance in the defendant's case were the changes introduced following the accident. Within a fortnight of the accident the group general manager had issued an injury advice to all relevant employees concerning the accident. It is said this advice reinforced the need to follow the electrical safety rules and provided additional information, such as responsibilities of managers and supervisors. There were a number of changes to procedures that were introduced and they are set out in the affidavit. It might be said by way of summary that the altered requirements were designed to reinforce the requirement and practice of achieving proper isolation and testing that the line was dead and also requiring more involvement from other members of the work team.

18 There also had been changes in relation to safety personnel in that the defendant had increased their number. This involved the separation of occupational health and safety and environmental responsibilities, leaving the defendant with nine dedicated regional safety co-ordinators responsible for safety. There was an occupational health and safety policy development team consisting of four staff and there was the creation of an occupational health and safety audit and investigation team consisting of nine staff.

19 It was said by Mr Mulligan that in response to the accident the defendant had reviewed its safety policies and procedures, including the operation of its Electrical Safety Rules. There had been a consolidation of these policies so as to ensure that the policies and procedures systematically identified, assessed and managed safety risks, applied a framework of constant review and continuous improvement of safety performance and adopted an approach that was auditable both internally and externally. It was stated (and ultimately not contested, but IN fact supported by the prosecutor), that the defendant had fully co-operated with WorkCover in its investigation of the accident.

20 Speaking more generally of the activities of the defendant, Mr Mulligan firstly noted the assistance provided to Mr Goss' family that included not only the payment of funeral expenses, but also providing a living allowance in relation to Mr Goss' family while workers compensation payments were being organised to be paid. The defendant also offered the Goss family counselling at no cost.

21 In relation to the wider community it was said that the defendant spent a considerable amount of money on community initiatives and that in 2004/2005 more than $1.7 million had been spent on over 1,000 environmental, social, sporting, education, business, research, arts and cultural partnerships, donations and "in kind" support donations. Those matters received support from the detail provided in the annual report for that period.

22 There was also reference to the defendant playing a role in safety within the electricity industry through its involvement with the industry safety steering committee. Some detail was given of the work of that body. It was also said that Country Energy's financial investment in occupational health and safety was approximately $5.5 million per annum in relation to programs and services and that was an indication of its commitment to occupational health and safety.

23 Finally, it was stated that the defendant sincerely regretted the loss of Mr Goss' life and the effect that it had on members of his family and work associates.

Essentially that was the evidence put forward, except for the handing up of three unreported decisions of the Commission dealing with the three most recent offences committed under the Occupational Health and Safety Act by the defendant.

24 The first issue that requires consideration is the objective seriousness of the offence. As I have already indicated the amended application for order to which this defendant has pleaded guilty acknowledges its failure to provide and maintain a safe system of work in relation to electrical line work in that it failed to ensure that all electrical lines were properly examined, tested, de-energised and isolated prior to anyone commencing work upon them. This defendant is a large statutory entity. It has a very sizeable workforce. It operates over a wide area of the state and operates in an inherently dangerous industry.

25 The work that was being performed by Mr Goss on the day of the accident required the electrical lines to be de-energised. It is commonsense that these steps had to be taken to ensure that employees, and perhaps employees of other entities who might be working with employees of the defendant, are kept safe from the risk of coming into contact with live electrical wires. The risk is well known within the industry and, on the evidence, there are substantial systems adopted by the defendant to address those risks.

26 I am unable to say from the evidence precisely what happened on this particular day. Mr Mulligan has given a version but it is clear that there was testing equipment available, there was a method set down for testing live wires and there was instruction as to how that was to be undertaken to ensure that the lines were de-energised. For whatever the reason that apparently did not occur and led to the untimely death of Mr Goss.

27 The injury received as a result of a workplace accident will not always be the most relevant factor in deciding the objective seriousness of an offence. Here, considering the nature of the industry, the work being performed by the two employees on the day, and the clear capacity for serious and possibly fatal injury to be received, it seems to me that the risk here was high and that the breach must be considered as serious.

28 A number of matters then need to be considered. It is not contested by the defendant that both general and specific deterrence are matters to be considered. General deterrence is required to be considered as part of every offence and so it will be in the course of the Court setting an appropriate penalty in this matter. In relation to specific deterrence, although it was accepted by the defendant to be a consideration, it was submitted that in this case it was not a significant consideration because of factors such as the size of the employer, the systems adopted by it, its attention to occupational health and safety and how, in that context, a record of six offences between 1992 and 2003 might be properly regarded as a good industrial record rather than a bad industrial record.

29 As a matter of principle what may be taken into account in the course of sentencing a defendant requires special care when dealing with the prior record of that defendant. It has been said by the High Court in Veen v the Queen (No 2) (1988) 164 CLR 465 that the effect of the prior criminal record of an offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but, rather, that retribution, deterrence and protection of society may indicate a more severe penalty is warranted. The applicant's criminal record may be such that personal deterrence will be giving more significance than would otherwise be the case. We are reminded by the superior courts, however, that there is a somewhat limited role for the consideration of prior convictions. Nevertheless, it was said by Gleeson CJ, McHugh , Gummow and Hayne JJ in Weininger v the Queen (2003) 212 CLR 619 that a person who has been convicted or commits another offence will, with all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Those statements, of course, are made in the context of the general law. They have, however, application in proceedings under the Occupational Health and Safety Act.

30 Bearing that approach in mind I then come to consider the previous record of this defendant. The certificate of prior convictions shows that in 1992 a fine of $2,000 was imposed for a breach of s 15(1) of the Occupational Health and Safety Act 1983. In early 1998 the Court imposed a penalty of $75,000 for a breach of s 15(1), and in 2001 the Chief Industrial Magistrate imposed a penalty of $15,000 for breaches of s 16(1) of the 1983 Act. I have no other details in relation to those matters, although the prosecutor accepts that none of the six offences represent a prior conviction for this particular type of offence, that is, the circumstances are different in the other cases so that it might not be regarded as the defendant in this case offending by repeating precisely a breach for which it had been previously dealt with.

31 The three most recent decisions involving the defendant commence with the case of Inspector Reynolds v North Power [2001] NSWIRComm 106, a decision of Glynn J delivered in June 2001. There was an energised substation and non-authorised persons, who were not trained in accordance with safety regulations, who came into contact with live wires. I do not see any purpose in further dealing with the particulars of that offence other than noting that there was also an issue about contractors responsibilities that is not present in this case.

32 In paragraph 149 her Honour stated that North Power had impressive safety procedures in place. Her Honour stated that the risk to safety that North Power was guilty of came down to its failure to audit in good time the performance of its employees to ensure they fully understood the defendant's safety requirements, particularly as to granting access to energised equipment. Her Honour referred to that failure not being the outcome of a lack of concern for or a neglect of safety by North Power, and her Honour also referred to the audit process as being significant and formed the view that particular offence fell in the lower range of penalties.

33 In paragraph 151 her Honour stated that she took into account the defendant's involvement in and implementation of safety programs and procedures, the priority placed by North Power on safety as indicated by its safety subcommittee comprising four of its directors, and of the work site hazard program in place since June 1996 in which all employees were fully trained and reviewed each year and the continual improvement concept. Applying the principles from Veen' s case her Honour found that this was something of an uncharacteristic aberration and did not show that North Power had manifested by this offence a continuing attitude of disobedience to the law.

34 The next breach was dealt with by Kavanagh J in May 2002 and involved an employee exposed to risk by using a metal tape measure near a live electrical conductor and involved a prosecution under section 15(1) of the 1983 Act (Inspector Forster v Northpower [2002] NSWIRComm 92). In paragraph 10, after setting out some of the work methods and practices adopted by the defendant, Kavanagh J stated that, read together, the policy and the work methods left to the employee the responsibility to determine what was a safe clearance when working near live electrical current. Her Honour referred to that as being an anomaly in the documents and its presence resulting in there being no true ban on the use of metal tapes in the circumstances where work near high voltage conductors was performed. It was said that the policy and risk assessment documents were devised at different times by different groups within the defendant's operations. That particular finding is significantly different to the nature of the offence which is dealt with in these proceedings. 35 In paragraph 21 of the judgment her Honour said that the industrial history of the company was relevant in the Court's consideration of penalty. Referring to North Power and its other identities and the fact that occupational health and safety standards had first been introduced by legislation in 1983, her Honour then noted that the defendant operated in a high risk industry and, while the industrial record of the defendant was not perfect, it had been operating in this high risk industrial environment for many years and that was perceived to be a good industrial record but that comment, her Honour noted, was made in the context of a Court considering the breach as being a serious breach of the Act. In that case her Honour imposed, after substantial discounts, a penalty of $160,000.

36 The most recent breach was dealt with by Boland J in a case brought by Inspector Mason, (see Inspector Mason v Country Energy [2003] NSWIRComm 206). This judgment was delivered at the end of June 2003 and involved an employee injured when attempting to repair power lines brought down by a crop dusting plane and the absence of a written risk assessment. That was a prosecution brought under section 15(1) of the 1983 Act.

37 In paragraph 19 of that judgment his Honour records a submission for the defendant that the employees had broken the rules, a submission he took as suggesting that the defendant's culpability would therefore be less than it might otherwise be. His Honour was unable to accept that submission and noted, in paragraph 20, that employers could not rely on the judgment and good sense of their employees when it came to health and safety, as the employer's duty was to ensure health, safety and welfare at work of all its employees by, amongst other measures, providing and maintaining safe systems of work. His Honour noted that in this case the defendant's system of work was deficient in that it did not ensure safe access to live overhead power lines, a situation that has perhaps some more proximity to the general context of this particular matter with which the Court is presently dealing. His Honour noted this was a deficiency in respect of which the defendant should have possessed a heightened awareness given previous breaches of the Act, involving working close to live electrical installations.

38 At paragraph 27 his Honour dealt with specific deterrence and stated that, in light of the defendant's prior convictions and the nature of the breaches, he considered that in fixing the level of penalty there was a case for reinforcing the need for constant vigilance on the part of the defendant in relation to its obligations for workplace safety. He noted that consideration had to be tempered by the fact that the defendant took its occupational health and safety responsibilities seriously and, further, it was clear on the evidence that the defendant had taken extensive steps to avoid a recurrence of the accident and was continually updating and improving its occupational health and safety systems and procedures.

39 In my view specific deterrence has more significance in setting an appropriate penalty in this matter than accepted by the defendant in submissions. I accept that consideration has to be given to the large workforce employed by the defendant and the fact that it is a continuing enterprise being pursued by the defendant, also the inherently dangerous nature of the industry but, nevertheless, it seems to me that the record is such that requires an element in specific deterrence to recognise the need for and encourage the need for the defendant to be diligent in ensuring the safety of its employees.

40 There was some debate about the safety systems developed and applied by the defendant. The evidence shows that there are site and field audits, that there is training, there are reviews, there is supervision. It was suggested by the prosecutor that, although steps have been taken to address the particular risk that arose as a result of this accident, it was difficult to see that anything had, in effect, altered compared with the previous safety rules. I am unable to reach that conclusion and it is difficult for the Court to do so in when dealing with a very technical and specialised field of undertaking such as the defendant's and in circumstances where there is extensive training in obtaining primary qualifications, quite apart from the training and instruction specifically provided by the defendant for the purposes of its undertaking.

41 Ultimately, the position is that there is no evidence calling into question what Mr Mulligan says about the effectiveness of the further steps and additional steps taken by the defendant to address the risk exposed by this accident. I am prepared to accept what is said by Mr Mulligan in that regard and the defendant is entitled to be given some credit and some consideration in setting of an appropriate penalty for those steps.

42 Having come to those conclusions I then consider the subjective features of this case. It is not contested that at an early stage the defendant entered an early plea. The defendant entered a plea of guilty and did so immediately the amended application for order was filed in Court. In that regard the defendant is entitled to the full extent of the usual discount of 25 per cent for considerations in relation to the Court's time and the overall promptness of its response to the amended charge.

43 In relation to other subjective features I am satisfied that the defendant has exhibited contrition, and in part that is supported by its early plea, but additionally by the steps taken to assist Mr Goss' family and the steps taken to address the issues raised by this accident. The defendant is to be regarded as a good industrial citizen with its own extensive system of occupational health and safety. It is also important that it co-operated with the WorkCover enquiry in relation to this incident. All those matters are taken into account in its favour in mitigating the penalty, but bearing in mind that those matters can not serve to reduce the objective seriousness of the offence.

44 Having regard to those matters the Court makes the following orders:

1. The defendant is found guilty of a breach of section 8(1) of the Occupational Health and Safety Act 2000 as particularised in matter IRC 4439 of 2005, and in which matter the defendant pleaded guilty to the amended application for order filed in Court on 29 November 2005.
2. The defendant is fined the sum of $145,000 with half that amount to be paid to the prosecutor by way of moiety.
3. The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court.

I should say finally that I have been informed that members of the family of Mr Goss are present. The Court extends its sympathy and condolences to you for your loss.

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