Inspector Low v Watt t/as Aaron Watt Plumbing

Industrial Relations Commission (NSW)|2011-06-28|Before: Boland J, Mr J

Judgment 1The defendant in this matter, Aaron James Watt trading as Aaron Watt Plumbing, has pleaded guilty to an offence under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act"). The offence arose out of an incident that occurred on 14 October 2008 in domestic premises at 27 Buffier Crescent, Rutherford. On that day, Brendan Allwood, an apprentice plumber employed by the defendant, suffered a fatal electric shock whilst assisting the defendant to perform plumbing work. 2Inspector Ian Low of the WorkCover Authority of New South Wales prosecuted the defendant. Inspector Low had alleged that the risk to which Mr Allwood was exposed was a risk of electric shock whilst performing plumbing works at the Rutherford premises in proximity to an electrical circuit that had not been isolated from the electrical power supply to the premises and proven de-energised. It was further alleged the defendant failed to provide: (1) a system of work in relation to the plumbing works to be performed at the premises in proximity to a live electrical circuit which was safe and without risk to health; (2) such information and instruction to his employee as was necessary to ensure the employee's health and safety whilst plumbing works were being undertaken in proximity to a live electrical circuit at the premises; and (3) such supervision to his employee as was necessary to ensure his employee's health and safety whilst plumbing works were being undertaken in proximity to a live electrical circuit at the premises. 3The application by the Inspector for an order that the defendant appear before the Court to answer the charge also particularised the measures the defendant should have taken to ensure Mr Allwood's safety. 4This judgment deals with the sentencing of the defendant.

Agreed statement of facts 5The following facts were agreed: (a) The defendant carried on business as a plumber, drainer and gasfitter providing plumbing services in the Rutherford district in the State of New South Wales. (b) At all material times the defendant employed Mr Allwood as an apprentice plumber. (c) The defendant was retained to carry out an inspection of and repair work to a leaking water pipe at the Rutherford premises, which was a domestic house. (d) The occupier of the premises, Mr Millett, showed the defendant where the water was leaking from a pipe located under the bathroom and toilet area of the subject premises. The defendant inspected the area beneath the bathroom and toilet area of the house. (e) The defendant arranged for an extension power lead to be plugged into a power point in the bathroom of the premises before feeding the extension cord out through the bathroom window to the area adjacent to the leaking water pipe. (f) The defendant arranged for the water supply to be shut off. (g) The defendant determined to repair the leak by removing and replacing a length of the water pipe. The pipe to be cut was a galvanised pipe approximately 25 mm in diameter. At the point where it was to be cut, it extended vertically up a wall and was affixed to the inside edge of a timber bearer by retaining saddles. A second existing copper hot water pipe was also in situ along the bearer. (h) A three core (two core and one earth) electrical cable was also affixed to the bearer by retaining saddles. (i) The defendant attempted to cut the pipe with a hacksaw. However, he was unsuccessful due to the proximity of other pipes. (j) The defendant then exited from under the house, selected an electric grinder from his tools and plugged the electric grinder into the extension lead. (k) The defendant used the angle grinder to cut the pipe. (l) Mr Allwood was also engaged in cutting the pipe with the angle grinder. (m) Mr Millett then saw Mr Allwood come out from under the house, bringing the electric grinder with him. (n) As Mr Allwood was observed coming out from under the house, Mr Millett also heard a groaning noise coming from under the house in the area where the defendant was working. (o) Mr Millett saw Mr Allwood go straight back under the house into the area where the defendant was working. Mr Millett then ducked down to see what was happening and saw Mr Allwood grab hold of the defendant. Mr Millett then saw Mr Allwood move forward on top of the defendant like Mr Allwood was being pulled onto the defendant. Mr Allwood was then lying on the defendant's lap and legs. Mr Millett heard further sounds consistent with groans coming from the area. (p) Mr Millett immediately thought that the defendant and Mr Allwood were being affected by electricity. He disconnected the power and called for assistance. (q) Mr Lawrence, a Senior Installation Inspector, employed by Energy Australia attended at the premises. (r) Upon his arrival at the premises, Mr Lawrence ... carried out an inspection of the area in which the incident had occurred. In the course of his inspection in the area in which the incident had occurred, Mr Lawrence made observations and findings which led him to conclude that a rough, raised section of the galvanised tee-piece attached to a section of galvanised water pipe (i.e. the section of pipe which Mr Millet saw the defendant manipulating at the time of the incident) had pierced the thermo-plastic sheath, exposing a section of copper wire, in the adjacent 6mm 2 "twin and earth" TPS (thermo plastic sheathed) electrical cable. The TPS cable was the garage sub-mains electrical supply cable from the meter box attached to the house to the double garage also located on the premises. The portion of exposed copper wire, within the TPS cable, was found by Mr Lawrence to be the active conductor of the electrical sub-mains circuit supplying electricity to the garage such that contact between the raised, rough edge of the tee-piece would have caused the galvanised pipe section to become "live". (s) Mr Allwood died from electrocution. 6The agreed facts indicated that the risk of electrical shock associated with maintenance work on metallic plumbing services (i.e. pipe work) due to the proximity of electrical services (i.e. electrical cables) was well recognised prior to the incident. Reference was made to the Australian Standard 3500.1.2:1998 which provided that: 5.3.1 Electrical Cables and Gaspipes 5.3.1.1. Water Services Above and Below-Ground Water Services shall be installed so that - (a) no potential safety hazard is created when in close proximity to other services; (b) access for maintenance and potential branch insertions is not impaired by other services. 7The Australian Standard 3500.1:2003 provides, in Section 5 Installation of Cold Water Services, in the subsection entitled "5.3 Proximity to Other Services" as follows: 5.3.1 General Where electrical conduits, wires, cable or consumer gaspipes, drains and other services are in existence, pipes shall be installed in accordance with the requirements of Clauses 5.3.2 to 5.3.10. 5.3.2 Separation from Above-Ground Electrical Conduit, Wire, Cable or Consumer Gaspipes A separation of at least 25mm shall be maintained between any above-ground water service and any of the following services: Electrical conduit. Electrical wire or cable. Consumer gaspipes. 8It was further agreed that: Having regard to the proximity the galvanised pipe to the TPS electrical cable providing electricity to the garage of the premises, the defendant should have isolated the electricity supply from the premises and proved the electrical installation dead (i.e. de-energised) before commencing the subject plumbing. Or alternatively, isolated the electrical supply at the premises from the sub-main circuit to the garage and proved the TPS electrical cable dead (i.e. de-energised) before commencing the plumbing work. The Defendant did not have any safe work procedures or written risk assessments to assist him and Mr Allwood to consider and identify the presence of a risk of electric shock whilst performing plumbing works at the premises in proximity to an electrical circuit that had not been isolated from the electrical power supply to the premises and proven de-energised. The Defendant did not provide any instruction to Mr Allwood that no work should be commenced on the leaking pipe work at the premises, due to the proximity of the TPS electrical cable of the garage electrical sub-main circuit, until either the electrical installation at the premises had been isolated and proven de-energised or the garage electrical sub-main circuit had been isolated and proven de-energised. 9It was agreed the defendant has no prior convictions.

Other evidence 10Mr M Cahill of counsel for the prosecutor also tendered into evidence a factual inspection report prepared by Inspector Graeme Aldred, a series of photographs showing the premises where the incident occurred and the scene of the incident, a report into the incident by Jim Lawson, an electrical engineer with WorkCover, and a report by Cameron James Gleeson, a plumbing consultant and teacher. 11In his report Mr Lawson stated: When the plumber was manoeuvring the piece of galvanised steel pipe away from the pipe supporting saddle on the timber bearer the rough edges of the galvanised tee came into contact with the adjacent TPS cable. This manoeuvring action by the plumber caused a rough edge of the galvanised tee piece to pierce the outer sheath and the internal red coloured insulation of the active conductor of the TPS cable ... The contact of the edge of the galvanised tee piece with the TPS cable active conductor caused the galvanised steel pipe that the plumber was manoeuvring to become energised at approximately 240 volts with respect to earth. This would have caused the plumber to receive an electric shock as he would have been in contact with the ground under the house via his work clothes and work boots. It would appear that the apprentice plumber Brendan Allwood was electrocuted when he attempted to pull Aaron Watt away from the galvanised steel pipe that Aaron Watt was manoeuvring. ... The safest way to have carried out this plumbing work, because of the close proximity to the TPS cable, would have been to turn off the power to all electrical circuits at the main switchboard ... 12In answering a series of questions put to him by WorkCover, Mr Gleeson stated that if AS/NZ 3500.1:2003 clause 5.2 had been observed the damage to the TPS cable could have been foreseen and avoided. That provision requires that the power to the property be switched off before work begins. 13Mr J Pearce of counsel for the defendant tendered into evidence an affidavit of the defendant and a report by Dr W G Warren, clinical and forensic psychologist. The defendant was required for cross-examination. 14Mr Watt is married and has three young children. He is 34 years of age. His affidavit described his plumbing business and the fact that he had not worked as a plumber since 14 October 2008. The business was de-listed on 30 June 2010. The affidavit also identified the defendant's assets, which were: a house in which the defendant is the joint registered owner. The house is encumbered by a mortgage and $268,000 is owed; a vehicle valued at $12,000, unencumbered; a second vehicle jointly owned valued at approximately $15,000, unencumbered; a personal loan in the sum of $16,178.31 as at 31 December 2010; a credit card debt of $4,100. The defendant's spouse works on a casual basis earning approximately $350 per week. 15In cross-examination the defendant revealed he was now employed on a full time basis (subject to completing a probationary period in September 2011) as a truck driver earning approximately $90,000 per annum after tax. The defendant is paying about $400 per week on his mortgage, $110 per week on his personal loan and about $1,200 per week on household expenses. 16In his affidavit the defendant described his relationship with Mr Allwood, which was a close relationship. Mr Allwood was a family friend and he and the defendant had played football together. The defendant described the incident on 14 October 2008. He accepted in cross-examination that he knew using the angle grinder created a risk of cutting the cable and he had instructed Mr Allwood to be careful in that regard, but he gave him no instruction to place a mechanical barrier between the galvanised pipe and the electrical cable. The defendant also accepted that it had been open to him to turn off the power including at the main switchboard. The defendant agreed that had the power been disconnected the risk associated with the cable would have been entirely avoided. 17Mr Watt said that he had spent three days in hospital following the incident; that he blamed himself for Mr Allwood's death and felt very guilty. He had suffered from depression and anxiety and had been unable to work for three months. 18Dr Warren carried out a psychological assessment of the defendant. His report indicated that the defendant had experienced a very significant trauma but his psychological state since the incident had improved. The report stated: Assessment indicated a man who, pre-accident, was functioning optimally, psychologically, and who reacted to the tragic events with common post-trauma symptoms. These symptoms likely met formal criteria for a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood closer to the accident. At the time of the present assessment those symptoms had subsided and he had moved closer to his pre-accident optimum psychological functioning, except that he is still experiencing difficulties. These last difficulties summarise to him not having been able to resume a previous comfortable level of social and interpersonal interactions, as well as coming to terms in his intra-personal life (inner thoughts and pre-occupations) with continuing feelings of guilt and felt negative appraisal by others. Further, he continues to be unable to work at his Trade and would likely need significant counselling a this point in time to be able to do so.... In essence, pre-accident I see a psychologically well-functioning man who experienced significant trauma and reacted with common post-trauma symptoms. Those symptoms at one point likely met formal criteria for a diagnosis, some of those symptoms continuing to the present time and inviting treatment through focused counselling.

Maximum penalty 19The maximum penalty that the Court may impose in this case is $55,000: see s 12(d) of the Act.

Offending conduct 20The defendant has pleaded guilty to what I regard as a serious contravention of s 8(1) of the Act. The contravention involved a failure to ensure that an employee, Mr Allwood, was not exposed to a risk of electric shock whilst performing plumbing work at domestic premises. The failures on the part of the defendant that led to Mr Allwood being exposed, were a failure to provide a safe system of work, a failure to provide necessary information and instruction, and a failure to provide the necessary supervision to Mr Allwood. 21As a consequence of these failures and the exposure to the risk of electric shock, Mr Allwood died. Mr Allwood's death was a manifestation of the seriousness of the risk. Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: Cahill v State of New South Wales (Department of Community Services) (No 4) [2008] NSWIRComm 201; (2008) 182 IR 231 at [35].

Foreseeability of the risk 22It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 at 476. 23The risk was well known in the industry: see The Australian Standard 3500.1.2:1998 at 5.3 and the Australian Standard 3500.1:2003 at 5.3. Further, although the defendant did not foresee the exact manner in which the risk ultimately manifested itself, as the prosecutor submitted, the risk posed by the proximity of the cable to the water pipe was recognised by the defendant because he attempted to isolate the disc of the angle grinder from the cable while the pipe was being cut.

Remedial steps 24The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the risk to safety are relevant in assessing the seriousness of the offence: Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd [1999] NSWIRComm 353; (1999) 92 IR 8 at 27; WorkCover Authority of NSW v ACI Operations Pty Ltd [1994] NSWIRComm 167; [1994] NSWIRC 11; Inspector Elizabeth Benbow v Planada Holdings Pty Ltd [2001] NSWIRComm 275. 25The defendant agreed that had the power been disconnected the risk associated with the cable would have been entirely avoided. That was a step - an obvious and simple step - open to the defendant to have taken. If he needed a power source for his grinder he could either have supplied his own or plugged in next door. But whatever difficulty he might have encountered in finding an alternative to leaving the power on in order to use the grinder, it would have been infinitely safer, in the circumstances, to adopt the alternative.

Deterrence 26General and specific deterrence are matters to be taken into account in sentencing under the Act: Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [71] - [80]; Cahill v DOCS (No 4) at [43]. 27The incident was a tragedy; a young life lost in such mundane and unthreatening circumstances as the local plumber being called to fix a leaking pipe. Like so many workplace incidents resulting in death it happened in a situation where it could have been avoided by a moment's reflection on what was required to ensure safety and in this case by the simple act of throwing a switch to the "off" position on the switchboard of the premises. 28Death by electrocution in the workplace is not uncommon. In the past 10 years there have been 18 prosecutions in this Court where electricity in workplaces has posed a risk to safety. In most cases a death occurred. 29There is a strong case, in my opinion, for including a significant element of general deterrence in the penalty imposed. I take a different view about specific deterrence. The defendant no longer works as a plumber and, instead, drives a truck. The risk of re-offending is low. It is, of course, possible that he will return to his trade; he is still a young man. I have, therefore, included a small element in the penalty for specific deterrence.

Subjective factors 30The prosecutor accepted that the defendant entered a guilty plea at an early stage. He is, therefore, entitled to have that taken into account in mitigation of any sentence imposed: see s 21A(3)(k) of the Crimes (Sentencing Procedure) Act 1999. The prosecutor also accepted there were no factors that would disentitle the defendant to a discount in the order of 25 per cent. 31I am able to accept that the defendant is genuinely remorseful. Mr Watt was a "mate" of Mr Allwood. In blaming himself for Mr Allwood's death the defendant has taken responsibility for his actions and has clearly acknowledged what he has done. His early plea of guilty may also be taken as an indication of his contrition. 32The defendant is entitled to have his prior good record taken into account as a mitigating factor and I note that it is common ground that the defendant cooperated with the WorkCover Authority in its investigation of the incident. 33I also take into account that Mr Watt was injured, that he suffered trauma as a consequence of the incident and, psychologically speaking, is still coming to terms with what occurred. 34Mr Pearce indicated that he had been instructed to seek an application of s 10 of the Crimes (Sentencing Procedure) Act and in doing so provided a helpful summary of the relevant case law in that respect. It is unnecessary to refer to that case law in any detail except to say, as Mr Pearce properly conceded, it has been held at appellate level that s 10 will only be applied in rare circumstances in relation to an offence under the Occupational Health and Safety Act : see WorkCover Authority of NSW v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 100 IR 64 at [23]-[26]; Inspector Downie v Menzies Property Services Pty Ltd [2004] NSWIRComm 259; (2004) 136 IR 449 at [55]-[57]; Morrison v Powercoal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 at [131]. 35The offence in this case is an objectively serious offence that should attract a penalty towards the high end of the range. It is not an offence that would attract s 10. 36The defendant did not contend he had no capacity to pay any fine imposed on him. Counsel did, however, request the Court to have regard to the defendant's financial circumstances, outlined earlier in this judgment because the defendant had a " severely reduced capacity to pay a fine": see Inspector Hopkins v Wherrit t/as M J Wherrit Concrete Pumping Services [2002] NSWIRComm 16; Inspector Nikolovski v McCrudden (No 2) [2011] NSWIRComm 73 at [37]-[39]. Counsel also requested the Court to have regard to costs in determining an appropriate penalty: Morrison v Centennial Coal Company Ltd [2010] NSWIRComm 4 at [92]-[98]; McCrudden at [37]-[39]. 37In Wherrit, the evidence demonstrated that the defendant was on sickness benefits and was performing very few duties associated with the business. In recent years, he had made relatively small amounts of money from the business as income and that the business was losing money. Haylen J observed at [59] that: It is clear that Mr Wherrit will pay the penalty imposed from his own meagre and stretched financial resources. 38It does not seem to me that the defendant in the present case is in the same financially straitened circumstances as Mr Wherrit. Moreover, as Wright J, President observed in WorkCover Authority of New South Wales (Inspector Benbow) v Converquip Pty Ltd [2001] NSWIRComm 85; (2001) 106 IR 258, a consideration of the means of the defendant with a conclusion that a heavy fine may be a burden on the defendant and its financial resources, does not necessarily preclude the imposition of a heavy penalty. 39In Centennial Coal I stated at [96]-[97]: [96] The defendants did not oppose an order that they pay the prosecutor's costs as agreed or assessed. However, it was submitted that in considering the appropriate penalties the Court should take into account the fact that a defendants will have to pay the prosecutor's costs. It was submitted, and it would appear to be right, that costs are to be regarded as part of the defendant's punishment: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], [88]; Environment Protection Authority v Hardt [2007] NSWLEC 284 at [66]. [97] I have not been apprised of the amount of legal costs the defendants will be liable to pay but it is a reasonable expectation they will be substantial. In arriving at the penalties I have taken this into account. 40Whether or not the costs are substantial in this case - but I presume they would not be insubstantial - I take the same approach as that in Centennial Coal in that in arriving at penalty I have taken costs into account. 41I accept the defendant's plea of guilty and convict the defendant of the charge. 42I am conscious of the fact that I am dealing with a relatively young man of good character with a young family who made a tragic mistake. The defendant is truly remorseful, entered an early guilty plea and carries with him a sense of guilt over what occurred to his mate. The defendant is not a wealthy individual yet he is not financially stretched. The offence was objectively serious and general deterrence is a significant factor to be taken into account in fixing any penalty. 43I consider an appropriate penalty in this case, having regard to all of the relevant considerations, is $25,000.

Victim Impact Statements 44By reason of s 27(2A) of the Crimes (Sentencing Procedure) Act , Division 2 of Part 3 of that Act dealing with victim impact statements only applies to an offence being dealt with by the Industrial Relations Commission if: (a) the offence is an offence against Division 1 of Part 2 of the Occupational Health and Safety Act 2000 or Division 1 of Part 2 of the Rail Safety Act 2008,and (b) the offence results in the death of, or actual physical bodily harm to, any person. That provision is satisfied in relation to the present proceedings. 45If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender: s 28(1) of the Crimes (Sentencing Procedure) Act . Section 28(3) provides that if the primary victim has died as a direct result of the offence, a court must receive a victim impact statement given by a family victim and acknowledge its receipt, and may make any comment on it that the court considers appropriate. Section 28(4)(b) provides that the court must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so. 46The Court has received victim impact statements from Joanne Marie Allwood, mother of Mr Allwood and Loryn Grace Allwood, Mr Allwood's sister. I acknowledge receipt of those statements. 47Joanne Allwood described the impact of the death of her son on her mental health. She has suffered clinical depression and required medication to cope. She is seeing a counsellor. Ms Joanne Allwood has mood swings, she is unable to sleep and found herself consuming more alcohol that usual in trying to cope. She has difficulty coping in social situations. 48Joanne Allwood said "I don't let people close as I am afraid of them dying (she lost her husband three years previously). My relationships have suffered because people are trying to be too sensitive of my needs and don't include me in the things they once did". 49Ms Allwood had been training for a Certificate IV in aged care nursing, but said she could not train effectively "on all the aspects of death and dying as it was too emotional for me". The inability to train and obtain the certificate had "a large financial impact" on Ms Allwood and she was unable to continue working. Ms Allwood said she felt cheated by the loss of her son, that "I won't hold his children in my arms, and am sorry that he won't pass on his father's name". 50Ms Loryn Allwood described what occurred on being called to the hospital on the day of the incident and on seeing the body of her brother. It was obviously a most traumatic experience for her. She said she felt as though "a part of me died that day too". 51Since then Ms Loryn Allwood said her life has never been the same. Initially she cried all day, could not sleep or eat and was in denial about what had happened. She was angry, constantly tired and tried drinking to cope. Ms Allwood said she was depressed, did not want to leave the house and when she did get to sleep, experienced nightmares and woke up hysterical. Ms Allwood said she was close to her brother and he was protective of her. She felt lonely and worried for her mother. 52Ms Allwood was an assistant in nursing in an aged care home, but found she could no longer cope with that work. This caused a finacial burden on her. Ms Allwood now feels anxious, feels a great fear of death and fears simple tasks such as plugging in an electrical appliance. 53Ms Allwood commenced a new job involving workplace safety in the mining industry, but she later left that employment on the advice of her doctor because it created too much emotional stress. 54Ms Allwood said: 2 and a half years later I still feel pain and heart ache everyday from losing my brother. I still cry myself to sleep some nights knowing that I am never going to hug him again and that he's never going to walk me down the aisle like he always promised to do. His death has not only impacted me but it has impacted the whole community and I still talk to people on a daily basis about how much we miss Brendan and how life will never be the same without someone who is loved so much, by so many people. I don't think I will ever fully recover from this. I am just learning how to live with the circumstances. 55There was no objection to the victim impact statements and no call to cross-examine either statement maker. 56I am unable to take into account the effect of Mr Allwood's death on his mother and sister in determining penalty: see discussion in Inspector Lancaster v M L Colturi Sawmills Pty Ltd [2011] NSWIRComm 47 at [80]-[90]. 57I am effectively limited to acknowledging in this judgment the impact on them of his death. I have recorded what the mother and sister have said in their statements in some detail in order that the community, but particularly employers, are exposed to the feelings of grief and trauma families experience where a loved one loses his or her life at work and the ruinous effect on their own lives. The Court extends its deepest sympathy to Mr Allwood's mother and sister for their loss.

Orders 58The Court makes the following orders: (1) The defendant is found guilty of the offence charged under s 8(1) of the Occupational Health and Safety Act 2000. (2) The defendant is fined an amount of $25,000 with a moiety to the prosecutor. (3) The defendant shall pay the costs of the prosecutor as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2011

[1999] NSWIRComm 353

[1999] NSWIRComm 343

[1994] NSWIRComm 167

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