Inspector Mason v Country Energy

Industrial Relations Commission (NSW)|1994-03-10|Before: Boland J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Mason v Country Energy [2003] NSWIRComm 206 PROSECUTION Inspector Gary Mason PARTIES : DEFENDANT Country Energy (formerly known as NorthPower) FILE NUMBER: IRC 1279 of 2002 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under s 15 (1) of the Occupational Health & Safety Act - Employee injured when attempting to repair power lines brought down by crop dusting plane - Employee suffered serious burns - Failure to provide a safe system of work - No written risk assessment - Offence proven - Penalty imposed LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610, 99 IR 29 Independent Cargo and Wool Services Pty Ltd v Inspector Frank Paul Mingare (Industrial Court of NSW [Full Court] Unreported, 10 March 1994, at 4) Inspector John Forster v NorthPower [2002] NSWIRComm 92 Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 R v Dodd (1991) 57 A Crim R 349 CASES CITED : R v Thompson, R v Houlton [2000] NSWCCA 309 Wales v NorthPower (formerly known as Northern Rivers) [1998] NSWIRComm 35 WorkCover Authority (Inspector Tyler) v Sydney Electricity (1993) 47 IR 1 WorkCover Authority NSW (Inspector Tynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd & Anor [2000] NSWIRComm 277 WorkCover Authority of NSW (Inspector Reynolds) v NorthPower [2001] NSWIRComm 104 WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd (No 2) (2000) 99 IR 163 HEARING DATES: 04/16/2003 DATE OF JUDGMENT: 06/26/2003

PROSECUTOR: Mr M Cahill of counsel Solicitor: Ms R Panagoda WorkCover Legal Group LEGAL REPRESENTATIVES: DEFENDANT: Mr R Warren of counsel Solicitor: Mr A Grinsell-Jones Deacons

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

INSPECTOR MASON v COUNTRY ENERGY (formerly known as NORTH POWER)

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2003] NSWIRComm 206 1 Country Energy (formerly known as NorthPower), the defendant in these proceedings, carried on business as an electricity supplier/distributor. The defendant's business also included the establishment, maintenance and provision of facilities and services ancillary or incidental to its principal business, including but not limited to the repair and maintenance of the electricity transmission and distribution network in its electricity distribution area.

2 The defendant was responsible for an overhead distribution line that was a 22 kv (ie high voltage) feeder utilising two high voltage wires supported on wooden poles. The distribution line crossed a property, known as "Milo" ("the site"), situated approximately 20kms north of Moree in the State of New South Wales. The site was a cotton field and irrigation had made it muddy and hard to walk through.

3 On 28 December 2000 a crop dusting plane struck the 22 kV overhead distribution line and dislodged a live transmission wire that fell within 1.5 metres to the ground at its lowest point. The defendant was notified and Mr Gregory Cook, a "live line worker" and Mr Raymond Buddee an "electrical technician linesman" both employed by the defendant, attended the site. Mr Buddee and Mr Cook agreed that Mr Cook was "to walk the line" for the purpose of conducting a visual inspection. Whilst Mr Cook was "walking the line", Mr Buddee was to go and isolate the power supply at the nearest available "isolation point". The nearest "isolation point" was located about seven kilometres back from the site towards Moree where isolating links were situated.

4 Whilst carrying out the inspection Mr Cook came into contact with the live transmission line. Mr Cook received an electric shock that caused severe burns to various parts of his body.

5 The defendant was prosecuted in relation to the incident on 28 December 2000 pursuant to s 15(1) of the Occupational Health and Safety Act 1983. Section 15(1) provides: 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

6 In his amended application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 the prosecutor, Inspector Gary Mason of the WorkCover Authority of New South Wales, alleged that the defendant: being an employer, on 28 December 2000, at Field 19, "Milo" Australian Food & Fibre Limited property situated approximately 20 kilometres north of Moree in the State:

Ensure the health, safety and welfare at work of all its employees, particularly Gregory Cook and Raymond Buddee, in failing to ensure the health, safety and welfare at work of its employees contrary to s 15(1) of the Occupational Health and Safety Act 1983. In particular the defendant failed to provide or maintain a system of work that allows safe access to live overhead power lines that was safe and without risks to health and welfare to the employer's employees, particularly Gregory Cook and Raymond Buddee. As a result of the said failure Gregory Cook suffered very serious injuries and Raymond Buddee was place at risk of injury.

7 The defendant pleaded guilty to the charge against it.

8 An agreed statement of facts together with a series of photographs was tendered by the prosecutor. In order to understand precisely how the accident occurred it is necessary to refer to what is a detailed statement of agreed facts. After relating the relevant background details the agreed statement referred to the role of the crop duster plane:

At all material times Aircair Moree Pty Ltd operated an AT 400 Air Tractor, registration number VH-ACQ. The AT 400 Air Tractor was a crop duster capable of holding 400 US gallons of liquid in its tanks for the purpose of aerial spraying. 12. At all material times the AT 400 Air Tractor was piloted by Mr Tod Stubbs. At the same time and place, Mr Matt James, an employee of Aircair Moree Pty Ltd, acted as a spotter for Mr Stubbs during the operation. Mr James' job was to keep an eye on weather conditions; place ground markers to identify the shape of the ground for Mr Stubbs and to supply Mr Stubbs with any other information Mr Stubbs required with respect to ground activities. 13. At about 5:00am on 28 December 2000 Mr Stubbs, assisted by Mr James, commenced aerial spraying of the site. 14. At about 5:30am on that day, whilst carrying out aerial spraying of the site, the fin of the AT 400 Air Tractor struck the above-mentioned 22 kV overhead distribution line. 15. On impact, both of the overhead wires were dislodged from their supporting insulators located on power pole number 82-120101116. One of the overhead wires came to rest on the wooden cross arm on the power pole. The other overhead wire fell towards the ground. A 500mm long piece of the cross arm with insulator attached broke off and fell to the ground), landing about 15 metres from the pole. After falling from the pole, the overhead wire struck the rows of cotton bushes. At rest it hung in a "sagged position" about 1.5metres from the ground at its lowest point. 17. The sun rose at 6.05 a.m. on 28 December 2002. There was almost complete cloud cover on the day. At the time of his inspection at 1.05 p.m. on that day the Inspector found it very hard to distinguish the downed overhead distribution line from the background of the field and sky. 18. At about 6:04am the Defendant was notified of the incident. 19. At about 6:17am the Defendant called Mr Cook to attend at the incident site. Shortly thereafter, at about 6:18am the Defendant also called Mr Buddee to attend the site of the incident. Mr Cook and Mr Buddee proceeded separately to the site. 20. Mr Buddee arrived at the site at about 6:45am. Shortly after Mr Buddee arrived, Mr Cook also attended at the site. Following their arrival at the site, Mr Buddee and Mr Cook spoke with Mr Gregory Cartwright, a farmhand employed by the owner of "Milo", Australian Food & Fibre Limited. Mr Cartwright suggested to Mr Buddee and Mr Cook that they use an aircraft to inspect the overhead distribution line and the power pole because of the muddy state of the field over which the overhead distribution line passed and in which the power pole was located. 21. Mr Buddee and Mr Cook ascertained the approximate position of the breaks in the overhead distribution line Then, Mr Cook and Mr Buddee discussed the steps necessary to enable the gathering of information about the damage to the overhead distribution line and/or poles that needed to be ascertained before they could plan and carry out any repair work. 22. Mr Buddee and Mr Cook agreed that Mr Cook was "to walk the line" for the purpose of conducting a visual inspection of the overhead distribution line and the adjacent power poles, in particular, power pole number 82-120101115. Whilst Mr Cook was "walking the line", Mr Buddee was to go and isolate the power supply at the nearest available "isolation point". The nearest "isolation point" was located about 7kms back from the site towards Moree where isolating links were situated. 23. Mr Cook and Mr Buddee talked about filling in a NorthPower risk assessment prior to isolating the power. A NorthPower Worksite Risk Assessment (WRA) Overhead, URD & Live Line SWF.02.001 was in Mr Buddee's truck at the time. But, neither Mr Cook nor Mr Buddee made any assessment of the risks associated with the downing of the transmission lines and/or the state of the field. 24. Shortly after the conversation between Mr Cook and Mr Buddee, Mr Buddee left the site to isolate the power supply. At this time, Mr Cook started to walk towards the fallen overhead distribution line and the above-mentioned power pole. 25. At the time that Mr Cook commenced walking towards the fallen overhead distribution line and the abovementioned power pole, Mr Cook was wearing a cap rather than the safety helmet provided by his employer as part of his personal protective equipment. 26. At about this time, Mr Mackay, another employee of Australian Food & Fibre Limited, was driving along the road adjacent to the eastern side of the site. Mr MacKay observed Mr Cook walking across the cotton field towards the fallen overhead distribution line. According to Mr Mackay, Mr Cook appeared to be having difficulty walking because of the muddy condition of the field. Mr Mackay then saw Mr Cook overbalance and throw one of his arms into the air. Mr MacKay then saw a flash and heard a loud bang before Mr Cook fell out of sight into the crop. 27. Mr Mackay then drove to Mr Cook's NorthPower vehicle and used the radio located in that vehicle to contact Mr Buddee. Mr Mackay told Mr Buddee that his partner was down. 28. After contacting Mr Buddee, Mr Mackay crossed the field to go to the assistance of Mr Cook. Mr Mackay found Mr Cook lying face down in the mud and unconscious about one metre to the side of the live transmission line. 29. At the time Mr Mackay approached Mr Cook the fallen overhead distribution line had still not been isolated. 30. At about 6:56am Mr Buddee contacted the Defendant and requested that the power to the overhead distribution lines be isolated. At 6:57am the Defendant isolated the relevant portion of the overhead distribution lines that they were de-energised. 31. As a consequence of inadvertently getting too close to or actually contacting the live low hanging wire Mr Cook received an electric shock that caused severe burns to various parts of his body. Emergency treatment was administered at the site and Mr Cook was then removed from the area using a 4WD tractor fitted with a forklift attachment. After Mr Cook had been successfully removed from the field, he was transported to Moree Base Hospital in a critical condition. Mr Cook was subsequently transferred to Tamworth Base Hospital for further treatment and on 2 January 2001 Mr Cook was transferred to Concord Hospital in Sydney for specialist care, further assessment and specialist burns treatment. 32. Following the incident, Mr Cook was found to have suffered extensive burns to both feet and a burn o his head, together with other head injuries. Mr Cook has undergone two skin grafts from his legs. Mr Cook suffered burning sensations in both feet following the incident. Mr Cook also has a scar as a consequence of a tracheotomy and further surgical scarring on his abdomen. On 24 February 2003 Mr Cook informed WorkCover Authority that he has permanent burns on both feet. In November 2002 he received surgery to reduce the permanent scarring on his head and is currently waiting for a neurologist consultation. He is still having trouble breathing.

9 The agreed statement also stated: 33. When the Inspector attended at the Site at 5:00pm on 28 December 2000 he sought the assistance of Mr MacKay, an employee of Australian Food & Fibre Limited to transport him to the Site of the subject incident in a 4WD tractor. The Inspector needed to be transported to the Site of the incident in a 4WD tractor because of the difficulty associated with walking in the mud. When the Inspector stepped from the tractor, his feet sunk into the mud to a level just below his knees. Once the Inspector had sunk into the soil to a level just below his knees, he found it very hard to walk without falling over.

At all material times a document called "NorthPower Operational Policy Electrical Safety Rules SWP.01.001 dated 24 July 2000" was in force. ("the Electrical Safety Rules"). 35. Clause 4.6.3 of the Electrical Safety Rules provides that: "Safety helmets must be worn for all work on overhead lines and by all persons working with and assisting staff working on overhead lines."

Further, Clause 4.6.1 of the Electrical Safety Rules entitled "Basic Safety Principles" provides that: "Before commencing work on any overhead line or support carrying live equipment at any voltage, a written assessment and hazard control checklist must be completed. This is a requirement under Clause 7.3.2 and 7.3.38 of the Code of Practice for Electricity Transmission and Distribution Asset Management and in accordance with NorthPower's worksite Hazard and Risk Control Assessment Procedure SWP02001" 37. On 28 February 2001 the Defendant issued a "Hazard Alert" with respect to the subject incident …

10 Other evidence tendered in the proceedings included: · A factual inspection report relating to the accident prepared by Inspector Mason on 10 January 2001.

· A bundle of 16 colour photographs showing the scene of the accident, the muddy condition of the cotton field, the height of the fallen power line, the damaged fin of the crop dusting plane and burn marks on items of Mr Cook's clothing.

· A statement of the defendant's prior convictions which showed five prior convictions since 1992 the latest being in 2002 when the defendant was fined $160,000 for a breach of s 15(1) of the Occupational Health and Safety Act .

· An affidavit of Trevor Gilson, the defendant's group manager, safety environment and quality.

11 Mr Gilson was not required for cross examination. His affidavit addressed the following matters: · The investigation report and preventative action plan prepared by Mr Gilson following the accident. · The training that had been provided to Mr Cook since his commencement in employment with the defendant in April 1995. · The training that had been provided to Mr Buddee since his commencement with the defendant's predecessor in January 1992. · The remedial action taken by the defendant to avoid a recurrence of the accident.

· The development of a portable warning device that could be worn by an electricity worker to warn of the proximity to live power lines. · Ongoing improvements to the defendant's system of occupational health and safety. · Assistance provided by the defendant to Mr Cook and his family and to staff and farm workers involved in Mr Cook's rescue. · An expression of regret for the accident and subsequent injuries suffered by Mr Cook.

12 Mr M Cahill of counsel appeared for the prosecutor. Mr Cahill helpfully provided written submissions. His submissions may be summarised as follows:

· The maximum penalty in this case is $825,000. It indicates the gravity of such an offence as perceived by both the Parliament and the community. (See WorkCover Authority of NSW (Inspector Petar Ankucic) v McDonald's Australia Ltd & Anor [2000] NSWIRComm 277 at 47; see also Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 698-699 per Kirby P).

· The primary factor to be considered in determining the sentence to be imposed is "…the objective seriousness of the offence charged" and "(E)ach crime…has its (own) objective gravity…" And the proper approach to sentencing involves an initial consideration of the gravity of the subject offence viewed objectively. See R v Dodd (1991) 57 A Crim R 349 at 354; see also WorkCover Authority of NSW (Inspector Victor Page) v Walco Hoist Rentals Pty Ltd at pp 32; Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 at 476.

· The objective seriousness of the offence will be reflected in the "nature and quality" of the offence: Properly considered, we consider that the true measure of penalty lies in the nature and quality of the offence and not merely the result of the offence. If in any given case the failure involved was a serious and obvious one, with a clear potential for creating dangers to persons employed in the industry, even though no-one was killed or injured, the case, because of its nature and quality, may well require the imposition of a major penalty. Independent Cargo and Wool Services Pty Ltd v Inspector Frank Paul Mingare (Industrial Court of NSW [Full Court] Unreported, 10 March 1994, at 4). · Undoubtedly, the information contained in the affidavit sworn 2 April 2003 of Mr Trevor Gilson and the annexures thereto, indicates that prior to the subject incident: (a) the defendant had in place relevant, written Occupational Health & Safety systems ; and (b) the defendant provided training to Mr Buddee and Mr Cook in respect of those work systems. · Further, the available evidence indicates that: (a) neither Mr Cook nor Mr Buddee completed a written risk assessment and hazard control checklist, as required by Clause 7.3.2 and 7.3.8 of the Code of Practice for Electricity Transmission and Distribution Asset Management, before Mr Cook commenced to "walk the line"; (b) Mr Cook proceeded to "walk the line" and, in fact, approached the downed transmission line before Mr Buddee had isolated it; and (c) Mr Cook was not complying with the defendant's requirements with respect to PPE, in that he was not wearing an approved safety helmet. · But, to the extent that Mr Cook and Mr Buddee failed to comply with the defendant's safe working practices, Section 15(1) of the Act obliges employers to maintain and enforce safe systems of work; to be proactive with a view to preventing risks of injuries - not merely reacting to them. In this regard, the strict nature of the obligation imposed on an employer and the high standard of care required is reflected in the observations made by Bauer J in WorkCover Authority NSW (Inspector Tynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety, as well as the foreseeable technical risks in industry. · In the circumstances, the defendant's failure to ensure that its employees complied with its own safe working systems, constitutes a significant breach of the Act.

· Further, it is significant to note that, whilst live, the downed 22-kilovolt transmission line constituted a grave risk to safety to any person approaching it. As was observed by Hill J in WorkCover Authority (Inspector Tyler) v Sydney Electricity (1993) 47 IR 1: [T]he risks and the gravity of the danger involved in operations of this nature, involving as they do work on and immediately about, and possible contact with, very high voltage electrical cable, are high and self evident [at page 5]. · Indeed, the subject incident would not have occurred if the 22-kilovolt transmission line had been electrically isolated prior to Mr Cook accessing the field and "walking the line". It follows that: [In my opinion] although safety precautions were in place (those in the safety manual) they were deficient and indeed, they were seemingly not followed. WorkCover Authority (Inspector Tyler) v Sydney Electricity [also at page 5]. · Therefore, the breach is a serious one. The breach involves a significant risk of grave injury that was capable of being obviated or, indeed, eliminated by a simple, straight forward precaution. The risk was evident and even the simplest of risk or hazard analysis should have been sufficient to identify the risk and the need to isolate the line before anyone approached the downed transmission line. · Further, both general and specific deterrence are matters that should be taken into account in determining the appropriate penalty to be imposed in the context of the present case.

· In particular, the Full Bench of the Industrial Relations Commission in Court Session has recognised that in the industrial context, it is rare that a sentencing court need not impose a sentence that includes an element of general deterrence. [See: Capral Aluminium Ltd v WorkCover Authority of NSW [2000] NSWIRComm 71 at 73ff].

· Further, as observed above, working with high-voltage electricity is a notoriously dangerous task and the dangers associated with it are manifest. In the circumstances, the defendant's industrial history is such that the need for specific deterrence should not be discounted. The defendant has three previous convictions unde the Act involving the exposure of workers to the risk associated with working in close proximity to live electrical installations in circumstances where in each case for reasons associated with the nature of the work itself, the safe working distances were not sufficient to maintain protection for the workers and where there was a need for precise adherence to safe working distances: Wales v NorthPower (formerly known as Northern Rivers) [1998] NSWIRComm 35; WorkCover Authority of NSW (Inspector Reynolds) v NorthPower [2001] NSWIRComm 104; Inspector John Forster v NorthPower [2002] NSWIRComm 92

· Therefore, the penalty to be imposed should reflect the need to direct not only the attention of the defendant to the need for a vigilant, pro-active approach to occupational, health & safety, but also to highlight that message to others operating in the industry. · The defendant entered its plea of guilty at an early stage and therefore, the defendant is entitled to have the full benefit of that plea reflected in the penalty to be imposed. · The defendant is entitled to a discount with respect to its undoubted cooperation with the WorkCover Authority in the investigation of the subject incident. The defendant made its officers available to be interviewed by the WorkCover Authority and provided copies of all relevant investigation reports.

· However, as the defendant is adversely recorded, the defendant is not entitled to the leniency that is normally extended to an employer who has a record of good industrial citizenship, including compliance with the occupational health & safety regime in force in this State.

13 Mr R S Warren of counsel appeared for the defendant. Mr Warren's submissions may be summarised as follows:

· Mr Cook and Mr Buddee were highly trained and experienced employees who knew what the safety rules were in relation to approaching fallen power lines including the wearing of hard hats. They were also aware of the need to undertake a written risk assessment before commencing work. Mr Cook, the senior of the two employees, had been reminded of this requirement only two weeks previously in undertaking a training course and in completing his competency assessment demonstrated his awareness of the requirement. · Filling out of the risk assessment form, which the two employees failed to do, would have identified the risk and the need to turn off the electricity before approaching the fallen wire. · The defendant is in the forefront of exploring and implementing safety measures. The defendant is committed to continuous improvement of occupational health and safety. · The defendant provided significant assistance to Mr Cook and his family and to others who required counselling in relation to Mr Cook's rescue. Mr Cook has been retrained and is working in another area of the defendant's operations. · The degree of foreseeability was low given the experience and training of Mr Cook and Mr Buddee.

· The defendant is a large organisation in a dangerous industry but it has a very good safety record when one considers the number of lost time injuries. · The defendant entered an early plea of guilty. · The defendant feels a sense of injustice given that it was the crop dusting plane that set off the chain of events that created the risk to health an safety and neither the crop dusting pilot or the company were prosecuted. · The previous convictions referred to by Mr Cahill do not reflect a propensity to re-offend. Each involved a particular and peculiar set of circumstances that gave rise to a risk to safety and in each case the defendant took steps to ensure that the risk does not occur again. · The penalty should be fixed at the low end of the range. Consideration

14 Mr Gilson's report into the accident probably comes closest to explaining what happened and why: Cook must not have realised how close he had got to the live wire. The cotton rows he was crossing are at an angle of about 60 degrees to the line. Cook would have been concentrating on where to place his feet relative to the cotton bushes, trying to avoid stepping into the troughs of the rows, trying to avoid stumbling as he dragged his mud-caked boots from row to row. In concentrating on this and periodically looking up at the quite thin wire and with nothing to aid his judging the distance to the wire, the path he took must have brought him closer to the low wire. This scenario appears to have been confirmed by a re-enactment some days after the accident. 15 As to the nature and quality of the offence it is apparent that the defendant takes its responsibilities for health and safety very seriously and that is to a significant extent reflected in the training of employees and the systems in place to protect them. The defendant contended that if Mr Cook and Mr Buddee had followed the safe working requirements relevant to work associated with fallen power lines, the risk to safety would have been avoided. That is, if a risk assessment had been carried out the risk would have become apparent and Mr Cook would not have approached the wire before it had been isolated. Further, if Mr Cook had worn a hard hat his injuries may have been less severe (Mr Cook's head apparently came into contact with the power line and he was only wearing a cloth cap).

16 I am not certain that the act of undertaking a written risk assessment would have necessarily avoided the risk in this case. It may have created an increased awareness of the risk on Mr Cook's part but I am not convinced he would have decided not to approach the fallen power line until it had been isolated. Both Mr Buddee and Mr Cook talked about filling in the risk assessment form prior to isolating the power and they talked about the field being exceptionally muddy but they did not fill in the assessment sheets.

17 The risk control assessment sheets that employees of the defendant are required to complete before performing any work lists a series of questions that would assist to identify risks and hazards. The only relevant hazard that Mr Cook and Mr Buddee might have identified on the list was "Have trip hazards, ground depressions or obstacles been identified?" But I can imagine Mr Cook may well have taken the view that he could not identify any risks until he took a closer look because it was difficult to see the wire against the background of the field and clouded sky. He may well have taken the view that after taking a closer look he would be in a better position to assess the risk. Once in the field he no doubt found it very boggy and difficult to keep his feet. He was aware that the minimum safety distance to keep from a 22kv wire was one metre. It may have been that he kept that distance but on losing his balance in the mud his head came into contact with the live power line.

18 A minimum safety distance of one metre from a live high voltage line seems to me to be inadequate. If a worker keeping that distance were to trip, there is every likelihood the worker would come into contact with the line.

19 It was said by counsel for the defendants that Mr Cook and Mr Buddee broke the rules, the implication being that, consequently, the defendant's culpability is less than it otherwise would be. But as I have said, even if Mr Cook had carried out a written risk assessment before proceeding to inspect the fallen line, it is questionable whether it would have made any difference. In my opinion, in the circumstances Mr Cook and Mr Buddee found themselves, the risk assessment did not provide much more assistance towards identifying risk than an exercise in commonsense.

20 The position is, however, that employers cannot rely on the judgment and good sense of their employees when it comes to health and safety. The employer's duty is to ensure the health, safety and welfare at work of all of its employees by, amongst other measures, providing and maintaining safe systems of work. In this case, the defendant's system of work was deficient in that it did not ensure safe access to live overhead power lines. This was a deficiency in respect of which the defendant should have possessed a heightened awareness given previous breaches of the Act involving proximity to live electrical installations. Moreover, as Hill J observed in WorkCover Authority of NSW (Inspector Tyler) v Sydney Electricity at 5: [T]he risks and the gravity of the danger involved in operations of this nature, involving as they do work on and immediately about, and possible contact with, very high voltage electrical cable, are high and self evident.

21 In the circumstances described by Hill J every risk and every possible loophole in a safety procedure has to be considered and eliminated by an employer, including every reasonably practicable step taken to ensure employees adhere to safety instructions and procedures and understand that death could be the consequence of "inadvertence, inattention, haste and … foolish disregard of personal safety …" See WorkCover Authority NSW (Inspector Tynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257 per Bauer J.

22 In the present case I consider that, firstly, the defendant failed to ensure that its employees complied with its safe working system but I also consider that the system was deficient in that even if a written risk assessment had been carried prior to Mr Cook carrying out his inspection, the assessment would not have readily identified the risk. Further, I consider the minimum safety distance of one metre is inadequate in circumstances of broken, uneven or boggy terrain.

23 Whilst I have been critical of the defendant's failure to ensure safe access to live power lines that has to be seen, firstly, against the background of an employer who is seriously committed to protecting its employees and, secondly, in light of the fact that, for some inexplicable reason, there was a grave lapse in judgment at least by Mr Cook. Even if he was having difficulty identifying any hazards from the edge of the field, as soon as Mr Cook stepped into the boggy field and became aware of the difficulty of making progress without falling over, and probably found it difficult to distinguish the downed line from the background of the field and sky, he should not have proceeded any closer to the fallen line without first ensuring it was isolated. I note that a farmhand, Mr Cartwright, who no doubt had some experience with the difficulty of negotiating a muddy cotton field, suggested to Mr Cook and Mr Buddee that they use an aircraft to inspect the line.

24 In any event, the risk to safety was easily avoidable. Where a worker has any doubt about the safety of approaching a fallen power line or the approach to the fallen line is hazardous or difficult as it was obviously so in this case, the absolute requirement should be to isolate the fallen power line before any person may approach the line. Any risk assessment should reflect this requirement. Further, the minimum safety distance from the live wire in the circumstances confronting Mr Cook should be set at more than one metre.

25 Having regard to the foregoing considerations I regard the breach by the defendant of s 15(1) as moderately serious. I note, of course, in this respect that the maximum penalty in this case is $825,000.

26 In relation to general deterrence I have had regard to the principles set out by the Full Bench in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 at pars [71] - [80] and, in particular, that in setting the level of penalty it is important to ensure it is set at a level that will realistically operate as a deterrent but not so high as to be oppressive.

27 As to specific deterrence, in light of the defendant's prior convictions and the nature of the breaches I consider that in fixing the level of penalty there is a case for reinforcing the need for constant vigilance on the part of the defendant in relation to its obligations for workplace safety. That consideration has to be tempered by the fact that the defendant does take its occupational health and safety responsibilities seriously. Further, it is clear that the defendant has taken extensive steps to avoid a recurrence of the accident and is continually updating and improving its occupational health and safety systems and procedures.

28 There are a number of subjective factors which, although they play a subsidiary role in the determination of penalty to the gravity of the offence itself must, nevertheless, be taken into account. Firstly, there was an early plea of guilty and the defendant is entitled to a discount on the penalty for the utilitarian value of that early plea: R v Thompson; R v Houlton [2000] NSWCCA 309. The prosecution also accepted that the defendant cooperated in the investigation of the accident. I have also had regard to the steps taken by the defendant to avoid any recurrence of the incident that occurred on 28 December 2000 and defendant's commitment to a high standard of occupational health and safety within its operations. The defendant has also demonstrated a very commendable regard for the welfare of its employees and their families given the extent of assistance and support it provided to Mr Cook and his family following the injuries received by Mr Cook.

29 In the course of the hearing I inquired whether anyone associated with the crop dusting plane had been prosecuted in relation to what occurred on 28 December 2000 given that it was the plane that set off the chain off events resulting in Mr Cook's injuries. Whilst it is a matter for the prosecutor as to who might be prosecuted, apparently there were "jurisdictional issues" which may have prevented such a prosecution. I note in one of the attachments to Mr Gilson's affidavit a letter from the defendant to the Civil Aviation Safety Authority in March 2001 expressing concern at the number of collisions between low flying aerial agricultural aircraft and power lines. in the defendant's network area. The letter indicated there had been 23 reported "wirestrikes" in the period 19 December 1997 and 23 March 2001.

30 I do not know what the "jurisdictional issues" are that might prevent the WorkCover Authority of New South Wales launching prosecutions against pilots and/or aerial agricultural companies but it is a very unsatisfactory state of affairs where a crop dusting plane can create a serious risk to health and safety by bringing down live power lines and remain immune from prosecution if that is, in fact, the case.

31 Having regard to the objective seriousness of the offence committed by the defendant, I consider an appropriate penalty to be $150,000 with a discount for the early plea of 25 per cent and a further 10 per cent for other subjective factors. This results in a fine of $97,500. Orders

32 The Court makes the following orders: 1) The offence is proven and a verdict of guilty is entered. 2) The defendant is convicted of the offence as charged. 3) The defendant is fined an amount of $97,500 with a moiety thereof to the prosecutor. 4) The defendant shall pay the prosecutor's cost of the proceedings in an amount as agreed or, if agreement cannot be reached, leave is granted to either party to approach the Court for final orders as to costs.

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At a glance

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Judgment (55 paragraphs)

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Cases Cited (12)