Objective Features
46The objective seriousness of an offence is the primary factor to consider in sentencing under occupational health and safety legislation (see, for example, Lawrenson Diecasting, Capral Aluminium, McDonalds and Walco Hoist Rentals). I discussed the principles applicable to a consideration of the objective seriousness of an offence in Ullrich at [43] - [45]:
It is necessary to turn firstly to the objective seriousness of the offence. That should begin with a consideration of the risk to the safety and health of employees (as charged) in this matter. In Cross City Tunnel it was observed, in that respect, at [195]:
The assessment of the gravity of an offence under s 8 of the Act requires attention to be focussed upon "the risk [to safety] and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk": Morrison v Powercoal (2003) at [32]. This approach derives from the nature of the duties imposed by s 8 of the Act which are "directed to obviating actual risk to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk": Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [100].
In Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531, a majority of the High Court discussed the notion of 'risk' for the purposes of s 15 of the Occupational Health and Safety Act 1983 (which discussion is equally applicable to s 8 of the Act) as follows (at [11]):
What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk. An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary". An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use. Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.
The duty created by the Act is directed at 'obviating' risks to the health and safety of employees at the workplace, even in the absence of any actual incident causing injury: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 (at [97] and [107]).
47When constrained by the particulars of the charge, the relevant risk in the present matter was the risk to employees who were present in the kitchen area of the premises, in particular Mr Groen and Mr Singh, of injury from coming into contact with electricity. The risk, as particularised in the charge, was the risk of the metallic cover plate and/or surplus water on the floor of the premises being in contact with a live conductor which gave rise to the risk of injury from electricity of persons working or present in the kitchen.
48This matter concerns a failure to ensure the cable which supplied electricity to the pump used in the wet well at the premises was not exposed to damage (or was protected from such damage) by being compressed between the cover plate and the concrete edge of the wet well, and a failure to ensure the electrical systems in use at the premises could detect and respond to any change in electrical current.
49The measures which would have obviated the risk, as described in the particulars, were as follows:
(1)ensuring the cable of the pump was located where it was not likely to be damaged by being flattened and/or compressed or ensuring it was protected against such damage;
(2)protecting the circuit supplying the socket outlet powering the pump by installing a combination 20 amp miniature circuit breaker or 30mA type II residual current device;
(3)protecting the pump by replacing the socket outlet into which it was plugged with a switched socket outlet incorporating a 30mA type II residual current device.
50There are a number of factors which increase the objective seriousness of the offence including the foreseeability of the risk, the seriousness of the injury suffered and the availability of simple remedial measures (see Cross City Tunnel at [191 (i) - (iii)]).
51It was submitted by the prosecutor (and, indeed, conceded by the defendant) that the risk in the present case was foreseeable. Whilst there was a recess provided in the concrete rebate of the wet well in which the cable could be positioned, there was no mechanism in place which prevented the cable from being moved out of that position. Given that the cover plate at the top of the wet well was regularly removed and replaced (when the wet well was serviced or the pump replaced), the risk of the cable moving out of its position in the recess at such times and becoming subsequently jammed between the cover plate and the concrete edge of the wet well was, in the absence of adequate checks of the position of the cable, foreseeable (indeed, it was opined by Mr Loy, in his report, that the removal and replacement of the cover plate which occurred during the last service of the wet well prior to the incident, on 25 November 2009, could have resulted in the cable being positioned, as it was at the time of the incident, wedged between the cover plate and the concrete edge). Further, given that the cable was not provided with protection from mechanical damage beyond the usual insulation, the risk of the cable receiving resultant damage (causing the exposure of an active conductor) in such circumstances was foreseeable.
52Furthermore, the pump was an electrical item which was designed to operate submerged in water, a conductor of electricity. The defendant was aware that the grease trap had the potential to overflow and cause surplus water to pool on the floor of the premises. This was evidenced by the fact that the grease trap had previously overflowed in that manner (according to the evidence given by Ms Stojkovic, the grease trap would overflow approximately once every six months). Given its proximity to water and the metallic cover plate (which was also a conductor of electricity), the risk of injury from electricity flowing from any damage to the cable was, in the circumstances, foreseeable. That risk manifested in the electrocution of Mr Groen and the electric shock to Mr Singh.
53I accept the submission by counsel for the defendant that there were some safe systems in place prior to the incident. Those systems included the servicing of the grease trap every six weeks, the engagement of a licensed plumber to carry out repair or replacement of the pump, the verbal induction and training of employees, the use of experienced staff members to supervise every shift and the regular inspection of electrical appliances by the manager of the business. A system was in place whereby staff reported to management any faults or problems with the equipment they operated, and instructions were provided to employees as to what steps were to be followed in the event the grease trap overflowed. Employees rostered to work in the cafe area and the front of the premises, including Mr Groen, had been given a general direction not to enter the kitchen area of the premises (although, it was accepted, there was no barrier to prevent that occurring). Staff were directed to speak to kitchen staff by means of a servery that connected the cafe area of the premises with the kitchen. The existence of such safety procedures prior to the incident, it was submitted, may mitigate the objective seriousness of the offence.
54However, as the Court noted in McDonalds at [219] (citing Kembla Coal and Coke at 33 and WorkCover Authority of NSW (Inspector Kelsey) v University of Sydney (unreported, Industrial Relations Commission, NSW, Matter No. CT 1280 of 1995, Hill J, 2 April 1997) at 21) and, more recently, Inspector Nicholson v Gallagher [2012] NSWIRComm 121 at [48], whilst the existence of safety procedures and systems is a factor which is relevant to the assessment of the seriousness of the offence (and which may mitigate the objective seriousness of the offence), those systems must also include searching for and identifying all possible risks and instituting safety measures to guard against those risks.
55When viewed in the context of the risk to safety occasioned at the premises, it is apparent that there were significant flaws in those systems. I accept the submission of the prosecutor that the defendant was required to turn its mind to the placement of the cable, and the means by which the risk of injury from electricity flowing from any damage to the cable (which, as noted, given its location and condition, could not have been disregarded as unknowable or unlikely) could have been limited or controlled.
56It was agreed between the parties that there was no evidence as to how or when the cable became compressed and consequently damaged. I accept that no inference can be drawn in this respect, other than that the cable could have been moved from its position in the recess and jammed between the cover plate and the concrete when the pump was last replaced or the wet well last serviced some months prior to the incident. However, this fact is, in itself, demonstrative of the inadequacy of the safety systems of the defendant. There was uncertainty as to what processes or procedures had been undertaken, at least in relation to the recent servicing of the equipment. It was noted by Mr Loy that, although the damage to the cord was latent, the compression of the cable between the cover plate and the concrete was, upon inspection, obvious. Had the defendant had in place a system by which the electrical systems accompanying the pump were regularly checked, it would have been observed that the cable was jammed and at risk of damage by compression.
57This defect in the defendant's systems was added to by the fact that, on the evidence, it is not apparent that any of the people who dealt regularly with the wet well set up - namely, Mr Upton, Alternative Waste Solutions' employees and Ms Stojkovic (in the sense that she regularly checked the condition of electrical appliances at the premises, including the pump) - had any particular expertise or knowledge as to electrical systems. For example, it was made clear by Mr Loy that had the cable been fixed in position, it would not have become damaged as a result of being compressed from movement under the plate (further, the cable could have been provided with protection from any mechanical damage caused by such compression). Had the defendant engaged an electrician or other relevant specialist, the need for such arrangements to be implemented would likely have been realised (indeed, that step was taken by the defendant after the incident).
58It is appropriate to also mention RCDs in this context. It is true that, although required by the current version of the wiring rules, the wiring rules applicable to the defendant, as an existing installation, did not require the use of a combination of circuit breakers and RCDs at the premises. As noted by Mr Loy, the system of circuit breakers installed at the premises at the time of the incident was compliant with the wiring rules applicable to the defendant. However, it must be said that RCDs were, nonetheless, known and available safety devices which would, in the circumstances, have prevented the risk (they were, in fact, introduced by the defendant immediately after the incident): McDonalds at [173]. The "testing" carried out by Ms Stojkovic indicated that the premises manifested a concern for electrical hazards which should have been sufficient to alert the defendant to the need for a proactive approach which should have included the installation of RCDs.
59The balancing of these considerations warrants the conclusion that the defendant is entitled to a moderate reduction in penalty in consideration of the systems which were in place at the premises prior to the incident.
60A related consideration is the availability of remedial measures that were relatively straightforward or simple. Immediately following the incident, a new pump was installed by Mr Upton. The defendant engaged the services of a licensed electrician, Mr Zarich, to repair the electrical defects. Mr Zarich threaded the cable of the new pump through conduit and chased a path for the cable in the concrete floor from the wet well and under the stove. The path was covered with concrete to provide mechanical protection together with the conduit. The cover plate to the wet well was raised to eliminate the risk of it damaging the cable. Mr Zarich also upgraded the electrical installation at the premises by replacing the circuit breakers at the main switchboard with a combination of circuit breakers and, as noted, RCD safety switches. The work of Mr Zarich was approved by Mr Loy on behalf of Energy Australia. The defendant also engaged the services of CitiWide Electrical Contractors Pty Ltd to test and tag all electrical appliances at the premises and ensure they were in good working order. The defendant's employee induction and occupational health and safety procedures were formalised and documented in a manual which was provided to all employees. Employees were also provided with a brochure setting out emergency procedures.
61The defendant closed the business for some two weeks to carry out upgrades to its systems. Approximately $10,510.30 was spent in so doing. The notices issued by the WorkCover Authority and Energy Australia were complied with by the defendant. The upgrade of the electrical installation at the premises by Mr Zarich to include RCDs was in addition to the work required by the notice issued by Energy Australia. It was conceded by the defendant that, nonetheless, the installation of RCDs was a practicable measure that was available prior to the incident which, had it been employed, would have prevented the incident.
62Whilst these responses by the defendant following the incident were laudable, I accept the submission of the prosecutor that the steps taken were such as to reveal in clear terms the simple and decisive remedial steps which may have been taken by the defendant to abate the risk and prevent the incident involving Mr Groen and Mr Singh. In such circumstances, the steps taken by the defendant after the incident are demonstrative of flaws which existed in its previous systems: McDonalds at [226] (citing Kembla Coal at 36 and University of Sydney at 21-22) and Gallagher at [50].
63A final consideration, in this respect, is the relationship between the seriousness of the injuries suffered and the gravity of the offence (Capral Aluminium at [94]). The occurrence of the death of Mr Groen and the injury of Mr Singh manifested the seriousness of the relevant detriment to safety arising from the failure to take adequate measures to obviate the risk.
64It is appropriate to consider two further matters going to the question of objective seriousness. The first is the maximum penalty for the offence (see Cross City Tunnel at [192 (i)]). The maximum penalty for the offence, the defendant being a corporation and a first offender, is $550,000.
65The second consideration is deterrence (see Cross City Tunnel at [192 (iii)]). General deterrence is applicable in relation to this offence. It is necessary to ensure that the penalty properly reflects the need for general deterrence so as to draw attention to those operating in the restaurant and cafe sections of the hospitality industry, and the large number of other enterprises which utilise electrical appliances in kitchens or like businesses of the kind here employed, to the appropriateness of implementing a system which obviates the risk of serious injury from electricity flowing from damage, by whatever means, to the cabling of such appliances.
66Whilst the prosecutor acknowledged that significant steps had been taken by the defendant since the incident to ensure the safety of workers at the premises, it was submitted that specific deterrence should be a relevant factor in sentencing given that the defendant continues to be an employer. So much was accepted by the defendant. Despite the fact that the business has been listed on the market for sale, it remains, on the evidence before the Court, that the defendant is still in business and employing staff. In such circumstances, in accordance with the principles stated in Cross City Tunnel (at [193]), specific deterrence will be factored into the penalty imposed on the defendant.
67There was a further matter raised by the defendant which was said to bear upon the objective seriousness of the offence and its culpability in the present matter. That is, the role of third parties. It was submitted by the defendant, in this respect, that the Court was entitled to view the nature and seriousness of the offence in relation to the defendant by reference to the contribution of third parties to the relevant risk (in reliance on Aleksic Carpentry at [22] citing Walco Hoist Rentals at [31]).
68In McDonalds, in relation to a charge brought under s 17 of the Occupational Health and Safety Act 1983, I considered the relevance of the actions of third parties in determining penalty. I noted the following (at [159] and [211] - [212]):
159 The relationship between the defendants and Lennard, Mercer and the independent contractors is relevant to the extent that it casts light upon the level of culpability of the defendants themselves. The role performed by Lennard and Mercer in the McDonald's system in relation to the installation and maintenance of equipment, as well as the training of staff and the provision of advice, may clearly be pertinent to the reasonableness of the defendants' actions. The culpability of the defendants should be assessed in light of the systems which were in place and the reliance which was placed upon third parties to provide various services both in relation to the particular restaurant involved in this case and in the system of safety employed in the entire McDonald's system. The absence of a prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken.
...
211 However, I do not consider that the degree of mitigation sought by the defendants can be justified by the submissions relating to the reliance placed by the defendants on Lennard and Mercer, nor by the information tendered in relation to the wider involvement of those entities in the McDonald's system. Whilst the defendants did contract with various entities to provide services to its franchisees, they nonetheless retained a significant role through the instigation, monitoring and evaluation of programs relating to the installation and maintenance of equipment. They were not, as the defendants themselves sought to describe it, entirely dependent upon Lennard and Mercer in relation to the safe installation and maintenance of the equipment in use in their restaurants.
212 In light of these findings, this case does not demand more extensive comments in relation to the delegation of duties to third parties. However, I would express my doubt that an argument such as that raised by the defendants would normally result in the very substantial reduction in penalty sought by the defendants. I do not consider that a person who has control of non-domestic premises made available as a place of work or control of plant provided for use or operation at work and who fails to ensure that the premises or plant are safe could escape the bulk of their culpability under s17 of the Act by seeking to delegate responsibility for maintenance to third parties. In many instances it would be quite proper to contract third parties to conduct maintenance, for example. However, some responsibility will normally remain to consider what services should be provided and, so far as possible, to ensure that the services were performed adequately. At the very least, the defendants in this case were involved to that extent, although for the reasons I have given, there was not sufficient fulfilment of their obligations under the section.
69The principle expounded in McDonalds, that the relevance of the conduct of a third party is that it may cast light on the culpability of a defendant in proceedings under the Act, was subsequently applied in the Full Bench decisions of Simpson Design Associates Pty Ltd v Ching [2011] NSWIRComm 7; (2011) 205 IR 40 at [159] and Morrison v Powercoal (No 3) at [124].
70Whilst the defendant in the present matter accepted that its own responsibilities could not be delegated, it was submitted that the Court was entitled to take into account the reliance placed by the defendant on the advice and expertise provided by Mr Upton and Alternative Waste Solutions. Further, it was submitted that the Court should have regard to the fact that the defendant controlled the premises pursuant to the terms of the lease and, in particular, that it was prevented, as lessee, from altering the physical structure of the premises including the size of the wet well.
71It was submitted by the prosecutor, in this respect, that, given the way in which the third parties engaged by the defendant came to interact with the premises, the contribution of those third parties could not be relied upon by the defendant in mitigation of the objective seriousness of the offence.
72I accept that the defendant may have envisaged that Mr Upton or Alternative Waste Solutions, being professional service providers engaged by the defendant, who dealt with the premises - and, in particular, with the wet well, cover plate, cable and pump - on a relatively regular basis, would have been capable of detecting actual or potential problems with the electrical condition of the pump (being the issue to which the defendant was required to turn its mind).
73However, when the circumstances of the present case are contrasted with those of McDonalds, the discount to which the defendant is entitled by virtue of its reliance on third parties must be small. There are a number of factors which lead to this conclusion. First, and as previously observed, it is evident that none of the services engaged by the defendant were specialised to deal with the problem at hand, namely, the electrical arrangement of the pump. Leaving open the question of whether Mr Upton, a licensed plumber, was qualified to attend to the electrical installation of the pump on the occasions he replaced it, the fact remains that none of the services engaged by the defendant were devoted to the electrical installation of the pump. Secondly, whilst there appears to have been some acknowledgement by the defendant of the potential risks associated with the use of electrical appliances in a kitchen area, evidenced by the fact that Ms Stojkovic herself tested the electrical appliances on a regular basis to ensure they were in working order, it does not appear that the defendant considered whether it was necessary to engage a specialist to undertake a comprehensive electrical inspection of the premises. It certainly did not do so. As previously mentioned, Ms Stojkovic was not qualified to undertake such testing and, to the extent that her actions in doing so constituted a "mind" being "turned" to the electrical condition of the pump and other appliances, it was a mind which was not equipped to do so.
74Overall, in the circumstances, the attention given by the defendant to the engagement of specialist third parties fell well short of that which was paid by the defendants in McDonalds (which, nonetheless, did not attract a "very substantial" discount (at [212]), and did not, by and large, demonstrate that proactive attention was paid by the defendant to the risks to safety occasioned by its operations vis á vis electrical systems.
75There is one final matter to which consideration must be given in determining the objective seriousness of the offence. That is, as submitted by the prosecutor, the fact that the offence not only resulted in the death of Mr Groen, but also involved the grave risk of death to Mr Singh who was, by all accounts, lucky to have survived the incident relatively unscathed. This will be taken into account as an aggravating factor in sentencing: s 21A(2)(ib) of the CSP Act.
76On balance, and taking into account the aforementioned mitigating and aggravating factors in this matter, the circumstances of the incident, particularly insofar as it involved a risk which was foreseeable, must result in the conclusion that the offence was serious.