Inspector Robert Mayell v New South Wales Land and Housing Corporation [2006] NSWIRComm 92 | Case summary

Matter No IRC 5768 of 2004 Inspector Robert Mayell v New South Wales Land and Housing Corporation Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2006] NSWIRComm 92 ` 1 On 27 September 2002, the defendant, the New South Wales Land and Housing Corporation, was having repair and maintenance work conducted on premises it owned known as Unit 51, Dobu Place, Glenfield. The premises were part of the defendant's public housing stock and were being made fit for the next tenant to take occupation. On this particular day several tradesmen were working at the site being either employees of sub-contractors or sub-contractors to Crossley McLean and Associates Pty Ltd ("Crossley McLean"), a company that had been contracted by the defendant as a multi-trade contractor to provide maintenance and repair services at the site. 2 Mr David Laukaitis was working at the premises, being an employee of Fayon Holdings Pty Ltd, a company sub-contracted to perform plumbing work at the site. In the course of performing this work, Mr Laukaitis died of electric shock in circumstances that led to an investigation by the WorkCover Authority. In September 2004, Inspector Mayell commenced proceedings in this Court alleging that the defendant had breached the provisions of s 10(1) of the Occupational Health and Safety Act 2000. In essence, the Inspector alleged that the defendant being a person who, on 27 September 2002, had control of the premises at Glenfield that were made available as a place of work for a number of persons, failed to ensure that the premises were safe and without risk to health contrary to the provisions of s 10(1) of the Act. The particulars of the charge alleged that, pursuant to the contract with Crossley McLean, the defendant retained control of the site through its representatives, retained the right to exclude sub-contractors nominated by the contractor to perform work on the defendant's premises, required the contractor to provide a site-specific safety plan to be submitted to the defendant seven days before work commenced on the site, reserved the right to reject the plan and retained the right to review the contractor's performance with respect to occupational health and safety management on the defendant's site. A number of employees of sub-contractors were in fact working at the site. The particulars continued that the defendant, being a person who had control of the premises used by people as a place of work, failed to ensure that the site was safe and without risk in that the defendant failed to ensure that the electrical installation within the premises was isolated from the mains before workers were given access to the premises for the purposes of carrying out repairs and maintenance. A number of employees, including Mr Laukaitis, were therefore placed at risk of injury. 3 Separate proceedings were also commenced against Crossley McLean under s 8(2) of the Act and three breaches were alleged against Mr McLean as a director of Crossley McLean and a plumbing company, Fayon Holdings Pty Ltd (two arising under s 8(2) and one arising under s 8(1), by operation of s 26 of the Act). At the time of hearing the guilty plea entered by the Housing Corporation, the separate proceedings against Crossley McLean and Associates and William McLean were listed for a contested hearing in March 2006. 4 On the second occasion that the charge against the Corporation was listed for plea and directions, the defendant entered a plea of guilty. This judgment deals with the evidence and submissions directed to the appropriate penalty to be imposed in the circumstances of this matter. 5 At the hearing on penalty, the prosecutor tendered an Agreed Statement of Facts: attached to that document were the general and special conditions of the contract between the defendant and Crossley McLean. Also attached to the Agreed Statement of Facts were a number of photographs of the main switchboard, a sub-switchboard, an external hot water heater and the position of wiring within the premises for attachment to a stove. The prosecutor also tendered a defendant's document, operating from August 1998, entitled "Safe Working Methods for Rewiring and Upgrading of Dwellings". 6 In relation to the Agreed Statement of Facts it is appropriate that the material parts of that document be reproduced as it provides helpful background and detail. The material parts of the Agreed Statement of Facts are as follows: ... 3. At all material times, Unit 51 Dobu Place, Glenfield ("the site") was owned, by the defendant. In its capacity as a statutory authority, the defendant makes available the site (and other premises like it) for occupation under lease by certain persons (public housing tenants). 4. At all material times, the site consisted of a residential dwelling. The dwelling consisted of a two storey attached townhouse with a rear concrete courtyard. 5. At all material times, Crossley McLean & Associates Pty Ltd ("CMA") was contracted to the defendant as a "multi-trade contractor" to provide maintenance services to designated properties in South West Sydney, including the site ... 6. At all material times, Fayon Holdings Pty Ltd ("Fayon") operated a plumbing business. 7 At all material times, Fayon was contracted by CMA, as a sub-contractor approved by the defendant, to perform plumbing work on designated sites owned, occupied and/or managed by the defendant. 8. At all material times, William McLean was both a director of Fayon and a director of CMA. 9. At all material times, Fayon was contracted by CMA to perform specified plumbing work on the site. 10. At all material times Robert Chaytor was a self-employed, licensed plumber who contracted his services to Fayon as a plumber. 11. At all material times, David Laukaitis was employed by Fayon as a third year apprentice plumber. 12. At all material times, Joy Bond Pty Ltd, trading as Homecare Floor Coverings, were contracted by CMA to remove old floor coverings in the kitchen and dining room and to supply and install new vinyl floor tiles in those areas. 13. At all material times, Craig Foreshew was a self-employed vinyl tiler who contracted his services to Joy Bond Pty Ltd. 14. The site was vacated by its then public housing tenant in early August 2002. 15. On 4 August 2002 David Thomas, an employee of the defendant, conducted an inspection of the site for the purpose of identifying the repairs and refurbishment work that needed to be done before the defendant could re-let the premises. 16. During the inspection Mr Thomas noted that the electrical installation in the premises had been illegally modified in that additional wiring had been wired into the back of a power point in the laundry to provide an additional power source at the rear of the premises. 17. Mr Thomas did not take any steps to ascertain whether the electrical power supply to the premises had been disconnected. 18. On 5 August 2002 Mr Thomas issued a work order to CMA, on behalf of the defendant, with respect to work to be performed on the site. The works were to be completed prior to the premises being made available to a new tenant. 19. When a work order is issued by the defendant, the keys to the property are collected from the defendant by CMA and returned to the defendant when all the maintenance work is completed. The defendant then undertakes a final inspection to ensure the property has been repaired before allowing occupation by the incoming tenant. 20. As part of the works, Mr Thomas instructed CMA to rectify the illegal modification of the electrical installation in the laundry. Mr Thomas did not instruct CMA to carry out a general inspection of the electrical system, including the mains connection, before work commenced on the site. 21. On 10 August 2002 David McKinnon, the supervisor of the maintenance works contracted by CMA, conducted a risk assessment of the site and identified the rubbish on site as a potential hazard. 22. Following this assessment date it appears that the site was vandalised, but no further assessments of the risks at the site were performed by or on behalf of the defendant prior to the subject incident. 23. On or about 12 August 2002 Paul Morrow and Kathleen Morrow, cleaners working for the cleaning company, Two Morrows Pty Ltd, contracted by CMA, attended at the site to perform cleaning work. Whilst present on the premises both Paul Morrow and Kathleen Morrow observed that the hot water heater and stove were missing. The wires from the stove were exposed and lying on the floor of the kitchen. The wires from the hot water unit protruded from the conduit in the rear courtyard, with three bare wires exposed and uncapped. Paul Morrow advised Robert Thomas and also David McKinnon, the supervisor of the maintenance works contracted by CMA, about the missing items. 24. Robert Thomas visited the site on a second occasion prior to going on leave on 17 September 2002 and noted that the stove was missing. 25. Whilst Mr Thomas was on leave, Russell Baker, another employee of the defendant, took over management of the site on behalf of the defendant. Mr Baker visited the premises during the first week of Mr Thomas' leave. During that visit Mr Baker observed that the positions of the switches on the power sub-board in the kitchen were in the 'off' position and concluded that the electrical installation had been disconnected from the mains supply. Mr Baker did not check the mains connection, nor did Mr Baker check the electrical installation on site to ensure that the electrical supply had been disconnected from the mains. 26. On 25 September 2002 Justin Smith, a carpenter employed by CMA attended the site to repair the front door. Mr Smith plugged in and used an electric planer while repairing the front door of the premises on that day. The Day of the Incident 27. On 27 September 2002 William McLean was also the acting works supervisor for CMA in the absence of David McKinnon. William McLean contacted Russell Baker, an employee of the defendant, and was given approval to replace the missing hot water heater. 28. At approximately 8.40am on that day, Paul Morrow and Kathleen Morrow, cleaners contracted by CMA arrived at the site to perform cleaning work. The fluorescent light in the kitchen was on when they arrived so that they were aware that the site had not been disconnected from the mains power supply. Paul Morrow stated when interviewed that he turned the power off at the electrical sub-board in the kitchen. 29. At approximately 9.00 am on that day, Robert Chaytor, a plumber contracted by Fayon, arrived at the site to install a water-saving shower rose. Whilst present on the premises, Mr Chaytor was asked about the hot water service and he attended in the kitchen, where the exposed and/or uncapped wires were located. 30. At approximately 10.00am on that day, William McLean arrived at the site and saw that the hot water heater was missing. 31. At approximately 10.30am on that day Whetu McDonald, the prospective tenant for the site, arrived at the site after signing the lease at the Macquarie Fields office of the defendant. 32. Ms McDonald states that she was advised by the defendant to pick up the key from the locksmith at the site. The defendant had not yet undertaken a final inspection of the site to ensure all repairs had been undertaken prior to Ms McDonald accessing the site. 33. Whilst present on the premises: (a) Ms McDonald arranged for one of the cleaners to turn the electricity on so that she could make coffee; and (b) Ms McDonald made coffee using an electric kettle which she plugged in to a power point in the kitchen of the premises. 34. Ms McDonald states that she saw the exposed wires for the electric stove whilst in the kitchen on that day. 35. Ms McDonald also states that she entered the rear courtyard at the site where she saw a white cable for the hot water service with exposed wires at the end. 36. At 11.30am on that day William McLean called Mr Crimmins, an electrician contracted to CMA. William McLean asked Mr Crimmins to attend the site after 3.00pm on that day to perform various electrical repairs once the vinyl tiler had finished his work in the kitchen. In particular, Mr Crimmins was instructed by William McLean to install a new stove, electrically connect a hot water heater, to fix power points and to install a smoke alarm. 37. At approximately 1.30pm on 27 September 2002 Ms McDonald commenced to move items of her property into the residence. 38. At some time prior to 12 noon, William McLean contacted David Laukaitis and requested him to attend the site to install the hot water heater. William McLean met Mr Laukaitis at a hardware store to purchase the necessary materials and Mr Laukaitis proceeded alone to the site arriving at approximately 12.00 noon. 39. William McLean returned to the site at 12.30pm and supervised Mr Laukaitis for approximately 10 or 15 minutes. 40. Whilst at the site William McLean observed the three exposed wires for the hot water heater connection lying on the ground. William McLean also observed wires and a power point switch hanging down from the wall in the laundry. 41. William McLean stated after the event that he was advised by Paul Morrow when he arrived at the site that the power had been turned off at the electrical sub board in the kitchen. 42. However, neither CMA nor Fayon had in place and/or enforced work systems and/or safe work method statements requiring that the electrical system be disconnected at the mains and tested prior to work commencing on the site. 43. Neither CMA nor Fayon had in place any work system and/or any safe work method statement that made provision for tagging out switches to ensure that electrical circuits that have been disconnected are not returned to service until all work has been completed and it is safe to do so. 44. Further, William McLean did not check that power to the wiring had been isolated. Nor did William McLean take any steps to ensure that the electrical installation had been de-energised, such as testing the installation himself, and/or checking that David Laukaitis had appropriately isolated and tested for the isolation of electrical power prior to working on the installation of the new hot water service. 45. Mr Craig Foreshew arrived at the site at about 12 noon to lay new vinyl tiles in the kitchen and the dining room of the subject premises. Mr Foreshew alleges that shortly after his arrival he spoke with Mr Laukaitis and that Mr Laukaitis told him that the electrical supply was still connected to the premises. 46. Between about 1.30pm and 2.00pm Luke Thompson, a plumber employed by Fayon, also attended the site for a short period to check if Mr Laukaitis needed assistance. William McLean advised Mr Thompson that he was not required at the site. Both William McLean and Mr Thompson departed the site prior to the incident occurring. 47. Whilst working at the site, Mr Foreshew attempted to plug a fan into the power point in the laundry which was hanging down from the wall and sparks came out of the power point. Mr Foreshew then informed David Laukaitis not to use the power point in the laundry and Mr Laukaitis suggested to Mr Foreshew that he try using the power point in the kitchen instead. Mr Laukaitis assisted Mr Foreshew pass the power lead for the fan through the kitchen window and was aware that power was on at the site. 48. Whilst in the kitchen Mr Foreshew also saw exposed wires in the kitchen where the stove was missing. The Incident 49. At approximately 2.30pm, David Laukaitis was working alone in the rear courtyard of the site installing a replacement hot water heater. Craig Foreshew heard a scream and a loud thump and ran into the courtyard. Mr Foreshew found David Laukaitis lying on his back in front of the hot water heater with exposed electric wires situated close to his feet. Mr Laukaitis was holding a piece of copper pipe in his right hand and a power drill was lying on the ground approximately two metres from his head. Mr Foreshew also saw the conduit with the three exposed, uncapped wires near Mr Laukaitis' feet and then Mr Foreshew kicked Mr Laukaitis' right leg away from the wires before rolling Mr Laukaitis onto his side. 50. Mr Foreshew then went to a neighbouring premises and caused the ambulance service to be contacted. Mr Foreshew then returned to the site and provided assistance to Mr Laukaitis until the ambulance arrived. 51. Shortly after the ambulance arrived at the site, Mr Foreshew was asked by one of the ambulance officers to turn off the power to the site. Mr Foreshew went to the electrical sub-board in the kitchen and found all the switches on the sub-board were in the "on" position. Mr Foreshew then turned all the switches to the "off" position. 52. Mr Laukaitis was taken by ambulance to Liverpool Hospital and died later that day. 53. The post mortem report notes the presence of a small burn on one knee that was consistent with an electrical burn and found that the direct cause of death was electrocution. 54. Michael Crimmins attended the site at approximately 3pm on the day of the incident, 27 September 2002. Mr Crimmins was instructed by Ken Carnegie, a team leader employed by the defendant, to attend to the uncapped and exposed electrical wires near the hot water heater. 55. Mr Crimmins inspected the hot water heater and noted three red, black and green wires coming from a conduit for the hot water heater connection. The wires were stripped back, exposing 10mm of bright copper wires and were ready for connection. Mr Crimmins then connected the hot water heater. Mr Crimmins then proceeded to the kitchen of the dwelling and saw cables for the stove lying on the kitchen floor which were exposed and also ready for connection. Mr Crimmins insulated these cables with connectors and tape. 56. In the laundry and lounge room Mr Crimmins found power points that were hanging off the wall. Mr Crimmins also saw the illegal modification of the power point in the laundry as referred to above. 57. Before leaving the site Mr Crimmins taped off the circuit breakers for the hot water heater and stove at the electrical sub-board in the kitchen. After the Incident 58. Following the incident on 27 September 2002 Ken Carnegie, team leader employed by the defendant, and Russell Baker, acting technical officer employed by the defendant attended the site at 3pm and did a visual assessment of the risks at the site which included the following observations: (a) The hot water heater power leads were uncapped exposing bare copper wire. (b) The power to the stove in the kitchen was uncapped exposing bare copper wire. (c) Two power points in the laundry and the lounge room were broken and hanging off. 59. Further, Col Easter, a customer safety officer with Integral Energy attended the site at approximately 7pm on the date of the incident. Mr Easter undertook an investigation and made the following findings: (a) The service fuse and two submain fuses were removed at the main switchboard supplying the property; (b) A new water heater had been installed and connected in an approved manner; (c) Tests revealed that the installation was still energised to the customer's line side of the distribution board within the unit; (d) Further investigation at the main switchboard revealed that an unauthorised connection had been made. The domestic installation of the premises and the off peak sub-mains of the premises had been connected directly to the mains, by-passing the mains fuses for the premises located on that board; (e) The supply was isolated to the property at the main switchboard and then the main switchboard was security locked. ... 63. On 4 October 2002, Inspector Luland issued an improvement notice to the defendant in relation to the site requiring exposed wiring to be insulated, the termination of disused wiring, the securing of the electrical meter box and the provision of risk assessment details and work method statements prior to work commencing. The terms of the improvement notice were satisfied by the defendant and no further action by the Inspector was necessary in this regard. 64. After the incident, the defendant undertook an independent audit of the quality systems for each of its multi trade contractors. This audit was completed in April 2003. The defendant then required each multi trade contractor to upgrade its systems in the areas identified by the auditor. 7 The prosecutor made available to the Court three Victim Impact Statements being from Mr Laukaitis' mother, father and twin brother. Those documents were marked "for identification" and were reserved for consideration once the Court had reached the point of deciding that a conviction should be entered against the defendant. 8 For the defendant a detailed affidavit of Mr Dennis Schultz was read. Mr Schultz was the "Director, Asset Performance", of the defendant, had held that position since 2004 and had previously been employed by the defendant since 1985. From 2002, he had managerial responsibility in relation to the housing maintenance unit of the defendant. In this position he was familiar with the practices of the defendant in identifying and engaging multi-trade contractors for the purposes of carrying out maintenance and repair work at dwellings owned by the defendant and the terms under which such contractors were engaged. 9 Mr Schultz stated that the defendant owned approximately 130,000 dwellings throughout the State and that these were let to tenants who satisfied the public housing criteria laid down by public policy. These dwellings underwent programmed and ad hoc repair and maintenance occurring while the tenancy was in progress, after the conclusion of one tenancy and before the commencement of a new tenancy, or at intervals to ensure that premises were kept in a fit condition. The defendant's practice as at 2002 and continuing was to enter into agreements with appropriately qualified and resourced contractors for the provision of maintenance and repair services. Prior to this time, the defendant had entered into individual contractors in each discipline but in 2002 moved to a system whereby a single entity was contracted to supply skills across the full range of disciplines - these were called multi-trade contracts. One reason for adopting this approach was the defendant's belief that it would result in better safety co-ordination on worksites. 10 In 2002, the defendant had entered into a multi-trade contract with Crossley McLean for the south-west Sydney region which included the dwelling at 51 Dobu Place, Glenfield. Crossley McLean had been involved in providing maintenance services to the defendant for at least ten years prior to 2002 and had been selected on the basis of a tender process. As part of the tender process, Crossley McLean was required to lodge documents concerning its quality control systems, inspection and test plans, occupational health and safety management systems and environmental systems. Crossley McLean used a "quality plan", a document that was annexed to the contract with the defendant. This document demonstrated how Crossley McLean employees or sub-contractors were required to complete various documents before and after new projects: this involved monitoring, inspection, a test plan, performance history records for individual sub-contractors, review of sub-contractors for their capacity to conform to quality health safety environmental requirements, site audits, random inspection sheets, action requests forms and management reviews of quality, health and safety and environmental requirements. 11 Mr Schultz said that in the course of the tender the defendant examined all the material submitted by Crossley McLean, especially that relating to quality, health, safety and environmental issues. The defendant concluded that this material was satisfactory and documents were annexed to Mr Schultz's affidavit showing how the defendant evaluated and took into account the various documents submitted by Crossley McLean. The defendant considered Crossley McLean's prior experience in specific situations such as undertaking maintenance work of a similar nature over the past two years, undertaking maintenance work of a similar scale across a dispersed area and its track record in delivery of quality maintenance. These various aspects were scored and evaluated by the defendant. 12 The tender documents also included referee forms assessing the performance of Crossley McLean in relation to other work. These documents indicated that the referees had not experienced any difficulties with Crossley McLean in the past. The referees' assessments included consideration of quality of work, defects in work, any instance of the contractor failing to conform with occupational health and safety requirements, whether the contractor promoted safe work practices on site, the manner in which the contractor approached the selection and engagement of sub-contractors and whether the sub-contractors engaged were experienced and co-ordinated. There had been similar assessments carried out on two previous projects carried out by the defendant. 13 In relation to the present site, Crossley McLean, according to the quality plan, was using a standard safety work method statement in connection with the installation of the hot water system. The defendant did not begin to review these safe work statements in relation to 51 Dobu Place, Glenfield until after the incident that occurred on 27 September 2002. Prior to that incident, Mr Schultz said that he was not aware of any matters in which the activities of Crossley McLean would have caused the defendant to have concerns about the adequacy of its occupational health and safety management systems. 14 The defendant conducted induction courses for contractors at the stage that each new multi-trade contractor was entered. Crossley McLean had attended such an induction in June 2002. Mr Schultz suggested that the contract orientation programmes strongly focused on occupational health and safety issues. In relation to the procedure for initiating and completing a repair or maintenance task in 2002, a number of steps were involved. If the repair and maintenance task occurred at the end of a tenancy, an employee of the defendant would survey the premises to determine what work needed to be carried out to bring the premises up to "lettable condition". This report would lead to a work order being raised with the contractor and the order itemised the exact work required to be undertaken at the premises by the contractor and the cost of each item. The contractor would attend the premises for assessing the task and undertaking a risk assessment. If the task became larger than the original works order raised by the defendant (for example, if vandalism occurred meaning additional work,) the contractor would notify the defendant and a revised work order would be issued. Usually an employee of the defendant would attend the premises simply to confirm the extra work required. On completion of the work, an employee of the defendant would inspect the premises and confirm its completion. 15 The defendant also conducted periodical site inspections during the course of work being carried out under multi-trade contracts. In cases where non-compliance was detected, the contractor was issued with a formal written notice requiring correction and the defendant tracked these notices, following them up in order to ensure that the issue was resolved. The defendant also conducted quarterly reviews of each multi-trade contractor's performance and this review was carried out over 11 key categories including health and safety compliance. 16 Mr Schultz stated that each year contractors such as Crossley McLean conducted about 500,000 maintenance and repair tasks for the defendant. The defendant did not possess a workforce of the size or with the necessary skills to undertake this level of work nor was the defendant able to send employees to observe the performance of all work performed by contractors. 17 Mr Schultz noted that the WorkCover Authority had issued an improvement notice to the defendant in relation to the Dobu Place site. In under two weeks, the defendant had written to the Authority confirming that all work relating to the improvement notice had been completed including ensuring that the electrical meter box was secured and a padlock affixed, installing covers to exposed wiring, fitting a junction box and terminating the wiring and receiving details of contractor's risk assessment and work method statements for the head contractor. Following the incident on 27 September 2002, the defendant then took the following steps: (a) reissued its manual "Safe Working Methods of Rewiring and Upgrading of Dwellings" which had previously been issued in August 1998; (b) adopted a uniform practice for each vacant dwelling whereby the multi-trade contractor was asked to conduct an inspection and test of the wiring within the dwelling; (c) met with supply authorities in an attempt to establish a system whereby the supply authority would alert the defendant when disconnections of electricity occurred (but this could not be achieved because of privacy concerns); (d) the establishment of a working party that in turn laid down a series of new guidelines and management practices for electrical and gas safety issues within dwellings. A number of examples of these were attached to Mr Schultz's affidavit. Mr Schultz stated that an independent audit was conducted in relation to the safety systems of all multi-trade contractor. Matters that came to light as a result of these issues were raised with the contractors. That part of the audit dealing with occupational health and safety was annexed to Mr Schultz's affidavit and showed that the auditor was required to have regard to a number of factors, including whether the contractor had a currently accredited corporate occupational health and safety management system, a documented site specific safety management plan, a site-specific plan including a safe working method statement for all work activities assessed as having safety risks, a site-specific plan submitted to the principal's representative when required, whether each sub-contractor provided a written safe work method statement and whether the sub-contractor's safe work method statement complied with the occupational health and safety management systems. 18 Further audit reports conducted in early February 2005 dealt with a number of "customer improvement requests" carried out by the defendant which detailed areas of non-compliance by the contractor and which also contained a table outlining details of various inspections that were carried out by the defendant and the defendant's comments and suggestions for improvements. Mr Schultz then explained the way in which the audit checklist operated under this report and how it was monitored to ensure that suggested improvements had been carried out by the contractor. 19 Mr Schultz was cross-examined in relation to his affidavit evidence. He agreed that it was not uncommon in the provision of public housing to find interference with electrical installations and that was so during 2002. At the time of the incident, the Department's policy was that the power was to be disconnected when a tenant vacated the property. It was also part of the defendant's policy at the time that multi-trade contractors and their sub-contractors were to provide their own power by arranging with an appropriate supplier or to provide a generator. However that power was supplied, when multi-trade contractors and sub-contractors obtained access to a premises the power supplied to the premises was meant to be disconnected and that was done partly for reasons of safety. That approach was set out in the August 1998 document entitled "Safe Working Methods for Rewiring and Up-grading of Dwellings". Under that policy, power was to be isolated at the main switchboard and fuses removed and there was a direction that following these steps, the contractor should check to ensure that there was no live power at the GPO or at a light switch within the premises. Mr Schultz agreed that it was recognised as far back as 1998 that the removal of fuses or even the turning off at a circuit breaker may not be sufficient to ensure that the electrical installation had been de-energised. The defendant used its technical staff to carry out inspections and in this particular case Mr Thomas had carried out the inspection of these premises before the multi-trade contractors were given access for the purposes of carrying out the work required to be performed. 20 Mr Schultz agreed that the importance of managing contractor occupational health and safety was recognised by the terms of the contract: a matter reserved to the defendant under the terms of the contract. Each contractor was to submit to the defendant a site specific safety management plan that complied with the Occupational Health and Safety and Rehabilitation Management Systems Guidelines of the New South Wales Government. This was required to ensure contractors had a proper system in place and to enable the Corporation to be satisfied that contractors met the requirements of the Occupational Health and Safety systems. People who undertook these inspections for the defendant, such as Mr Thomas, were trained in relation to occupational health and safety and the management of contractors. Mr Thomas had received this training. SUBMISSIONS 21 The prosecutor submitted that the evidence demonstrated that the defendant had made the subject premises available to Crossley McLean, its employees and sub-contractors as a place of work for the performance of repairs and maintenance pursuant to its contract. In early August 2002, the premises had been vacated by the previous tenants. The defendant then re-entered the premises and made them available to the defendant, its employees and sub-contractors as a place of work where a combination of repair and maintenance work was to be performed prior to the premises being re-let. It was submitted that it followed that, at the time of the incident involving Mr Laukaitis, the premises were not occupied "only as a private dwelling" but that the premises were being made available by the defendant "as a place of work". 22 It was the defendant's policy that the premises were to be disconnected from the electrical mains upon vacation by a tenant and that, where vacant premises were made available to contractors for the purposes of maintenance and repair work, the contractors were to make their own arrangements about electricity supply either arranging for an temporary connection or by providing a generator. However, in the present case the site remained connected to the mains electricity after it was vacated in early August 2002 and power made available throughout the site unless it was isolated at the sub-board located in the kitchen. 23 Investigations after the incident revealed that the mains fuses had been removed from the mains switchboard and that an illegal connection had been made that bypassed the mains fuses so that electricity to the premises was still available and connected to the mains supply, even though the fuses had been removed. 24 On 4 August 2002, an employee of the defendant, Mr David Thomas, conducted an inspection of the site for the purpose of identifying the repairs and refurbishment work needed to be completed before the defendant could re-let the premises. At the time of this inspection the stove had been removed from the kitchen and was located in the rear courtyard, leaving the electrical wires supplying power to the stove exposed. Mr Thomas noted that the electrical installation in the premises had been illegally modified in that additional wiring had been inserted into the back of a power point in the back of the laundry to provide an additional power source at the rear of the premises. The prosecutor submitted that the fact there was clear evidence the electrical installation within the premises had been the subject of illegal alterations (in particular the illegal wiring in the laundry) was sufficient to put the defendant on notice that the electrical installation had been tampered with and was potentially unsafe. 25 The premises were also inspected by another employee of the defendant, Mr Baker, who took over supervision of the premises while Mr Thomas was on leave. When Mr Baker inspected the premises the hot water system had also been removed so that there were bare wires located in the rear courtyard. These wires had been connected to the hot water service. At this time, the hot water service wires were uncapped as well as the bare wires in the kitchen that had been connected to the stove and there was illegal wiring in the laundry. 26 Despite the state of the electricity installation and the exposed wires, Mr Thomas did not require an inspection to be undertaken of the electrical installation before work commenced on the site nor did he request that such an inspection take place as part of the maintenance/repair work to be conducted by Crossley McLean or sub-contractors it engaged. Mr Baker did not enquire as to what steps had been taken to ensure that the electrical installation had been de-energised nor did he request Crossley McLean to arrange for the electrical installation to be examined as part of the maintenance/repair work. Thus, the cleaners, the carpenters, the vinyl tiler and the deceased all worked in the premises knowing that the electrical installation was still connected to the mains with various trades using the electricity from time to time both prior to and on the day of the incident involving Mr Laukaitis. Crossley McLean had not submitted a site-specific safety management plan to the defendant in accordance with the provisions of the special conditions of the maintenance contract prior to the work commencing on the site. Also, the defendant did not require the defendant to submit such a plan at any time prior to the incident. Further, it was submitted, Crossley McLean did not a hold written safe working procedure for the installation of hot water services from its plumbing sub-contractors, Fayon Holdings Pty Ltd t/as Bill McLean Plumbing. 27 In this case the defendant had no prior convictions and the maximum penalty under the legislation was $550,000. The prosecutor submitted that the obligation imposed by s 10(1) of the 2000 Act should be read as imposing an obligation identical in nature to that imposed by ss 8(1) and 8(2) of the 2000 Act. There was no reason the obligation to ensure that premises were safe and without risk to health should not be interpreted and applied in accordance with the observations of Watson J in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, namely: In their context and purpose there would appear to be no reason to make any implication that the words to ensure are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. 28 In accordance with the approach to other provisions of the Act, the existence of a reasonably foreseeable risk of injury would necessarily result in the offence being more serious in nature. Here, the risks associated with electricity were obvious, were well known and involved a clear potential for grave, if not fatal, injury. The evidence showed that the subject risks were known to the defendant. In addition, the defendant reserved to itself control of the premises during the performance of the maintenance work as part of its management system. This management system was not only aimed at ensuring good workmanship but was also aimed at securing compliance by its contractors with Occupational Health and Safety legislation. Here, the death of Mr Laukaitis was manifest evidence of the gravity of the detriment to safety involved in this operation (Tyler v Sydney Electricity (1993) 47 IR 1 at 5). The risks were capable of being overcome by the simple expedient of ensuring that the power supply was, in fact, disconnected before work on the site commenced. 29 There were ample grounds in this case for both general deterrence and specific deterrence to form a significant aspect of the penalty imposed. In relation to subjective factors, it was noted that the defendant had no prior convictions, had co-operated with the WorkCover Authority in the investigation of the incident and had entered an early plea thus entitling it to a discount in respect to the utilitarian value of its plea. 30 For the defendant, it was submitted that matters relevant to a proper assessment of the objective seriousness of the offence included: (a) the precise nature of the charge, including whether it charged a broad failure to provide a safe system of work or whether the charge was of a limited nature; (b) the nature of the risk and the act or omission that gave rise to that risk. The consequence of an accident would not, of itself, dictate the seriousness of the offence or the amount of the penalty; (c) the existence of a settled system of work would tend to mitigate the seriousness of the offence; (d) the extent to which the risk to health and safety was foreseeable and might have been remedied by simple measures available to the defendant. 31 In relation to the present offence, the charge was particularised in terms of a single failure by the defendant, namely a failure to ensure that the electrical installation within the premises was isolated from the mains before the workers were given access to the premises for the purposes of repair and maintenance on 27 September 2002 and as a result the workers were placed at risk of injury. The workers identified in the charge were Mr McLean, a director of Crossley McLean, Mr Foreshew who was a sub-contracted vinyl floor tiler, Paul and Kathleen Morrow who were employees of a company that had a cleaning contract with Crossley McLean, Mr Chaytor and Mr David Laukaitis who were employees of Fayon Pty Ltd. Fayon Pty Ltd was a plumbing contractor to Crossley McLean and Mr McLean was also a director of Fayon Pty Ltd. 32 The defendant analysed the facts to establish the following matters: Crossley McLean was obliged under the contract to carry out repairs and maintenance tasks at the request of the defendant. There was an established procedure whereby the defendant would inspect the premises and issue a works order setting out the repair and maintenance work to be completed by Crossley McLean. Crossley McLean would collect keys for the premises and arrange for the work to be performed, but the defendant would inspect the premises to confirm any variation of the work orders that may be necessary. At the completion of work, the defendant would inspect the premises to confirm that the work had been completed. 33 Crossley McLean was engaged as a multi-trade contractor and as part of the tender process the defendant sought and was provided with details of the occupational health and safety management plan of Crossley McLean. The defendant also received copies of the safe work methods statement used by Crossley McLean in connection with the performance of repair and maintenance work under the contract. Crossley McLean had carried out maintenance and repair work at the request of the defendant for many years. Prior to 2002, the defendant had organised repair and maintenance work through individual trade contractors. The defendant had moved to a multi-trade approach in part because of its belief that it would allow for better overall co-ordination of on-site safety. 34 The defendant owned about 130,000 dwellings which were made available for public housing. Public housing was a valuable social benefit and the proper repair and maintenance of the dwellings was essential to the continuation of this social benefit. The defendant did not have a workforce of the necessary size or with the necessary skills to undertake this work. The defendant reserved to itself certain powers under the contract that allowed the defendant to review and reject Crossley McLean's safety plans or to exclude sub-contractors from the site. The defendant was not prevented by the terms of the contract from attending the site at any time or for any reason. 35 The tenants of the dwellings owned by the defendant had a direct relationship with the electricity supply authority and the defendant was unable to be informed by a supply authorities in relation to issues concerning the tenant, including whether or not the supply had been disconnected. Efforts to change that situation had proved unsuccessful because of privacy and privity considerations. 36 Crossley McLean had unrestricted access to the premises up to and including 27 September 2002. The defendant became aware that the electrical installation at the site was illegally modified by additional wiring attached to the back of the power point in the laundry because of an inspection carried out by its employee, Mr Thomas. This information was passed on to Crossley McLean in the works order form under which the defendant requested Crossley McLean to undertake repair and maintenance work at the premises. Mr Thomas did not check to see whether power to the premises had been disconnected and he was not an electrician. 37 Crossley McLean conducted a risk assessment of the premises but did not refer to the electrical installation as a possible source of risk. It was not clear whether the risk assessment was ever sent to the defendant but the defendant did not make any enquiries about the risk assessment. It was subsequently discovered that there were further illegal modifications to the electrical installation of the premises in that the power to the premises could not be cut off at the mains switchboard but only at a sub-board located in the kitchen. 38 After these inspections the premises were vandalised. The stove in the kitchen and the water heater located at the rear of the dwelling were ripped out leaving exposed electrical wires. This was notified to Crossley McLean by one of its contractors and the defendant was also notified. Employees of the defendant attended the site on two occasions after the removal of the stove and the water heater. These employees did not check the electrical installation to see whether the supply had been disconnected from the mains - the employees were not electricians. Crossley McLean did not conduct another risk assessment of the premises. 39 On 27 September 2002, a number of persons attended the premises and performed work. There were exposed wires in the kitchen near the stove and at the rear of the dwelling and if at any time the switches on the sub-board in the kitchen were in the "off" position, no power was passing through the exposed wires. If the switches were in the "on" position, then power would be passing through the exposed wires. Mr and Mrs Morrow were the first to arrive in the morning and Mr Morrow turned the switches on the sub-board to the "off" position. About 20 minutes later, Mr Chaytor arrived and spent some time in the kitchen where the exposed wires were present but there was no evidence that the switches on the sub-board were in the "on" position at this time. About one hour later, Mr McLean arrived and spent time at the rear of the dwelling in the vicinity of the exposed wires but there is no evidence that the switches on the sub-board were in the "on" position while Mr McLean was present. Mr Morrow informed Mr McLean that the power had been turned off at the sub-board and Mr McLean did not test the exposed wires for live power nor did he ask Mr Laukaitis (who arrived at 12 noon) if he had isolated the power prior to beginning his work. 40 Mr Foreshew arrived at 12 noon and was told by Mr Laukaitis that the electrical supply was still connected to the premises. During the course of his work, Mr Foreshew attempted to use the power point in the laundry and a spark came out of the fitting. He informed Mr Laukaitis not to use the power point in the laundry and Mr Laukaitis suggested using the power point in the kitchen. It was conceded at this point that the switches in the sub-board must have been in the "on" position. At approximately 2.30 pm, Mr Laukaitis came into contact with the exposed wires at the rear of the dwelling where the water heater had earlier been removed and suffered fatal injuries. Shortly after the ambulance arrived at the site, Mr Foreshew noticed the state of the sub-board and that all switches were in the "on" position. The full extent of the illegal modification of the electrical installation of the premises came to light when an employee of the supply authority, Integral Energy, investigated the site at 7.00 pm on 27 September 2005. 41 The defendant submitted that the subjective seriousness of its offence was at the lower end of the range. This was so, firstly, because the defendant's contribution to the existence of the risk on 27 September 2002 was not as great and was much less than other parties'. The defendant pointed to the role of Crossley McLean as being in essence the principal contractor for the work being conducted at the site. As the multi-trade contractor, Crossley McLean was responsible for organising and timetabling the works and while the defendant reserved certain powers under the contract none of these powers inhibited in any way the ability of Crossley McLean to orchestrate the works. It was Crossley McLean that had access to the necessary expertise and trade skills and Mr McLean was the guiding mind of Crossley McLean and Fayon Pty Ltd, both present on the site on the day. It was accepted that the defendant itself did not take any steps to isolate the supply of electricity but Crossley McLean and Mr McLean were at the site during the period relevant to the charge whilst the defendant was not present. While the defendant accepted that it played a role in terms of the genesis of the risk that existed on 27 September 2002, it lay within the power of Crossley McLean and Mr McLean to terminate that risk. 42 It was perfectly within the capacity of Crossley McLean to arrange for the sub-board to be switched off and tagged to avoid inadvertent switching to the "on" position. The exposed wires could have been covered with insulating material. In contrast, there were practical difficulties in the defendant's ability to compel corrective safety action. It was impossible to station a representative of the defendant at every dwelling where such work might be carried out and, in any event, the work required specialised skills and qualifications which the defendant did not possess and for which it entered into the contract with the multi-trade contractor. Here, Crossley McLean was specifically engaged for the purposes of identifying and eliminating risks within the premises. The purpose of repair and maintenance of the defendant's premises was to render them fit for safe habitation by tenants. It was clear that from time to time such premises might be damaged or otherwise reach a condition where there was a risk to health and safety arising from things within the premises (eg electricity, hot water, falling roof material, broken floor boards etc). The defendant used contractors such as Crossley McLean to identify and eliminate those problems. 43 Crossley McLean were certainly not sent into the premises on the expectation that everything was sound and whole. The illegal modifications to the electrical installation that contributed to the risk, however, was certainly undetected until after the fatal accident but they did not amount to a hidden trap to which Crossley McLean and its employees and contractors were recklessly exposed by the defendant. The defendant had asked Crossley McLean to effect repairs and maintenance on a vacant public housing dwelling that was already in a state of some disrepair and which became worse due to vandalism. The defendant did not disguise these matters and, indeed, they were the very reason for the existence of the contract and Crossley McLean's role under the contract. In addition, it was submitted that the important public policy objectives of the Act were not served by punishing the defendant as a serious offender. 44 In addition, the defendant had procedures for managing the risk to health and safety that might arise from the premises. It engaged multi-trade contractors with the necessary skills to carry out maintenance and repair work and Crossley McLean had done so for many years. It required those contractors to disclose their occupational health and safety management systems and reviewed the occupational health and safety performance of the contractors during the life of the engagement. The defendant was to be given credit for these systems. 45 It was not easy to identify any readily available steps, apart from those taken by the defendant, to exclude the risk. The defendant was a government agency existing for the purpose of providing public housing pursuant to government policy of social welfare. It did not have any intrinsic or inherent expertise in electrical or plumbing activities unlike, for instance, the owner of a manufacturing facility. The defendant had to source that expertise from outside bodies and had to rely upon the trade skills of the persons so engaged. While the defendant could require that such persons produce testaments of their understanding of and commitment to occupational health and safety principles, there were limits to the extent to which the defendant could go behind these documents because of the specialist skills involved that were not possessed by the defendant. 46 The defendant accepted that it fell within the scope of s 10(1) on the basis of the facts disclosed, but nevertheless submitted that it just "squeezes in". By definition, a party who falls so narrowly within the ambit of s 10(1) had committed an offence at the lower end of the range of objective seriousness. Here, the premises were a residential dwelling and the circumstances surrounding the incident were very close to triggering the exclusion referred to in s 10(3)(b), namely, that the duties of a person under the section did not apply to premises occupied only as a private dwelling. By contrast, Crossley McLean had an obligation of repair and maintenance under the contract in circumstances that were very close to triggering the application of s 10(4)(b) so as to exclude the defendant from the scope of s 10(1). In providing public housing the defendant conducted an undertaking but only in the broadest possible sense of the term as comprehended by s 10(3)(e). 47 In relation to deterrence, it was submitted that there was nothing in the circumstances of this matter that would elevate considerations of specific deterrence above those normally applicable. General deterrence was of only limited relevance because of the unique circumstances of the defendant ,including the fact that the defendant was a state agency created to provide public housing in accordance with government social welfare policies. 48 In relation to subjective matters, it was submitted that the defendant pleaded guilty at an early stage and was entitled to the maximum discount of 25 per cent. The defendant had co-operated with the WorkCover Authority in the course of the investigation of the matter and had promptly satisfied the improvement notice issued by the Authority. Since the date of the incident, the defendant had taken steps to avoid a recurrence of this type of incident. Here, it was submitted, the offender was a person of good character, was unlikely to re-offend, had shown good prospects of rehabilitation and had shown remorse for the offence by making reparation for any injury, loss or damage and had entered a plea of guilty. These matters were identified by the Crimes (Sentencing Procedure) Act as mitigating factors and were available to the defendant. 49 During the course of dealing with these submissions, the Court raised with the parties the undesirability of being drawn into a consideration of the relative criminal culpability of the Housing Corporation, Crossley McLean and Associates and William McLean in circumstances where the other two defendants had entered a plea of not guilty and the Court, as presently constituted, was to hear these proceedings.

Inspector Robert Mayell v New South Wales Land and Housing Corporation

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (4)

Cited By (2)