Inspector Robert Mayell v William McLean and ors [2006] NSWIRComm 93 | Case summary

As a result of the failures particularised it was alleged that the persons identified were placed at risk of injury. 4 In Matter No IRC 5747 of 2004 it was alleged that William McLean being a director of CMA was deemed to have contravened s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of the Act in that CMA, being an employer on 27 September 2002 at 51 Dobu Place Glenfield, failed to ensure that persons not in its employment (and, in particular Craig Foreshew, Paul Morrow, Kathleen Morrow, Whetu McDonald, Robert Chaytor and David Laukaitis) were not exposed to risk to their health and safety arising from the conduct of its undertaking while at its place of work. 5 The particulars of this charge were in substance the same as the particulars provided in relation to CMA. 6 In Matter No IRC 5753 of 2004 it was alleged that William McLean being a former director of Fayon (now deregistered) was deemed to have contravened s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of the Act in that Fayon, being an employer, on 27 September 2002 at 51 Dobu Place Glenfield, failed to ensure the health safety and welfare at work of all its employees and in particular, Robert Chaytor. 7 In relation to the particulars concerning a failure to provide a safe system of work in respect of plumbing work performed at the site the particulars were in substance the same as in the earlier matters. In this particular matter it was alleged that, as a result of the failures particularised, Robert Chaytor was placed at risk of injury. 8 In Matter No IRC 5741 of 2004 it was alleged that William McLean being a former director of Fayon was deemed to have contravened s 8(1) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of the Act in that Fayon, being an employer on 27 September 2002 at 51 Dobu Place Glenfield failed to ensure the health and safety and welfare at work of all its employees and, in particular, Mr David Laukaitis. 9 Again, the particulars of the unsafe system of work were in substance the same as those provided in the other matters. However, in this matter there was a further allegation that the company had failed to provide such information, instruction, training and supervision as was necessary to ensure the health and safety at work of its employees. The further particulars supplied in relation to that allegation were: (a) the company failed to warn its employees adequately or at all of the risks of working in the vicinity of energised, uncapped and/or exposed electrical wires; (b) the company failed to adequately instruct and train its employees to ensure that power to the site was isolated prior to the commencement of work at the site; (c) the company failed to adequately supervise its employees to ensure that work at the site was isolated prior to the commencement of work at the site; and (d) the company failed to adequately instruct and train its employees how to tag out the power supply whilst they were working on the site. 10 The prosecution case consisted of an Agreed Statement of Facts together with a number of photographs of the site and the electrical installations at the site together with a certificate verifying that the defendants had no prior conviction under Occupational Health and Safety legislation. 11 In view of the fact that these offences arose in a context of the operation of a number of companies, some related, and involving a number of employees, it is convenient to reproduce the substance of the Agreed Statement of Facts: 1. ... 2. At all material times William McLean of 12 Boronia Road, Kentlyn in the State of New South Wales, was a director of Crossley McLean & Associates Pty Ltd and Fayon Holdings Pty Ltd. 3. At all material times Crossley McLean & Associates Pty Ltd [ACN: 088 209 607] ("CMA") was a corporation whose registered office was situated at Accountcorp Pty Ltd, 'The Terraces', Unit 1, 1 Iolanthe Street, Campbelltown in the State of New South Wales. 4. On 3 March 2004 Fayon Holdings Pty Ltd ("Fayon") was de-registered. 5. At all material times, Unit 51 Dobu Place, Glenfield ("the site") was owned by New South Wales Land and Housing Corporation ("NSW Housing"). In its capacity as a statutory authority, NSW Housing makes available the site (and other premises like it) for occupation under lease by certain persons (public housing tenants). 6. 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. 7. At all material times, CMA was contracted to NSW Housing as a "multi-trade contractor" to provide maintenance services to designated properties in South West Sydney, including the site. 8. At all material times, Fayon operated a plumbing business. 9. At all material times, Fayon was contracted by CMA, as a sub-contractor approved by NSW Housing, to perform plumbing work on designated sites owned, occupied and/or managed by NSW Housing. 10. At all material times, Fayon was contracted by CMA to perform specified plumbing work on the site. 11. At all material times Robert Chaytor was a self-employed, licensed plumber who contracted his services to Fayon as a plumber. 12. At all material times, David Laukaitis was employed by Fayon as a third year apprentice plumber. 13. 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. 14. At all material times, Craig Foreshew was a self-employed vinyl tiler who contracted his services to Joy Bond Pty Ltd. 15. The site was vacated by its then public housing tenant in early August 2002. 16. On 4 August 2002 David Thomas, an employee of NSW Housing, conducted an inspection of the site for the purpose of identifying the repairs and refurbishment work that needed to be done before NSW Housing could re-let the premises. 17. 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. 18. Mr Thomas did not take any steps to ascertain whether the electrical power supply to he premises had been disconnected. 19. On 5 August 2002 Mr Thomas issued a work order to CMA, on behalf of NSW Housing, 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. 20. When a work order is issued by NSW Housing, the keys to the property are collected from NSW Housing by CMA and returned to NSW Housing when all the maintenance work is completed. NSW Housing then undertakes a final inspection to ensure the property has been repaired before allowing occupation by the incoming tenant. 21. 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. 22. 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. 23. 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 CMA prior to the subject incident. 24. 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. 25. 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. 26. Whilst Mr Thomas was on leave, Russell Baker, another employee of NSW Housing, took over management of the site on behalf of NSW Housing. 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. 27. 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 28. 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 NSW Housing, and was given approval to replace the missing hot water heater. 29. 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. Paul Morrow stated when interviewed that he turned the power off at the electrical sub-board in the kitchen. 30. At approximately 9.00am 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. 31. At approximately 10.00am on that day, William McLean arrived at the site and saw that the hot water heater was missing. 32. 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 NSW Housing. 33. Ms McDonald states that she was advised by NSW Housing to pick up the key from the locksmith at the site. NSW Housing had not yet undertaken a final inspection of the site to ensure all repairs had been undertaken prior to Ms McDonald accessing the site. 34. 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. 35. Ms McDonald states that she saw the exposed wires for the electric stove whilst in the kitchen on that day. 36. 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. 37. 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. 38. At approximately 1.30pm on 27 September 2002 Ms McDonald commenced to move items of her property into the residence. 39. 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. 40. William McLean returned to the site at 12.30pm and supervised Mr Laukaitis for approximately 10 or 15 minutes. 41. 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. 42. 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. 43. 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. 44. 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. 45. 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. 46. 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. 47. 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 the job was nearly completed and that he should go back to Claymore. 48. Both William McLean and Mr Thompson departed the site prior to the incident occurring. 49. 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. 50. Whilst in the kitchen Mr Foreshew also saw exposed wires in the kitchen where the stove was missing. 51. In addition, at the Coronial Inquest touching upon the Death of David Laukaitis, Kathleen Morrow gave evidence which suggests that, at some time on the day and prior to the subject incident, she may have inadvertently flicked the switches on the electrical sub-board in the kitchen into the "on" position thinking that she was actually turning off the electricity. The Incident 52. 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 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. 53. 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. 54. 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. 55. Mr Laukaitis was taken by ambulance to Liverpool Hospital and died later that day. 56. 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. 57. 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 New South Wales Housing, to attend to the uncapped and exposed electrical wires near the hot water heater. 58. 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. 59. 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 and noted that the power point in the lounge room had also been illegally modified in a similar fashion. 60. 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 61. Following the incident on 27 September 2002 Ken Carnegie, team leader employed by NSW Housing, and Russell Baker, acting technical officer employed by NSW Housing 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. 62. 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. ... 64. ... 65. ... 66. Following the accident Fayon adopted a new procedure for an electrician to attend a property first to isolate and knock out the power. Fayon also purchased testing wands for testing whether electrical wiring contains live power. 67. CMA held a toolbox meeting after the incident and informed its sub-contractors to make sure all bare wires are made safe by an electrician immediately and not to presume that power to sites has been switched off. 12 The prosecutor also handed up for the consideration of the Court four Victim Impact Statements from members of the Laukaitis family. Those statements were made by Mr Laukaitis' mother (Barbara Laukaitis), his father (Romi Laukaitis), his younger brother (John Laukaitis) and his twin brother (Peter Laukaitis). Each of those statements express the personal grief and depth of loss felt as the family attempted to come to terms with the loss of such a young life. In accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999, those statements have been read and considered by the Court. No member of the family wished to address the Court in addition to having their statements handed up and at the conclusion of the hearing the Court expressed its condolences for their sad loss. 13 In relation to CMA, the defendant relied upon the affidavit of David Bruce Crossley who was the company's managing director having been a director since June 1999 when CMA was registered. The other director of CMA was William McLean the other defendant in the related proceedings. Mr Crossley said he was also the managing director of Crossley Building Services Pty Ltd. There were five shareholders of CMA. Apart from Mr Crossley there was Mr McLean, Terry Hannon, Justin Smith and David McKinnon. Mr Hannon was no longer a shareholder. 14 Mr Crossley said that he had started a business in 1983 carrying out building and maintenance work which he operated as a sole trader. At that time he commenced performing contract maintenance work on properties owned by the then Department of Housing - this was mainly carpentry work. The business was generally run as a family business but the work bought him into contact with a number of other contractors who were doing similar work under similar contracts for the Department. Mr Crossley developed a friendship with a number of these contractors. 15 In 1999 the Corporation announced that it was changing its maintenance system and would no longer enter into arrangements with individual contractors but would enter a contract with a larger principal contractor who was then to be responsible for sub-contracting the required work as needed to other contractors. This was seen by Mr Crossley and other individual operators as a threat to their livelihood. Mr Crossley spoke with Mr McLean and a number of other sub-contractors performing the Corporation's work about forming a company that would be a principal contractor to the Corporation under this new system and which would be able to enter into sub-contracts similar to those that had existed under the previous system. It was for this reason that CMA was formed. 16 In order to fulfill its obligations with the Corporation, CMA was required to provide supervisors who were responsible for particular aspects of work or a geographical area. From the beginning, these supervisors were not employees of CMA but were sub-contracted and usually employed by a company. David McKinnon was an example of a sub-contracted supervisor who worked at the Dobu Place Glenfield site. 17 CMA currently employed an administration/office manager and from time to time engaged secretarial/administrative staff normally sourced from an employment agency when the need arose. At the time of swearing his affidavit CMA had one employee performing the duties of administration and office management. 18 In 1999 CMA entered into its first contract with the Corporation to provide maintenance to Corporation properties and this was described as a multi-trade contract. A similar multi-trade contract was entered into by CMA with the Corporation in 2002. A third such contract has since been entered into by CMA. Under the multi-trade contract, CMA was responsible for carrying out maintenance work and it in turn sub-contracted this work which included plumbing, electrical, tiling, flooring, painting and cleaning work. There were therefore a number of contractors providing services to CMA including Crossley Building Services Pty Ltd (Mr Crossley's company that provided carpentry services). Mr Crossley described CMA as being "in effect a service company facilitating the use of contract labour to carry out work" as required by the Corporation. 19 In July 2002 the second multi-trade contract commenced. At that time, William McLean was a director of Fayon and carried on a business known as Bill McLean Plumbing. In September 2002, CMA sub-contracted to Fayon to provide plumbing services required by the Corporation under the multi-trade contract. Fayon had employed David Laukaitis as an apprentice plumber and he carried out work for Fayon on properties under the multi-trade contract. There was never a written contract between CMA and Fayon in relation to plumbing services provided by Fayon, only a verbal agreement reached between Mr McLean and Mr Crossley. 20 The multi-trade contract set out the obligations and responsibilities of CMA and the Corporation in relation to the work to be performed under the contract. CMA was normally advised of work to be carried out by the provision of a work order or job sheet that would be used to match the appropriate contractor with the work required to be performed. The work order or job sheet was then given to a supervisor who was responsible for covering all jobs within a geographical zone. The supervisor managed that job until completion and handover to a Corporation inspector. Mr Crossley described his role in that process as "often limited" and he did not know of all jobs taking place on all sites because he relied on the supervisors responsible for each area for their co-ordination of that work. Mr Crossley generally became involved if there was a complaint by the Corporation or a consistent problem which required a solution. The Corporation fixed a price for the work and CMA arranged for sub-contractors to carry out the work. The difference between the price paid by the Corporation to CMA and the price paid by CMA to the contractor was approximately 15 per cent. This was the margin that CMA used to fund expenses used in operating the company and carrying on the business including its running expenses. Mr Crossley said he did not receive a wage or salary from CMA. 21 Mr Crossley pointed to a number of steps taken by CMA to establish a sound system of occupational health and safety. In December 2001, BTN Quality Management Systems had been engaged to implement systems according to Australian Standards over a period of 18 months together with third party accreditation. In CMA's tender documents sent to the Corporation there was reference to quality policy, staff training, the role of the occupational health and safety co-ordinator, occupational health and safety policy procedures manual, and information including the role of supervisors who were stated to be "properly trained in all legislative requirements" covering the work and who would play an active role in ensuring a high level of quality management systems and occupational health and safety performance. CMA's occupational health and safety procedures were required to be supplied to the Corporation. It was a further requirement that CMA participate in an audit of its occupational health and safety and quality management systems by the Corporation. CMA carried out its own internal auditing of sub-contractors' occupational health and safety systems and had accreditation to Australian Standards. 22 The important features of CMA's occupational health and safety systems in place in September 2002 and continuing were said to be the quality management system, induction of employees and contractors, the internal audit process, the carrying out of documented risk assessments, the carrying out of general induction training for Corporation sites and toolbox meetings for CMA contractors held every three months. Mr Crossley said that, as part of the requirement to carry out work for CMA, Fayon provided CMA with a safe working method statement for the installation of the hot water system: that work method statement was annexed and was a generic document used for all installation purposes. The second procedure listed required the isolation of electricity supply by the removal of fuses and that would have been the normal course on any site, although on the Corporation's sites electricity was already meant to have been isolated and disconnected by the Corporation. 23 In relation to the supply of electricity to these particular premises, Mr Crossley said that in his experience maintenance work for the purposes of reletting to a new tenant usually meant that the electricity was not connected to the premises. Following the incident involving Mr Laukaitis, he discussed the situation with CMA's supervisor, David McKinnon, who told him that, as part of his risk assessment of the premises, he checked that Integral Energy had been to the premises and had disconnected the power. Mr McKinnon also said that he had checked the mains power board and that the main fuse had been removed. In Mr Crossley's experience, this should indicate that there was no power connected to the premises. 24 A few days after the accident, Mr Crossley attended the premises with Ken Carnegie from the Department, four representatives of Integral Energy together with Paul Brennan and David McKinnon from CMA. The group inspected the electricity meter box: the fuses had been removed and the main fuse had been taped over. The representative from Integral Energy pulled the backing out of the meter box and "a wire was found to be out of place". That wire was traced by Integral Energy representatives who stated that the wiring was illegal as it bypassed the main fuse and was running power directly from the street to the house. Mr Crossley told them that the CMA procedure was to remove the main fuse from the meter box to make sure that the power was disconnected but the representatives from Integral Energy said that removing the fuse would not result in the power being disconnected because of the illegal wiring in this particular meter box. 25 The representatives from Integral Energy informed Mr Crossley that the premises were meant to have been disconnected by them in mid-March 2002 but they had again attended the premises in June-July 2002 after being informed that someone had being using electricity illegally at the premises. Integral Energy inspected the site on that occasion but could not find any illegal wiring. 26 Mr Crossley investigated the accident on behalf of CMA. Shortly after the accident, he convened a meeting of CMA supervisors and contractors to discuss and explain the procedure for dealing with electricity in premises and, in particular, exposed wires. The company's procedure was for an electrician to be called immediately to check wires and to ensure that power had been isolated before any work was carried out. This procedure was adopted by CMA after the accident and was required to be adopted by its contractors. Mr Crossley also arranged for an audit to be carried out of CMA's occupational health and safety policies and the policies and procedures of sub-contractors to ensure that appropriate standards required under the Corporation's multi-trade contract were being met. Paul Brennan carried out that audit. 27 Mr Crossley arranged a meeting with Mr Salem of Joy Bond Pty Ltd when he became aware that its employee, Craig Foreshew, had used electricity sourced at the premises. Mr Salem had confirmed at toolbox meetings that employees of Joy Bond Pty Ltd would comply with CMA's policy that they were not to use the electricity from inside Corporation properties. Mr Crossley issued Joy Bond Pty Ltd with a "non-conformance notice" and requested Mr Salem to provide documents to satisfy CMA that Joy Bond Pty Ltd was properly informing its employees of the CMA policy about not using power from premises and how that policy was being enforced. 28 Mr Crossley spoke of the circumstances in which he became aware of an accident at the site and that Mr Laukaitis had been taken to hospital. He was with Mr McKinnon at the time and they both immediately went to the premises but it was not until later in the day that he was informed that Mr Laukaitis had died. Mr Crossley's son, who was an apprentice with Crossley Building Pty Ltd, had become friendly with David Laukaitis and they "were good friends". As a result, there was additional contact between both families outside of normal work hours. Mr Crossley said that he was very upset about David's death and that he had always tried to have good personal relationships with the company's contractors and with employees of Mr McLean and Fayon. Following the accident, Mr Crossley said that he spent a great deal of time thinking about how it had occurred and he had discussed the matter on site with representatives of the Department and Integral Energy, as well as conducting his own investigation and reviewing the company's occupational health and safety policies. He spent many hours doing this and was assisted by Mr Brennan. Mr Crossley said that he had become so immersed in these matters that he was "lost" to his family for approximately six months. Mr Crossley attended the funeral with "many" CMA contractors and said that he took an active role in consoling those people as well as members of the Laukaitis family. For weeks and months following the funeral he continued to look back at how the accident could have happened and what might have been done differently to prevent the accident. 29 Just after the accident he began to organise an event where CMA and its sub-contractors could raise money to assist Mr Laukaitis' family. There was support for a golf day to raise money but the Laukaitis family insisted that no money be raised for them and that the time should be used to get together and remember Mr Laukaitis. A golf day was held on 27 September 2003, then in September and October 2004 and 2005, and it was intended to be an annual event. Mr Laukaitis' brothers have been at the golf day on two occasions and his father has been the guest speaker. Mr Crossley also spoke of his personal support for a number of community organisations and charities that were also supported by Crossley Building Services Pty Ltd and CMA. 30 In relation to the plea of guilty, Mr Crossley had received advice from senior counsel. The company had experienced difficulties in receiving the advice of senior counsel which was obtained well after the matter had been set down for hearing. 31 In cross-examination, Mr Crossley said that he was generally aware of the operation of external electricity boards and the use of internal sub-boards but he had not seen this particular system. Although he had not actually seen anyone in public housing arrange the electricity supply so as to be able to steal it, he was aware that this was an issue in public housing. Similarly, he was aware of illegal wiring inside public housing properties but he had not seen it himself. Although there was an illegal installation in the laundry and the switch was hanging off the wall, there was no work to be performed by CMA in the laundry and he had not seen the state of the electricity connection in the laundry. He agreed that the sight of a connection in this state would put a builder on notice of a risk that needed to be addressed. 32 The usual system was that the electricity would be disconnected before CMA came on site to perform work for the Corporation. The obligation on a sub-contractor to contact CMA if it was found that the electricity was connected was found in the usual worksheet that instructed the plumber to disconnect the power when replacing a water heater. Mr Crossley did not expect that contractors who used internal power contrary to the Corporation's direction at the site would disclose their use of that power to CMA because that would not be to their benefit. 33 William McLean provided an affidavit stating that he was 62 years of age and was a director of CMA since June 1999 when it was registered. He was also a director of a company named "Boronia Plumbing Services Pty Ltd" and was a licensed plumber, having commenced work as an apprentice when he was 15 years of age. Over approximately 40 years, Mr McLean had carried on a plumbing business a number of entities including through a business known as Bill McLean Plumbing. In July 1987 he registered a company known as Fayon Holdings Pty Ltd and became a director with his wife. He used Fayon to carry on the business of Bill McLean Plumbing. By September 2002 Mr McLean employed six people, namely, himself, his daughter who was the secretary, two licensed plumbers (Mr Hannon and Mr Chaytor), a qualified plumber (Luke Thomson) and an apprentice plumber (David Laukaitis). 34 The reason for establishing CMA was outlined and accorded with the background to the commencement of that company given by Mr Crossley in his evidence. Mr McLean said that in September 2002 he was working for both CMA and Fayon. In relation to CMA, he was responsible for facilitating the carrying out of plumbing work on Corporation properties under the multi-trade contract. CMA contracted with Fayon and Bill McLean Plumbing to carry out plumbing work on those properties but there was no written contract between CMA and Fayon for this work. Fayon was contracted by CMA to perform work on Corporation properties mainly in the Macquarie Fields area: when the work was required outside of that area CMA contracted other plumbers. 35 By September 2002, Mr McLean said that he was working eight hours a day Monday to Friday and spent 80 per cent of his time working for CMA and 20 per cent working for Fayon. His duties included arranging for Fayon to carry out work for CMA and supervising the employees of Fayon who were carrying out plumbing work. These duties included checking on work as it was being carried out and responding to calls for assistance by Fayon employees. 36 In relation to income, Mr McLean said that he was now receiving income from Boronia Plumbing Services Pty Ltd. For the financial year ending 30 June 2005 he had received $47,815 as income. In the previous financial year he had received $47,598 income. Boronia Plumbing Pty Ltd paid its employees and the overheads and costs associated with carrying on Bill McLean Plumbing including the cost of workers compensation insurance. The current employees of Boronia Plumbing were his wife, his daughter, Luke Thompson and Shaun Crossley. 37 Mr Laukaitis had been employed in late December 1999 by Fayon as a third year plumbing apprentice. Mr McLean gave details of his working week and the time allocated to him to attend TAFE. As an apprentice, Mr Laukaitis worked directly with Mr McLean and with other employees of Fayon. Mr McLean said that he was a good employee, a quick learner and he held no concerns about his conduct or competency. 38 At the time of the accident, Mr Laukitis was in his third year and was able to work without supervision. Up to that time, his work had normally been supervised by Mr Hannon and he would have worked with Mr Hannon or Luke Thompson when carrying out work. His work would have been delegated to him by Mr McLean or Mr Hannon and was normally delegated to both David Laukaitis and Luke Thompson so that they could work together. 39 The usual duties performed by Mr Laukaitis were described by Mr McLean and these duties included installing hot water systems. It was estimated that, prior to the accident, he had installed approximately 50 hot water systems, usually in company with Luke Thompson. At the time of the accident, Mr Laukaitis was regarded as having experience in most areas of plumbing and had satisfactorily attended and completed his TAFE subjects. 40 At the time of the accident, Fayon had a written work method statement for installing a hot water system. In relation to the work at these premises, the statement had been prepared but had not been signed off until after the accident. This document was the same document referred to by Mr Crossley in relation to the installation of hot water systems. Mr Laukaitis had been trained in the installation of hot water systems and would have been informed of the correct procedure through his TAFE classes as well as by Luke Thompson. Mr McLean had instructed him that he should always pull the main fuse out of the main power box or meter board when working with electricity. He was to make sure that the power was switched off at any sub-boards that were usually found inside the property. Mr McLean was aware that it was Mr Laukaitis' normal practice to remove the fuses in accordance with these instructions. 41 There were toolbox meetings held with employees of Fayon every two weeks at which they were invited to discuss any occupational health and safety issues that had arisen since the last meeting. These meetings were documented and a record given to CMA. Mr McLean had also provided WorkCover with a schedule of training given to Mr Laukaitis during his employment with Fayon. Fayon had a one page occupational health and safety policy statement issued by Mr McLean in January 2002. Mr McLean made sure that Fayon employees undertook relevant induction training and provided evidence of that training. 42 The first time Mr McLean went to the premises at Dobu Place Glenfield was on the day of the accident. When he arrived, there was a cleaner present and a tenant who was to move into the premises. Mr McLean went to the back of the premises and noticed that the hot water system was missing. The cleaner, Paul Morrow, said to him something like "I've turned the power off at the meter inside". At this time, Mr McLean did not go into the townhouse but spoke to the tenant about the hot water being installed the following Monday. The tenant wanted to move in over the weekend and asked for the installation to be carried out sooner. Mr McLean received approval from the Department to install the missing hot water system at the premises. As there was another hot water system to be installed elsewhere it was agreed that Mr Laukaitis would perform one installation and Luke Thompson would perform the other. 43 After purchasing the water systems and fittings, Mr Laukaitis went to the Glenfield premises with Mr McLean arriving at approximately 12.30 pm. He telephoned CMA and spoke to Michael Crimmins about the electrical work that was required to be done at the premises including the fixing of power points and connecting the stove. It appears that work was to be performed by a qualified electrician: Mr Laukaitis was not to perform any electrical connection of the water system. 44 While at the premises Mr McLean did not check whether the electricity had been turned off and assumed that Mr Laukaitis had carried out his usual practice of checking the mains. As Mr Laukaitis did not appear to have any problems with the job, Mr McLean left after about 15 minutes. At approximately 2.10 pm he received a call from CMA to say there had been an accident at the premises and he drove back to the site from his home. When he arrived, Mr Laukaitis had already been taken to Liverpool Hospital. After inspecting the site, Mr McLean then drove to the hospital and met Mr Laukaitis' family: he was then informed that Mr Laukaitis had died. He arranged for WorkCover to be notified of the accident. 45 Mr McLean assisted the family by taking Mr Laukaitis' brother to the hospital and then returned to the premises to meet with police and the WorkCover inspector. He made a brief statement to the police and the WorkCover Inspector and on a later date made a more detailed statement. After the accident, Mr McLean reviewed the procedure for making sure that electricity was isolated before work was carried out. The new procedure involved calling an electrician to attend the site to isolate and lock out the power and to tape any bare or loose wires. 46 Mr McLean gave evidence of the circumstances in which Fayon was deregistered. Prior to the accident, he had discussions with Mr Hannon about carrying on a plumbing business in partnership with him and doing so through the company Boronia Plumbing Pty Ltd. This proposal was raised with Fayon's accountant who was also Mr McLean's personal accountant, who suggested that the business affairs be restructured by winding-up Fayon and deregistering it and registering the new company Boronia Plumbing. At the time that advice was received, Mr McLean had not been told or given any information by WorkCover suggesting that Fayon would be prosecuted in relation to Mr Laukaitis' death. Mr McLean had been given the impression from a conversation with Mr Crossley that WorkCover might not proceed against CMA or Fayon in relation to the incident. 47 Following the accident, Mr McLean had given consideration to winding-up Fayon in any event so that he could cease operating Bill McLean Plumbing Pty Ltd. This step was considered, partly because of the accident and partly because of Mr McLean's age. Mr McLean felt, however, an obligation to the employees of Fayon and for that reason decided to continue in the plumbing business. In light of the plans he had made with Mr Hannon, he decided to go through with the proposal and to continue to operate the plumbing business through the different company recommended by his accountant. It was in those circumstances that, on 20 November 2002, he registered Boronia Plumbing Services Pty Ltd of which he and Mr Hannon were directors. Fayon was dissolved on 3 March 2004. Mr McLean noticed that the accident had a "big effect" on Mr Hannon: within a few months of Boronia Plumbing being registered Mr Hannon did not wish to continue as a director and partner and Mr McLean was left as the sole director of Boronia Plumbing. Boronia Plumbing now had three employees. 48 Mr McLean attended the Coroner's Inquest into the death of Mr Laukaitis held in early February 2005. He heard the evidence from Mr Foreshew to the effect that Mr McLean was on the premises when coffee was being made using electricity. Mr McLean said that this suggested that he was aware that electricity was connected at the premises whilst he was there supervising Mr Laukaitis on the day of the accident but that was incorrect. Mr McLean had assumed that Mr Laukaitis had used his normal procedure, the procedure that he had been taught by Mr McLean and which he had seen him use, namely, the removal of fuses from the main meter box so as to disconnect power. At the time that Mr McLean was at the premises, he said he was unaware that the power was in fact connected. 49 It was pointed out by Mr McLean that, even if he had inspected the meter box on the day of the accident, it would not have made any difference: he would not have been able to identify that power as being illegally connected. He would have only inspected the meter box to remove fuses and that would have had no effect upon the flow of power. If he had looked on that day, the fuses had already been removed and he would have assumed that the power was disconnected. The only way he would have recognised that power was connected to the site was if he saw an electrical item being used from a power source within the premises - he had not seen such an event. Mr McLean said that he also had the added assurance from Mr Morrow that he had "turned the power off" at the electrical sub-board in the kitchen. 50 At the Coroner's Inquest, in light of the way the evidence was adduced, Mr McLean said that he exercised the privilege against self-incrimination and did not give evidence. After the Inquest, he felt a change in attitude towards him by the Laukaitis family. He was, however, very upset when he found out about the death of David Laukaitis because he had developed a friendship with him beyond being an employee. On 1 October 2004, he organised for the New South Wales Police Service Chaplain to attend his home to speak to employees of Fayon to help with the death of Mr Laukaitis. Mr McLean also attended the funeral of Mr Laukaitis and spoke to members of his family. Fayon paid for an insurance policy through NRMA insurance which he understood covered most of the cost of the funeral. After the accident, Mr McLean spent a lot of time thinking about Mr Laukaitis' death and how it might have been avoided. 51 Since 2002, Mr McLean had been involved in golf days organised by Mr Crossley and CMA for the purpose of people getting together who knew and remembered Mr Laukaitis. Mr McLean stated that he deeply regretted the death of Mr Laukaitis and the breach of the Occupational Health and Safety Act 2000. This was the first time he had been prosecuted for any offence and he regarded his standing in the community as being of great importance to him. The possibility of a conviction being imposed after 62 years was of great concern, although he accepted that the offences to which he had pleaded guilty were serious especially since it involved the death of a "workmate". Mr McLean, nevertheless, asked that consideration be given to allow him to keep his good name and not to impose a conviction. 52 In cross-examination, Mr McLean said that Fayon had been working for the Corporation for 15 years in relation to townhouses and similar premises to those at Dobu Place. In these similar premises, there was an external main electricity switchboard and a small internal switchboard. At Dobu Place he had not looked at the internal switchboard and it was the first time in his work history that he had ever seen a main electricity switchboard that had been tampered with like the one at Dobu Place. 53 Had he seen a connection hardwired into the back of a power point at the premises Mr McLean would have recognised that it was illegal and accepted that he would then have been put on notice of a potential risk that should be attended to and which needed to be covered by the risk assessment. Mr McLean noticed that there was a difference between working on a dwelling that was occupied and empty premises when installing a hot water system. Usually Corporation dwellings were empty and the electricity was supposed to be disconnected. Mr McLean accepted that contractors were not to use electricity on site without permission of the Corporation to have it reconnected or, alternatively, contractors were to bring their own generators. He agreed that site contractors at Dobu Place were using on-site electricity for a number of days and that was a substantial departure from the safe system of work and that he should have been told by the on-site sub-contractors of this fact but they did not do so. 54 The work method statement for this installation had not been signed off on the day of the accident and should have been signed off by Mr Laukaitis. The work method statement was generic and did not apply directly to the work to be performed on this day: it addressed the removal of the fuses from the mains. There was no document used as a work method statement other than the generic document. 55 After the accident a number of changes were introduced. Mr McLean confirmed that wands had been purchased that indicated whether or not the electricity lines were de-energised. There was no reason why that equipment could not have been purchased earlier. 56 In relation to the Corporation's requirements that the electricity be disconnected at a site such as Dobu Place, in Mr McLean's experience the Corporation cut off the power: that was not his obligation. The sub-contractors were left to arrange their own power and they might do so in a number of ways, including obtaining power from an adjoining property or by way of a generator. He did not see any generator at this site. 57 For both CMA and Mr McLean, a large number of personal character references were tendered. These references dealt with the personal qualities of Mr Crossley and Mr McLean, the usual safe working practices of the corporate entities involved in this incident, the close personal relationships formed between the defendants and those who worked for them and the defendants' participation (particularly in relation to CMA) in charity work in the wider community. The references also referred to acts of personal kindness and financial assistance given to others in times of difficulty. A number of references were provided by those who sub-contracted for the defendants and expressed the shock and deep sense of loss that affected them all by the death of David Laukaitis, recording the obvious effects on both Mr Crossley and Mr McLean of this workplace accident. A number of persons gave references to both defendants especially those who sub-contracted to their companies. In Mr McLean's case a number of the references were from members of his immediate family who gave details of the way in which the death of Mr Laukaitis had a lasting effect on Mr McLean and his family relationships. Mention was made of how the accident had affected Mr McLean's day to day health and his enthusiasm for his business. THE SUBMISSIONS 58 The prosecutor noted that it was the Corporation's policy that premises were to be disconnected from the electrical mains upon vacation of the premises by tenants. It was for the contractors to arrange for their own electricity supply from a temporary connection or by providing a generator. In early August 2002 Mr Thomas, an employee of the Corporation, had conducted an inspection of the site to identify necessary repairs and noted that the stove had been removed from the kitchen and was in the rear courtyard leaving exposed electrical wires in the kitchen, and that the electrical installation in the premises had been illegally modified by additional wiring being wired into the back of a power point in the laundry to provide an additional power source at the rear of the premises. After the accident, an inspection of the premises disclosed the presence of a power point in the living room that was hanging off the wall - this was also considered to have been illegally modified in a fashion similar to the power point in the laundry. The presence of this illegal modification was clear and obvious and should have put both the Corporation and the defendants on notice that the electrical installation had been tampered with and was potentially unsafe. Mr Thomas did not take any steps to establish whether the power supply to the premises had been disconnected nor did he require an inspection of the electrical installation be undertaken before work commenced on the site. Mr Thomas then issued a work order to CMA in relation to the work to be performed on the premises. Mr Thomas instructed CMA, as part of the works to be performed, to rectify the illegal modification of the electrical installation in the laundry but gave no instructions to CMA to carry out a general inspection of the electrical system including the mains connection before work commenced at the site and, in fact, CMA did not carry out such an inspection itself nor did it arrange for an appropriately qualified electrical sub-contractor to do so. 59 Approximately five days later, Mr McKinnon, the CMA supervisor, conducted a risk assessment of the site and, although he identified the presence of rubbish as presenting a potential hazard, he did not identify any hazards or potential hazards associated with the electrical installation despite the presence of bare electrical wires in the kitchen and the presence of illegal modifications to the electrical installation the lounge room and in the laundry at the rear of the premises. After Mr McKinnon's assessment, the site was vandalised but no further assessment of risk to the site was performed by or on behalf of CMA and/or Fayon prior to the accident. A few days later, Paul and Kathleen Morrow attended the site and observed that the hot water heater and stove were missing and that the wires from the stove were exposed and lying on the floor of the kitchen, and the wires from the hot water unit extended beyond the conduit with three bare wires exposed and uncapped. They advised Mr Thomas from the Corporation and Mr McKinnon from CMA about these missing items. 60 On the day of the accident, the cleaners observed that the fluorescent light in the kitchen was illuminated when they attended in the morning and they otherwise used the electrical installation at the site on that day. The cleaners also allowed the incoming tenant, Whetu McDonald, to use the electrical supply to make tea and coffee. Mr Laukaitis had told the vinyl tiler, Mr Foreshew, that the electricity was connected and that he could plug in his compressor and he helped the vinyl tiler connect a fan to the internal electrical installation.

Inspector Robert Mayell v William McLean and ors

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties

Cases Cited (1)

Cited By (1)