Inspector Thomas Yeung v Stuart John Hill

Judgment 1This prosecution is brought by Inspector Thomas Yeung of the WorkCover Authority of New South Wales against Stuart John Hill ("the defendant") under s 10(1), by virtue of s 26(1), of the Occupational Health and Safety Act 2000 ("the Act") by way of a further amended Application for Order. 2It is alleged the defendant, being an employer, on 12 November 2007 at 9 Fenton Avenue, Caringbah in the State of New South Wales ("the premises"), contravened s 10(1), by virtue of s 26(1) of the Act, in that it failed to: By its acts or omissions particularised below, ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (a) The corporation at all material times had control or alternatively limited control over the premises; (b) At all material times person not employed by the corporation, in particular Darren Bunney, Hussein Al-Jaboore, Gary Cook and Said Al-Khaled performed work at the premises; (c) At all material times the corporation had control by virtue that it was the owner of the premises and principal contractor for the construction of thirteen townhouses and units at the premises. (d) At all material times the defendant was a director of the corporation. The particulars of the risk are: (e) There was a risk of injury to non-employees working on scaffolding at the premises of suffering electric shock and/or electrocution from accidental contact by plant or equipment utilised by non-employees, with live overhead power lines running across the premises. The particulars of the acts or omissions in failing to eliminate the risk are that: (f) The corporation failed to ensure that the premises were safe and without risks to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for working near live overhead power lines in that it failed to undertake measures as follows: (i) ensuring that the live overhead power lines running across the premises were de-energised or re-directed away from the work area , in particular from areas where scaffolding was erected for the construction of blocks; (ii) ensuring that scaffold was not erected within four metres from live overhead power lines as required by Australian Standard 4576; (iii) isolating the power lines through the erection of physical control barriers around the scaffold; (vi) place warning signs on the scaffold to alert persons to the presence and proximity of live overhead power lines; (g) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to undertake a risk assessment which: i considered and identified the hazards associated with working near live overhead power lines; and ii considered and identified the risk of equipment coming into contact with live overhead power lines. (h) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to ensure that some or all of the non employees working at the premises were provided with information, instruction and/or training in relation to working near live overhead power lines in that it failed to undertake measures as follows: i conduct site specific inductions to inform persons of the presence and proximity of live overhead power lines; ii conduct tool box talks to inform persons of the presence and proximity of live overhead power lines; iii inform person that live overhead power lines were approximately 2.9 metres from the highest point on the scaffold. (i) The corporation failed to ensure that the premises were safe and without risks to health in that it failed to ensure that a safe work method statement was in place for working near live overhead power lines as required by clause of the 227 Occupational Health and Safety Regulation 2001; (j) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to supervise to persons undertaking work at the premises in relation to working near live overhead power lines in that it failed to undertake measures as follows: i ensuring that non employees did not work from the top level of the scaffold that was in excess of 2 metres high with equipment that was capable of coming into contact with overhead power lines. (k) As a result of the corporations failures non-employees present at the premises, and in particular, Said Al-Khaled, sustained severe injuries from electric shock which was a manifestation of that risk. 3The defendant pleads guilty to the charge. 4Mr C T Magee of counsel appeared for the prosecution and Mr P H Givorshner of counsel appeared for the defendant. The prosecution relied upon an Agreed Statement of Facts with annexures which included: photographs; Scaffold Handover Certificate/Inspection Report, Factual Inspection Reports; Prohibition Notice; prior convictions certificate; and, a ffidavit of Inspector Yeung sworn 9 June 2011 . 5The defendant relied upon an affidavit of Stuart John Hill sworn 22 July 2011 . A number of relevant documents were attached to the affidavit. 6There was an Agreed Statement of Facts which relevantly reads: 2. At all material times STUART JOHN HILL of 28 Forest Road Yowie Bay ("Stuart Hill") was a director of Jacarada Property Developments Pty Ltd [ACN 091 272 132] ("Jacaranda"), a company which was wound up pursuant to an order of the NSW Supreme Court on 20 April 2009. 3. At all material times Stuart Hill was responsible for obtaining, managing and overseeing the contracts for building work for Jacaranda, including engaging subcontractors. 4. At all material times Neatrule Cement Rendering Pty Ltd [ACN 125 742 761], ("Neatrule") was a corporation with its registered office located at KPR Partners Pty Ltd, Suite 10, 2/4 Northumberland Drive Caringbah in the State of New South Wales. 5. At all material times Neatrule carried out cement rendering and plastering work in the construction industry. Background 6. At all material times Jacaranda was involved in the business of building and construction of premises, including town houses. 7. At all material times Jacaranda was the owner and principal contractor for the construction of 13 townhouses and units at 9 Fenton Avenue, Caringbah ("the site"). 8. At all material times Jacaranda had control in the course of its trade, business or undertaking of the site by virtue that it was the owner of the premises and principal contractor for the construction of 13 townhouses and units at the site. 9. At all material times persons not employed by Jacaranda, in particular Darren Bunney, Hussein Al-Jaboore, Gary Cook and Said Al-Khaled performed work at the premises. 10. At all material times the site was not occupied as a private dwelling. 11. At all material times Jacaranda contracted Tony Palmer as a site manager. Along with overseeing the work of subcontractors, Tony Palmer's duties included liaising with the local authorities and utilities as well as general labour. 12. Construction commenced at the site in or around February 2007. 13. In or around July 2007, Jacaranda engaged Waco Kwikform Limited ("Waco") to provide and erect scaffolding at the site. In turn, Waco subcontracted Solidscaff Pty Ltd ("Solidscaff'") to undertake the erection and dismantling of the scaffold. 14. At all material times, Darren Bunney was a director and employee of Neatrule. Darren Bunney is an experienced wet and dry plasterer and has been issued a Contractor License to undertake this work by the Office of Fair Trading. 15. In or around July 2007, Jacaranda entered into a verbal contract with Darren Bunney on behalf of Neatrule to provide cement rendering to the external walls of the newly constructed townhouses. 16. In turn, Neatrule entered into a number of subcontract agreements with the injured worker, Said Al-Khaled ("Mr Al-Khaled"), Hussein Al-Jaboore and Gary Cook to perform the cement rendering work ("the rendering subcontractors"). 17. Mr Al-Khaled is the holder of a Contractor Licence for wet plastering by the Office of Fair Trading. 18. Neatrule's rendering subcontractors commenced work on the site in mid-late July 2007. The Site 19. The site consisted of six double story blocks, which were a mix of freestanding townhouses and unit blocks. There were six blocks at the site named A to F. 20. Fenton Avenue bordered to the site on the west and Captain Cook Drive on the east, wrapping to the north of the site. 21. Six 33,000 volt power lines ran adjacent to the site along Captain Cook Drive from Pole CR02549 (north) to Pole CR02550 (south). Pole CR02549 was approximately 2m north of Block A and situated 4m to the East (1m outside the side fence). Pole CR02550 was situated outside the site fence at approximately Block C. 22. The power lines varied in height from estimated 10.7m from the grade upward. The power lines were identified as 33kV via the six insulators at each line at the connection with the poles. 23. Due to the fact that Captain Cook Drive ran on the east of the site and wrapped around to the north, this placed at the power lines between poles CR02549 and CR02550 at an angle running through the north east side of the site. 24. The scaffolding at the north eastern corner of Block B extended approximately 1 metre past the property line. The 33kV overhead line passed over the top of the scaffold at the north eastern corner of Block B. At this point the overhead line was approximately 10.7 metres from the ground. The scaffold work deck was approximately 5.5 metres from the grade and approximately 5.2 metres below the overhead power lines at the point at which they intersected. The scaffold handrail was approximately 6.5 metres from the grade and approximately 4.2 metres below the overhead power lines at the point at which they intersected. Several standards rose an additional 1.2 metres above the handrail, reaching approximately 7.7 metres from the grade. At the first standard to the south of the north east corner standard the power lines were approximately 2.9 metres above the highest point of the scaffold (being the top of the second scaffold standard on the eastern face). From directly above or below, the 33kv power lines were horizontally 0.3 metres inside the outer corner of the scaffold hand rail and 0.5 metres from the outer corner of Block B. Safe scaffold clearances 25. Clause 5.4 of AS/NZS4576 "Guidelines for Scaffolding" requires a safe working distance of 4 metres or more between metal scaffolding and overhead power lines of 33,000 volts. 26. Clause 6.5(d) of the WorkCover Code of Practice - Work Near Overhead Power lines (2006) ('the Code") provides that high visibility wrapping or "tiger tails" is not appropriate for use on overhead power lines exceeding 1000 volts. The Code further provides that although tiger tails provide a useful visual indication to people working in the area of overhead power lines, they should not be regarded as providing electrical protection from electrical hazards. 27. Clause 9.2 of the WorkCover "Safe Working at Heights" Guide 2006 provides that the power lines should be de-energised and access authority should be obtained from the network operator if the scaffold and the overhead power line have the potential to come within the 4 metre approach distance. 28. Clause 6.5(f) of the Code provides that safe working control measures include ensuring that a person or anything held by a person, or attached to the person, coming closer than 4 metres may require the erection of a hoarding on the external face of the scaffolding. Erection of Scaffold to Block A 29. On 23 July 2007 Solidscaff attended the site to erect the scaffold to Block A. 30. On 25 July 2007 Solidscaff stopped erecting the scaffold on the North East corner of Block A because its employees were concerned that by continuing to do so would result in the scaffold being too close to the overhead power lines. 31. Solidscaff/Waco told Tony Palmer to contact the local network operator, Energy Australia, to determine how to proceed. 32. Accordingly, work on Block A was put on hold whilst Stuart Hill sought advice from Energy Australia. 33. On 30 July 2007, Jonathan Mallin, Engineering Officer (Overhead Transmission) from Energy Australia, attended the site to undertake a preliminary assessment, including taking measurements. 34. At approximately 2:00pm on 2 August 2007, Jonathan Mallin attended the site again, together with several other Energy Australia employees, for a pre-arranged follow up meeting. 35. Jonathan Mallin told Tony Palmer that the power lines were 33,000 volts, and that tiger tails would not be appropriate. 36. Mr Palmer states that Jonathan Mallin suggested that the scaffold on Block 'A' would be too close to the overhead power lines if it was taken any higher. Mr Palmer states that Mr Mallin suggested an option would be to move the power lines to the other side of the power pole. Mr Palmer states that Mr Mallin provided a rough quote of $30,000.00 for the cost of Energy Australia moving the power lines to the other side of the power poles. 37. Jonathan Mallin told Tony Palmer work would need to cease immediately in the vicinity of the power lines and that arrangements would need to be made to move the power lines to the other side of the pole. 38. Jonathan Mallin provided Tony Palmer with a costs estimate for the work of $30,000.00 and said that these costs were to be borne by the owner/builder. Jonathan Mallin gave Tony Palmer his contact details so that Tony Palmer could formally accept the costs estimate. Tony Palmer told Jonathan Mallin that he would discuss the issue with Stuart Hill and they would decide on a course of action. 39. On 6 August 2007, having heard nothing from either Stuart Hill or Tony Palmer regarding the required changes, Jonathan Mallin alerted WorkCover to the situation. 40. On 10 August 2007, Inspector Jeffrey Bell visited the site in response to Jonathan Mallin's telephone call. Inspector Bell observed no work being conducted on Block A and assessed the scaffold in the presence of Tony Palmer. Inspector Bell observed that the scaffolding that was located on the east side of the building on level one had been erected without handrails. Inspector Bell observed that if the handrails had been installed they would have encroached the four meter exclusion zone. Inspector Bell advised Mr Palmer that if there was any work to be conducted on that level that harnesses should be used. 41. Mr Palmer informed Inspector Bell that there would be no work conducted on level one of that building until Energy Australia and the developer resolved their dispute regarding the power lines. Inspector Bell advised Mr Palmer that he should tape off the area to ensure that no workers would enter the area. 42. Inspector Bell agreed with Tony Palmer that rather than installing handrails the work would be undertaken using static lines and harnesses so as to maintain a safe working distance. 43. Having still heard nothing regarding the required changes, Jonathan Mallin telephoned Tony Palmer on two separate occasions after 6 August 2007. Tony Palmer told Jonathan Mallin that the owners were seeking money from the Council in relation to moving the power lines. Erection of Scaffold on Block B 44. Block B was a two-storey premise of approximately 105 m floor space. It was approximately 7m high at the north gutter line and around 8m high at the south ridgeline. It was situated between Block A (north) and Block C (south), approximately 4m from each. Block B is approximately 6m from Captain Cook Drive to the east and approximately 6m to the corner of Fenton Ave. 45. On 17 October 2007, Solidscaff erected the scaffold around Block B. 46. Block B was enclosed by perimeter scaffolder on the north, south, east and west sides. The first lift bays were at approximately 3m in height. The top bays were approximately 5.5m from the grade. The north and east faces had hand rails which were situated 1m above the top bays at approximately 6.5m. Several standards rose an additional 1.2m above the handrail (reaching approximately 7.7m from the grade). On the north side, top level, the scaffold was 6 bays long. 47. The power lines ran over the scaffolding at Block B, intersecting with it at the 1 st bay end point on the east (2 nd standard at 1.787m from the north-east corner standard) and the 4 th standard to the south (4.8m south from the north east corner standard) and were visible from the ground and the scaffolding. 48. The distance between the overheard power lines and the second standard on the eastern face of the scaffold on Block B (being the highest point on the scaffold) was 2.9m. 49. Upon completion of the scaffold Solidscaff/Waco gave Jacaranda a Scaffold Inspection Report. The report stated that the scaffold had passed an inspection, which included consideration of AS/NZS4576, and that it was safe to use. Annexed to this document and marked "Annexure A" is a true copy of Waco Kwikform Limited Scaffold Inspection Report (Inspection No. 21804) dated 17 October 2007. 50. However, the employees of Solidscaff had not ensured that the scaffold was compliant with AS/NZS4576 in that it did not allow a safe working distance of 4m from the overhead power lines. Rather than accurately measuring the distance from the power lines, the scaffolders relied on an estimate based on sight alone. 51. No warning signs were placed on the scaffold alerting workers to the presence or location of the overhead power lines. Incident 52. As at 12 November 2007, Block B was nearing structural completion. The roof and guttering (without downpipes) had been installed. Brickwork was finished or nearing completion. Windows, frames and glass panes were installed. 53. As at 12 November 2007, the power lines which ran over the scaffolding at Block B had not been moved or de-energised. 54. At approximately 7:00am on 12 November 2007, the rendering subcontractors - Mr Al-Khaled, Hussein Al-Jaboore, and Gary Cook - started work. Tony Palmer instructed them to start work on Block B. 55. They commenced working on the western wall of Block B. By approximately 3:00pm, the rendering subcontractors had completed rendering the wall on the western side of the Block B. 56. Shortly after 3:00pm on 12 November 2007, Darren Bunney arrived on site. Darren Bunney instructed Mr Al-Khaled, Hussein Al-Jaboore, and Gary Cook to complete the rendering on different walls of Block B. Hussein Al-Jaboore was instructed to clean tools on the western side of Block B, whilst Mr Al-Khaled was instructed to continue the rendering work on the scaffold adjacent to northeast of Block B. 57. Mr Al-Khaled proceeded up a set of stairs to the top level of the scaffold situated at the northeastern corner of Block B. The scaffold at this level was at approximately at roof height. 58. Immediately prior to the incident, Mr Al-Khaled was preparing to apply an aluminium straight edge onto a corner of Block B. 59. The aluminium straight edge was approximately six metres long. The purpose of using the straight edge was to make sure that the edge of the building that was being rendered was straight. 60. Mr Al-Khaled stated that before the Incident he was not aware that there were high voltage overhead power lines in close proximity to the scaffold at Block B. Hussein Al - Jaboore, a labourer working for Neatrule Cement Rendering stated that he was aware that there were high voltage overhead power lines in close proximity to the building at Block B, as they were very visible. Mr Darrren Bunnney, Director of Neatrule Cement Rendering stated that he was not aware that there were high voltage overhead power lines in close proximity to the building Block B, as it was the first day on working on that Block. The incident occurred towards the end of the first day that the renders had worked on Block B. 61. Some of the Neatrule Cement Rendering renders had worked on Block A which was also located in close proximity to the same high voltage overhead power lines as were located in close proximity to the building at Block B. 62. At approximately 3.45pm, Mr Al-Khaled lifted the straight edge in order to place it between the wall and the scaffold. In doing so, the straight edge struck the overhead power lines and Mr Al-Khaled received a severe electric shock. 63. At the time of the incident, Darren Bunney was working underneath the scaffold on the western side of Block B cleaning cement render off the windows. Darren Bunney said that he "got a flash" which threw a tool out of his hand. In response, Darren Bunney called out to Gary Cook as he thought that he was working above him on the scaffold. 64. Darren Bunney proceeded to call out to Hussein Al-Jaboore and Mr Al-Khaled. Immediately, he heard a voice which he recognised as Mr Al-Khaled saying "Allah Allah." 65. Darren Bunney proceeded to run up the stairs and saw Mr Al-Khaled keeled over with his feet dangling over the scaffold at the far end of the eave. 66. Darren Bunney yelled for someone to call an ambulance. Gary Cook called the ambulance, climbed up the stairs and handed the telephone back to Darren Bunney who spoke to the operator. 67. Darren Bunney continued to attend to Mr Al-Khaled with the assistance of Hussein Al-Jaboore. He then called Anthony Palmer and requested that he attend the premises immediately. 68. An ambulance arrived at the premises and Mr Al-Khaled was transported to St George Hospital. Mr Al-Khaled was then airlifted to Concord Hospital. Mr Al-Khaled remained in Concord Hospital Burns Unit for two and a half weeks and was discharged on 26 November 2007. 69. As a result of the electric shock Mr Al-Khaled suffered burn injuries to 35% of his body. Systems of Work Prior to the incident Jacaranda 70. Mr Palmer, Site Manager for Jacaranda stated that he gave Mr Al-Khaled a verbal site-specific induction or briefing prior to commencing work at the site, however he was not able to indicate on what date this occurred, nor was the fact of the induction or what was contained in the induction documented. Mr Palmer stated that the induction would have been limited to a general overview of the site, where the amenities were located, where the first aid box was located and the assembly area in case of emergency. Mr Al-Khaled stated that he did not receive a site-specific induction or briefing prior to commencing work at the site. Jacaranda subsequently provided Hussein Al Jaboore and Gary Cook, renders engaged by Neatrule Cement Rendering with a site-specific induction on 19 November 2007. 71. Neatrule Cement Rendering did not provide to Jacaranda with a copy of their Safe Work Method Statements ("SWMS") for the work to be undertaken at the Site. 72. Jacaranda did not provide any instruction or documented risk assessment to Neatrule or the rendering subcontractors , in particular dealing with risks associated with working on scaffold near overhead power lines. 73. Jacaranda did not provide the rendering subcontractors with specific information or instruction in relation to the cement rendering works to be performed at the premises. 74. Jacaranda did not hold any toolbox talks with Neatrule or its rendering subcontractors. Neatrule and its rendering subcontractors, including Mr Al-Khaled, were not informed of the presence and location of power lines at Block B prior to commencing work. 75. Notwithstanding that it had been made aware of the rules regarding safe working distances from power lines as a result of its experience with Block A (detailed in paragraphs 29 to 43 above), Jacaranda relied on a Scaffold Inspection Report (Report No. 21804 dated 17/10/07) produced by the scaffolders. The Scaffold Inspection Report did not specifically address the issue of the proximity of the scaffolding to the power lines in the vicinity of Block B. However, Scaffold Inspection Report No. 21804, including a statement as follows: " NOTES This report should reflect the structure at the time of inspection. In assessing the structure you should refer to...Guidelines for scaffolding AS/NZS4576..." 76. Jacaranda did not undertake its own risk assessment and did not inspect or check the distance themselves in a situation where they were aware of the risk of the proximity of power lines to scaffolding. Jacaranda did not believe that it had a duty to make further enquiries of the scaffolders once the Scaffold Inspection Report was received from the scaffolders. 77. Jacaranda did not put in place any warning signs on the scaffold to alert workers to the presence and location of power lines. 78. Tony Palmer was off site temporarily at the time of the incident and Jacaranda did not have another supervisor at the site supervising the works being undertaken by the rendering subcontractors at the premises. Neatrule 79. At the time of the incident, Neatrule had in place an informal system of work, which was communicated verbally amongst the rendering subcontractors regarding the performance of tasks. It was the usual practice of Neatrule for its rendering subcontractors to work from the middle level of the scaffold and use the hop up to get to the top level. From there Neatrule's rendering subcontractors would put the straight edge in place. 80. Neatrule undertook a basic risk assessment in relation to cement rendering works at the site; however the assessment did not consider the risk of working on scaffold in close proximity to overhead power lines. 81. Neatrule did not have a written SWMS in place for the cement rendering works being undertaken at the premises. 82. Further, Neatrule did not request that its rendering subcontractors provided it with SWMS's. 83. Neatrule did not provide an induction or any daily toolbox talks to its rendering subcontractors. 84. Neatrule did not have a system in place to ensure that Jacaranda had adequately assessed the safety of the scaffold, in particular in that the scaffold maintained a safe working distance of 4 metres from the overhead power lines. 85. Neatrule did not have a system in place to ensure that Jacaranda advised it of identified risks identified on the site, in particular the risk of working on scaffold in close proximity to overhead power lines. 86. Neatrule did not provide its subcontractors any instruction on how work safely at the site safely, and in particular how to work safety on the scaffold in close proximity to power lines. Rather, Neatrule relied on the experience of its rendering subcontractors to work safety. 87. Neatrule did not provide adequate supervision to its rendering subcontractors. Investigation 88. On 12 November 2007, Inspector Derek Pryor attended the site in response to an incident notification. Inspector Pryor undertook an inspection and made observations contained in the Factual Inspection Report dated 3 December 2007, which is annexed and marked "Annexure B." 89. Inspector Prior took a number of photographs and bunted off the incident area for further investigation. Annexed to this document and marked "Annexure C" are seven coloured photographs numbered 969-5, 969-6, 969-7, 969-8, 969-10, 969-11, and 969-12. 90. On 15 November 2007, Inspector Prior returned to the site and took a number of measurements. Using a Leica Disto A3 (serial A299) laser measurement device Inspector Pryor measured the distance between the overheard power lines and the second standard on the eastern face of the scaffold on Block B (being the highest point on the scaffold) as being 2.9m. 91. Inspector Pryor issued Jacaranda two Prohibition Notices (No 170562 and No170564), which directed Jacaranda to: (a) immediately cease work on scaffold Block B; (b) in consultation with WorkCover appoint a scaffolder to rectify the scaffold to meet AS1576; and (c) liaise with Energy Australia and develop an agreement regarding the management of the 33,000volt power lines around the site. (Annexed to this document and marked "Annexure D" are true copies of the Prohibition Notices.) System of work after the incident 92. After the incident Jacaranda instructed the scaffolders to drop the height of the scaffold outside Block B so that it would fall within the safe working distance. This was completed on 21 November 2007. 93. Jacaranda prepared a site-specific work method statement for the work to be conducted on Block B. 94. Tony Palmer stopped working for Jacaranda in June 2008. Criminal History 95. Stuart John Hill has no prior convictions. Annexed to this document and marked "Annexure E" is a record of prior convictions.