Rodney Morrison v Anglo Coal

Industrial Relations Commission (NSW)|2008-09-24|Before: Kavanagh J, Mr P, Haylen JJ

CITATION: Rodney Morrison v Anglo Coal (Dartbrook Management) Pty Ltd [2008] NSWIRComm 172

Prosecutor: PARTIES: Rodney Morrison Defendant: Anglo Coal (Dartbrook Management) Pty Ltd

CATCHWORDS: Prosecution - breach of s8(2) of the Act - corporate defendant - coal mining operation - electrical maintenance of coal preparation plant - part of switchroom isolated - part of switchroom live - warning tags, tape discarded - when bus tie breaker taken out - cubicle cleaned - electrical shock - injury - failure to adapt risk-assessment - reasonable foreseeability - general and specific deterrence - parity - contribution - offence proven - previous offences against the Act - penalty imposed

LEGISLATION CITED: Occupational Health and Safety Act 2000

Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 601 CASES CITED: Inspector Jelley v Lanza Management Pty Ltd and Guiliano Lanza [2008] NSWIRComm 125 Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383

HEARING DATES: 21/04/08,15/05/08,27/05/08,6/08/08

Prosecutor: Mr P.M. Skinner of counsel Solicitors: Ms M. Rizzo Crown Solicitor's Office LEGAL REPRESENTATIVES:

Defendant: Mr M.F. Holmes QC and Mr S. Meehan of counsel Solicitors: Mr S. Nettleton Blake Dawson

RODNEY DALE MORRISON v ANGLO COAL (DARTBROOK MANAGEMENT) PTY LTD

Prosecution under s8(2) of the Occupational Health and Safety Act 2000

1 This prosecution is brought by Rodney Morrison, of the NSW Department of Primary Industries against Anglo Coal (Dartbrook Management) Pty Ltd (the defendant) by way of an Application for Order issued pursuant to s8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged in Matter No. IRC1013 of 2007, the defendant company contravened s8(2) of the Act in that it failed to: ensure that people other than its employees in particular Rebecca Ann Brock and Peter John Suszek were exposed to risks to their health and safety contrary to section 8(2) of the Occupational Health and Safety Act 2000.

In particular, the defendant: (a) failed to ensure that systems of work and the working environment (of) the said Rebecca Ann Brock and Peter John Suszek in relation to the inspection and maintenance of high voltage plant and equipment used in the defendant's undertaking at its place of work were safe and without risks to health. (b) failed to ensure that such information, instruction, training and supervision as was necessary to ensure the health and safety of the said Rebecca Ann Brock and Peter John Suszek in relation to the inspection and maintenance of high voltage plant and equipment used in the defendant's undertaking at its place of work was provided. (c) As a result of the defendant's failures Rebecca Ann Brock and Peter John Suszek were placed at risk as to their health and safety, and Rebecca Ann Brock received serious injuries. 3 The defendant pleaded guilty to the charge. 4 Mr P.M. Skinner of counsel appeared for the prosecutor and tendered in evidence an Agreed Statement of Facts; Photos; Diagrams; Job Instructions and Reports; Maintenance Job Sheets; Records of Interview; Industrial history of company (two convictions) including relevant decisions of Kavanagh and Haylen JJ. 5 The defendant was represented by Mr M.F. Holmes QC and Mr S. Meehan of counsel. The defendant relied upon an Agreed Statement of Facts; an affidavit of Gordon Leslie Poulsom sworn 14 April 2008 and attachments; a line diagram; a photo collage - Switchboard Cubicles and 15 photos used for collage. 6 Relevantly, the Agreed Statement of Facts states: Dartbrook Declared Coal Preparation Plant 7. At all material times the DDCPP was a "coal preparation plant" under the Coal Mines Regulation Act 1982 , in that it comprised land, buildings and works that were used for or in connection with the treatment of coal mined at the nearby Dartbrook Mine to improve it as a marketable product, and then dispatched it after it had been so treated. 8. At all material times DDCPP was also a "declared plant" in that it was a coal preparation plant declared to be suitable for management separately from a coal mine, by an order in force under section 145B of the Coal Mines Regulation Act 1982. As a declared plant the provisions of Part 5A of that Act applied to DDCPP.

Plant Manager 9. At all material times Mr Gordon Poulsom was appointed by the defendant, in its capacity as owner of the DDCPP, under s 145E of the Coal Mines Regulation Act 1982 to be plant manager of the DDCPP. As plant manager Mr Poulsom had full charge and control on behalf of the defendant of all persons employed at the plant, and all operations at the plant.

The Electrical Switch room 10. The DDCPP included an 11kV electrical switch room and all of the plant therein except for the Hunter Tunnel Switchboard and Supply which related to and were part of the underground facility.

Engagement of Ampcontrol RES Pty Limited for Maintenance 11. Between about 8 June 2005 and 15 June 2005 the defendant contracted with Ampcontrol RES Pty Limited (" Ampcontrol ") to carry out maintenance work on the high voltage installations in the 66/11kV electrical switchyard and the 11kV electrical switchroom on 20 and 21 June 2005. 12. Discussions and correspondence as to the scope of the work and the payment therefore took place between an employee of the defendant, Neil White, coordinator of maintenance at DDCPP, and an employee of Ampcontrol, David Willoughby. 13. The maintenance work was to be carried out on the 11kV switchboard located in the 11kV switchroom and the 66kV switchyard. The 11kV switchboard was built and supplied by Ampcontrol in or about 1994. The switchroom was located in the building known as the "pizza hut" in the DDCPP and the switchyard was located approximately 1 km away by road.

Original Job request 14. The original job request faxed by Mr White to Mr Willoughby on 8 June 2005 stated: "Part of the total job will include assistance with the updating of service sheets to reflect the actual plant now and an audit of the HV methods and systems to meet current standards' ". Ms Rebecca Brock confirmed that the job scope communicated to her included reviewing the existing service sheets to make sure they were up to standard and met current requirements and that if anything was missing, to note it down. No service sheet was provided for the bus tie breaker.

Initial Risk Assessment 15. Darren Padgett, an employee of Ampcontrol, prepared a risk assessment document for the maintenance work several days prior to the job. It stated: "All personnel in work party are to lock onto the lockout board", a procedure that Mr Padgett subsequently stated was never used by the defendant. There was no lockout board in the 11kV electrical switchroom. 16. The risk assessment document stated: "Correct Isolation procedures to be followed" but did not specify what they were. The document also stated "Isolation Points are:…" but did not specify where the isolation points were to be located. 17. Mr Padgett did not submit the risk assessment document to anyone employed by the defendant prior to 20 June 2005, but provided it to Mr David Dyson, the supervisor for the Ampcontrol work party, who took it to the site with him. 18. Dyson said that on 20 June 2005 when he was on site he had verbally gone through the isolation points and had physically shown the isolation points. Dyson said that on 20 June 2005 when he was on site he and White had verbally gone through the isolation points with Ampcontrol's team using the single line diagram fixed to the wall of the switchroom and that later he, Dyson, had physically shown the isolation points to his team based on the verbal briefing from White.

The Incident on 20 June 2005 19. Ampcontrol's maintenance crew for 20 June 2005 consisted of: (a) One supervisor (David Dyson, service technician); (b) Two electrical tradespersons (electricians Anthony Percival and Brock, the injured worker); (c) Two trades assistants (Alfred Padgett and Peter Suszek); and (d) One apprentice (Nathan Morris, apprentice electrician). 20. At approximately 6:30 on the morning of 20 June 2005 the Ampcontrol crew attended the offices at the DDCPP in the building near the "pizza hut" and signed on to the contractors' register. They were met by White and another employee of the defendant, Robert Wegner, DDCPP electrician. 21. White instructed Ampcontrol's crew that the job scope had changed and there was not going to be a complete electrical isolation of the 11kV switchboard in the switchroom because electricity supplies were needed for other parts of the plant. Half of the high voltage installations originally intended to be maintained were to be maintained. That was the No. 2 66/11kV transformer and half of the 11kV switchboard. Only those installations were therefore to be isolated for maintenance. 22. Dyson conducted a review of Ampcontrol's risk assessment document previously prepared by Darren Padgett for the 11kV switchboard. He did not write anything on the risk assessment document about new hazards because of half the switchboard now being live, or where the isolation points were located. Mr Dyson subsequently stated that the risk assessment of the changed job scope was verbal. The Ampcontrol work party also went through the risk assessment and discussed what hazards and cautions there were. Mr Dyson said that he identified the hazard of half the board being live when able to get onto the job and assess the situation to fully understand the control measures required and did a verbal risk assessment on the job in the switchroom in the pizza hut building. 23. Although Ampcontrol's risk assessment document required that as a control measure correct isolation procedures be followed, it was the defendant that was to carry out the isolation, not Ampcontrol. However no-one from Ampcontrol participated in the decisions as to how to go about isolating the plant to be maintained, and no one from the defendant reviewed Ampcontrol's risk assessment, or was shown the document and none of the risk controls there specified were conveyed by Ampcontrol to the defendant or discussed with it. 24. When Mr Dyson discussed the original risk assessment with the crew, he altered the written document. He changed the risk of electrocution on the written document from "high" to "critical". All the Ampcontrol crew then signed the risk assessment. 25. White and Wegner then went to perform the required high voltage isolations. Dyson was instructed by White to wait with his crew near the 11 kV switchroom while White and Wegner carried out these high voltage isolations. 26. Wegner gathered the high voltage live line test equipment and tested it in the 11kV switchroom. White and Wegner completed the isolation as identified in the defendant's standard job instruction (SJI 6282). These were identified as steps 5, 6, 11 and 12 in the SJI. 27. At about 9:30am White had completed the isolations as listed in SJI 6282 and verbally notified Dyson of such. Dyson then collected Ampcontrol's crew from the DDCPP control crib room and went to the 11 kV switchroom. White went through a single line diagram on the wall of the switchroom showing isolation points with the Ampcontrol maintenance crew. White asked the crew if they were satisfied and to attach locks and tags at No.2 Incomer. The power supply to the 11kV switchboard was from the 66kV switchyard by Incomer No. 1 and Incomer No. 2. As the maintenance work was to be conducted on that part of the switchboard which was supplied by Incomer No.2, Incomer No. 2 was isolated. At this point the switchboard was still energised as it was being supplied through No.1 Incomer and the circuit breaker known as the bus tie breaker, which was located in cubicle no 4 in the centre of the switchboard. Ampcontrol's crew attached personal locks and danger tags to No.2 Incomer. 28. Dyson noted that the circuit breaker for No.2 Incomer needed to be removed from its cubicle so that maintenance could be carried out on it. White agreed. Dyson and Percival lifted the circuit breaker from No. 2 Incomer to the floor. 29. Ampcontrol's crew then signed onto the "HV Switching and Access Permit No. 0599" which had been written out by Wegner. At the time the permit was signed, the No.2 Incomer had been isolated but the 11kV switchboard was still energised, through the No.1 incomer and the bus tie breaker which at that time remained closed and which was located in the bus tie cubicle. 29. The permit is a pre-printed form that gives permission to the receiver to work on or near high voltage cables and apparatus. 30. White then identified that additional isolations would be necessary to allow work to proceed on half of the 11 kV switchboard. Four additional isolations were hand-written on SJI 6282 by White: a. 5721 RM Main 11 kV Switch. b. 5741 MC 415V MCB. c. 7781 MC 415V MCB. d. 5717 Bus Tie. 31. Wegner decided that red and white barrier tape be erected to identify the parts of the switchboard that were to remain live even after the above additional isolations, and strung the tape on the board accordingly. This tape covered the live parts of the switchboard, including the bus tie cubicle. Mr Dyson then went and checked the barrier tape around the cubicles to make sure the barrier tape was across the bus tie cubicle door which it was and it was all the way across the back of the bus tie cubicle panel. Mr Dyson then brought Ms Brock and Mr Suszek over and explained to them that all the panels with the barrier tape around there were to be considered live and that their job would be from the right hand side of the barrier tape. Mr Dyson physically showed them and pointed it out and explained to them that at the present time, the entire 11kV switchboard was still live as Mr White and Mr Wegner were required to go around and isolate the switchboard. Mr Dyson asked Ms Brock and Mr Suszek whether they were comfortable and they both said yes. Mr Dyson then told them that he was going to the 66kV switchyard with the other crew to perform some testing and told them that if they have any problems to come and get him. 32. White and Wegner then carried out the additional isolations for the 11 kV switchboard listed above. The fourth of these isolations in relation to the bus tie breaker, was performed by it being racked out, that is, being pulled forward within the cubicle and thereby breaking the contact with the bus bars located on the inner rear wall of the cubicle. As there was no trolley to enable the bus tie breaker's total removal it was left still within its no 4 cubicle in the switchboard. This acted as a circuit breaker allowing maintenance to take place on the cubicle on the right-hand side of the bus tie cubicle. The people who were in attendance at these isolations, including the bus tie breaker isolation, were Mr White, Ms Brock and Mr Suszek. Mr Wegner also was in attendance at the bus tie breaker isolation. 33. As part of the isolation procedure, Brock and Suszek went to the bus tie breaker with White and Wegner to put danger tags on the bus tie breaker and to do this the bus tie breaker door was opened. Brock said "we removed the barrier tape and put the tags on the breaker. The breaker was racked out…withdrawn". It is unclear whether the barrier tape remained over the front of the cubicle after the bus tie breaker was racked out, or whether it was moved to one side at that time. It is clear however that it was moved to one side by the time Brock and Suszek removed the bus tie breaker wholly from the cubicle. 34. Although there was a fixture inside the cubicle at the rear enabling the locking of the shutters covering the busbars, no lock was placed there. Behind the upper shutter there were live bushings still as part of the half of the switchboard that remained energised through the No.1 Incomer. Each shutter had the word "BUSBAR" written on it. 35. Brock and Suszek attached personal danger tags to the additional isolations including to the front of the bus tie breaker. White also attached a danger tag to the bus tie breaker. 36. Wegner then identified that a circuit breaker trolley would be needed to allow servicing of the HV circuit breakers and left to obtain a trolley. 37. Around 10:00am Brock and Suszek went to the 66kV switchyard to speak with Dyson and told him that they now had their isolation and then returned to the 11 kV switchroom. 38. Brock and Suszek were clearly of the view that their job scope that day included maintenance of the bus tie breaker and White subsequently confirmed that that was his expectation as well. 39. Some time later Wegner returned to the 11 kV switchroom with the trolley. He found Brock working at the front of the switchboard and Dyson working at the rear. The job at the rear of the switchboards was to remove the covers on the back and to check the bus system in the back for heat marks and cleanout. Wegner informed Ms Brock of the presence of the trolley and asked her "if she needed anything, she declined and told [Wegner] to leave it there." Wegner left the switch room to perform other duties elsewhere at the processing plant. 40. Brock started servicing the HV circuit breakers commencing with the No. 2 Incomer circuit breaker which had been placed on the floor after removal. The maintenance activities included resistance testing, general condition inspections and cleaning of the circuit breaker and also wiping out the cubicle in which the breaker was placed and in behind the shutters at the back thereof and wiping the busbars, or bushings, inside. 41. After the trolley arrived Brock went to the cubicle at the furthest right and pulled the circuit breaker onto the trolley to service it. Before servicing the circuit breakers, Ms Brock tested for dead with Mr White. Ms Brock's live line tester kept going off, so Mr White went and got his and then Ms Brock and Mr White tested for dead together. Brock then put the circuit breaker back and moved on to the next one. From the circuit breaker test reports filled in by Brock, this appears to have been the Hunter Drift and Tunnel Conveyor circuit breaker. 42. At around 11.15 am Dyson returned to the switchroom and spoke with Brock and Suszek. Dyson said that both Brock and Suszek told him that "everything was going good" and that they could not see any problems. Dyson received a call from the crew in the 66 kV switchyard requesting gear, so he sent Suszek to deliver the required equipment. 43. Two employees of another contractor to the defendant, were working in the 415V switchroom next door to the 11kV switchroom in which Dyson, Suszek and Brock were working. One of the other contractors came into the 11kV switchroom to tell Dyson that they were testing cables through to the 11 kV switchboard and that all persons should be kept away from the rear of the 11 kV switchboard while the testing took place. Dyson then started to set up his computer for testing the protection relays on the 11 kV switchboard. He was positioned at the front of the No. 2 Power Factor Unit cubicle. 44. When Suszek returned from the switchyard, Dyson advised him of the testing by the other contractor and asked him to assist Brock with circuit breaker maintenance until he received confirmation from the other contractor that it was all clear. At this stage Brock had arrived at the bus tie breaker with the trolley after she carried out maintenance of the cubicles on the right-hand side of the bus tie cubicle. Dyson said that he explained to Brock and Suszek that "their job would be from the right hand side of the barrier tape". Suszek helped Brock remove the bus tie breaker from the cubicle out on to the trolley. Mr Dyson said that this was against his instructions to Brock and Suszek. 45. Brock then removed the panel from the front of the bus tie breaker for servicing of the breaker switch mechanism. The panel with danger tags attached was placed on the floor near the bus tie cubicle. 46. While Brock was servicing the bus tie circuit breaker Suszek began wiping out the now empty bus tie cubicle. Mr Dyson said that the bus tie cubicle was excluded from the work scope. He said that it was part of the isolation having the barrier tape against the door. He said further that he had informed Ms Brock and Mr Suszek that everything that had barrier tape across it was not part of their job scope as this was considered live. 47. There was another call from the crew in the 66kV switchyard requesting more test equipment and Suszek again went to deliver items to that location. 48. Brock turned her attention to the bus tie cubicle to finish removing dust. She lifted the lower bus bar cover in the rear of the cubicle and wiped down the 11 kV bushings in the lower bus bar behind that cover, which were connected to the de-energised (right) side of the board. Brock said "my mind wasn't completely on the job. I lifted the shutters to clean them out. I cleaned the bottom one out and then I went to clean the top one out and that's when I got the electric shock. I knew the breaker had been tagged and I just… I knew the breaker couldn't go back in but I wasn't thinking about the busbar." 49. At about 12.15 pm Brock then lifted the upper busbar shutter and when she began to wipe the bushings behind the cover, she received an electric shock from the energised (left) side of the board. 50. Brock said that "everything sort of went black" and she experienced immense pain through her upper body and went numb from the waist up, having no feeling in her arms. She suffered burns to her right index finger and left thumb. 51. Ms Brock received initial treatment and assistance at the site from personnel of both the defendant and Ampcontrol. Mr White phoned for transport by ambulance to Muswellbrook Hospital as part of the defendant's emergency response. The ambulance officers provided initial treatment and further treatment was provided by a medical practitioner at the hospital. Brock returned to work in a limited capacity about four days later.

Information, Instruction and Training 52. While the defendant maintained a register of persons who are trained and appointed by the mine manager to undertake high voltage switching work, a separate register was not kept for the declared plant. This was changed after the incident involving Brock on 20 June 2005. There is no evidence that the defendant supplied any high voltage training or refresher training from an external provider for either White or Wegner after 1996.

Supervision 53. At all material times clause 28(2) of the Coal Mines (General) Regulation 1999 required that all electrical installations at declared plants must comply with the relevant parts of Australian Standards 3007 (Electrical installation - Surface mines and associated processing plant). In particular, AS 3007.5-2004 requires that a skilled person ensure that any person involved in work in close proximity to exposed live electrical parts be under observation whilst work is carried out. "Skilled persons" is defined by AS 3007.1-2004 to mean "[p]ersons with technical knowledge or sufficient experience to enable them to avoid dangers which electricity may create". Dyson was in the 11kV switchroom, at the western end of the 11kV switchboard (ie to the right of Brock) at the time of the incident. At the specific time of the incident, the vision of Ampcontrol's supervisor, Dyson, was obscured by the open door of one of the No 2 incomer cubicles and he was sitting down using his computer to start a testing program. 54. The Anglo Coal Contractor Management Standard states that the role and responsibility of the electrical manager (or equivalent) is to monitor compliance with electrical regulations and requirements applicable to electrical work and equipment and to provide guidance and advice. White was co-ordinating the maintenance activities of several contracting companies as well as the defendant's own employees at about 8 different work areas spread throughout the DDCCP facilities on 20 June 2003. White was in the room next door to the 11 kV switchroom when Brock received the electric shock. 55. On the day Dyson was supervising two Ampcontrol work crews at different locations separated by about 1 kilometre by road. The initial planning for the scope of work was for the whole Ampcontrol crew to complete each job in turn. However, because on the day the work crew was split in two, Mr Dyson divided his time between the two locations and work parties.

Post Incident 56. In early 2005, there were in place systems and procedures for the carrying out of electrical maintenance work including for the removal and restoration of power and for high voltage isolation. There were also tagging rules and regulations which applied. 57. Immediately following the incident in June 2005 the DCCPP Plant Manager, Poulsom, contacted Mark Davis of Em Dee Engineering Pty Ltd and engaged him to conduct a review of the site's isolation of energy procedures in relation to the high voltage requirements. 58. Davis undertook an immediate broad brush review of the High Voltage systems and made a number of recommendations arising out of this review. Poulsom engaged Davis to start implementing the recommendations. 59. A High Voltage Safety Management Plan was developed in consultation with Davis of Em Dee Engineering Pty Ltd. The original draft of this plan was prepared by Davis on 18 August 2005 and continually updated and revised thereafter. 60. Robert Buck, the Electrical Engineer in Charge, undertook a review and updated all SJIs for High Voltage switching tasks at the CHPP, including on the 11kV switchboard. 61. The defendant arranged for a sign to be installed on the front of the bus tie cubicle stating "Danger, there are 2 11,000 Volt Sources in this Cubicle" as a further warning to electricians working on the bus tie. 62. The defendant also engineered a mechanism using personal padlocks rather than danger tags whereby the circuit breaker in the bus tie cubicle could be secured in its "racked out" position within the cubicle. The locking of the circuit breaker in this position whilst it is racked out, prevents anyone from being able to remove it and thereby prevents access to the bus bars which are located behind the circuit breaker. 63. Dartbrook undertook a process of reviewing the electrical competencies and organised training for all electrical personal conducting high voltage isolations. The training course was a four day course conducted by Energy Australia in Newcastle titled "High Voltage Safe Working Practices Training Course. 64. Dartbrook immediately tested the E-Stops which had been previously installed in the switchrooms to reconfirm their functions. 65. Additional E-Stops have been installed to interrupt the High Voltage supply to high voltage switchrooms including the 11kV switchroom. 66. All high voltage electrical test equipment in the CHPP was sent to an external provider to be inspected and tested. 67. Dartbrook fully co-operated with DPI in relation to DPI's investigation into the incident concerning Ms Brock. Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. In that case, their Honours were of the view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(2) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999)). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 9 Proper regard is had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace. Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing. Consideration 10 The court must assess the objective seriousness of the offence or, as the Full Bench said, "the nature and quality of the offence" (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). 11 The defendant company was the Leasee of Dartbrook Mine near Muswellbrook NSW. It employed a contractor on site to perform electrical work as part of maintenance of a Coal Preparation Plant. Ampcontrol RES Pty Ltd (Ampcontrol) was the company whose employees conducted that electrical work. They have also been prosecuted for a breach of the Act arising from this incident. 12 At 6.30am on 20 June 2005, the electrical employees of Ampcontrol began work in the 11kv switchroom. They were informed by the defendant company the switchroom, on which they were to perform maintenance, would not be wholly isolated. This left half of the board in the switchroom "live". The service technician of the contractor, Mr Dyson, subsequently changed his written risk assessment to "critical" to reflect this changed condition. He also re-examined the risk assessment for the isolating of the switchroom done by the defendant company. There were two power sources to the 11kv switchboard labelled Incomer 1 and Incomer 2. It was Incomer No. 2 that was isolated, leaving Incomer No. 1 still providing electrical power through the switchboard.

13 The switchroom in which the work was to be performed consisted of a number of cubicles, each containing electrical connections. In cubicle No.4 there was still a source of power through the Incomer No. 1 line. Therefore part of the board in cubicle No. 4 was live. 14 Employees of the defendant company had put in place measures to prevent work on the live side of the cubicle. These measures included red and white barrier tape drawn across the energised part of the cubicle. Two employees of the contractor, Ms Brock, an electrical tradesperson and Mr Suszek, an electrical trades assistant, were shown the cubicles with the tape across them and told that indicated a "live" source of power was part of the cubicle panel. However, that tape had to be broken to get access to the bus tie breaker. A further measure taken to ensure safety was danger tags were attached to the bus tie breaker indicating a live power source. 15 To carry out the required maintenance on the isolated part of the cubicle, a bus tie breaker had to be "racked out". This involved pulling the bus tie breaker out from the back wall of the cubicle thereby breaking the connection between the bus bars. This made the right hand side of the cubicle No. 4 de-energised and capable of safe maintenance which was the task to be carried out. However, in removing the bus tie breaker for service, the panel with the danger tags attached to it which warned there was still a live source of power to part of the cubicle, was removed and left on the floor. The barrier tape across the cubicle had also been drawn to one side when the bus tie breaker was removed and not placed back across the 'live' portion of the cubicle. Mr Suszek began wiping out the bus tie breaker cubicle before he was called away. Ms Brock took over the task. She proceeded to wipe out the brushings behind the bus bar shutter. She received an electrical shock from the energised left hand side of the board within the cubicle. Ms Brock suffered a shock and burns to her index finger and thumb. 16 The danger posed in performing the maintenance of the 11kv switchboard was well recognised and foreseeable. There were in place risk assessments, clear job instructions and signed permits regarding working near live power sources. The procedures and safety policies put in place by the defendant show it to be a safety conscious company. However, the decision to only partially isolate the 11kv switchboard left the defendant's safety procedures wanting. No proper risk assessment was performed of the changed work environment nor was there a check made as to the adequacy of procedures to isolate the "live" parts of the worksite when leaving energised ones in place. The system should have been re-designed. 17 I accept the contractor's employees were well trained professionals who were instructed as to the existence of the live lines within the switchboard. Nonetheless, the defendant cannot in its defence rely upon a submission the contractors were highly skilled. There must be a rigorous re-evaluation of work methods when changes of this nature are made. Having taken away both the warning tape and danger tags attached to the bus tie breaker when Ms Brock assumed the task of cleaning the cubicle, all warning signs had been removed. The obligation to ensure safe working is ever present even for an inattentive or distracted employee: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [45-46]. There was a failure of the defendant to properly and appropriately provide for safe work in circumstances of partial isolation of the 11kv switchboard (see Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] 49 NSWLR 610 at [82]). 18 Any work carried out in the presence of live 11kv electrical terminals was extremely dangerous. Ms Brock was extremely fortunate to only have received a shock and minor burns. The likelihood of a fatal injury is a relevant consideration in an assessment of the seriousness of the offence. As Boland J recently said in Inspector Jelley v Lanza Management Pty Ltd and Guiliano Lanza [2008] NSWIRComm 125 at [36]: Although the damage or injury caused by the breach does not, of itself, dictate the seriousness of the offence or the penalty, a breach where there was every prospect of serious consequences may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant risk: See Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral Aluminium v WorkCover Authority (2000) 49 NSWLR 610 at [94] and [95]; WorkCover Authority (NSW) v McDonalds Australia Limited and Anor (2000) 95 IR 383 at 428; and Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 19 I am satisfied there was a reasonably foreseeable element to the offence which results in the offence being perceived as more serious in its nature (Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8 (at 27)). 20 In a consideration of penalty, elements of both specific and general deterrence are relevant. The Full Bench dealt with issues of general and specific deterrence in Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 601 at [71]-[80]. In particular, the court noted: [76] . . . The propensity to re-offend must be considered when determining the weight, in any, to be attached to specific deterrence. . . . [77] In sentencing, a court may disregard the element of specific deterrence if satisfied that the risk of re-offending is low or non-existent. The Court may form such a view as a result of the rehabilitation of the offender… or because the offender would not have the opportunity to commit a similar offence in the future .... However, we think it unlikely that the weight to be attached to specific deterrence could be reduced to zero in the case of offences under the Act. At least where the offender continues to be an employer, risks to the safety or its employees or contractors may exist or be possible. Breaches of the duties imposed by the Act may occur by commission or omission. Employers are required to maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. 21 Specific deterrence is an element for consideration. While the coal preparation plant is "mothballed" currently, the mining activities of the defendant corporation require the use of electrical switchrooms of a similar kind. Further, an element of general deterrence is also relevant to the consideration of penalty. The mining industry is once more to be warned of the inherently dangerous nature of its work and the need for proportionate rigor, constant vigilance and abundant caution for the way in which it carries out every aspect of its mining operations (WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 (at 85)). The change to planned and specific work tasks requires a re-evaluation of an identified risk and a review of the established work procedure. 22 As a result of this incident there has been a review of the defendant's work methods. There now exists a comprehensive safe work method system for employees and contractors working in high voltage areas of the defendant's mining operations. In the review of the site's isolation of high voltage energy procedures, the defendant developed and implemented a High Voltage Safety Management Plan. It incorporated the following procedures: (a) High Voltage Safety Rules; (b) Isolation of Energy Procedures; (c) High Voltage Restoration of Power Procedures; and (d) Standards of Engineering Practice. 23 Additionally, signage has now been installed on the front of the bus tie cubicle stating: "Danger, there are two 11,000 Volt Sources in this Cubicle".

A system of personal padlocks for locking the circuit breaker in the bus tie cubicle in the "racked out" position has now been introduced to prevent the circuit breaker being removed and exposing the bus bars behind it. Further training was conducted. These steps are illustrative of how seriously the defendant takes its obligations under the Act to ensure a safe worksite. 24 It is common ground the defendant co-operated in the Department's investigation of the incident. The defendant has a good safety record in a dangerous industry but there are two prior convictions (see Rodney Dale Morrison v Daniel Clifford and Anglo Coal (Dartbrook Management) Pty Ltd [2007] NSWIRComm 292; Rodney Morrison v Anglo Coal (Dartbrook Management Pty Ltd) [2003] NSWIRComm 397). Both these convictions relate to underground mining operations. That work is also inherently dangerous. Further the two prior breaches of the Act also related to the employer's conduct of its business in not ensuring contractors comply with proper safe work practices. While I accept contracting out many work functions is a modern industrial trend, in an operation as complex as mining, the defendant must direct its attention more strictly to its relationship with its contractors and the control it exercises over them so it can meet its obligations under the Occupational Health and Safety Act to ensure persons at its worksite enjoy safe working. 25 The existence of prior convictions raises the maximum penalty from $550,000 to $825,000. I accept the defendant is not entitled to the leniency of the court appropriately given to a first offender (s21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999). 26 The evidence of Mr Poulsom persuades the court the company is also a good corporate citizen. It is involved in a number of community initiatives and despite mining operations having ended longwall mining at the Dartbrook mine in 2006, the defendant continues to play a role in the community. In penalty there is to be recognition given to the defendant's good industrial character and its fine corporative citizenship. 27 It was submitted by the prosecutor the principles of parity apply to this defendant. The contractor, Ampcontrol RES Pty Limited, while not a co-defendant in this case, has also been charged with a breach of the Act. Ampcontrol RES Pty Limited was charged with a s8(1) offence and has pleaded guilty. However, the defendant is the offender first considered for penalty for this breach of the Act arising from the same factual scenario. As Ampcontrol RES Pty Limited is not a co-offender, nor co-defendant, nor has it yet been convicted or sentenced, the principles of equal justice that require parity or consistency to be considered (as referred to in Capral Aluminium Ltd v WorkCover Authority of New South Wales ([2000] 49 NSWLR 610 at [62]-[63] and [66]) are not strictly relevant in this circumstance (see Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 (at 341)). However, the issue of contribution of the other defendants to the risk and their respective culpabilities should be addressed (see WorkCover Authority of NSW v McDonald's Australia Ltd and Anor (2000) 95 IR 383 per Walton J, Vice President (at 434, 437) as approved by Wright J, President in WorkCover Authority of New South Wales (Inspector Page) v Walco Hoist Rentals Pty Ltd (No. 2) (2000) 99 IR 163 at [31],[33]). Through proper consideration, any disparity in the sentencing process which could give rise to a "justifiable sense of grievance" is to be prevented (see Lowe v R (1984) 154 CLR 606 (per Gibbs CJ at 610, per Mason J at 613 and per Dawson J at 623)). 28 As employer Ampcontrol RES Pty Limited was responsible for the work conducted and the supervision of employees. However, the defendant had control of the worksite. Neither defendant made the appropriate adjustment to work practices when change was introduced. This corporate defendant carries a significant burden for not isolating the whole of the switchroom and instead requiring, on short notice, Ampcontrol's employees to work in an unsafe environment where confusion as to what part of the switchboard was live given the disconnection of only one of two incoming live lines. I find culpability and contribution to risk is shared by both Ampcontrol RES Pty Limited and this defendant. 29 The defendant relies upon the authority of R v Thomson; R v Houlton (2000) 49 NSWLR 383 to submit it is eligible to receive a deduction for the utilitarian value of the plea. Such discount is offered to defendants who enter a plea of guilty in recognition of the practical effects such a plea has on the administration of justice (see WorkCover Authority of New South Wales (Inspector Belley) v Hughston & Sons Pty Ltd (2002) 121 IR 1, per Walton J, Vice President at [73]-[75]). A guilty plea was entered on the second occasion upon which the matter was listed. However, there was some delay in the hearing of the prosecution because of procedural challenges by the defendant to the authority of the Prosecutor named in the application for order to lay the charge. This matter was resolved by agreement between the parties but it delayed the hearing of the plea. Nonetheless, despite the legal challenge mounted to the authority of the prosecutor to institute proceedings, the plea remained on the record. A defendant is entitled to the protection of the law. Its challenge to the prosecutor's authority was within the defendant's legal rights. 30 Therefore, the plea has value in the circumstance and the defendant has accepted its responsibility, which has been accompanied by the appropriate expression of regret and contrition. A penalty must be fixed which reflects this was a serious offence however not one in the worst category. The defendant had in place general safety procedures if not procedures refined to meet the circumstances. Accordingly, I allow in the circumstances a 15 per cent deduction for the utilitarian value of the plea. 31 I find the defendant guilty. 32 The defendant is fined in the sum of $200,000.

Orders Accordingly, the Court makes the following orders: 1. In Matter No. IRC1013 of 2007, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $200,000 with a moiety to the Department of Primary Industries. 3. As there has been no agreement between the parties as to the quantification of the costs, I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.

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Cases Cited (18)

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