Safe Work (NSW) v WGA Pty Ltd

Safe Work (NSW) v WGA Pty Ltd - [2017] NSWDC 92 - NSWDC 2017 case summary — Zoe

In my judgment of 10 April 2017 I made the following findings of fact. 1. In or about October 2013 Mark Hassan was issued with a Construction Certificate pursuant to the Environmental Planning and Assessment Act 1979 for the construction of a residential/commercial development at the site. Mr Hassan was named as the applicant for the Construction Certificate and the owner of the site. 2. In 2014, Mr Hassan was the sole director of WGA. WGA was the entity with management control of the site. It acted as the builder and the work was supervised by Mr Hassan. Mr Hassan used the email address mark@graphicglass.com.au to correspond with various persons in relation to the building project at the site. 3. On 26 February 2014 Inspector Sascha-Lynne Newton of SafeWork received an email from Stephen Bursill of Ausgrid informing her that there was a possible breach of the Code of Practice Working Near Overhead Power lines (the Code of Practice) at the site because the scaffolding had been erected close to the power lines, without the installation of non-conductive hoarding. Inspector Newton recorded the matter in the as a Request for Service (RFS) No 1-319464 in the computer system. Site visit 6 March 2014 1. On 6 March 2014 Inspector Newton attended the site and spoke to Mr Hassan and George Khouzame. Mr Hassan identified himself as the Principal Contractor on the site and Mr Khouzame as the scaffolder. Mr Hassan told the Inspector that he was not a builder, that this was the first construction project he had undertaken and that he had a business to run so he was not on site all of the time to supervise the work. 2. At that time the building was at level 2 which was a suspended concrete slab. There were 2 levels of power lines running along King Georges Road. The lower lines had 'tiger tails' installed on them. [1] Inspector Newton was of the opinion, based on her experience, that the upper lines were likely to be high voltage lines. 3. Mr Hassan advised the Inspector that he did not have information from Ausgrid as to what controls were necessary to manage the risks of working in close proximity to the lower power lines. 4. Inspector Newton formed the opinion that the work in close proximity to the lower power lines presented an immediate risk to safety. The lower lines were about 1.2m horizontally from the handrail installed on the edge of the concrete slab of level 2 that ran parallel to King Georges Road. There was no hoarding to prevent persons or objects coming into contact with or in close proximity to the lower power lines. There was no exclusion zone marked to prevent a person coming within 3m of the lower power lines. 5. Inspector Newton told Mr Hassan of her concern about the proximity of the power lines. Mr Hassan replied in words to the effect, "I don't really see it as such a problem" and "why would someone reach out and touch it". 6. Present on level 2 were reinforcement steel bars about 5m in length. Inspector Newton said to Mr Hassan words to the effect, "All it would take is for a worker to pick up materials, such as scaffolding or those lengths of steel, turn around and they could easily come into contact with the power lines. It is unrealistic to expect busy construction workers to simply remember the power lines and stay away from them. That's why you need to have physical and visual barriers, particularly if you are not always on site when work is taking place. Tiger tails are not a control measure and do not provide protection against electric shock or electrocution." 7. Inspector Newton discussed the control measures required by the Code of Practice that there needed to be 3m clearance the persons and nonconductive materials and 4m clearance for scaffolding. Inspector Newton said to Mr Hassan words to the effect. "It will be necessary for the power to the lower level power lines to be temporarily isolated and a non-conductive hoarding installed to prevent anything extending beyond the building line towards the power lines. You will need to contact Ausgrid to obtain the minimum clearance distances from the power lines to the hoarding and adhere to any other requirements they may have." 8. Inspector Newton issued a prohibition notice pursuant to section 195 of the Act (the first prohibition notice) to prevent the immediate danger from workers being required to work too close to the lower power lines. 9. Inspector Newton had further discussions with Mr Hassan about the complexity of installing scaffolding for the proposed upper levels of the building due to the close proximity of the building to the power lines. Inspector Newton said to Mr Hassan words the effect, "It may be difficult to achieve the minimum safe clearances. You will need to consult with Ausgrid to obtain written site specific information before installing any scaffolding. It's likely the higher level power lines are high voltage, which usually require greater clearance distances." 10. Inspector Newton installed WorkCover barrier tape 3m from the handrail on the edge of the level 2 concrete slab facing King Georges Road as well as the scaffold's stair access at the ground level because the stairs were in close proximity to the lower power lines without appropriate hoarding. 11. On 7 March 2014 Inspector Newton received a telephone call from Mr Hassan. Mr Hassan told Inspector Newton that Ausgrid had told him that the lower power lines were 415 volts and he could install non-conductive hoarding without isolating the power. Mr Hassan said that he would install the hoarding to the existing handrails and not erect further scaffolding because he was trying to source a suitable solution. 12. Based on further enquires made with Ausgrid on 10 and 12 March 2014, Inspector Newton was satisfied that the non-conductive hoarding had been installed at a clearance distance approved by Ausgrid and the first prohibition notice had been complied with. Site visit 19 March 2014 1. On 18 March 2014 Inspector Newton received an email from Stephen Ashton a senior engineer with Ausgrid. Mr Ashton reported the erection of scaffolding close to the upper power lines that were high voltage power lines owned by Sydney Trains. Mr Ashton expected that Sydney Trains had similar clearance requirements to Ausgrid and it did not appear to him that the power to those lines had been isolated. 2. Inspector Newton telephoned Mr Hassan who agreed to cease all work at the site until a site meeting could take place the following day. 3. On 19 March 2014 a site meeting was held. Present were Inspector Newton, Mr Hassan and three representatives from Ausgrid; Stephen Burke, Brian Huckstep and Robert Bedford. Further scaffolding had been erected at the site that was 600mm wide and extended approximately 2m above the level 2 concrete slab. Its presence reduced the clearance distance to the lower power lines from approximately 1.2m to approximately 900mm. 4. The Ausgrid representatives advised Mr Hassan of the required control measures, including that the power would need to be isolated for scaffolding to be completed and a timber hoarding to be installed. Inspector Newton issued 2 further prohibition notices (the second and third prohibition notices) relating to the lower level power lines. Inspector Newton advised Mr Hassan that a Safe Work Method Statement (SWMS) needed to be developed incorporating the Ausgrid requirements. The Ausgrid representatives advised Mr Hassan that the upper power lines were owned by Sydney Trains. Inspector Newton told Mr Hassan that he would have to contact Sydney Trains to obtain written advice regarding the control measures that would be required when working within 4 m of those power lines. 5. On 26 March 2014 Mr Hassan telephoned Inspector Newton, stating that the power had been isolated by Ausgrid and that the timber hoarding had been installed on the scaffold. Inspector Newton confirmed that information with Ausgrid and was satisfied that the second and third prohibition notices had been complied with. 6. On 9 April 2014 Mohamed Soukie of Synergy Scaffolding sent an e-mail to Bruce Leishman of Sydney Trains attaching a risk assessment for the installation of screens at the site. The email was copied to Mr Hassan. Mr Cullen's engagement to work at the site 1. On or about 11 April 2014 Mr Cullen attended the site at the request of Mr Hassan to see if he was interested in quoting on the installation of the windows at the site. Mr Cullen was a customer of Mr Hassan's window business. Mr Cullen usually did residential and renovation work that included the installation of windows. He had not previously done high density residential work or worked in the vicinity of power lines. 2. On 14 April 2014 Mr Cullen again attended the site to measure up in order to provide a quote. 3. On 17 April 2014 Mr Cullen provided a quote by text message sent to Mr Hassan. He then prepared a written quote addressed to Graphic Glass on the letterhead of his business, Platinum View Windows and Doors. 4. On 9 May 2014 Mr Cullen commenced work at the site. He did not receive an induction or attend any tool box talks during the course of his time on site. Between 9 May 2014 and mid June 2014 Mr Cullen installed the windows at the site from the inside with the assistance of a labourer provided by Mr Hassan. Involvement of Mr Leishman from Sydney Trains 1. On 9 May 2014 Mr Leishman replied by email to Mr Soukie and copied that response to Mr Hassan. Mr Leishman advised that the Safe Approach Distance (SAD) to the 33Kv power lines was 4m. The SAD could be reduced to 1.5m horizontally and 3.5m vertically if a continuous rigid barrier was installed. Mr Leishman noted that the requested reduction was to 700mm. Mr Leishman advised that a SWMS would need to be formulated based on the requirements of the NSW Transport System Guide "Working around Electrical Equipment" (the System Guide) a copy of which he attached to the email and that the power would have to be isolated under the supervision of an authorised Electrical Mains Officer from Sydney Trains. Mr Leishman stated that is was of the highest importance to ensure that no workers or materials came within 3m of the 33Kv power lines because of the risk of electrocution and that control measures including, warning, induction, tool box talks, the development of a SWMS and the demarcation of an exclusion zone should be put in place. 2. On 21 May 2014 Inspector Newton received notice of a complaint by Mr Leishman of Sydney Trains about workers at the site undertaking work within 3m of the high voltage power lines owned by RailCorp that ran along King Georges Road. The complaint alleged that the workers were within 600mm of the upper power lines. Mr Leishman forwarded the email correspondence with Mr Soukie and Mr Hassan to Inspector Newton. A site meeting was arranged for 22 May 2014. Site visit 22 May 2014 1. On 22 May 2014 a site meeting was held. Present were Mr Hassan, Inspector Newton and Mr Leishman. The building had progressed to being of 4 levels. The top slab was the roof of the building. The scaffolding along King Georges Road was higher and was now about 3m below the upper lines. The scaffolding could not be used by a person without putting that person within 3m of the upper power lines. 2. Inspector Newton said to Mr Hassan words to the effect, "Workers can't use the scaffold at this level without encroaching the 3 m clearance required by Sydney Trains. In fact I would say that any works conducted on the outside of the building along King Georges Road side on this level would place the worker within 3m of the power lines." 3. Inspector Newton was very concerned that the window ledge fronting onto King Georges Road could be easily accessed by workers from the completed rooms, and she suggested preventing access to those rooms altogether to avoid the risk. 4. After discussions with Mr Hassan and Mr Leishman it was agreed that isolation of the power to the upper level high voltage power lines would be required on least two occasions to allow for the work within 3 m to be completed. Those works included brick cleaning, rendering, window finishing and scaffold removal. On 22 May 2014 the windows (frames and glass) had not been installed. 5. Inspector Newton issued two improvement notices in relation to the upper level power lines. Improvement notices were issued because there was not enough evidence for her to form an opinion that work had been or was about to occur on the scaffold and thereby there was not an immediate risk to health and safety. 6. A conversation took place about the installation of the windows. Mr Hassan stated that he could install the windows from the inside of the building. Inspector Newton said words to the effect, "I find it hard to believe that can be done. Not only would it be incredibly awkward, but what about cleaning, installing the flashing, waterproofing and trims etc?" to which Mr Hassan responded in words to the effect, "I make windows for a living. They come fully integrated and can be installed from one side". Inspector Newton then said to Mr Hassan words to the effect, "if you are compliant with the clearance distances then we can't stop you. However, in my experience the workers will do the job the easiest way and you have that ledge on the outside that presents a perfect platform for workers to access the outside. You would need to directly supervise every move to ensure they don't go out there. Additionally, I have concerns that a worker could pick up something conductive, like trims, and if it protrudes outside the window, it could come in contact with the power lines. For this reason, I think you need to monitor work inside the rooms as well." 7. Mr Hassan was advised by Inspector Newton that the presence of a worker on the ledge would constitute a breach of the improvement notices, unless the power was isolated. Mr Hassan accepted that the power would have to be isolated and that he would have to liaise with Sydney Trains to affect that. 8. Mr Hassan was also advised that he needed to demarcate the exclusion zone of 3m by the use of barrier tape and signage. Inspector Newton advised Mr Hassan where to put the barrier tape and signage. Mr Hassan told Inspector Newton that he would immediately go to the hardware store to buy the tape and the signage. 9. Inspector Newton then contacted Sam of Synergy Scaffolding. She was told that Synergy was no longer doing the job because they would not install the hoarding without an approval from Sydney Trains. 10. Later in the day Mr Hassan telephoned Inspector Newton. He told her that the barrier tape had been installed on the doorways to the rooms facing King Georges Road and on the roof level and that any other work would occur when the power was isolated. Inspector Newton asked Mr Hassan to advise her when the isolation was to take place so she could discuss with him the other measures to be taken relating to the removal of the scaffolding including the isolation of the lower level power lines to allow that to occur. 11. On 5 June 2014 Mr Leishman advised Mr Hassan by email that the upper power lines would be isolated on the weekend of 21 and 22 June 2014, from 7.00am on Saturday to 5.00pm on Sunday. 12. Later on 5 June 2014 Mr Hassan sought a permit from Kogarah Council (the Council) to conduct the works on Sunday 22 June 2014 at the site because of the need to isolate the 33Kv power lines. Council approved that request on 6 June 2014. On 11 June 2014 Mr Leishman advised Mr Hassan by email of the cost of the electrical isolation would be $4,902.24 payable to Sydney Trains. He was also advised that WGA would have to engage a contractor with an Electrical Permit. 13. On 18 June 2014 Mr Leishman telephoned Mr Hassan and advised him that the proposed isolation of the power on 21 and 22 June 2014 could not take place because the building had been constructed too close to the upper power lines and the conditions for turning the power back on could not be met. The incident 1. On or about 18 June 2014 Mr Hassan asked Mr Cullen to install angles on the outside of the windows. The installation of angle finishes the presentation of the windows to cover any gaps left after their installation. That work was not part of Mr Cullen's original quote. Mr Hassan pleaded with Mr Cullen to install the angles on the windows of the units facing King Georges Road because it needed to be done before the scaffolding was removed on the following weekend. Mr Hassan did not say anything to Mr Cullen about the risk posed by the power lines, that he was not permitted to go onto the window ledge to install the angles, or that he should not do so unless the power was isolated. 2. On 19 June 2014 Mr Cullen attended the site to install the angles to the units fronting King Georges Road. The work involved measuring the window, cutting the angle to size and then gluing it onto the window using a silicone based product. There was no barrier tape or signage in place warning Mr Cullen of the risk posed by the high voltage power lines. Mr Cullen was not told that the lines were high voltage lines. He did not notice they were there because he was concentrating on his work. Mr Cullen accessed the scaffolding to do the work and was within 3m of the 33Kv power lines when he did so. Mr Cullen was not told by Mr Hassan that he had been issued an improvement notice for the work. Mr Cullen commenced installing the angle to the windows of unit 12. Mr Cullen does not recall the incident. 3. Megan Evers was working as a receptionist for a real estate agency on King Georges Road across the road from the site. Ms Evers heard an explosion and then saw a worker thrown backwards on the scaffolding. The worker appeared to be on fire and his head was hanging over the fourth storey of the worksite. Emergency services were called. 4. Inspector Leonie Ball attended the site after the incident was reported to SafeWork. Inspector Ball was a qualified electrician and had previously worked for Sydney Trains (or its predecessor). Inspector Ball recovered the angle from the ground on King Georges Road. She observed 2 burn marks on it consistent with an electrical incident. She also observed burn marks on the window frame of unit 12 and asked a police officer present to take photos of it. 5. Mr Cullen suffered burns to 30 percent of his body. 6. Based on the primary facts, I infer that Mr Cullen suffered an electric shock when the angle he was holding came into contact with or in close proximity to the 33Kv power line adjacent to the window ledge to unit 12. 7. Inspector Ball did not observe any barrier tape or signage present at the site to indicate the presence of the power lines or to demarcate an exclusion zone. Inspector Ball also observed other workers doing rendering work inside Unit 12 after she arrived at the site. 8. On 19 June 2014 Mr Leishman advised Inspector Newton that there had been an electrical incident at the site.

[4]

Objective seriousness of the offence

The risk to workers working on the window ledge was actually known to the offender. Mr Hassan was told by Inspector Newton and Mr Leishman and understood that a person working on the window ledge was encroaching on the SAD for the 33kv power lines. Mr Hassan was told that the workers could not be on the window ledge unless the power was isolated. Mr Hassan told Inspector Newton and Mr Leishman that he would not carry out any work on the window ledge until the power was isolated. Mr Hassan had been told similar things on earlier occasions in relation to the lower power lines and was required to comply with the first, second and third prohibition notices relating to the same subject matter. The offender had also been given an improvement notice relating to the risk. Mr Hassan was specifically told of the risk posed by workers handling lengths of materials that may come into contact with or in close proximity to the 33Kv power lines. That precise risk was also referred to in the literature provided to Mr Hassan by Sydney Trains.
The likelihood of the risk occurring was high if the control measures were not adopted. As soon as a worker set foot on the window ledge they were encroaching on the SAD. They were at risk of electric shock by their mere presence on the window ledge unless the power was isolated. The likelihood of the risk was increased if those workers were required to handle tools or materials that could come within closer proximity to the upper power lines. The task that Mr Cullen was performing was such a task. The angles being installed were cut to size in one piece. The angle Mr Cullen was attempting to install was 2720mm long and greatly increased the chance of the risk of electric shock coming home. Mr Hassan had manufactured the windows that were installed at the site. Mr Hassan supplied the angle in a colour to match the windows. Mr Hassan had actual knowledge of the content of the task that was required to be performed by Mr Cullen.
The gravity of the risk was significant and included a risk of death. The potential consequences were catastrophic in that an electric shock was likely to cause death or at the very least serious injury because the upper power lines were carrying 33Kv.
The offender had actual knowledge of the steps that were required to eliminate and or avoid the risk, including the need to isolate the power when work was required to be performed on the window ledge. The fact that those measures would have delayed the work for possibly an extended period is not a mitigating circumstance in this case because it was the offender's actions that caused the building to be constructed too close to the upper power lines. Sydney Trains worked constructively and practically to resolve the issue. At its expense, it moved the upper power lines to the other side of the poles and installed new poles to reinstate the required separation. Whilst there would be some delay incurred that was an inevitable consequence of the offender's actions.
The offender took none of the steps that it had been informed of to eliminate or minimise the risk. Mr Hassan misled Inspector Newton into believing that barrier tape and warning signs had been installed.
I accept Mr Cullen's evidence that he was not told of the presence of the 33Kv power lines, or the risk posed by them. Mr Cullen was not told any of the control measures to avoid the risk that Mr Hassan had been made aware of by his interactions with Inspector Newton, Mr Leishman or the representatives from Ausgrid. Mr Cullen was not told that he should not go onto the window ledge unless the power was isolated.
The safety system implemented by the offender at the site in so far as it related to Mr Cullen was non-existent.
Mr Hassan required Mr Cullen to do the work after he was told that the proposed isolation of the power could not proceed in order to minimise the delay that he believed would be incurred in completing the building and so that the scaffolding could be removed. Mr Hassan told Inspector Newton and Mr Leishman that the installation of the angle to the windows from the window would not occur until the power was isolated. When Mr Hassan was told that the isolation could not take place he brought forward the work involving the installation of the angle. When he did so he knew of the risk posed by that work and the magnitude of the risk but did warn Mr Cullen. The offender required Mr Cullen to work on the window ledge in circumstances that indicated a blatant disregard of its safety obligations.
The extent of the injury to Mr Cullen was significant. He suffered burns to 30% of his body and has required surgery in the form of multiple skin grafts. His last operation was in about February 2017. He spent 3 months in hospital immediately after the incident. He also suffered injury to his thumbs and the AC joint in his shoulder. He has required extensive physiotherapy and occupational therapy. He has the constant feeling that his skin is very tight. He has been unable to return to work.
The offender's level of moral culpability for the offence is high.
The objective seriousness of the offence is in the high range.

At a glance

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Judgment (10 paragraphs)

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Cases Cited (3)