SafeWork NSW v BSA Limited - [2023] NSWDC 73 - NSWDC 2023 case summary — Zoe

NSWNSWDC

SafeWork NSW v BSA Limited

[2023] NSWDC 73

District Court of NSW|2023-03-31

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-03-31

Catchwords

(1952) 87 CLR 313 Filippou v The Queen [2015] HCA 29
(2015) 256 CLR 47 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267
(1999) 199 CLR 270 R v Pearce [2020] NSWCCA 61 R v Wang [2020] NSWSC 1335 Royall v The Queen [1991] HCA 27
(2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34

Source

Original judgment source is linked above.

Catchwords

(1952) 87 CLR 313 Filippou v The Queen [2015] HCA 29(2015) 256 CLR 47 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267(1999) 199 CLR 270 R v Pearce [2020] NSWCCA 61 R v Wang [2020] NSWSC 1335 Royall v The Queen [1991] HCA 27(2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34(2006) 258 CLR 308 Grasso Consulting Engineers Pty Ltd v SafeWork NSW

Judgment (81 paragraphs)

[1]

Introduction

On 14 December 2018 Mr Jayden Hooper, aged 22, died at work. Mr Hooper was employed by the defendant BSA Ltd (BSA) as a Customer Service Technician (CST). On 14 December 2018, in the course of that employment, he was installing a satellite dish and associated cabling at the house of a Foxtel customer in Malabar. While underneath the floor of the house, dealing with the connection of cables, Mr Hooper received a fatal electric shock.
SafeWork NSW prosecutes BSA alleging that BSA, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers, in particulars Mr Jayden Hooper, to a risk of death or serious injury, contrary to s 32 of the Act.

[4]

Reasonably Practicable Measures

Paragraph 9 of the Further Amended Summons pleaded eight measures, each of which is alleged to have been reasonably practicable, to eliminate (or alternatively minimise, if it was not reasonably practicable to eliminate) the risk.
BSA entered a plea of guilty on the basis of failing to take two of the pleaded measures, being those alleged in pars 9(d) and 9(g)(ii) in the Further Amended Summons concerning the failure to provide locks and tags.
BSA pleaded guilty to failing to provide and maintain a system of work requiring the placement of a lock on the main switch or the meter box itself or, in the alternative, using a recognisable tag, where BSA's workers were required to isolate power.
BSA pleaded guilty to failing to provide Mr Hooper with adequate information, training, instruction and/or supervision concerning the "mandatory use of lock and/or tag when isolating power" - par 9(g)(ii). BSA did not accept that it needed to provide information, training, instruction and/or supervision in relation to the remaining subpars of par 9(g).
In the end result, the prosecutor sought to prove that BSA should have also taken one or more of the following measures pleaded in par 9 of the Further Amended Summons: "a. Stopping the defendant's workers from undertaking any Foxtel work at the house until a qualified and competent electrician and/or a qualified and authorised energy provider worker checked and cleared the safety of the house's wiring, b. As part of the work allocation process allocating work to Mr Hooper and/or Ms McKenzie and before any Foxtel Subscription Television Installation and Maintenance Services at the house were undertaken, the defendant obtaining, providing and highlighting or red flagging information and instruction to these workers of the house's prior history of any one or more of any tingle, hazardous set top unit, hazardous shock, the need to safely disconnect the Foxtel set top unit, damage complaint, electrical or electric shock, electrical zap and/or power surging, c. Implementing and maintaining the isolation of power at the house by switching off the power at the electricity meter box, d. ….. e. Providing and maintaining a system of work requiring the use of a volt stick, non-contact proximity voltage tester and/or multimeter to check on power isolation and de-energisation of one or more of the following: (i) Foxtel cables, the copper pipe and/or any other conductive material under the house; and/or (ii) The Foxtel set top unit or box including the rear ports, floor mount outlets, attached cables, television including the rear ports, HDMI cable, socket outlet 1 in bed room 1 and a general power outlet (GPO) in the house, f. Conducting and documenting an adequate risk assessment concerning the Foxtel work at the house that: (i) Identified the general electrical risk associated with Foxtel work and the specific electrical risk associated with Foxtel work at the house arising from the history at the house of any one or more of any tingle, hazardous set top unit, hazardous shock, the need to safely disconnect the Foxtel set top unit, damage complaint, electrical or electric shock, electrical zap and/or power surging; (ii) Assessed the identified general risk and specific electrical risk; and (iii) Identified the most appropriate control measures that should be implemented to eliminate or minimise the general risk and specific electrical risk, g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following: (i) mandatory requirement of isolation of power, when working under the house, (ii) …… (iii) mandatory use of a volt stick (also known as a non-contact proximity voltage tester) (iv) to test any power outlet used to supply power to a television or to any Set Top Unit (also known as a STU or Set Top Box), mandatory use of a GPO (power point) tester and/or multimeter, and (v) conduct of an adequate risk assessment. h. In the alternative to (g), providing Mr Hooper with a GPO (power point) tester to test any power outlet used to supply power to a television or to any STU, together with adequate information, training, instruction and/or supervision concerning the use of such a tester."

[8]

General Principles

The objects clause in s 3 of the Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by - (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."
The offence is one of strict liability: s 12A of the Act.
The content of the duty is set out in s 19 of the Act which provides: "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable - (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
The meaning of "worker" is dealt with by s 7(1) of the Act which provides: "(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as - (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) …"
Section 16 of the Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person - (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
Section 17 of the Act deals with the management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person - (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
The word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury: s 32(c) of the Act.
An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
"Reasonably practicable" is defined in s 18 of the Act which provides: "In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including - (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68].
The reasonable foreseeability of an incident is relevant to whether the pleaded measures were reasonably practicable, but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA at [9] and [35].
An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga at [130].

[9]

Section 244 of the Work Health and Safety Act

Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 of the Act provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."
In Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 the Court of Criminal Appeal explained the operation and scope of s 244 as follows: "84 Section 244 is clear in its terms. Any conduct engaged in by an employee acting within the actual or apparent scope of his or her employment is conduct also engaged in by the body corporate for the purposes of the WHS Act. There is no limitation in s 244 on the type of employee or the level of authority that the employee might have. 85 The only limitation expressed in s 244 is that it must be conduct engaged in on behalf of a body corporate by an employee acting within the actual or apparent scope of his or her employment. ….. 88 There is no qualification to s 244(1) to the effect that if the conduct of the employee ….. was not foreseeable ….., s 244 would not apply. Section 244 has the effect of attributing the conduct of one person to another, having regard to their relationship, not having regard to employer's state of knowledge of the possibility of the conduct occurring. ….. 90 The question is not whether the appellant could have foreseen that Mr Dart would act in the way that he did but merely whether in acting the way in which he did, Mr Dart was engaged in conduct within the actual or apparent scope of his employment. 91 If so, then that conduct is deemed to have been engaged in by the appellant and the appellant may be liable for a breach of s 32 WHS Act, even if only because of that conduct."

[11]

Code of Practice: Managing Electrical Risks in the Workplace

The prosecutor tendered the SafeWork NSW Code of Practice: Managing Electrical Risks in the Workplace, September 2016 (PX 1, Tab 5). This Code is an approved code of practice under s 274 of the Act. It applies to all workplaces where a PCBU has management or control of electrical equipment, including electrical installations, or carries out electrical work on or near energised electrical equipment, including electrical installations.
Page 8 of the Code says: "This Code includes guidance on how to manage electrical risks in the workplace by following a systematic process that involves: • Identifying hazards. • If necessary, assessing the risks associated with these hazards. • Implementing and maintaining risk control measures (eg inspecting and testing electrical equipment, using RCDs), and • Review risk control measures. Guidance on the general risk management process is available in the Code of Practice: How to Manage Work Health and Safety Risks."
Part A of the Code deals with "General electrical safety at the workplace". Clause 2.1 of the Code deals with identifying hazards, and includes the example of work carried out in a confined space.
Page 13 of the Code lists factors to be taken into account in identifying hazards including: "• The conditions under which the electrical equipment is used, for example, wet conditions outdoors or confined spaces. • Work practices and procedures, for example isolation, to carry out maintenance. • The capability, skill and experience of relevant workers."
Clause 2.3 of the Code deals with control of risks. One of the means of control is isolation which means "Preventing workers from coming into contact with the source of an electrical hazard" (p 13).
Clause 5 of the Code (p 28) deals with the need to perform electrical work on equipment which is de-energised. Under the heading "General Principles - Verification of De-energised Electrical Equipment", cl 5.1 of the Code provides as follows (p 28): "Regulation 152-156 A person conducting a business or undertaking must ensure that electrical work is not carried out on electrical equipment while the equipment is energised, subject to the prescribed exceptions discussed in Section 7 of this Code. These provisions do not apply to work carried out by or on behalf of electricity supply authorities on the electrical equipment, including line-associated equipment, controlled or operated by the authority to generate, transform, transmit or supply electricity. This exemption does not extend to the electricity generation sector. A person conducting a business or undertaking carrying out electrical work must ensure that, before electrical work is carried out on electrical equipment, the equipment is tested by a competent person to determine whether or not it is energised. The person conducting a business or undertaking must ensure that: • each exposed part is treated as energised until it is isolated and determined not to be energised; and • each high-voltage exposed part is earthed after being de-energised. A person conducting a business or undertaking must ensure that electrical equipment that has been de-energised to allow for electrical work to be carried out cannot be inadvertently re-energised. The safe work principle 'TEST FOR 'DEAD' BEFORE YOU TOUCH' must be applied at all times. Even if the electricity supply is believed to have been isolated, it must be assumed that all conductors and electrical components are energised until they have been proven de-energised. Testing for 'dead' must be undertaken as appropriate for the duration of the electrical work. Testing is undertaken prior to touching, taking into account all relevant factors including the nature of the conductor, nature of the isolation, nature of work, if there has been a change or the area has been left idle (unattended) for a period."
Paragraph 5.3 of the Code (p 29) says as follows: "5.3 Work on cables (including cutting cables) Where work is to be carried out on a cable, the cable should be de-energised. Cables must be treated as energised and the procedures for working on energised electrical equipment followed until positive tests can be made that prove the cable is de-energised. If the cable's connections are exposed the connections and attached live parts should be proved to be de-energised and identified before work starts."
Paragraph 6.1 of the Code (p 30) deals with "Securing the isolation". It provides a summary of reg 156 of the Work Health and Safety Regulations 2017 (the Regulations) which says: "A person conducting a business or undertaking must ensure that electrical equipment that has been de-energised to allow electrical work to be carried out on it is not inadvertently re-energised while the work is being carried out."
Paragraph 6.1 says that the isolation "should be secured by locking off and tagging the electrical equipment".
Whether or not this Code applied to the work done by Mr Hooper on 14 December 2018, the statements concerning safety when working with electricity (particularly the need to de-energise) could not be in dispute.

[12]

Code of Practice: How to Manage Work Health and Safety Risks

The prosecutor tendered the WorkCover Code of Practice: How to Manage Work Health and Safety Risks, December 2011 (PX 1, Tab 6).
This is an approved Code of Practice under s 274 of the Act. It is admissible in the proceedings as evidence of whether or not a duty or obligation under the Act has been complied with - s 275(2). Section 275(3) of the Act provides: "The court may: (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates."
The Code provides that to manage risks in the workplace a PCBU must identify hazards, assess risks if necessary, control risks and review control measures (p 6).
The Code says that identifying hazards in the workplace involves finding things and situations that could potentially cause harm to people. Electricity is specifically mentioned as a hazard. The potential harm from electricity includes "exposure to live electrical wires can cause shock, burns or death from electrocution" (p 9).
The Code says that a risk assessment involves considering what could happen if someone is exposed to a hazard and the likelihood of it happening. The Code says that a risk assessment can help a PCBU to determine: how severe a risk is; whether any existing control measures are effective; what actions you should take to control the risk; and how urgently the action needs to be taken (p 11).
The Code provides for a hierarchy of risk control (p 15). This hierarchy ranks risk controls as follows: 1. Level 1: Eliminate the hazards. 2. Level 2: Substitute the hazard with something safer; isolate the hazard from people; reduce the risks through engineering controls. 3. Level 3: Reduce exposure to the hazard using administrative actions; use personal protective equipment.
The highest level of health and safety protection is provided at Level 1. Level 1 is also the most reliable of the control measures.
The prosecutor tendered the NSW Government Code of Practice: How to Manage Work Health and Safety Risks, August 2019 (PX 1, Tab 7).
This is also an approved Code of Practice under s 274 of the Act. There was no significant difference between this Code and the Code in PX 1, Tab 6.

[26]

Telephone Calls by Customers to Foxtel and Visits by BSA Technicians

From time to time Mr and Mrs Tropman, who lived at the Malabar house, rang Foxtel when they had problems with the Foxtel service. The prosecutor tendered the transcripts of these telephone calls (PX 3, Tabs 48-52). The prosecutor also tendered the sound files recording these calls (PX 5, tabs 14-18).
The prosecutor also tendered the Account History Notes generated by the Foxtel operator who took each telephone call (PX 6, Tab 23, pp 6-18). Mr Mark Hooper explained in his evidence (discussed below) that both Foxtel and BSA personnel worked in the Foxtel Command Centre in Victoria which received and dealt with telephone calls from Foxtel customers. BSA employees in the Foxtel Command Centre had access to the Account History Notes. Mr Hooper also said that BSA employees could request access to the sound recordings of telephone calls.
Foxtel generated a Work Order which was passed on to a BSA employee at the Foxtel Command Centre. These BSA employees were either Routers (who allocated the work for technicians to perform) or Optimisers (who ensured that work was carried out on the appointed day). The prosecutor tendered the Work Orders for work done prior to the incident (PX 5, Tabs 9-12) and the Work Order for Mr Hooper for 14 December 2018 (PX 3, Tab 56).
On 10 July 2018 Mrs Tropman rang Foxtel and asked for a replacement Set Top Unit (STU). She said that the STU had "died". Foxtel arranged to send a DIY STU swap (PX 6, Tab 23, p 6, item 5).
On 15 July 2018 Mrs Tropman rang Foxtel and requested an upgrade because the new STU which had been delivered was not working (PX 6, Tab 63, p 6, item 11).
On 21 July 2018 Mr and Mrs Tropman rang Foxtel with a problem. The transcript of that telephone call is at PX 3, Tab 48. Mr Tropman said that they were changing a Foxtel Box over and got an electrical "zap" off the cable. He said that there was power in the Foxtel cable. Mr Tropman said that when the cable was swapped to another box, there was electric shock received from the cable on the second box. The response of Foxtel was to say that they would send out a technician and note that there was a hazardous STU shock. Foxtel told the customers to make sure the box was unplugged. Mrs Tropman spoke to the Foxtel operator and said that her son thought that there was live power coming out of the Foxtel cable. The son had tried to plug in the Foxtel cable and it "zapped him". Once again the Foxtel operator said that they would arrange a technician to come and look at it. The technician was booked to come on 24 July 2018. Mrs Tropman said that even though they had unplugged the box, it was still live.
The account history notes for this telephone call (PX 6, Tab 23, p 7, item 21) record the following: "HAZARDOUS/SHOCK STU, SAFELY DISCONNECT SET TOP BOX - COMPLETE, BOOK SERVICE CALL AND ESCALATE - COMPLETE, RAISE A DAMAGE COMPLAINT."
Mrs Tropman rang Foxtel again on 23 July 2018 with a different problem. The transcript is at PX 3, Tab 49. The problem caused a Code F325 to display on the screen which Foxtel advised meant that "the box's hard drive is giving out". Mrs Tropman said that a technician was already booked in for 24 July 2018. Once again she said that there was power "surging from the Foxtel cable that's the reason why we're getting someone to come out tomorrow".
The account history notes for 23 July 2018 record: "DESCRIPTION OF ISSUE/WHY DID THE CUSTOMER CALL? ELECTRICAL SHOCK ON STD STU." (PX 6, Tab 23, p 8, item 28)
The Work Order created for the visit to Take place on 24 July 2018 (PX 5 Tab 9) said nothing about electrical shock.
On 24 July 2018 a BSA technician attended the Malabar property and replaced the STU. The technician confirmed that the Foxtel services were working at the property. The account history notes record that it was Hong Jie Zhang from BSA who attended the property. The notes record: "JOB COMPLETED… REPLACE STU ONLY" (PX 6, Tab 23, p 8, item 35 and PX 5 Tab 9)
Mr Zhang was not called to give evidence. Presumably he would have been able to give evidence about what work he was requested to do at the house, what he observed about the electricals at the house, and what work he did at the house.
Foxtel made a telephone call to Mrs Tropman after the visit by the technician and made a note that the problem had been "resolved" (PX 6, Tab 23, p 9, item 37).
Mrs Tropman rang Foxtel again on 26 July 2018. The transcript of that telephone call is at PX 3, Tab 50. She had a problem recording anything and was receiving an error message saying that there was insufficient disc space. The technician took Mrs Tropman through a series of steps to try to reboot the box. But ultimately Foxtel said that the box needed to be replaced. The technician was booked to come on 27 July 2018.
The Work Order created for this visit (PX 5 Tab 10) says nothing about electrical shock.
On 27 July 2018 a technician Mr Harvey Li attended the property and replaced a faulty STU. The account history note records: "JOB COMPLETED… REPLACED FAULTY IQ2, COULD NOT RECORD. ALSO INSTALLED A 3DB ATTENUATOR SINCE THE SIGNAL STRENGTH TOO HIGH" (PX 6, Tab 23, p 9, item 48 and PX 5, Tab 10)
Mr Li was not called to give evidence. Presumably he would have been able to give evidence about what work he was requested to do at the house, what he observed about the electricals at the house, and what work he did at the house.
It is to be noted that neither technician who attended on 24 July 2018 or 27 July 2018 experienced any electrical shock or tingle, or made any recording of such a phenomenon.
Mrs Tropman rang Foxtel again on 13 August 2018 and said "We also would like a technician to come out here and check the cable because it's giving out electricity shock". The transcript of that telephone call is at PX 3, Tab 51. She also wanted a technician to come out and install a new box. Mrs Tropman reiterated that someone had come out before about the cable providing an electric shock, but the cable kept giving out electric shocks. Foxtel said that a technician would come out with a new box and "sort everything out for you". The technician was booked to come on 20 August 2018. That was changed later in the conversation to 21 August 2018.
The Work Order created for this visit (PX 5 Tab 11) said nothing about electrical shock.
The technician Mr Pawel Swoboda attended the Malabar house on the morning of 21 August 2018. The account history notes (PX 6, Tab 23, p 11, items 59-64) are brief, but indicate that Mr Swoboda installed items of "inventory" and recorded "job completed" (PX 5, Tab 11).
There was no note made in relation to any shock or tingle suffered or noticed by Mr Swoboda.
Mr Swoboda was not called to give evidence. Presumably he would have been able to give evidence about what work he was requested to do at the house, what he observed about the electricals at the house, and what work he did at the house.
Mrs Tropman rang Foxtel on 21 August 2018, after the technician had left, because she had lost access to her sports channels. The transcript is at PX 3, Tab 52. She said that a technician had been to the property only 20 minutes ago but now she could not get the sports channels. She was taken through a series of steps to try to fix the problem. Eventually the Foxtel operator proposed to upgrade the Foxtel box to an IQ3 and to change the connection from cable to satellite. Mrs Tropman said that she would have to think about that and discuss it with her husband.
On 10 December 2018 Mrs Tropman rang Foxtel. No transcript of this call was in evidence. The Account History Notes record: "NO SIGNAL BEING RECEIVED." A technician was booked to come out on 13 December 2018 (PX 6, Tab 23, p 13 items 81-83).
On 13 December 2023 a technician Mr Patryk Seget attended the house and recorded "NETWORK OUTAGE" in the Account History Notes (PX 6, Tab 23. P 13, item 88). There were apparently issues with the cable connection to the property and arrangements were made for a satellite dish to be installed on the roof of the house on 14 December 2018. This was the work which brought Mr Hooper to the house on that date.

[30]

Post-Incident SWMS

The prosecutor tendered the post-incident version of the SWMS for Installation of Satellite Products (PX 3, Tab 41). The pre-incident SWMS in relation to item 6 "Working Inside Roof Spaces" listed electricity as a hazard, and listed the control measures by referring to the SWIs in relation to "Work in Ceiling or Under Floor" and "Electrical Isolations". There was no other detail provided in the pre-incident SWMS.
By contrast, the post-incident SWMS in relation to item 6 has been amended to refer not only to working inside roof spaces but under a floor. There is reference to the two relevant SWIs. However, there is also a step-by-step checklist provided in relation to control measures in relation to electricity when working inside roofs or under floors. That checklist is as follows (PX 3, Tab 41 pp 9-10): "• All workers must carry a functioning volt stick to ensure no work is completed on live circuits • Ensure the customer is aware of the requirement to isolate power and impacts • Allow the customer time to save or complete any critical tasks prior to isolating • Always check if other trades are working on or are scheduled to work on the same premises. When in doubt stop work and seek clarification • Where a customer refuses to isolate power you shall top work and contact your supervisor immediately • Turn off electricity at the meter box • Apply isolation lock and tag to control hazardous energy. If not reasonably practicable tag to prevent someone from turning power back on • Perform a physical inspection of the meter box with the customer at the commencement of the isolation • The mains power must be isolated not the residual current device (RCD) • Confirm isolations in place using a tesler/Volt Stick at a GPO • Prior to entering ceiling/under floor hand your BSA ID card to the customer and ask them to check on you regularly while in ceiling or under floor • Inform the customer I they do not get a response to call the number/s on the back of the BSA ID card • When working in a restricted space it is important to establish a safe work corridor to get to and from the place where you will work and around the actual work site itself. This requires check for hazards such as live cable runs by using a volt stick. Once the safe corridor is established it is important to keep all work activities within the safe work corridor • Before drilling visually inspect the area and discuss any services with the customer • Once job task has been completed advise the customer and turn power back on. Only the person who installs the isolations is permitted to remove the isolation Tag • Perform a physical inspection of the metre box with the customer at the completion of the de-isolation"

[33]

Lucas Lithgow

Mr Lithgow is the Health Safety and Environment Advisor for BSA. He held that position in 2018.
Mr Lithgow was aware of the incident involving the death of Mr Hooper. As the HSE advisor, he became aware of changes to the electrical isolation procedures which were made after the incident. All of the technicians were given a lock and a device which had been trialled and tested. There were also changes to the risk assessments conducted in the field by technicians. Mr Lithgow gave evidence that these risk assessments were carried out in an electronic programme called Marvel. An additional question was added to the risk assessment concerning isolation. Another change to the risk assessment process was that technicians were asked to upload a photograph of the isolation which they had carried out upon the electricity supply.
Mr Lithgow said that he inducted Mr Hooper into relevant processes at BSA. This was done in early October 2018 and included induction into the SWMS, the SWIs and the BSA induction pack. Education about the dangers of asbestos was part of that pack. The induction for Mr Hooper took place on Wednesday, 3 October 2018 at the BSA premises.
Mr Lithgow was taken to a document which he said recorded the induction carried out in relation to Mr Hooper (PX 3, Tab 55). This document referred to asbestos awareness training, but Mr Lithgow said that he pre-wrote the record, and had the attendees at the induction sign it. His evidence was that this document was, in spite of its heading, a record of the general induction carried out, which included the SWMS and the SWIs (Tcpt 62/18-63/23).
Mr Lithgow said that he was not experienced in carrying out inductions, and he had not been given any training in how to give inductions. He had previously worked as a technician being a Foxtel satellite installer, then went to other similar organisations. He came back to BSA as a subcontractor, and then became an SHEQ advisor. Mr Lithgow had, by 2018, completed a Certificate IV in Work Health and Safety.
Mr Lithgow said that in carrying out an induction in relation to the SWMS and the SWIs he took the inductees through those documents, explained what they were, explained how the technicians could read and reference them if they needed to.
Mr Lithgow had never himself used a GPO tester on a power point, and had never inducted any worker into the use of such a device.
The attention of Mr Lithgow was drawn to the fact that the SWMS in evidence (PX 2, Tab 25) signed by Mr Hooper, was dated 20 November 2018. This was well after the induction date. Mr Lithgow said that if employees were found, during an audit, not to have a SWMS in their vehicle, then the document was reissued to them and they had to re-sign it. He did not know whether or not this happened with Mr Hooper, but it was a possible explanation for why the SWMS was signed several weeks after the induction. Workers were not re-inducted in relation to the SWMS, they were just given a new copy and asked to sign it. This was usually done by a First Line Manager (FLM).
In cross-examination Mr Lithgow said that during his time as a subcontractor he had received training in respect of risk assessments. One of the key rules that he learned during that training was to ensure that power was isolated before undertaking work under a house or in a roof.
Mr Lithgow was taken to a copy of the presentation which he gave to the workers on 3 October 2018 (PX 2, Tab 22). Page 12 of the document dealt with electrical isolation. It said that before entering the ceiling or under a floor a technician must ensure that they had isolated the power. It said that electricity had to be turned off at the meter box. Mr Lithgow agreed that this was a critical feature of the training of BSA workers on 3 October 2018. It was important because dealing with electrical energy was a high risk task.
Mr Lithgow was taken to p 15 of the document. This referred to using a volt stick to test an appliance prior to installation or removal of a set top box (also known as a set top unit or STU). He said that he told technicians to isolate them from the power point and check the STU with a volt stick before touching it.
In cross-examination Mr Lithgow was taken to the SWI for working in a ceiling or under floors (PX 2, Tab 28). He said that he took the workers through this document on 3 October 2018. He agreed that under the heading "Safe Set Up" the document directed workers to isolate electricity by turning off the electricity at the meter box. It also said: "Even though you've isolated the electricity, treat all cabling, electrical terminals as live."
Mr Lithgow said that he explained to the inductees that as a matter of practice they should use their volt stick to test anything metallic before they isolated it. After they had isolated the power, he told them to go back inside and check the power point where they were installing the box. If the workers went inside a roof or under the house, he told them to carry to volt stick with them to make a clear work corridor. He warned the workers that plumbing in old houses might be connected to the earth of the electricity so they should not touch the plumbing but should check it with a volt stick.
Mr Lithgow was taken to the SWI for electrical isolations (PX 2, Tab 26). He agreed that there was a reference in the document as follows: "Where a customer refuses to isolate power, you shall stop work and contact the supervisor immediately."
Mr Lithgow was taken to page 2 of the document which said "Confirm isolations in place using a tester at a GPO". He said that the tester there being referred to was a volt stick.
Mr Lithgow was asked about the risk assessment being completed in the Marvel program. Once the job was completed, the risk assessment could not be changed.
Mr Lithgow said that prior to the incident on 14 December 2018 involving Mr Hooper, managers had completed safety and quality on site audits in relation to Mr Hooper.
Mr Lithgow agreed that locks and tags were provided after the incident. The Marvel risk assessment was changed by adding additional questions which he recalled being: Do you need to isolate; have you checked the board; do you have the tools. Mr Lithgow said that in relation to the need to isolate, that was part of the training which BSA gave both before and after the incident - by telling workers they are to isolate power if they are working under the floor or in a roof space. There is no discretion as to whether this was done, they had to do it.
Mr Lithgow clarified in re-examination that the Marvel system was not a paper system, but an electronic system. Technicians opened up an app on their mobile phone and completed the risk assessment by using the Marvel app.
I accept Mr Lithgow as a credible witness. I accept his explanation for the later date appearing on the SWMS signed by Mr Hooper. It was apparently a regular occurrence for technicians to have lost their copy of the SWMS, or to have left it in another vehicle. When that happened BSA required the technician to be issued with a new SWMS and to sign it. I accept that Mr Lithgow carried out an induction on 3 October 2018 for Mr Hooper, as part of a group of inductees. I accept his evidence about the explanation of the documentation which he gave. I accept his evidence concerning the statements he made about isolation of electricity when performing Foxtel installations for BSA.

[34]

Mark Hooper

Mr Mark Hooper is the father of the late Mr Jayden Hooper. In summarising the evidence of Mr Mark Hooper, I will refer to him only as Mark and I will refer to Mr Jayden Hooper, in this section of the judgment, as Jayden.
Mark was employed by BSA at the time of the incident but ceased that employment on 30 June 2022. Jayden started with BSA on 27 August 2018 while he was in Queensland. His contract required him to work in New South Wales. He picked up his vehicle, tools and equipment in Brisbane and drove to Sydney. He started work in Sydney on 4 September 2018.
On 25 November 2018 Jayden went back to the family in Brisbane for two weeks. He returned to Sydney on 10 December 2018.
Mark and other BSA managers received an email on 22 November 2018 from Mr Simon Parkinson (PX 7, Tab 68). Mr Parkinson requested Mark and other managers to forward the email on to their FLMs and technicians.
On the same date Mark forwarded the email to his NSW FLMs (Mark was at the time the State Manager for NSW). The recipients included Ms Amber McKenzie.
The attachment to the email was a BSA Quality Alert and Advice (PX 7, Tab 68, pp 3-4). This was headed "Marvel Photo Requirements". The Alert dealt with a number of matters, including a requirement to send "Safety Photos". In dealing with that topic, the Alert said: "If isolating power a photo of the lock out tag".
It is common ground that at this time technicians were not issued with locks or tags to be used when isolating power.
Mark was asked about the Agenda/Minutes dated 6 December 2018 (PX 2, Tab 36). As he understood the Minutes, they concerned power isolation questions which were to be inserted into the Marvel system. The understanding that Mark had was that the opening question would have been "Are you working around, or near, in the vicinity of power?" If the answer to that question was "Yes", then more questions would drop down to be answered on the screen. He could not recall the dropdown questions that were proposed.
Mark confirmed that as State Manager for NSW, there were no locks or lock out tags provided to technicians.
Mark said that the technicians were issued with a mobile phone on which they could receive emails and text messages, and access the Marvel app. He said that the technicians had very limited access. He said that all they could access was their work. They could see what work they had been issued and any technician notes that were associated with that work. Any information about the job was sent to the technicians over the Marvel app. There was space on the app to upload as many as 10 photographs.
Mark said that the ticket of work that the technicians would perform was generated by Foxtel. The customer contacted Foxtel, explained what they wanted, and a ticket of work was then created by a Foxtel agent and given to BSA to be completed. That work was then allocated by a BSA router to a BSA technician. All this was done in the Foxtel Command Centre in Victoria. This was a site where Foxtel and BSA employees worked collaboratively to receive customer phone calls and process the work required as a result of those calls.
Mark said that BSA had access to records kept by Foxtel in relation to incoming calls made by customers. If BSA needed that access, the Foxtel staff would be able to access it and provide it to BSA on request. During the course of his employment with BSA, Mark often saw entries made by Foxtel in the customer notes.
Mark said that technicians did not see the customer notes or the Foxtel notes. If they needed them, they would send a request to their FLM and their FLM would contact the command centre and get that information and email it back to them.
Mark said that as an Operations Manager, he did not have direct access to the data bank of recordings of telephone calls. However, if he ever needed to listen to a recording of a particular call, he would contact a Foxtel staff member and would be permitted to listen to the recording. Employed technicians did not have access to the recorded telephone conversations.
Mark was asked whether, if there was an electrical problem discovered by an FLM, what would the BSA response be. He said: "We would hand that job back as hazardous, and instruct that an electrician rectify any issues prior to us returning".
Mark was asked about the procedure if there was a complaint about an electric shock. He said that a screenshot of the note would be sent a State Manager, and it would then be forwarded to an FLM to ask the FLM to go and investigate the job and to be on site with a BSA technician. He was asked what was the purpose of an FLM attending if the complaint was one of electric shock. He said that the job of the FLM was: "If it was an electric shock and that shock was present, they'd be responsible for making that job safe. So shut it down, make sure it was isolated and there was no risk for the technician." (Tcpt 137/45)
BSA employed persons as routers and optimisers. A router would issue the work to BSA technicians in Marvel. On the day the work was to be done, the optimiser would manage getting all the jobs done for the day.
In cross-examination Mark said that a BSA employee would have been able to access all of the information in the Marvel system without Foxtel providing it to them.
In cross-examination Mark said that if there was information provided about an electrical shock, the BSA FLM would tell the occupier of the house that they would need to have an electrician rectify the issue, and then come back to Foxtel when that work had been done. Mark would expect the FLM to tell the occupier of a home that they would need an electrician to rectify the issue. BSA did not employ electricians and BSA was not in the business of rectifying electrical faults at the homes of Foxtel customers. It was not within the ticket of works that Foxtel gave BSA to tell BSA to rectify electrical faults, as that is not what they did.
I regard Mr Mark Hooper as a completely credible witness. He gave his evidence in a forthright manner and was clear and concise in his answers. In particular, I accept his evidence regarding the workings of the Foxtel Command Centre, the roles of both Foxtel and BSA employees working at the Command Centre and the responsibilities of an FLM.

[35]

Amber McKenzie

Ms Amber McKenzie was employed by BSA in July 2017 as an FLM. Her job was to "supervise teams of contractors installing Foxtel". When employed technicians were later taken on, it was part of her job to supervise them as well as the contractors.
The training which Ms McKenzie received as an FLM when she first started was to do "a ride along with another FLM". She drove around with the FLM for a week and a half seeing what they did and what systems they used. She was shown the Marvel system, which was a contractor's job allocation system and the Lucidity app which dealt with audits, safety, quality and toolbox meetings. Marvel was a Foxtel system and Lucidity was a BSA system.
When she first started Ms McKenzie familiarised herself with the relevant SWMS and SWIs. If there was a change in a safety document, Ms McKenzie would bring it to the attention of technicians or contractors in toolbox meetings. Technicians were supposed to keep these documents in their vehicle. If Ms McKenzie found that someone did not have a SWMS during an audit, the technician was given another copy of the SWMS to retain.
On 14 December 2018 Ms McKenzie attended the address in Malabar where the incident occurred. She knew Jayden Hooper. When she arrived he had already started work. Ms McKenzie sat in her car for a while, doing administrative work. The job at Malabar was classified as a VIP job, which meant that an FLM needed to attend. The usual FLM for Malabar was not available, so Ms McKenzie attended in his place. She understood that her job when she got there was to check that the installation was going ahead and to ensure that it ran smoothly. She had to make sure that the customer was happy. Ms McKenzie gave the following evidence (Tcpt 198/1-10): "Q. What about the quality of the work? Did you have a role in observing the quality of the work? A. I had a look while I was on site. Q. What about compliance with BSA safety rules? Did you have a responsibility in relation to those? A. I guess I should have that responsibility on any site that I attend."
Ms McKenzie saw that a side door giving access underneath the house was open and in that space she saw some multi-switching cables hanging down. She saw the satellite dish that Mr Hooper had installed and had a conversation with him. Mr Hooper showed Ms McKenzie some areas inside the house where the boxes were being installed. Ms McKenzie helped set up the STUs in the bedrooms and helped Mr Hooper pull cables up through the floor in two bedrooms. When she walked past the low door leading to underneath the house, she noticed some cable hanging down and a multi-switch blue box. She understood that this was a box to split the signal from the satellite to allow for multiple STUs to be installed.
Ms McKenzie gave the following evidence about the switchboard and isolation (Tcpt 201/1-30): "Q. You see on the right-hand side of the house towards the side but - towards the front, there's a doorway into an opening at ground level? A. Yes. Q. And do you see that above that there what appears to be a switchboard? A. Yes. Q. I'll just show you a close-up of the switchboard, if you now look at photograph 1. If you accept from me that that's the switchboard or meter board that was inside the fuse box that you can see in photograph 3. Did you, on the day of the incident, have a look at that switchboard? A. No. Q. And did you ever check to see whether or not Jayden had isolated power from that switchboard? A. No. Q. And did you ever isolate power from that switchboard? A. No. Q. Now, is there any reason why you didn't check the switchboard at the house to see whether or not power had been isolated? A. Not really. It just - I think, by the time I got out of the car and he'd already been there for a long period of time. So just over looked it. Q. Did you have any belief at the time as to whether Jayden was required to isolate power at that switchboard if he was going to be doing any work under the house? A. I believe it was in the SWMS but it wasn't focused on."
Ms McKenzie was taken to the last answer set out above and gave the following further evidence (Tcpt 202/11-13): "Q. Yes, you understand I'm asking you about your view. When you say, "it wasn't a focus", are you speaking of yourself? A. Yes, from my experience of working in the business."
Ms McKenzie gave the following evidence about supervision and isolation of power (Tcpt 204/1-21): "Q. So, firstly we're dealing with you and what you saw. What was it you did or what you saw every day? A. So I saw technicians in my team every day installing Foxtel and my job every day was to check on them and audit them, take phone calls, deal with their problems, address complaints. Q. On that day, on those days, every day, did you inspect to see whether or not the technicians had isolated power? A. Not prior to the incident. Q. Even when they were working under the houses? A. Yes. Q. How common was that, in your own experience? A. Depending on the job, but on a job like this a tender install with three outlets it would be 50%, so either under the house or in the roof it would be. Q. So 50% of the jobs would require a technician to be under the house or in the roof; is that right? A. Correct."
Ms McKenzie was asked to clarify some evidence she gave about whether she knew whether or not technicians had isolated power. She said (Tcpt 205/21-39): "HIS HONOUR: So shortly I'm going to ask you to step down and remain outside. But I have a question before you go. Now I'm asking this question, gentlemen, because I'm not sure that the witness in giving an answer was answering Mr Agius' question. So feel free to object to my questions. Q. Before this incident, you often went to jobs where technicians were installing satellite Foxtel; correct? A. Yes. Q. When you went to those jobs, what was your practice about checking whether or not isolation had taken place? Did you check? A. No. Q. When you went to those jobs, were you aware whether or not the technician had isolated electricity or did you not know one way or the other? A. Not know. HIS HONOUR: All right, yes, if you wouldn't mind just stepping outside for a minute. Don't go too far, we'll call you back in as soon as we can."
Ms McKenzie said that after the incident there was a lot more focus in relation to isolating power. After the incident BSA supplied volt sticks to all the contractors and employees. Lock out tags and locks were provided for the isolation of power in the fuse boxes at the houses (Tcpt 210/45).
Ms McKenzie was asked about her own training in relation to the isolation of power (Tcpt 211/27- 212/13): "Q. Prior to the incident, did you get any training in what to look for when checking to see if power was isolated at a house? A. No. Q. Did you get any instructions on how to isolate power? A. No. Q. Did you get any instructions on whether there were particular switches or fuses in fuse boxes that needed to be turned off, or whether fuses needed to be removed? Did you get any of that instruction? A. No. Q. If you looked at a fuse box prior to the incident, did you feel confident that you could identify whether or not the power in that fuse box had been isolated or not? A. If it wasn't locked out? Q. If it wasn't locked out, yes. A. Not confident on every house. Q. In any event, how often over the course of your working day prior to the incident, would you have ever looked at a fuse box to see whether or not power had been isolated? A. Not often. Q. Daily? A. No. Q. Weekly? A. Possibly. Q. Possibly? A. Possibly. Q. Once a week or less or more? A. Once a week or less."
Ms McKenzie said that while she was the Malabar house, she did not review any risk assessment that Mr Hooper may have completed for the job. Mr Hooper said nothing to her about the isolation of power at the premises.
Ms McKenzie gave the following evidence concerning enforcement by BSA of health and safety policies (Tcpt 213/37-50): "Q. In your experience, did BSA enforce health and safety policies, from time to time, concerning health and safety risks for, for example, working from heights? A. Yes. Q. Did they ever do that, in your experience, for risks of electrocution requiring isolation of power? A. Not prior to the incident. Q. Had you ever been trained as a technician? A. No. Q. Before you started work at BSA, had you ever worked out in the field? A. No."
Ms McKenzie said that prior to going to the Malabar house, she had never been informed by anybody that there was a history within the previous six months of people in the house suffering electric shocks when handling HDMI cables or STUs (Tcpt 216/45).
A statement made by Ms McKenzie to the police, concerning the sequence of events on 14 December 2018, was also tendered (PX 3, Tab 53). It adds little to her oral evidence summarised above.
I accept Ms McKenzie as a witness of truth. She gave frank and forthright answers to what must have been, to say the least, very uncomfortable questions about her supervision on the day of the incident, and her general practice in relation to checking whether power had been isolated.
I note that supervision of technicians was specifically listed in the job description of an FLM (PX 2, Tab 33). This accorded with Ms McKenzie's own understanding of her role. No suggestion to the contrary was put to Ms McKenzie in cross-examination. I find that supervision of Mr Hooper was conduct engaged in by Ms McKenzie as an employee of BSA, when she was acting within the actual scope of her employment. This finding will be referred to below when I deal with s 244 of the Act.

[36]

Francis Tropman

Mr Tropman had been at work on 14 December 2018 but came back in the afternoon to have his lunch at home. He saw a man and a woman who he presumed were dealing with the Foxtel problem. He did not have a conversation with either of them about turning off the power. He never went to the fuse box himself that day. Mr Tropman did not use any electrical appliance in the house, but he recalls his wife making him a cup of tea and also cooking some sweet potato for the evening meal "so the electricity must have been on".
Mr Tropman was taken to a diagram he drew for the police which indicated the location of a new power point which had been installed in the recent past by an electrician. This was in the dining room on the wall between the dining room and Bedroom 1.
Mr Tropman gave more detail regarding this power point in his police statement (PX 3, Tab 70). He said: "9. Sometime in 2018 the exhaust fan in the toilet broke and the power point in the hall way was playing up. The plugs were loose in the sockets and sometimes when you were ironing the iron would cut out and stop working. It was a double power point and we had my son's fridge attached to one of the plugs. I raised these two issues with Meg and she made some arrangements and got an electrician to make contact. Fairly soon after I received a call from the Electrician Meg had contacted and made a suitable time for him to come around for the repairs. 10. I think it was the next day, but I can't be sure exactly, but an Electrician came to the house. I don't recall his name, he was an Aussie bloke. I showed the Electrician the exhaust fan in the toilet and the Power point in the hallway that was playing up. I also identified a light switch in the bathroom that had a crack on it and asked if that was something he could fix. I hadn't addressed that with Meg, but he said he would fix it. Shortly after the man left to go get some equipment, I think he said he was going to Bunnings. 11. When the electrician returned I was standing with him when he opened the exhaust fan box, it was broken. He then left to exchange the fan and returned not long after. I left him to complete his works. 12. When he was finished the electrician told me the fan was a bit noisy, but it works, that was all that he told me. He then left. I went and tested the exhaust fan and it certainly was noisy, but I was happy that it worked. I also looked at the light switch in the bathroom and power point in the hallway. Both fittings looked brand new. I could tell there were replaced because they were a bright white colour, the old ones were yellow and discoloured. After the power point was replaced I didn't have any issues when using the power point for ironing, it appeared the issue was fixed. 13. I have prepared a sketch of the floor plan of 124 Victoria Street Malabar, I have attached it to this statement marked Annexure A. I have marked with a X in a circle and labelled the power point I have referred to in this statement."
I accept Mr Tropman as an accurate witness.

[37]

Amy Tropman

Mrs Tropman gave a statement to the police on 8 February 2019 (PX 3, Tab 69). In relation to her dealings with Foxtel, and also the attendance of an electrician who replaced a power point, she said: "9. In July or August 2018, the Foxtel box in my bedroom stopped working. I contacted Foxtel for some trouble shooting help and it was determined a new Foxtel box was required. Foxtel sent a new Box. I got my son Warren TROPMAN to come around and install the new box because I couldn't reach. I was standing with Warren and said 'ow! I felt a little tingle'. Warren couldn't get the box to work so I said not to worry. I contacted Foxtel and organised for a technician to come. 10. That technician bought another Foxtel box and resolved the issue on that occasion. He told me he had resolved the issue and the box was now working and he had checked the box and my mums and there was no issues. 11. At a similar time, I'd began to notice occasionally when ironing, the Iron would turn off. Additionally, the exhaust fan in the bath room wasn't working and the light switch in the bathroom had a small crack in it. Frank and I spoke about it and he contacted Meg to advise of the issues. Meg organised for an electrician to come around. I can't recall what date the electrician came but I was home when he arrived, he was Caucasian and spoke like an Aussie. The male did say his name but I've forgotten it. I saw him replacing the fan, but shortly after he was gone. I asked Frank where the electrician was, Frank told me he needed to go get a different Fan. 12. I saw the electrician later that day, but I didn't pay attention to what he was doing. When the he had finished I tried the exhaust fab, it was so loud. The light switch in the bathroom also appeared brand new and so did the power point in the dining room. I didn't have any issues with the Iron after the electrician replaced the power point. I've marked on a sketch floor plan of the house the location of the power point with the letter A (Annexure 1). 13. One morning in early December 2018, my mother was watching TV in her room and she came out from her bedroom and said 'my Tv's not working'. I went and checked the Foxtel in my bedroom and also the lounge room and neither was working. The television was turning on, but the Foxtel showed a 'F106' error on all 3 televisions. I immediately called Foxtel. 14. I spoke with an overseas Phone operator from Foxtel I told them about the 'F106' error code was displayed, and they talked me through some troubleshooting steps. These included pressing certain buttons for a short period of time and turning the power on and off, none of the trouble shooting worked. The error code then changed to 'F102', I had tried using my bedroom Televisions and the loungeroom, with no success. The phone operator organised a technician to come out to the house because they can't resolve the issue over the phone. 15. About 4 days later a technician came out to the house, the technician checked the loungeroom and the Foxtel box in my bedroom, he may have also gone into my mums room. After less than half an hour he came to me and told me that he can't resolve the issue because it wasn't a Foxtel issue but rather a Telstra issue with the cables. He then left. 16. I then spoke with my daughter-in-law Heather TROPMAN who works at Foxtel about the issues we were having. 17. I later received a call from Foxtel, they offered us the opportunity to have a satellite installed on the roof which should rectify the issues. I advised Foxtel I'd need to seek the approval from the Landlord Meg. I think Frank spoke with Meg about getting approval to go ahead with the satellite installation. Frank told me that Meg had approved the satellite and then I liaised with Foxtel about the installation. 18. Around Thursday December 13, 2018, I was notified a Foxtel technician would be coming between 2:00pm and 5.00pm to complete the work."
In her police statement Mrs Tropman said the following about the events of 14 December 2018: "19, About 9:30 am on Friday December 14, 2018, I went to my grandson's school graduation in Coogee. When I was in the hall my phone was ringing, I had a feeling it may have been Foxtel but I wasn't in a position to answer the call. At the end of the ceremony I called back the number, it was the Foxtel technician who introduced himself as Jayden. 20. Jayden had called to check if it was okay to rearrange the appointment to arrive between 12:00 pm and 1:00 pm. I said that I was on my way home from Coogee and that my mum was home, but the earlier time was okay. 21. When I arrived home, Jayden was already parked out the front on Victoria Street, he was just waiting out the front. I went inside and after about 15 minutes; maybe around 12:00 pm; Jayden came and knocked at the front door. Jayden seemed like a nice young man, he was professional and easy to talk to. He asked me to show him what televisions we wanted done, and I showed him my room, the Ioungeroom and my mums room. Jayden and I then walked around the house and out the back, down the side gate. 22. Jayden indicated to me the work he was going to do, he pointed to the roof and said 'I'll probably put it in the back there', I asked it would be easier to put the satellite at the front, he said words to the effect 'it probably would but most home owners want it put where it's not an eye sore'. Jayden also told me he'd need to go under the house and that he'd run a wiring along the brickwork, I asked 'is that going to be okay, because this is a rental property', he replied 'no it will be fine, you won't even see it'. I took this to mean that it would not be obvious. I was impressed with the manner he explained everything he intended to do. Jayden and I returned inside again, I left him to carry on his work. 23. Shortly after Jayden came to me and said, 'I've got to go get some conduit', I said 'do you have to go far for that?', Jayden indicated he knew where the supplier was, and he left soon after. 24. About an hour passed before Jayden arrived back and commenced working. I felt comfortable leaving Jayden to do his work, my mum and I stayed in the living areas. After about half an hour I saw Jayden again, he looked hot; I offered Jayden a cup of tea, he politely declined but requested some water. I prepared him a cold glass of water. 25. About 2:50 pm I went out the back, I could hear Jayden talking and another female voice, I was intrigued who he was talking to. I turned to look, and the female said, 'It's okay it only me' and indicated she worked with Jayden, maybe as his supervisor or colleague I can't recall specifically. I told Jayden I was heading out to pick up my grandchildren but told him mum was inside if he needed anything. 26. When I returned home, Frank was at the dining table eating a late lunch l had prepared before I left. Frank stayed until about 4:00 pm until he had to return to work. 27. At some stage the female working with Jayden had come and asked for an umbrella and I gave her an umbrella. 28. About 4:30 pm I began to peel and chop some sweet potatoes and boiled them on the stove. The sweet potatoes had finished, and I took it off the stove. I was thinking about what else we could have for dinner. 29. I heard a sound and I didn't know what it was. It was like a moan, but it was echoing. At first, I thought it was kids out the front playing. I picked up my phone, I then thought it was coming from the phone, but I soon realised it wasn't. I walked into the loungeroom, at the same time my mum stood up and we both said, 'what's that sound?'. I immediately realised it was coming from under the house. 30. I ran outside, I leant down and looked into the hole and began to yell out 'Jayden, Jayden, Jayden'; I couldn't see him and there was no response. I called triple zero."
Mrs Tropman gave oral evidence that she met Jayden Hooper when he came to do the work on 14 December 2018 at the Malabar house. She never went to the fuse box that day. Mrs Tropman recalled a lady arriving at the house and going out the back to speak to Mr Hooper. There was no conversation with either BSA employee about turning the power off or turning the power on. Mrs Tropman left to pick up her granddaughter and while she was away her husband came home to have his lunch. Mrs Tropman had no recollection of using an electric kettle or any electric appliance. She did recall that at about 4.30pm she peeled and chopped some sweet potatoes and boiled them on the electric stove.
I accept Mrs Tropman as an accurate witness.

[39]

Police Officers

Senior Constable Cruickshank and Constable Newham, both from Maroubra Police Station, attended the house in Malabar in response to an emergency call on the afternoon of 14 December 2018. On arrival they looked through the door which accessed the underfloor area. They could see the body of Mr Hooper about five to six metres in, lying in a face down position.
Constable Newham had an electrical trades background. In his statement (PX 4, Tab 84), Constable Newham said: "7. I then stood up and opened the front panel of the switchboard above the man hole and noticed that all the switchgear was still in the 'on' position. I then switched all breakers into the 'off' position but was unable to remove the service fuse as it was located on the back of the meter panel which was revealed at a later point once Ausgrid had arrived. 8. I noted that the house was connected to the street power lines via aerial service. Given that that the conduit containing the mains cables was coming through the cavity from the top of the house. l knew that it was highly likely the mains cables only travelled through the roof space from the point of attachment which is fixed to the facia/eves located on the front left-hand corner of the house. I would have been unable to safely isolate the supply between the point of attachment and the switchboard, but it would be unlikely that any power cables underneath the house had not been Isolated."
Senior Constable Cruickshank (PX 4, Tab 83) said that he then went underneath the house and saw that Mr Hooper's left-hand side was lying directly on top of a copper pipe which was half submerged in the ground. He observed a black cable next to Mr Hooper's right foot. About one metre away from Mr Hooper's right foot there was a small carry bag which contained tools. There was a small wound on the back of Mr Hooper's head, which was bleeding.
The two police officers, together with other emergency services personnel, then retrieved the body of Mr Hooper from underneath the house.
Senior Constable Cruickshank went back underneath the house again, and found Mr Hooper's mobile phone sitting on a bearer near where he had been lying.

[44]

James Graham

The prosecution tendered a first report of Mr James Graham dated 19 December 2018 (PX 7, Tab 60). Mr Graham is employed by Ausgrid as a Senior Installation Inspector. He has been involved in the electricity industry for 35 years and has been a qualified electrician for 31 years. He attended the Malabar property on the morning of 15 December 2018 to conduct an electrical incident investigation on behalf of Ausgrid, the electricity supplier to the property. Mr Graham found the main switch, the hot water main switch and the final sub circuit breakers to be in the Off position. Four of the final sub circuit fuses had been removed and replaced with plug in circuit breakers. There was no residual current device (RCD) fitted on the switchboard.
Mr Graham observed that the electrical installation earthing system was not connected to the customer's neutral link via a Multiple Earthed Neutral (MEN) connection. The electrical installation main earth conductor was found to be dislodged from the earth electrode. The equal potential bond connection to the copper water piping system under the floor of the house was found to be intact. The bare protective earthing conductor for power circuit 5 and light circuit 3 was found to be severed above the switchboard where it entered the roof space. The double socket power point located in the dining room area, marked as socket outlet 9 on a plan drawn by Mr Graham, was reasonably new compared to others throughout the house.
Mr Graham carried out measurements of the voltage at various points in the house and took photographs to record the readings he obtained. In pars 29 and 30 of his first report he said: "29. Using an independent earth, voltage measurements were taken under the floor space of the house and inside the house with the main switch and circuit 5 in the on position. No other circuits were energised. ○ A voltage of 241 volts was measured to the Metallic Braiding under the outer insulating sheath of the Foxtel cable located under the floor space of the house in the vicinity of where the victim was found. See Appendix A - photograph 7, ○ The Foxtel cable was traced back to bed room 1 where a voltage of 236 volts was measured at both floor mount outlets. See Appendix A - photographs 8 & 9. ○ A voltage of 239 volts was measured at the rear ports of the TV in bed room 1. See Appendix A - photograph 10. ○ A voltage of 237 volts was measured at the rear ports of the Foxtel box in bed room 1. See Appendix A - photograph 11. ○ A voltage of 237 volts was measured on the HDMI cable plug from the TV when it was removed from the Foxtel box. See Appendix A - photograph 12. ○ A voltage of 242 volts was measured at the rear of socket outlet 1 earthing terminal, located in Bed room 1. See Appendix A - photograph 13. ○ A voltage of 231 volts was measured at multiple points of the bare sub main earth conductor in the roof space. This sub main earth was connected to power circuit 5 and lights circuit 3 See Appendix A - photograph 14 Taken at person access entry to roof space. ○ A voltage of 239 volts was measured at the disused metallic 'Gravity Feed Hot Water System'. See Appendix A - photograph 15 Taken at person access entry to roof space. 30. When circuit 5 was turned to the off position, the above voltages measured were removed and measured zero volts."
Mr Graham dismantled the double socket outlet 9 located in the dining area. He found that the left-hand side fixing screw had penetrated the active and earth conductors, causing the earth wire to become live. Since the bare final sub circuit earthing conductor was found open circuited above the main switchboard, this caused the earth terminals on all socket outlets controlled by circuit 5 to become live.
Mr Graham expressed his conclusion in the report as follows: "37. The cause of the live Foxtel cable was due to socket outlet 9 fixing screw making contact with the Active & Earth conductors which caused the earth terminal of the socket outlet to become live which also caused other socket outlet earths controlled by circuit 5 to become live. This included socket outlet 1 in Bedroom 1, where the live Foxtel cable was traced back to. Socket outlet 9 was located in the dining area. 38. The TV & Foxtel box in bedroom 1 were plugged into socket outlet 1, via a power board, which was controlled by circuit 5 which caused all metallic ports on the TV to become live. 39. The TV & Foxtel box were connected to each other via a HDMI cable which caused all metallic ports on the Foxtel box to become live which caused the Braiding of the Foxtel cable from the Foxtel box to the Foxtel floor mounted outlets to become live. The Foxtel cable located under the floor space was terminated into the Foxtel floor mounted outlets in Bedroom 1. 40. Based on the observations made by me at the premises and the findings of my investigation outlined above, I believe that it is likely the deceased received a fatal electric shock under the floor space of the house when coming in contact with a live Foxtel cable and the copper water piping system."
Much criticism of Mr Graham and his first report was advanced by Senior Counsel for the defendant, arising from Mr Graham's confusion regarding whether or not he had referred to the Expert Witness Code of Conduct, and also arising from the involvement of Mr Graham's Ausgrid supervisor, Mr Henson, in the preparation of a second report. It must be recognised that Mr Graham was not the traditional type of expert witness (such as Mr Roberts and Professor Blackburn who also gave expert evidence in this case) who is retained by a party to litigation specifically to provide an expert report. Mr Graham went to the property as an Ausgrid Inspector, not as a potential expert witness. Nevertheless Mr Graham was honest and impartial in giving his evidence, a matter I dealt with in greater depth in several rulings given throughout the hearing in relation to his evidence.
I have no hesitation in accepting the observations made by Mr Graham and the conclusions expressed by Mr Graham in his first report. The defendant had the benefit of expert opinion from Professor Blackburn (see below). Professor Blackburn did not disagree with any of the observations or the conclusion expressed by Mr Graham in his first report. Nor did Mr Roberts, an expert retained by the prosecutor.
Mr Graham provided a second report dated 27 February 2023 (PX 18), which responded to a report of Associate Professor Blackburn. One of the opinions expressed by Professor Blackburn was that it was not possible to receive an electric shock or be electrocuted within Bedroom 1. Mr Graham disagreed with this view but did qualify his opinion, by stating that his role for Ausgrid was to try to find the source of energy which led to the electrocution. It was not part of his assessment to determine an earthing situation in Bedroom 1.
Mr Graham expressed his view about the risk existing in Bedroom 1 as follows: "20. I do not agree that it was not possible to receive a severe power frequency (50 Hz, 240 volts) electric shock in bedroom 1. 21. The earth on the power socket was live, so any other appliance and power board plugged into that socket would become live, as was the TV and bedside lamp in this instance. Timber joists and bearers and floor and carpet provided some protection. But if a person touched an earthed appliance that was class 1 (i.e., it has three pins and there are three wires connected to three different pins, i.e., Live, Neutral, and Earth) or a power board plugged into a socket in an adjacent room that was not affected by the live earth fault, there was earthed potential, and the live earth in bedroom 1 was now live, providing the electricity and possibility of a significant electric shock. 22. I do not accept that there was no real hazard in Bedroom 1. It is an assumption but there may have been exposed or hidden nails, a carpet straight edge, metallic window frames, or even an appliance (e.g. vacuum) plugged into a socket outlet in an adjacent room not affected by the earth fault combined with the TV, metallic lamp and parts connected to the apparent earth that was energised."
I will not detail the attacks made upon Mr Graham in cross-examination based upon his confusion about the expert witness Code of Conduct or the involvement of Mr Henson in relation to the second report of Mr Graham. While such cross-examination was justified, in the end result there was little to dispute about Mr Graham's evidence, apart from the technicalities about how the two reports were created.
In cross-examination Mr Graham confirmed that his examination of the premises in December 2018 was not to determine whether there was an earth available in Bedroom 1 (Tcpt 501/46). In examination in-chief Mr Graham had said that he was called to the site to investigate a possible fatality by his supervisor and prepare a report on what he found at the site. This was something which Ausgrid did whenever there had been a suspected fatality caused by electricity or electrical wiring (Tcpt 468/20).
In cross-examination Mr Graham said that he had made a search to see who had performed the electrical work resulting in the new power point at GPO 9, but he had not been able to ascertain the identity of the electrician who did that work (Tcpt 592/5).
In re-examination Mr Graham was asked about the copper pipe running along the ground underneath the house and the wire connecting to it. He indicated that the wire was continuous and ran back to the main switchboard. This meant that the water pipe was the main earthing conductor for the home. It connected the electrical wiring to the general mass of earth. That earth conductor was not connected to circuit 5 because the wire above the switchboard which ran to circuit 5 had been severed (Tcpt 604/1-25).

[45]

Neil Roberts

Mr Neil Roberts is a State Inspector with SafeWork NSW Engineering. He is an electrical engineer who started out as an electrical fitter and mechanic. He holds a degree of Bachelor of Engineering (Electrical) from UTS and has a Master of Commerce Degree from the University of Sydney. He has post-graduate diplomas in workplace inspections. In his first report (PX 7, Tab 63) Mr Roberts says that he agrees with the factual findings in the first report by Mr Graham. At p 26 of his first report he explains how the TV and the Foxtel STU are electrically connected and at the same potential as the earth pin of the television. Once the television became electrified because of the fault in power point 9, the STU also became electrified. Normally the connection by HDMI cable between the TV and the STU would be at earth potential (nil volts), but the faulty power point caused the HDMI to carry 240 volts (see p 28 of his first report and the diagrams on p 28).
Once the STU became electrified, 240 volts travelled from the coaxial cables from the STU in Bedroom 1, down under the floor and to the point adjacent to the copper pipe where Mr Hooper was found (see the diagram on p 30 of the first report).
The conclusion of Mr Roberts concerning the death of Mr Hooper was that Mr Hooper "was in contact with two highly conductive mediums with a potential difference (voltage of 240 VAC) (see p 31 of the first report).
None of these conclusions were put in dispute by Professor Blackburn.
In relation to the risk assessment, Mr Roberts pointed out that there were no questions in the risk assessment or controls nominated in the SWMS or SWIs that prompted a worker to undertake a basic assessment of the electrical installation. He said that there were no questions in the risk assessment that contemplate the hazardous task of entering and working under a floor. Mr Roberts offered the view that "Once this is acknowledged, additional questions are needed to ensure that the primary controls for managing the general electrical hazards are applied" (see p 35 of the first report).
Mr Roberts said that a volt stick can detect an electric field when placed near wiring which is carrying electricity. He said that a volt stick could be used as an indicator that a conductor is de-energised (see p 42, par 79 of the first report).
Mr Roberts was asked about whether a multi-meter should have been provided for BSA technicians. He said that such devices should only be used by a licensed electrician and that if used improperly, a multi-meter could pose an electrical risk itself (see p 43 of the first report).
Mr Roberts was asked to comment about the possible use of a GPO power point tester. He said that such a device would have "instantly diagnosed the presence of an energised earth connection at the power outlets in bedroom 1" (see p 45, par 93 of the first report).
Mr Roberts provided a second report dated 8 February 2023 (PX 16). This second report was in response to the first report of Professor Blackburn.
Mr Roberts disagreed with Professor Blackburn's conclusion that there was no electrical risk present in Bedroom 1, even though the TV, the STU and the Foxtel cables had become electrified with 240 volts. He did agree that the characteristics of the building and that room "would present a high impedance to the flow of electricity through a person's body under normal circumstances". However he put forward a number of scenarios to demonstrate that a person in Bedroom 1 could receive a serious electric shock. He said: "17. For example, If the deceased had completed the installation of the coaxial cable network underneath the house before proceeding to connect the Foxtel Set Top Units (STU's) in the house. The outer sheath of the co-axial cable, and associated metal connectors at the wall plate in Bedroom 1 could easily have been connected to a genuine earth via the STU connections made in another part of the house. (refer to Illustration in Appendix B) 18. This could be via either connections from a class 1 TV to the STU (such as in bedroom 1) or the use of a 'piggyback plug' used specifically to earth the sheath at one point in the co-axial network as required by the Foxtel installation manual. 19. In the above scenario, a genuine earth becomes apparent at the wall plate for the co-axial cable. Depending on the sequence of work that is undertaken a worker making the connections could be exposed to the full 240v when making connections to the STU in Bedroom 1. Depending on the sequence of connection, this exposure could be realised in bedroom 1 in the process of connecting between • the co-axial cables used to connect the STU to the wall plate and the STU ports themselves, or • the co-axial cables used to connect the STU to the wall plate and the wall plate itself, or • the HDMI cable connector and the HDMI port to the STU, or • the HDMI cable connector and the HDMI port on the Class 1 television or • by contacting the conductive parts of a class 1 device (TV or metallic lamp for example) and handling one of the connecting cable connectors 20. The work of connecting the HDMI cables or co-axial cables between the Television, STU, and wall plate necessarily requires the technician (or other person) to directly handle the end of the cables to form the connection. Both cables present exposed metal to the person, with co-axial cables typically requiring a person to secure the connection by rotating the metal ring (in electrical contact with the sheath of the cable) at the end onto a thread at the port or wall plate."
It is noted at this point that there was no evidence that Mr Hooper had connected the two other STUs in the house prior to going under the floor and being electrocuted. Thus the scenario posited by Mr Roberts was not one established as a fact by the evidence. The evidence did not establish that an earth connection in Bedroom 1 was in existence because the STUs elsewhere in the house (which were not on the faulty sub circuit 5) had already been connected up.
The conclusion of Mr Roberts on this topic was expressed in par 22 as follows: "22. With respect to the statement made at line 405 of the report, For the reasons I've outlined above, I cannot agree that the entirety of bedroom could be considered or labelled an equipotential zone. The hazard of multiple exposed energised conductors existed in the room, the level of risk specific to persons in the room was dependent on variables such as those described above that could result in any of (i) no effect, (ii) minor tingles/shocks, through to (iii) more serious shocks."
In oral evidence in-chief Mr Roberts made it plain (Tcpt 518/49) that his scenario in relation to an earth being present in Bedroom 1 only operated "if the deceased had completed the installation of the coaxial cables underneath the house, before proceeding to connect the Foxtel set top units". Further, he confirmed that his scenario required an assumption that one or both of the Foxtel boxes in other rooms in the house were plugged into televisions, which themselves were plugged into power points, which were not connected to circuit 5 (Tcpt 519/40).
Mr Roberts said that if someone in Bedroom 1 picked up one or both of the cables than ran from the STU in Bedroom 1 and attempted to plug those cables into the brackets in the room, that person would be exposed to 240 volts (Tcpt 520/25, 521/10).
In cross-examination Mr Roberts confirmed that the best way to protect anyone entering the Malabar house on 14 December 2021 was isolation of the power (Tcpt 527/40). Mr Roberts was aware that BSA had procedures which required the house to be isolated if technicians were going into the roof or under the house (Tcpt 527/45).
Mr Roberts confirmed that he did not know what happened at the property between July 2018 and 14 December 2018 in terms of electrical work. He did not know whether an electrician went out there in that intervening period (Tcpt 520/45-50). If an electrician had been called to a home in respect of the complaint of a tingle being received, they would have to carry out basic verification tests in accordance with AS3000 (Tcpt 531/43).
In cross-examination Mr Roberts was asked whether, if a tingle had been received from an STU, and the STU was then replaced and no further tingles were received over several months, there was still a requirement to notify the local electricity supply authority. Mr Roberts accepted that in that context there was no requirement to do so (Tcpt 532/45-533/1).
Mr Roberts was asked questions about Australian Standard AS4836, which was admitted into evidence subject to relevance. Mr Roberts accepted that Mr Hooper was not carrying out work on low voltage electrical installations as defined in par 1.6.12 of the Standard (Tcpt 535/30). Mr Roberts also accepted that Mr Hooper was not working on electrical equipment as defined in the Standard (Tcpt 538/42). The Standard did not apply to a person doing work which involved plugging in or connecting STUs or TVs or plugging them into power points (Tcpt 539/24).
Mr Roberts was asked in cross-examination whether a person who came into the house, such as a cleaner with a vacuum cleaner or a carpenter with power tools, would need to use a GPO tester prior to connecting or disconnecting an electrical appliance. He said that they would not need to do so, as "they should be able to rely on the integrity of the electrical installation" (Tcpt 558/26). Such a person was entitled "to make an assumption that it's okay" (Tcpt 558/28).
Mr Roberts confirmed in cross-examination that the electrician who installed the new GPO 9 would be expected by law to test or verify that what was done was correct. The purpose of such verification and testing was to pick up any faults that may exist as a result of the work undertaken (Tcpt 565/20).
Mr Roberts confirmed in cross-examination that he accepted the accuracy of Mr Graham's description of the faults in the wiring of the house. In relation to such faults, Mr Roberts acknowledged that he was not able to say when those faults came into being (Tcpt 569/40).

[46]

Trevor Blackburn

The defendant obtained reports from Associate Adjunct Professor Trevor Blackburn from the School of Electrical Engineering at the University of NSW. His first report is dated 27 January 2023 (DX 3). Professor Blackburn noted the problems with the electrical wiring in the house set out in the first report of Mr Graham. He had no dispute with the observations and conclusion of Mr Graham. Professor Blackburn said (p 8): "The improper installation of the new GPO (number 9) in the dining room area where the securing screw was somehow inserted through both the active and earth wire insulation was the root cause of the problems that led to Mr Hooper's electrocution."
Professor Blackburn said (at p 9): "The only way in which the house electrical system could be worked on, with no hazard and risk to Foxtel workers, would have been to isolate the whole electrical system at the switchboard to remove power from all electrical circuits in the house. However, after using this safe work method, when the system was re-energised after the additional installation work was complete, there would still be a fault and associated risk present, but there would still be no evidence of any fault. … A test with a GPO outlet tester would be required to identify the problem with the active-earth connection throughout the house."
Professor Blackburn set out his reasons for expressing the view that the current flow magnitude and duration occurring in Bedroom 1 would be "quite non-hazardous in terms of any electric shock effect" (p 14). He said that there was no hazard from contact in the bedroom but at worst a small tingle may have been felt (p 15).
Professor Blackburn concurred with the opinion of Mr Graham that the Foxtel cabling underneath the house must have been live when the accident occurred. Therefore power had not been isolated at the switchboard. The enlivening of the cabling would have occurred at the TV set in Bedroom 1 where the mains earth of the TV set supply connected with the Foxtel signal cable earth braid and thus caused it to become live at 240 volts (p 19). This of course was also the opinion of Mr Roberts.
At p 21 of the first report Professor Blackburn said that he had been asked to comment on two issues: 1. The potential hazard that existed in Bedroom 1 after the Foxtel cables were made live by connection to the TV set. 2. Whether a lock on the main switch or a simple tag attachment were adequate measures to eliminate or minimise the risk associated with inadvertent re-energisation.
The defendant also relied upon a second report by Professor Blackburn which was dated 28 February 2023 (DX 4). In the second report Professor Blackburn responded to supplementary reports by Mr Roberts and by Mr Graham. He pointed out that new electrical work must be tested and verified, and that obviously this was not done after GPO 9 was changed by the unknown electrician. Verification tests would have also detected the pre-existing earthing faults.
Professor Blackburn commented upon the hypothetical scenarios put forward by Mr Roberts in his second report, which have been summarised above. Professor Blackburn said (p 8): "However, I understand there is no evidence that Mr Hooper did make the under-house connection before going to the bedroom to work on the STU. He was electrocuted while under the house."
Professor Blackburn offered the view that the scenarios offered by Mr Roberts were "unlikely in the extreme". He reiterated his view that there was "no likelihood of an electric shock being generated" within Bedroom 1.
In cross-examination Professor Blackburn confirmed that if isolation had been in place Mr Hooper would not have been electrocuted (Tcpt 652/30).
While Professor Blackburn had offered a short opinion about the adequacy of the SWMS, in cross-examination it emerged that he could not recall drawing a distinction between the pre-incident SWMS and the post-incident SWMS (Tcpt 653/5).
In cross-examination Professor Blackburn confirmed that the fault at power point 9 had shorted the positive with the earth, which affected the power point in Bedroom 1, with the consequence that the TV and the STU (via the HDMI cable) were all carrying 240 volts. The cables from the STU which ran under the house carried the fatal voltage to Mr Hooper (T656/15-50).
In cross-examination Professor Blackburn was asked about supervision. He said the following: "Q. Well, a precaution might be that if there's a supervisor onsite, and there's a meter box, which is there and capable of being inspected, that someone should look at the meter box to see whether or not there has been isolation? A. Yes. Q. You would agree with that? A. Yes, I would agree with that, yes."

[56]

The Risk to Workers

The defendant disputed that the second risk pleaded in par 8 of the Further Amended Summons was in existence. This was pleaded as follows: "There was a risk to a worker of death, shock or other serious injury caused directly or indirectly by electricity arising from… coming into contact in Bedroom 1 of the house with the Foxtel box including the rear ports, floor mount outlets, attached cables, television including the rear ports, HDMI cable and/or socket outlet 1."
The establishment of this risk depended upon the scenario put forward by Mr Roberts being supported by evidence. That scenario was that all of the cabling underneath the house had been connected, and the two STUs in other rooms in the house, which were not connected to circuit 5, would provide an earth path for the 240 volts present (on all the evidence including that of Professor Blackburn) in Bedroom 1 at the TV, the HDMI cable, the STU and the coaxial cables connecting the back of the STU to the floor outlet plates.
Mr Graham specifically disavowed offering an opinion as to whether an alternative earth path (apart from the contact made by Mr Hooper under the house between the live coaxial cable from the STU in Bedroom 1 and the copper pipe at earth potential) existed. He said more than once that it was not part of his function in carrying out an inspection at the request of Ausgrid to determine whether there were any other earth potentials in Bedroom 1. He was there to find the fault which caused the electrocution and he did so.
Professor Blackburn offered the view that the general impedance available in Bedroom 1, associated with the physical characteristics of the room such as the carpet and the floor, meant that while 240 volts was live on various electrical connections and cables in Bedroom 1, a person touching those points would not suffer an electric shock as there was no earth available in Bedroom 1.
By contrast, Mr Roberts put forward a scenario which involved an assumption that the other two STUs, in other rooms of the house, were connected to power points which were not on circuit 5, and thus there was an earth path from the live cables in Bedroom 1 to the multi-switch device under the floor, and then via the cables to the other STUs to a genuine earth.
The problem with this scenario, from the point of view of the prosecutor, is that there was no evidence that the other STUs had been wired up in that fashion prior to the electrocution occurring. It is understandable that there is no such evidence, as Mr Graham was not there at the house to investigate that scenario.
Because of the lack of evidence in support of the Roberts theory, I find that the prosecution has not established the risk pleaded in par 8(ii) of the Further Amended Summons
The defendant admitted that there was a risk to workers of death, shock or other serious injury caused directly or indirectly by electricity arising from entering and working under the house and coming into contact with energised Foxtel cables, copper pipes and/or other conductive materials. All of the evidence established that this risk existed, in particular the evidence of Mr Graham, Mr Roberts and Professor Blackburn.
Not only has the risk pleaded in par 8(i) of the Further Amended Summons been proved by evidence, but it is a matter which has been admitted by the defendant since December 2022, when the defendant handed up a document to illustrate the basis upon which it entered a plea of guilty (MFI 1 in these proceedings).

[60]

What the Defendant Knew or Ought Reasonably to have Known - Section 18(c)

An important matter which was in dispute in the case was what BSA knew, or ought reasonably to have known, about the hazard or the risk. This is a relevant factor under s 18(c)(i) of the Act.
Put broadly, the prosecution case was that when the Tropmans were reporting in July and August 2018 that electric shocks were being received from the Foxtel STU, this was a warning sign that there was a problem with the wiring in the house. The prosecution case was that no BSA technician should have been required to perform Foxtel work at the house until the problem was investigated and fixed by a licensed electrician or by an electricity supply authority.
There are several problems with this aspect of the prosecution case. Those problems are: 1. It was a Foxtel employee who spoke to the Tropmans on each occasion in July and August 2018 and not a BSA employee. 2. While BSA employees at the Foxtel Command Centre had access to the Foxtel account history, there was no evidence that any particular BSA employee did access the history. Nevertheless the prosecution argued that BSA employees at the Foxtel Command Centre could have accessed the history and thus BSA ought reasonably to have known about the risk at the property. 3. The first complaint made by the Tropmans about an electric shock being received from the cable attached to the Foxtel box was made by the telephone call on 21 July 2018. The account history note in relation to this call is set out above and records the following: "HAZARDOUS/SHOCK STU, SAFELY DISCONNECT SET TOP BOX - COMPLETE, BOOK SERVICE CALL AND ESCALATE - COMPLETE, RAISE A DAMAGE COMPLAINT." 1. Prior to a technician attending on 24 July 2018 to deal with the issue raised in the telephone call of 21 July 2018, Mrs Tropman rang Foxtel again on 23 July 2018. She reiterated that there was power surging from the Foxtel cable, and the account history notes recited above made the following record: "DESCRIPTION OF ISSUE/WHY DID THE CUSTOMER CALL? ELECTRICAL SHOCK ON STD STU." 1. The work order created for this visit said nothing about electrical shock. The evidence was that the work order was created by Foxtel to be handed to BSA to set out the work to be done. Nevertheless some regard must have been had to the account history notes, as the technician who attended the Malabar property on 24 July 2018 replaced the STU and confirmed that the Foxtel services were working at the property. The notes record, as recited above: "JOB COMPLETED… REPLACE STU ONLY". 1. Mr Zhang was the technician who performed the service call on 24 July 2018. He was not called to give evidence. From his point of view the replacement of the STU had fixed whatever problem existed at the house. 2. Mrs Tropman rang Foxtel again on 26 July 2018 with a recording problem. There was nothing said by Mrs Tropman in that conversation about an electric shock. As a result of that conversation another technician, Mr Li, attended the property on 27 July 2018 and replaced a faulty STU. Mr Li was not called to give evidence. 3. Mrs Tropman rang Foxtel again on 13 August 2018 and made a clear complaint that the Foxtel cable was giving out an electric shock. 4. A technician, Mr Swoboda, attended the Malabar property on 21 August 2018 and replaced an item of "inventory" and recorded "Job Completed". There was no note made in relation to any shock or tingle noticed by Mr Swoboda. Mr Swoboda was not called to give evidence. 5. Mrs Tropman rang Foxtel on 21 August 2018 about a problem with access to certain channels, but made no report of an electric shock. 6. On 10 December 2018 Mrs Tropman rang Foxtel and reported that no signal was being received. Again, there was no complaint in this telephone call concerning any electric shock. 7. On 13 December 2018 another technician, Mr Seget, attended the Malabar property and diagnosed that there was a problem with the cable connection, which would be fixed by installing a satellite dish. There is nothing in the account history notes to record that Mr Seget observed any electric shock or similar issue on that date. 8. Thus by the time Mr Hooper went to the Malabar property on 14 December 2018, it had been four months since any complaint had been made by the customer about an electric shock being received from the Foxtel cable. While the steps taken by Foxtel technicians from time to time did not attempt to investigate the wiring of the property, or detect whether there was any fault on the wiring, neither those technicians nor the Tropmans gave a history of any electric shocks being received after the complaint made on 13 August 2018 and the visit by Mr Swoboda on 21 August 2018. 9. It is clear that the fault in the wiring at the Malabar property caused by the screw which connected the positive to the earth wires at GPO 9 existed as at 14 December 2018 when Mr Hooper was electrocuted. However, there was no hint available to BSA after mid-August 2018 that this problem existed, or had not been cured by whatever work was done by the technician who visited on 21 August 2018.
I find that the lack of complaint by the Tropmans after 21 August 2018 concerning electric shocks from the Foxtel cables, and the lack of any evidence from technicians who attended in July and August 2018 concerning their findings as to whether there were electric shocks received from the Foxtel cable, and if so why, means that it cannot be said that BSA knew or ought reasonably to have known of the risk which existed by reason of the Foxtel cables under the house being live as at 14 December 2018.
There is a further problem with this aspect of the prosecution case. Mrs Tropman said that about the same time as she reported electric shocks from the Foxtel cable (July or August 2018) an electrician came to the house to do repair work, and this included replacing GPO 9. Senior Counsel for the defendant submitted that there was a hypothesis consistent with innocence, which was that there were two separate and distinct faults at the Malabar property. The first fault could have been related to faulty STUs, which caused shocks to be given to those who touched the cable attached to the STU. The second was the long term fault created by the electrician in inserting the screw negligently into GPO 9, causing the risk to arise from that point until 14 December 2018 when Mr Hooper was electrocuted. In other words, there was a hypothesis consistent with innocence, because it was unknown when the electrician performed his negligent work, and it was unknown whether the complaints made by Mrs Tropman in July and August 2018 arose because of the negligent work, which could well have been carried out after the complaints raised by Mrs Tropman and the work done by the technicians to replace the STUs.
Where the prosecution case rests substantially on circumstantial evidence the Crown must exclude all reasonable hypotheses consistent with innocence: The Queen v Baden-Clay [2016] HCA 35 at [46], [50]; (2006) 258 CLR 308. For an inference to be reasonable it must rest upon something more than mere conjecture: Baden-Clay at [47]. It is not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence or to prove particular facts tending to support such an inference: Baden-Clay at [62]. That proposition merely reflects the fundamental principle that the prosecution must prove the charge beyond reasonable doubt: Baden-Clay at [62].
In relation to the prosecution case that the negligent fixing of the screw at GPO 9 caused the electric shocks reported by the Tropmans in July and August 2018, there is a hypothesis consistent with innocence, being that any problem with the STUs was fixed by the work done by the technician on 21 August 2018, and that the problem caused by the work done by the electrician who installed GPO 9 post-dated the Foxtel work on 21 August 2018, and created a separate and new risk.
I find that the prosecution has not excluded that reasonable hypothesis which is consistent with innocence.
These findings are crucial to the outcome of my consideration below of some of the reasonably practicable measures pleaded in par 9 of the Further Amended Summons, being the allegations that BSA should have taken certain steps because it knew, or ought to have known, that a serious electrical fault existed at the Malabar house - see pars 9(a) and 9(b) of the Further Amended Summons.

[64]

Stopping Work - Paragraph 9(a) of the Further Amended Summons

The measure pleaded in par 9(a) of the Further Amended Summons is as follows: "a. Stopping the defendant's workers from undertaking any Foxtel work at the house until a qualified and competent electrician and/or a qualified and authorised energy provider worker checked and cleared the safety of the house's wiring."
It is clear that on the prosecution case, the requirement to stop workers from undertaking any Foxtel work at the house arises from the guidance material, which says that if there is a shock or a tingle suffered that is an indication of a serious problem, and an electrician or a supply authority should be called to check and clear the safety of the house's wiring.
I find that the prosecutor has not proved this aspect of the case. As set out above in my analysis of the facts relevant to s 18(c) of the Act, there were no complaints of shocks or tingles after August 2018. Further, there were no observations of shocks or tingles by BSA technicians who went to the house after such complaints were made. As Mr Roberts said, a person is entitled to go into a house and assume the integrity of the wiring unless there is some warning sign.
If this incident had happened back in July or August 2018, the outcome may have been different. In those months there were complaints being made by the Foxtel customer of shocks or tingles from the cables attached to Foxtel STUs. It appears that the STU was changed. The householder reported that the problem had been resolved. Both Foxtel and BSA would then have had the impression that no further shocks or tingles have been experienced. That being so, there was no warning sign such as a shock or tingle after August 2018 which would have or should have alerted BSA that a technician should not touch the work at the Malabar property until the wiring had been checked out by a licensed electrician or a supply authority. For these reasons the claim based upon par 9(a) of the Further Amended Summons has not been made out.

[67]

Providing and Maintaining a System of Work Requiring the Use of a Volt Stick - Paragraph 9(e) of the Further Amended Summons

The evidence of Mr Lithgow shows that BSA did induct and train its technicians to use a volt stick in the following circumstances: 1. Technicians should use a volt stick to test an appliance prior to installation or removal of a STU. 2. Technicians should isolate the STU from the power point and check the STU with a volt stick before touching it. 3. Technicians should use the volt stick to test anything metallic before they isolated it. 4. After technicians have isolated the power, they should go back inside and check the power point where they were installing the STU. 5. If the workers went inside a roof or under the house, they should carry a volt stick with them to make a clear work corridor. 6. Plumbing in old houses might be connected to the earth of the electricity, so that technicians should not touch the plumbing, but should check it with a volt stick.
While this was the initial training given to technicians, consideration of the BSA safety documents shows that there was no reinforcement of this training or mandating the use of a volt stick in those safety documents.
The pre-incident SWMS (PX 2, Tab 25) did not mention the use of a volt stick in relation to checking for the isolation of electricity. The pre-incident SWMS in job step 6 (which referred to working inside roof spaces) referred technicians to SWI-133 and SWI-136.
SWI-136 (PX 2, Tab 26) had a picture of a volt stick on p 2 under the heading "Isolate the power". However, STI-136 said nothing about using the volt stick.
SWI-133 (PX 2, Tab 28), being a safe work instruction for work in ceilings or under floors, referred to using a multi-meter for testing steel frames, insulation, or all other potential electrical conductors. SWI-133 makes no mention of having or using a volt stick.
By contrast, the post-incident SWMS (PX 3, Tab 41) in item 6 (pp 9 and 10) sets out a long step-by-step list of what should be done when working inside a roof space. Included in the step-by-step list are the following entries: • All workers must carry a functioning volt stick to ensure no work is completed on live circuits. … • Confirm isolations in place using a tester/volt stick at a GPO."
The pre-incident audits carried out in relation to Mr Hooper (PX 3, Tabs 60, 61 and 62) did check that Mr Hooper was implementing the control measures for the job steps in the SWMS and was isolating power prior to entering a roof space or working under the floor. However, those audits, which were assessing Mr Hooper's work performance against the SWMS and the SWIs, say nothing about whether he properly used a volt stick, as the use of a volt stick was not mentioned in any of those safety documents.
I find that while there was a system of work requiring the use of a volt stick, at least as conveyed on one day by Mr Lithgow during an oral presentation, BSA failed to maintain a system of work requiring the use of a volt stick to check on power isolation and de-energisation. It is not enough for a worker to be told on the first day of the job what to do, and then not to have that followed up by audits and supervision, and by appropriate use of a volt stick being included in the safety documentation provided to the worker.
I find that the step pleaded in paragraph 9(e) of the Further Amended Summons, in relation to maintaining a system of work requiring the use of a volt stick, did constitute a reasonably practicable measure which the defendant should have taken

[68]

Adequate Risk Assessment - Paragraph 9(f) of the Further Amended Summons

Paragraph 9(f) of the Further Amended Summons pleads that the step which should have been taken by BSA was: "f. Conducting and documenting an adequate risk assessment concerning the Foxtel work at the house that: (i) Identified the general electrical risk associated with Foxtel work and the specific electrical risk associated with Foxtel work at the house arising from the history at the house of any one or more of any tingle, hazardous set top unit, hazardous shock, the need to safely disconnect the Foxtel set top unit, damage complaint, electrical or electric shock, electrical zap and/or power surging; (ii) Assessed the identified general risk and specific electrical risk; and (iii) Identified the most appropriate control measures that should be implemented to eliminate or minimise the general risk and specific electrical risk."
Within par 9(f) of the Further Amended Summons a distinction is drawn between the "general electrical risk" and the "specific electrical risk associated with Foxtel work at the house arising from the history of the house".
So far as general electrical risk is concerned, the evidence of Mr Roberts is to the effect that a person is entitled to assume that the house has been wired in accordance with good practice. If it were otherwise, one would expect that there would be guidance material to say that no-one should trust the wiring in any power point unless it is first risk assessed. There is no Standard which says this. There is no Code which says this and there is no guidance material which says this. This aspect of par 9(f) of the Further Amended Summons fails.
In relation to the "specific electrical risk" this is a specific risk associated with the history of the house concerning shocks and tingles. I have already found that there was no history, at least in the four months prior to December 2018, which would have put BSA on notice of such problems in the house, and therefore this aspect of the prosecution case also fails.

[69]

Use of a GPO Power Point Tester - Paragraph 9(g)(iv) and 9(h) of the Further Amended Summons

Paragraph 9(g)(iv) pleads that the step which should have been taken by BSA was: "g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following: … (iv) to test any power outlet used to supply power to a television or to any Set Top Unit (also known as a STU or Set Top Box), mandatory use of a GPO (power point) tester and/or multimeter, and.
Paragraph 9(h) pleads that the step which should have been taken by BSA was: "h. In the alternative to (g), providing Mr Hooper with a GPO (power point) tester to test any power outlet used to supply power to a television or to any STU, together with adequate information, training, instruction and/or supervision concerning the use of such a tester."
There was evidence in the case from all of the experts that a GPO power point tester, if plugged into GPO 9, would have detected the earthing fault. The only point in the BSA documentation where a GPO power point tester is required is where a twin F type wall outlet is being installed. This was not the job on which Mr Hooper was engaged. There is nothing else in the BSA documentation requiring use of a GPO power point tester. Again, reference is made to the evidence of Mr Roberts that people are entitled to rely upon the assumption that wiring in a house has been carried out in accordance with appropriate practice and has been duly verified.
There is nothing in a Standard, a Code or the guidance material requiring the use of a GPO power point tester to check for faults in a power point. If it were otherwise, then anyone coming into a house to do work, such as a cleaner or carpenter, would have to have such a tester and use it, before plugging their equipment into a power point. To take an extreme example, a lawyer who came into court with a laptop and a charger would have to have a GPO power point tester and test the power point in the court room, before plugging their charger into the power point.
I find that this aspect of the prosecution case has not been made out.

[71]

Information, Training and Instruction

The training provided at the induction in relation to electrical isolations is recorded in PX 2, Tab 22, p 12, reproduced in par 81 above. That training provided a type of checklist for a technician to run through, including consulting with the customer, before turning off electricity at the meter box. The training did suffer from the defect that it included an instruction to apply a lock or tag to prevent someone from turning the power back on, and this was an instruction observed in the breach, given that BSA did not supply locks or tags to its technicians.
The pre-incident SWMS did not supply a checklist, but simply referred the reader to SWI-133 Work in Ceiling or Under Floors and SWI-136 Electrical Isolations.
SWI-136 Electrical Isolations did not provide a checklist, but under the heading "Isolate the Power", simply said that locks or tags had to be installed and isolations have to be confirmed using a tester at a GPO.
SWI-133 Work in Ceiling or Under Floors did provide a checklist, although it was a truncated version of the checklist provided at p 12 of the induction document.
Thus while at the induction a worker was referred to a type of checklist or step-by-step guide as to what to do to isolate power, on the job a technician had to refer to three documents (the SWMS and the two SWIs), which between them did not add up to a step-by-step checklist, let alone one with the detail which had been provided during the induction.
The post-incident SWMS was a much-improved document which provided a step-by-step checklist of control measures in relation to electricity when working under floors. That checklist, which is longer and more detailed than the checklist provided at the original induction, and is certainly much more detailed than a reading of the pre-incident SWMS and the two SWIs, is set out in par 139 above.
I find that BSA did not provide adequate instruction concerning the mandatory isolation of power when Mr Hooper was working under the house. Mr Lithgow provided a wise induction concerning the risks posed by electricity and the precautions which should be taken to control such risks. But once the inductees left the training room and were out on the job, BSA's safety documentation (discussed immediately above), copies of which were issued to Mr Hooper, left a lot to be desired.
Safety could only be ensured by repeating and reinforcing good practice, and it was inadequate to hold a training course but not provide appropriate documentation to repeat and reinforce what was taught at the induction. I find that the step pleaded in par 9(g)(i) of the Further Amended Summons, in relation to instruction, did constitute a reasonably practicable measure which the defendant should have taken.

[74]

Adequate information, training, instruction and/or supervision concerning the conduct of an Adequate Risk Assessment - Paragraph 9(g)(v) of the Further Amended Summons

Paragraph 9(g)(v) of the Further Amended Summons pleads that the step which should have been taken by BSA was: "g. Providing, before he commenced the work he was assigned or on the job, or both, to Mr Hooper, adequate information, training, instruction and/or supervision concerning the following: … (v) conduct of an adequate risk assessment."
The risk assessment carried out by Mr Hooper at the Malabar property was conducted on the Marvel app. This was a Foxtel system and not a BSA system. It is no answer to the notion that the risk assessment was inadequate, to say that BSA could not change the Marvel risk assessment without having Foxtel change it. BSA sent technicians to suburban homes to do Foxtel installations, and had an independent duty to its workers to provide an adequate risk assessment process.
Evidence has been referred to above to the effect that BSA, during 2018, saw the need to increase the specificity of the questions in the risk assessment to deal more fully with isolation of electricity. This was escalated to "Rapid Response", which proved to be less than rapid, as the risk assessment had not been upgraded by the time of the incident on 14 December 2018.
In late November 2018 Mr Parkinson sent an email to Mr Mark Hooper and other BSA managers with a BSA Quality Alert and Advice (PX 7, Tab 68). This alert required a photo of the lockout tag to be sent if a technician was isolating power. That was never implemented, and could not have been implemented since technicians were not provided with locks or tags at that date.
BSA had taken positive steps to improve safety in relation to working on ladders and working at heights. There were a number of specific questions in the Marvel risk assessment concerning these matters and there was a requirement for photographs to be taken to demonstrate that technicians were working safely at heights.
The only question asked in relation to risks other than working at heights, was that part of the risk assessment which said, "Have you controlled all other hazards in accordance with your company SWMS?" Such a question, covering all other risks in the SWMS, apart from working at heights, in one hit, was hardly likely to direct the attention of a technician to the steps which had to be taken to properly isolate electricity at the site. The risks of the job were many and varied, including spiders, rats, needles, poor ventilation, heat, parking, bush fires, dogs and aggressive customers (PX 2, Tabs 28 and 29).
After the incident, the risk assessment was updated and improved, to ask a specific question about isolation of electricity. Further, the risk assessment was improved by adding in red and large letters the following: "If you have chosen yes to power isolation a photo must be attached in Marvel."
The post-incident risk assessment asked a specific question about power isolation and required a photo of the power isolation to be uploaded in Marvel. Thus the risk assessment in relation to isolation of electricity then took steps similar to those taken, prior to the incident, in relation to working at heights.
I find that the risk assessment required to be completed as at 14 December 2018 was an inadequate document, particularly when compared to the post-incident risk assessment which took steps to draw to the attention of a technician the need not only to isolate power, but to prove that power had been isolated, before doing work. A paper system (or as in this case an electronic system) cannot eliminate a risk, but it can be a reasonably practicable step to minimise a risk.
I find that the step pleaded in par 9(g)(v) of the Further Amended Summons did constitute a reasonably practicable measure which the defendant should have taken.

[76]

Causation: Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

The relevant question on causation is not whether the failures of the defendant were the cause of the death of Mr Hooper, but whether the act or omission of the defendant was a substantial or significant cause of Mr Hooper being exposed to the risk of injury - Bulga Underground Operations at [127], [130].
That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers - Bulga Underground Operations at [129]-[130].
The Court of Criminal Appeal recently considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established.
The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the court did so is best expressed by Simpson AJA at [2] as follows: "I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd ('GCE') gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld."
Justice Walton agreed with the conclusion reached by Justice Cavanagh saying at [12]: "I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised."
Justice Cavanagh set out the principles in relation to causation at [229]-[235] as follows: "229 In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person. 230 As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed. 231 It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause. 232 Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause. 233 This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk. 234 Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof). 235 In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk."
The conclusion reached by Justice Cavanagh was expressed at [241]-[243] as follows: "241 The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work. 242 It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown. 243 In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work."
As set out above, I have found that the defendant breached its health and safety duty by failing to take the measures pleaded in subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v). If the electricity was isolated prior to Mr Hooper working underneath the house, then he would not have been electrocuted. I find that a substantial cause of Mr Hooper being exposed to the risk of death was the failure by the defendant to provide a clear SWMS, a more adequate risk assessment and locks and tags. Used together, all of those systems and devices would have operated to make it more likely that Mr Hooper would have isolated the power.
Further, had there been better procedures, reinforced by appropriate instruction and supervision, then the risk would have been minimised.

SafeWork NSW v BSA Limited

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