WorkCover Authority of NSW (Insp Vassel) v Duff Bros Pty Limited t/as Ric Electrics

PROSECUTOR: B.D. Hodgkinson of counsel SOLICITOR: Mr Gordon Henderson LEGAL REPRESENTATIVES: Ebsworth & Ebsworth, Sydney DEFENDANT: SOLICITOR: Mr Peter W. Smith Farrell Lusher, Wagga Wagga

JUDGMENT:

• 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

No. IRC3135 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP VASSEL) v DUFF BROS PTY LIMITED T/AS RIC ELECTRICS Prosecution under s15(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 This is a prosecution under s15 of the Occupational Health and Safety Act, 1983. 2 It is alleged the defendant, Duff Bros Pty Limited t/as Ric Electrics, an employer, breached s15(1) of the Occupational Health & Safety Act 1983 ("the Act") on 1 December 1997 at premises located at the Police Academy, NSW Police Service, McDermott Drive, Goulburn in the State of New South Wales, when it failed to ensure the health, safety and welfare of its employees, in particular, Phillip Blake, in that it failed to provide or maintain a system of work that was safe and without risks to health in respect of electrical installation work being carried out on an electrical switchboard at the premises. 3 Particulars of the defendant's failure to provide or maintain a system of work that was safe and without risks to health provided and relied upon by the prosecutor are as follows: (a) Failure to adequately supervise Phillip Blake while he was carrying out measurements on the electrical switchboard. (b) Failure to ensure that the electrical switchboard was de-energised prior to Blake carrying out measurements. (c) Failure to ensure that Blake carried out measurements using an insulated measuring device. (d) Failure to adequately instruct Blake in safe procedures for working in close proximity to live electrical equipment.

4 The Agreed Statement of Facts relevantly reveals: 3. At all material times the defendant: (a) Carried out electrical installation services. (b) Employed Phillip Blake ("Blake"), a 21 years old, as a fourth year apprentice electrician to undertake work at the Police Academy, NSW Police Service, McDermott Drive, Goulburn in the State of NSW ("the premises"). (c) Contracted with the Department of Public Works to install electrical equipment to an electrical switchboard at the premises. 4. On 1 December 1997 at approximately 2.30 pm, Blake was measuring up for the installation of a circuit breaker switch to an electrical switchboard using a metal flexible measuring tape adjacent to live bussbars. The measuring tape shorted out on the live bussbars causing an electrical short circuit followed by a large explosion. 5. Blake received serious flash burns to 80% of his body and was still undergoing treatment at Wagga Wagga Base Hospital when interviewed by the Prosecutor on 31 March 1998. 6. Blake commenced employment with the defendant three to four years prior to the accident. He had attended Riverina TAFE completing a Technical & Further Education Course as an Electrical Fitter Mechanic in November 1997. 7. On 31 July 1997 (sic) the prosecutor attended the premises and observed as follows: (a) On entering the boiler house switch room, 8.5 metres in from the door stood several electrical cabinets. One of these near the far end had the door open. (b) On both end cabinets, there were main breaker switches, one of which was in the off position. (c)The mains power being fed to these breakers from Great Southern Energy transformers outside the building. (d) Lying in front of the cabinet, on the floor was a circuit breaker badly burnt. (e) The cabinet with the door open measured 1800 mm high, 600 mm wide and 840 mm deep. (f) Located 1400 mm up from the floor and 150 mm in from both sides were two switches for outgoing power, both were in the on position. (g) Underneath the two switches were six copper bussbars with coloured insulation on them. From the left red, yellow, blue, red, yellow and blue, these were terminated on two insulated blocks, three bussbars to each block. (h) The bussbars measured: (i) Red 50 mm wide and 6.5 mm thick, 80 mm up from the burnt and melted end to a 90º angle bend, 85 mm to the next 90º bend and 68 mm to the end of the bussbar being bent into a U or channel shape. On the 68 mm end were four holes of 9 mm diameter, 12 mm in from the end and the other two 37 mm in from the end, the first two 13 mm in from the side the other two 38 mm in from the same side. (ii) Yellow 50 mm wide and 6.5 mm thick, 85 mm up from the burnt melted end to a 90º angle bend 135 mm to the next 90º angle bend and 68 mm to the end. The bussbar being bent into a U or channel shape. There were four holes in the 68 mm end, the same distance apart as the red bussbar. (iii) Blue 50 mm wide and 6.5 mm thick, 87 mm up from the burnt and melted end to a 90º angle bend 189 mm to the next 90º angle bend and 68 mm to the end. The bussbar being bent into a U or channel shape. There were four holes in the 68 mm end the same distance apart as the red and blue bussbar.

(i) In front of the cabinet against a wall was a blue book of A4 size and near this were a pair of sunglasses and a green measuring tape. (j) In an area to the left of the cabinet was a piece of metallic measuring tape of approximately 100 mm in length. It had a clip at one end and appeared to be arched or burnt through at the other end. (k) The entire area was smoke laden with various ash residue present on the floor.

8. The defendant had the following policies in place of the time of the accident:

(a) Company Policy Memo issued 25 May 1993 and revised 2 December 1997 stated: "Staff supervising apprentices are not to permit apprentices to carry out work on live equipment. 3rd and 4th year apprentices are to be under constant personal supervision at any time they are working near live equipment to gain experience, or being instructed in fault finding and checking live equipment. It is to be remembered that there is no excuse to work on live equipment. TURN THE CIRCUIT & EQUIPMENT OFF." (b) Company Policy Statement dated 29 June 1993 and revised 2 December 1997 stated: "20 Work on live equipment

When competent employees are working near live equipment, or fault finding and checking live equipment, ensure you have consulted with a supervisor to determine a plan and safe approach. It is preferred that another person accompanies you when performing work, for safety reasons. (Refer to your Safety booklet "An Employee Guide to Safety at Places of Work in the Electrical Contracting Industry"). It is to be remembered that there is no excuse to work on live equipment. TURN THE CIRCUIT AND THE EQUIPMENT OFF."

(c) A document published by the National Electrical Contractors Association in 1995 and entitled "An Employee Guide to Safety at Places of Work in the Electrical Contracting Industry" was incorporated by reference into the Company Policy Statement dated 25 July 1995.

9. A report on the accident was compiled by an authorised representative for the relevant energy supplier, Great Southern Energy, Alan Burman on 27 February 1997 (sic). Mr Burman made the following observations in the main switchboard room of the premises:

(a) The right hand panel was black and it appeared to have been the source of an electrical explosion. (b) A green approximately 5 metre tape was on the ground near the panel. (c) There was damage to the ends of three sections of bussbar consistent with a fault. (d) There were burns on the side of the cubicle consistent with a fault. (e) That the panel covering the live bussbars in the cubicle had been removed. (f) Main breaker no.2 was in the tripped position. (g) There was a diary near the northern door that was burnt. (h) That it was an ESCO switchboard. (i) There were some sunglasses on the floor with the sides folded. (j) That there was a circuit breaker on the floor near the panel with an apparently new carton that matched the breaker a little further away. (k) That there was a RUBERMAID plastic tool box near the southern end of the board that appeared not to belong to any person at the site and the contents were inspected and found to contain typical electrician's tools and not to contain a plastic measuring device. I did not make a list of the contents. (l) That there was a QUELL CO2 extinguisher on the wall and it was marked as being tested in July 97 by Illawarra Fire (m) Extinguishing Service and that the seal was still intact. That there were some bolts in a plastic bag that looked like they may have been circuit breaker mounting bolts approximately 400 mm away from the base of the panel. (n) Some scraps of material were found near the northern door and as they looked like poly cotton I collected them and asked the police officer to add them to the collection of evidence. I also went looking in the yard and collected more scraps of material from the garden area where Mr Blake was rolled to extinguish the fire and these were also given to the police. (o) I measured the phase clearances after checking that all the supply was off and would stay off and found them to be 19 and 21 mm at the fault site. (p) Mr Ken Meyer spoke to me and advised that the apprentice was Phillip Blake and that he was the supervisor and that. Mr Blake also said words to the effect that he was measuring some offset tags to make later.

10. As a result of his observations and investigations, the prosecutor found as follows:

(a) The defendant holds an electrical contractor's licence (No. EC 25974) through its business RIC Electrics with the Department of Fair Trading. (b) Douglas Knight, a licensed electrician (Licence No. 75859C) employed by the defendant was to control the day to day work on the job. (c) Ken Meyer, engineering manager employed by the defendant, provided pre-job instructions to other employees of the defendant carrying out the work. Meyer, a licensed electrician was the project supervisor supervising the works on the premises. Meyer was not on the premises at the time of the explosion and injury to Blake having left about 30 minutes beforehand. (d) Meyer instructed Blake and Knight to estimate distance to allow two new circuit breakers to be fitted to either end of the bussbar system. Meyer did not give instructions to isolate live electrical components when making the estimates but he told Blake and Knight to estimate the vertical distance between the bussbars and the circuit breaker mounting boards. (e) Blake was to conduct the day to day work on the site, as part of his training, with a licensed electrician to oversee him. That licensed electrician was Knight. Knight did not give instructions to isolate live electrical components when carrying out the estimates, nor to use an insulated measuring device, but said to Blake when the tape measure was about three inches under the bussbars to "watch them bussbars". Knight then went to the toilet and the explosion occurred. (f) The defendant supplied a Level 1 Tool Kit to its electricians under clause 18 of the Duff Electrics Enterprise Agreement 1993 which included a "Tape measure - 8m metric". The list failed to specify whether the tape measure was insulated or non-insulated. Apprentices such as Blake were required, by the defendant to supply their own Level 1 Tool Kit List in accordance with clause 18. (g) It was not the common practice of the defendant to work on live mains. (h) `The defendant did not instruct Blake to isolate the power before undertaking the measurements. (i) Blake and Knight had been provided with copies of the documents referred to in sub-paragraphs 8 (a) and (b) prior to the accident. Blake received these documents in September and October 1995. (j) The injuries suffered by Blake occurred because he used a non-insulated metal tape which touched live and exposed electrical equipment.

11. The defendant revised its Company Policy Memo on 10 December 1997 (sic) and distributed the revision to its employees with the following statement: "When competent employees are working near live equipment, or fault finding and checking live equipment ensure you have consulted with a supervisor to determine a planned and safe approach. It is preferred that another person accompanies you when preparing work, for safety reasons (Refer to your safety booklet "An Employee Guide to Safety at Places of Work in the Electrical Contracting Industry"). It is to be remembered that there is no excuse to work on live equipment. TURN THE CIRCUIT & EQUIPMENT OFF." 5 The defendant pleads guilty to the charge. 6 The prosecutor was represented by Mr B Hodgkinson, of counsel and Mr P. Smith, solicitor, represented the defendant. One of the defendant's directors, Mr Colin Duff, gave evidence. Documentation was relied upon. The prosecutor reveals the maximum penalty at the time of the offence was $550,000. 7 From the facts it is revealed three persons entered this worksite; a Mr Ken Meyer who was an engineering manager for the company; and Mr Phillip Blake, an apprentice electrician. A Mr Douglas Knight, a qualified electrician was employed by the defendant and Mr Meyer gave instructions on site as to the need for measurements to allow the future installation of two new circuit breakers on the electrical control panel found in the boiler house switch room. Having given the instruction, which did not include an order to isolate the live electrical components, Mr Meyer left the site. Mr Knight then took up the instruction and told the 4th year apprentice electrician, Mr Blake, to take the estimates. He also did not give an order to isolate the electrical current. He then left the boiler house switch room in which were electrical cabinets containing the live bussbars on the switchboard. Mr Knight recalls saying to Mr Blake, before he left the boiler house, "Whoa, watch them bussbars," to which Mr Blake replied "Yeah man it's cool." 8 It would appear a metallic measuring tape held by Mr Blake touched the bussbars, causing terrible injury to Mr Blake. As Mr Duff, the employer, said in evidence as to how the accident occurred: . . . I believe he was burnt and it was not from the passing of current through his body. It was from the arc caused by the tape measure conducting either to earth by another means ... I'd say my estimation of what happened, the tape has touched live buss bars. In doing so it has shorted and the steel metal tape has ionised the air which started an arc similar to an electric arc. That arc as it heats up grows larger and larger. Mr Blake happened to be in the middle of that arc and I can't say therefore sustained burns. If electrocuted he would have been thrown away which would have saved him rather than injured him to the length he was."

The prosecution accepted this explanation as to what occurred. 9 Mr Blake suffered serious burns to his face and arms. Mr Duff, his employer, gave a clear description of his injuries, expressing the opinion that for a six months period Mr Blake had a very "down time" but every day since he opined, Mr Blake seems to be making a dramatic difference.

10 In assessing the nature and quality of this offence, the principles which guide the Court have been recently reviewed in the matter of Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) (1999) 90 IR 464 (at 474): . . . in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the 'true measure of penalty lies in the nature and quality of the offence'.

and the Full Bench said (at 474): It has observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to the consideration of the nature and quality of the offence.

The Full Bench cited (at 474) and gave approval to the passage from the judgment of Fisher CJ in Haynes v James Glass & Aluminium Pty Ltd (unreported, CT91/772-775, 20 May 1994) where his Honour said: . . . While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce. The Full Bench notes that (at 476): . . . the proper approach is first to consider the gravity of the offence viewed objectively.

And also (at 476) In the case of an offence under s 15(1) of the OH & S Act, there are a number of factors which may tend to establish the existence of an objectively serious offence. It will be a serious offence where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken, even though such measures were available and feasible: see Inspector Hannah v Wonar Pty Ltd (unreported, Fisher CJ, CT90/1214, 30 June 1992) at p9. The gravity of the consequences of an accident does not, of itself, dictate the seriousness of the offence. However, the gravity or otherwise of the potential risk to safety flowing from a breach is relevant as a measure of the gravity of the breach and the culpability of the defendant; see Tyler v Sydney Electricity (1993) 47 IR 1 at 5. 11 In assessing the nature and quality of this offence, the Court has considered the facts of the matter. Mr Duff pleads guilty to the charge but notes the task should have been done by way of an "estimation" of the distance involved not by taking exact measurements of the electrical switch board. He further reveals an "estimate" would not have required the circuit to be disconnected or the use of any tape measure. Disconnection would have involved the whole site of the Police Academy to be without electricity. Mr Duff however gives full credit to Mr Blake, his apprentice employee, who it appears was conscientiously determining exact measurements in order to provide better assistance for the drawing of a plan for the placement of the circuit breakers rather than relying on an "estimate" of the distance. In other words he was doing the job most conscientiously, but dangerously, given there was a live circuit. To do the task as well as he was able Mr Blake not only worked on a live circuit but used a metallic tape. 12 The fact that a young apprentice was exposed to live electrical current while performing the task in itself speaks of an offence, the nature and quality of which could be categorised as serious. However, this is one matter where the company presents a very significant argument as to subjective features which can be considered in mitigation of penalty. The company has always had appropriate safety policies in place. Such policies and procedures were made available to the staff through memoranda and policy statements prior to this breach. Before the court were two company policy memoranda originally dated 25 May 1993 and 29 June 1993 but revised on 2 December 1997. Each of these company documents identify the warning in bold print: "TURN THE CIRCUIT AND THE EQUIPMENT OFF."

13 The National Electrical Contractors Association document of 1995 headed "An employees' guide to safety at places of work in the Electrical Contracting Industry" was also incorporated into the company policy statement. 14 Since the accident the defendant has issued a further memorandum and now calls its staff together every three months for safety awareness discussions. It persistently re-issues all its documentation to the staff requiring that it be signed for and acknowledged. The documentation always contains the warning note: "TURN THE CIRCUIT AND THE EQUIPMENT OFF." 15 This company employs between fifteen and twenty electricians depending on its work load. The total staffing is just under thirty persons. The company has a significant turnover but profit margins after salaries and expenses usually come in between $8000 and $50,000 depending on work throughout the financial year. Importantly the company always employs apprentices. Mr Duff's evidence was Mr Blake was one of their best apprentices. The company policy is to generally hire one or two first year apprentices each year, which means, at any one time, the company would have approximately nine apprentices in their employ. 16 The company has updated, since the accident, its documentation as to general safety awareness and task related safety procedures but the WorkCover acknowledges that the documentation directed to both policy and task related procedures as to safe working was substantial at the time of this accident. Further it was clearly directed to its workforce. Importantly, since the accident this employer's view of Mr Blake has not changed. At the time of the accident Mr Duff said of him: Phil was probably one of our leading apprentices. He showed a very high level of diligence and ingenuity. He was very conscientious about what he was doing in his course. He had done very well at TAFE and was continuing on. He had finished his TAFE course and was taking on in his fourth year apprenticeship a post trade course in PLC plumbing, that area. 17 Mr Duff identified the PLC programming as the programmable logic - controllers and automation programme software - electrically based. Even more impressive on the court was Mr Duff's attitude. He acknowledged Mr Blake, the injured worked, suffered 80% burns to his body and said of Mr Blake: . . . I'm quite amazed. I think he went through some fairly difficult times in the early stages, however, I think it was just under a year after the accident, we approached him and said would he like to start to take on a little bit of work. We started him off doing things like operating a computerised engraving machine that we used. He was able to do that.

He has a certain amount of restriction in his hand. However, he is still doing operations which is releasing up his hand considerably. I think he has one more operation, if not two more operations. I think there is one in May. I think he has another two or three but the scarring on his face has improved. 18 He identified the major burns as: face, definitely his hands took the brunt of it. Body scarring I'm not sure but I think a lot of that, he is doing quite well. When he came back to work, he was still wearing a body suit but not completely out of that.

19 Mr Duff re-hired Mr Blake and eased him back into the work force. He now says the work Mr Blake is performing consists of: We have sort of left him pretty well in control of his own abilities where he is. We have put him in a position where he is what we call our service administration controller. He would sit at the desk most of the day and as jobs came in, he would assess them. If there is a quotation that has to be done, he would go out to the site, look at it and say 'This is how much it will cost.'

He organises staff, who is going to do what, what is more urgent than another job and he is scheduling jobs. He is doing an excellent job on it. As time has gone, he has been allowed to develop his own skills a little bit. As he has become more manipulative with his hands, he has started to do some workshop work because he has a bench just outside his office. He is now also assisting some guys on site. If he has to go in and give them a hand, he is keen on doing that because he is out of the office.

When asked about the development of Mr Blake's management skills he answered: . . . he has passed his PLC course which gives him quite a lot of computer skills. He is doing very well there. In his day to day work he is face to face on the computer most of the time. He is invoicing work, in other words charging the clients and valuing work and doing those functions and it is mostly through a computer. He has little trouble with computer skills. He can manage those and his outward face is now immensely better than it was.

To summarise, Mr Duff says of Mr Blake: "He now has quite a pivotal role in our company again now." 20 The court finds in Mr Duff an outstanding employer, caring in the real sense of the word. This was a dreadful accident. The court accepts the contrition expressed by this employer and offers words of praise for how it has handled Mr Blake's personal situation. This is an employer who, in a real expression of contrition has accepted responsibility for its breach. It has placed Mr Blake back to serve in a dignified role in his work community and it is with great generosity and honesty Mr Duff offered the opinion Mr Blake now plays a pivotal role in his business. 21 The court takes cognisance of the words of the Full Bench of this Commission in Corinthian Industrial (Sydney) Pty Ltd v WorkCover Authority of NSW (Insp Wilson) [2000] NSWIR Comm 46 (published 16 March 2000) where it said (at para 17): We do not consider that the history of good industrial citizenship of the appellant, having regard to its prior record and the long period of operation of its business, was sufficiently taken into account. We also refer to the careful and compassionate steps taken by the appellant as to the welfare, rehabilitation and continuing employment of the injured worker. The reason we have made specific reference to that latter matter is that it does not seem to have been often referred to in other judgments in this area. We have accordingly reached the conclusion that in all the circumstances of this case the penalty was inappropriate and excessive. 22 The rehabilitation and continuing employment of a worker injured is a matter of consideration in mitigation of penalty in this matter. It adds to this court's assessment of this company as a fine industrial citizen. The fact that in the rehabilitation process there has been a re-design of this worker's role within the company is to its credit. It is important also to note that the new role for this worker is one of quality and responsibility. It is a position that gives him satisfaction and dignity. In assessing penalty the court further notes the plea of guilty, the expression of contrition, the pre-existing work safe procedures in place, the upgrading of these systems in an acknowledgment of this terrible accident and the genuine expenditure of monies both to rehabilitate the worker and to impress upon its other employees the risks when exposed to electrical current. The expenditure of monies to ensure safe working is to be encouraged. Further, the court notes the unblemished industrial record of the company. The court considers all these matters as significant in the mitigation of penalty. 23 There was in place at this worksite a system of work and training of a comprehensive nature. However, the employer acknowledges that an apprentice was left to work in an area where there was live electrical current while using uninsulated material. Such is a basic breach of the absolute obligation of an employer to provide no risk to safe working for its employee. This situation in itself speaks of a failure to properly supervise and instruct the apprentice. All concerned at this worksite, if properly trained, would not have performed the task in the manner revealed. This was a proper matter for a plea of guilty and the court finds the defendant guilty. 24 In application of the principles enunciated in Lawrenson Diecasting Pty Ltd but allowing for mitigation of penalty in this matter especially directed to the plea taken by the defendant and the rehabilitation endeavours by this employer towards its worker the court fines the defendant $50,000. 25 The defendant is to pay the prosecutor's costs to be agreed or assessed with a moiety to the WorkCover Authority.

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