Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector George Hyland v The State of New South Wales [2003] NSWIRComm 460 PARTIES : Inspector George Hyland The State of New South Wales (Dept of Education and Training) FILE NUMBER: IRC 2012 and IRC 2041 of 2003 CORAM: Curtis AJ CATCHWORDS : Occupational Health and Safety - Plea of guilty LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 12/10/2003 EXTEMPORE JUDGMENT DATE : 12/10/2003 PROSECUTOR: Mr DWM Chin of counsel SOLICITORS: Phillips Fox LEGAL REPRESENTATIVES: DEFENDANT: Mr JV Murphy of counsel SOLICITORS: Department of Education and Training Legal Services Unit JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSIONOF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ DATE 10 DECEMBER 2003 IRC 2012 OF 2003 INSPECTOR GEORGE HYLAND v THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under section 16(1) of the Occupational Health and Safety Act 1983. IRC 2041 OF 2003 INSPECTOR GEORGE HYLAND v THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING) Prosecution under section 15(1) of the Occupational Health and Safety Act 1983. EX TEMPORE JUDGMENT 1 In matter number 2012 of 2003 the State of New South Wales (Department of Education and Training) pleaded guilty to an offence in that on 28 August 2001 at Ambarvale High School, contrary to s16(1) of the Occupational Health and Safety Act 1983, it failed to ensure that persons not in its employ were not exposed to risk to occupational health and safety. 2 It is agreed that on that day a student, Miss Tootell, while sitting at a desk adjacent to the wall in classroom G11 at Ambarvale High School, suffered some form of electrical shock when her leg brushed against some bare electrical wires which were protruding from the power outlet approximately 320 millimetres from the floor. 3 The agreed statement of facts states that Miss Tootell gripped the bare wires with her hand to push them back into the wall, and felt pain up through her arm and body, a buzzing sensation in her ears, and a tingling sensation. Her teeth locked up and she lost vision, had difficulty letting go of the wires, and felt nauseous. I find this circumstance most improbable. Had Miss Tootell grasped the wires as described, she would have received a 240 volt shock which would probably have occasioned her death. 4 Miss Tootell asked the teacher if she could attend sick bay because she was electrocuted and was told she was faking it and she should be quiet. Miss Tootell continued school for the rest of the day. 5 Upon returning home, her mother took her to see a doctor. It is alleged that she was then absent from the school for three days due to the effect of the electrical shock. Without medical evidence, I do not know what to make of the fact that Miss Tootell was able to complete her schooling on the day in question. Objective Gravity 6 The defendant does not deny that there were, at the time, bare wires protruding from the power point. However, the possible consequence of electrocution, serious as that may be, is to be weighed in the assessment of gravity in combination with the elements of foreseeability and culpability. 7 The defendant at all material times did have a system pursuant to which potentially harmful electrical wires were identified and rectified. The class rooms were cleaned each day either after the students had left or before they arrived. The cleaner was required, pursuant to his employer's contract with the Department, to report upon damaged equipment. 8 There were agreements in place with licensed electrical contractors. Pursuant to these agreements, a contractor would attend upon the school within an hour of a request and effect any necessary repairs. 9 The Department had in place a system for periodic inspections of electrical conditions pursuant to which the high school had been inspected in February 1998, in February 1999 and on 12 April 2000 for the purpose of identifying any faulty or unsafe fixed electrical equipment. 10 So far as foreseeability is concerned, the defendant admits that because of the extent of vandalism in schools and the circumstance that these particular power points had been vandalized and the damage remedied in March 2001, the danger was foreseen. 11 It is the defendant's contention that, while in the event it failed to ensure that the vandalism posed no risks, its culpability ought to be measured against the failure of the prosecution to disprove the possibility that the plate which had covered the wiring, installed in March after a similar act of vandalism, was in fact removed in the course of the class attended by Miss Tootell. To this extent Mr Murphy for the defendant resiles from inferences which may have been drawn from the agreed facts. 12 The Department also contends that it had no cause to believe that the circuit breaker installed to obviate the risk was defective. Although it was discovered the next day that the circuit breaker, which should have tripped the current was defective, it is not known for how long this circuit breaker had been in that condition. 13 In the year 2001, an Australian Standard was published pursuant to which electrical equipment must be inspected at regular intervals not exceeding 6 months. Had the defendant complied with this protocol, the chances of detecting the faulty circuit breaker would have been increased and in that respect, risk to the health and safety of Miss Tootell would have been reduced. The prosecution does concede that the standard was not in place as at 27 August 2001. 14 The prosecution does however contend that in light of the experience in this particular school, a simple remedial step would have been that, at the end of each period, the teacher inspect the two power points in the classroom. Nevertheless, notwithstanding that this is a good idea and a simple step which could have been taken, the prosecution have not disproved the possibility that such an inspection carried out before the class began would not have detected the exposed wires. 15 The gravity of the offence is a composite concept which involves both consideration of the extent to which the health and safety of a person may be compromised, that is, by serious injury or lesser injury, and the culpability of the defendant. In the present case, I consider the culpability of the defendant to be modest. 16 I recognize the serious consequence that could have occurred. Nevertheless, I am of the opinion that this is an offence of low range gravity in the order of 10 per cent of a most extreme case which would objectively call for the imposition of a fine of $82,500. Subjective Factors 17 The defendant has 13 convictions which do not entitle it to a deduction in respect of a perfect record. However, those convictions are to be seen against the background that the defendant operates 2,240 schools, employs 60 thousand teachers and has the care of 756,000 students. 18 The standards pursuant to which the Department builds new schools, or upgrades schools, now provide that, where practicable, power points are to be mounted on walls above desk height. This standard will make apparent any defects in the wiring of power points. 19 In late 2000, the Department's property director employed a tagging programme pursuant to which, in compliance with the Australian standard to which I have referred, the electrical fixtures in each school are tagged to record inspections at intervals of not less than 6 months. The cost of this procedure is approximately $5.5 million. 20 Taking into account the efforts which the Department had made towards safety in schools before the offence, and its continuing commitment to the occupational health and safety of its employees and its students, and the early plea of guilty, a discount of 35 percent is appropriate from that fine which would be objectively warranted. 21 The defendant is convicted and fined $55,000. I order that the defendant pay costs to the prosecutor as agreed, assessed or subject to further order of the Court. I order that a moiety of the fine be remitted to WorkCover. 22 I add, that notwithstanding that particulars of the offence to which the defendant pleaded guilty make allegations of eight discrete failures, Mr Murphy for the defendant has made it plain that the plea of guilty entered by his client does not admit to every particular of the charges. He admits only to that omission which I have canvassed in the judgment, that is, that the inspection of the circuit breakers should have taken place at more regular intervals. Because, pursuant to s49A a single penalty only may be imposed in respect of the contravention of any breach of s16 charged as a single offence, it is unnecessary to give reasons relating to those further omissions alleged but which are not the subject of admission. 23 In matter number 2041 of 2003, the defendant pleads guilty to contravention of s15(1) of the Occupational Health and Safety Act 1983 comprised by precisely the acts and omissions that were alleged against the defendant in matter 2012 of 2003. 24 Applying the principle of totality, it is apparent that there is no act or omission here pleaded against the defendant which has not been pleaded in relation to the earlier conviction. 25 In that circumstance, the defendant stands convicted of the offence against 15(1) but no additional penalty is imposed. However, the defendant is to pay the prosecutor's costs in relation to that matter as agreed or assessed or subject to further order. 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