Industrial Court of New South Wales CITATION: Rodney Dale Morrison v Ampcontrol Res Pty Limited [2008] NSWIRComm 186 Prosecution: PARTIES: Rodney Dale Morrison Defendant: Ampcontrol Res Pty Limited FILE NUMBER(S): IRC1014 of 2007 CORAM: Kavanagh J CATCHWORDS: Plea - s8(1) Occupational Health and Safety Act 2000 - objective seriousness of offence - foreseeability - deterrence - contribution to risk parity - penalty LEGISLATION CITED: Occupational Health and Safety Act 2000 s8(1) Capral Aluminium Limited v WorkCover Authority of New South Wales (Insp Mayo-Ramsay) 2000 49 NSWLR 601 Department of Mineral Resources (McKensey) v Kembla Coal and Coke Pty Limited (1999) 92 IR 8 CASES CITED: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Markarian v R (2005) 215 ALR 213 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Rodney Morrison v Anglo Coal (Dartbrook Management) Pty Limited [2008] NSWIRComm 172 HEARING DATES: 15/05/08, 27/05/08, 01/10/08 EXTEMPORE JUDGMENT DATE: 1 October 2008 Prosecutor: Mr P.M. Skinner of counsel Solicitors: Ms M. Rizzo Crown Solicitor's Office LEGAL REPRESENTATIVES: Defendant: Mr M.L. Shume of counsel Solicitors: Mr S. Puxty Moray & Agnew JUDGMENT: - 16 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Wednesday 1 October 2008 Matter No IRC 1014 of 2007 RODNEY DALE MORRISON v AMPCONTROL (RES MANAGEMENT) PTY LTD Prosecution under s8(1) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2008] NSWIRComm 186 1 This is a prosecution brought by Rodney Morrison of the NSW Department of Primary Industries against Ampcontrol (Res Management Pty Limited) (the defendant) by way of an Amended Application for Order issued pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (the Act). 2 It is alleged in matter No. IRC1014 of 2007, the defendant company contravened s 8(1) of the Act in that it: failed to ensure the health, safety and welfare at work of its employees, in particular, Rebecca Anne Brock and Peter John Suszek . . . In particular: (a) The defendant failed to ensure that systems of work and the working environment of the said Rebecca Ann Brock and Peter John Suszek in relation to the inspection and maintenance of high voltage plant and equipment were safe and without risks to health. (b) The defendant failed to ensure that such instruction and supervision as was necessary to ensure the health and safety of the said Rebecca Ann Brock and Peter John Suszek in relation to the inspection and maintenance of high voltage plant and equipment was provided. (c) As a result of the defendant's failures Rebecca Ann Brock and Peter John Suszek were placed at risk as to their health and safety, and Rebecca Ann Brock received serious injuries. 3 The defendant pleaded guilty to the charge. 4 Mr P.M. Skinner, of counsel, appeared for the prosecutor and tendered a number of documents being Amended Application for Order filed 15 April 2008, Agreed Statement of Facts as amended, Bundle of Tender Documents (including photographs, diagrams, job instructions, test reports, access permit, risk assessments, maintenance job sheets, records of interview extracts) and Victim Impact Statement. 5 The defendant was represented by Mr M.L. Shume, of counsel. He relied upon the Agreed Statement of Facts as tendered by the prosecutor, as well as an affidavit of Dr Alan Broadfoot sworn 26 September 2008. In that affidavit a significant number of documents relating to the system of work were placed before the Court. 6 Relevantly, the Agreed Statement of Facts states: 5. At all material times the defendant was an employer for the purposes of the OH&S Act . 6. The defendant is a wholly owned subsidiary of Ampcontrol Pty Limited. The Ampcontrol Group is one of the world's largest manufacturers and suppliers of electrical and electronic products to the international coal mining industry. 7. The defendant provides both workshop and field service support for electrical and electronic products in the coal mining industries, predominantly in New South Wales and Queensland. 8. The Dartbrook Declared Coal Preparation Plant (" DDCPP ") at Dartbrook near Aberdeen in New South Wales was a coal workplace within the meaning of the OH&S Act to which the Coal Mine Health and Safety Act 2002 applies. Dartbrook Declared Coal Preparation Plant 9. At all material times the DDCPP was a "coal preparation plant" under the Coal Mines Regulation Act 1982 , in that it comprised land, buildings and works that were used for or in connection with the treatment of coal mined at the nearby Dartbrook Mine to improve it as a marketable product, and then dispatched it after it had been so treated. 10. At all material times DDCPP was also a "declared plant" in that it was a coal preparation plant declared to be suitable for management separately from a coal mine, by an order in force under section 145B of the Coal Mines Regulation Act 1982. As a declared plant the provisions of Part 5A of that Act applied to DDCPP. Plant Manager 11. At all material times Mr Gordon Poulsom was appointed by Anglo Coal (Dartbrook Management) Pty Limited ("ACDM"), in its capacity as owner of the DDCPP, under s. 145E of the Coal Mines Regulation Act 1982 to be plant manager of the DDCPP. As plant manager Mr Poulsom had full charge and control on behalf of ACDM of all persons employed at the plant, and all operations at the plant. The Electrical Switch room 12. The DDCPP included an 11kV electrical switch room and all of the plant therein except for the Hunter Tunnel Switchboard and Supply which related to and were part of the underground facility. Engagement of the defendant for Maintenance 13. Between about 8 June 2005 and 15 June 2005 ACDM contracted with the defendant to carry out maintenance work on the high voltage installations in the 66/11kV electrical switchyard and the 11kV electrical switchroom on 20 and 21 June 2005. 14. Discussions and correspondence as to the scope of the work and the payment therefore took place between an employee of ACDM, Neil White, coordinator of maintenance at DDCPP, and an employee of the defendant, David Willoughby. Both Mr White and Mr Willoughby believed at that time that the scope of the work to be performed involved a full isolation. 15. The maintenance work was to be carried out on the 11kV switchboard located in the 11kV switchroom and the 66kV switchyard. The 11kV switchboard was built and supplied by the defendant in or about 1994. The switchroom was located in the building known as the "pizza hut" in the DDCPP and the switchyard was located approximately 1 km away by road. Original Job request 16. The original job request faxed by Mr White to Mr Willoughby on 8 June 2005 stated: "Part of the total job will include assistance with the updating of service sheets to reflect the actual plant now and an audit of the HV methods and systems to meet current standards' ". Ms Rebecca Brock confirmed that the job scope communicated to her included reviewing the existing service sheets to make sure they were up to standard and met current requirements and that if anything was missing, to note it down. No service sheet was provided for the bus tie breaker or the second cubicle serviced by Brock. Initial Risk Assessment 17. Darren Padgett, an employee of the defendant, prepared a risk assessment document for the maintenance work several days prior to the job on the basis that it involved a full isolation. It stated: "All personnel in work party are to lock onto the lockout board", a procedure that Mr Padgett subsequently became aware was never used by ACDM. There was no lockout board in the 11kV electrical switchroom. 18. The risk assessment document stated: "Correct Isolation procedures to be followed" but did not specify what they were. The document also stated "Isolation Points are:…" but did not specify where the isolation points were to be located. 19. Mr Padgett provided the risk assessment document to Mr David Dyson, the supervisor of the defendant's work party, who took it to site with him. The risk assessment was not provided to ACDM prior to 20 June 2005 and ACDM did not request a copy of the risk assessment. 20. Dyson said that on 20 June 2005 when he was on site he and White had verbally gone through the isolation points with the defendant's team using the single line diagram fixed to the wall of the switchroom and that later he, Dyson, had physically shown the isolation points to his team based on the verbal briefing from White. The Incident on 20 June 2005 21. The defendant's maintenance crew for 20 June 2005 consisted of: (a) One supervisor (David Dyson, service supervisor); (b) Two electrical tradespersons (electricians Anthony Percival and Brock, the injured worker); (c) Two trades assistants (Alfred Padgett and Peter Suszek); and (d) One apprentice (Nathan Morris, apprentice electrician). 22. At approximately 6:30 on the morning of 20 June 2005 the defendant's crew attended the offices at the DDCPP in the building near the "pizza hut" and signed on to the contractors' register. They were met by White and another employee of ACDM, Robert Wegner, DDCPP electrician. 23. White instructed the defendant's crew that the job scope had changed and there was not going to be a complete electrical isolation of the 11kV switchboard in the switchroom because electricity supplies were needed for other parts of the plant. Half of the high voltage installations originally intended to be maintained were to be isolated. That was the No. 2 66/11kV transformer and half of the 11kV switchboard. Only those installations were therefore to be isolated for maintenance. 24. Dyson conducted a review of the defendant's risk assessment document previously prepared by Darren Padgett for the 11kV switchboard. He did not write anything on the risk assessment document about new hazards because of half the switchboard now being live, or where the isolation points were located. Mr Dyson subsequently stated that the risk assessment of the changed job scope was verbal. The defendant's work party also went through the risk assessment and discussed what hazards and cautions there were. Mr Dyson said that he identified the hazard of half the board being live when able to get onto the job and assess the situation to fully understand the control measures required and did a verbal risk assessment on the job in the switchroom in the pizza hut building. 25. Ampcontrol's risk assessment document required that as a control measure, correct isolation procedures be followed. Because ACDM was to carry out the isolation in accordance with s37 of the Coal Mine Regulation Act 1982 (NSW), no-one from Ampcontrol participated in the decisions as to how to go about isolating the plant to be maintained. No one from ACDM reviewed Ampcontrol's risk assessment, or requested to see Ampcontrol's risk assessment document. 26. When Mr Dyson discussed the original risk assessment with the crew, he altered the written document. He changed the risk of electrocution on the written document from "high" to "critical". All the defendant's crew then signed the risk assessment. 27. White and Wegner then went to perform the required high voltage isolations. Dyson was instructed by White to wait with his crew near the 11 kV switchroom while White and Wegner carried out these high voltage isolations. 28. Wegner gathered the high voltage live line test equipment and tested it in the 11kV switchroom. White and Wegner completed the isolation as identified in the ACDM's standard job instruction (SJI 6282). These were identified as steps 5, 6, 11 and 12 in the SJI. 29. At about 9:30am White had completed the isolations as listed in SJI 6282 and verbally notified Dyson of such. Dyson then collected the defendant's crew from the DDCPP control crib room and went to the 11 kV switchroom. White went through a single line diagram on the wall of the switchroom showing isolation points with the defendant's maintenance crew. White asked the crew if they were satisfied and to attach locks and tags at No.2 Incomer. The power supply to the 11kV switchboard was from the 66kV switchyard by Incomer No. 1 and Incomer No. 2. As the maintenance work was to be conducted on that part of the switchboard which was supplied by Incomer No.2, Incomer No. 2 was isolated. At this point the switchboard was still energised as it was being supplied through No.1 Incomer and the circuit breaker known as the bus tie breaker, which was located in cubicle no 4 in the centre of the switchboard. Dyson indicated to the defendant's crew that he was satisfied with the isolation and that the 11kV switchroom was still live. The defendant's crew then attached personal locks and danger tags to the No.2 Incomer line side earth switch. 30. Dyson noted that the circuit breaker for No.2 Incomer needed to be removed from its cubicle so that maintenance could be carried out on it. White agreed. Dyson and Percival lifted the circuit breaker from No. 2 Incomer to the floor. 31. White and Wegner drafted "HV Switching and Access Permit No. 0599". This type of permit is a pre-printed form that gives permission to the receiver to work on or near high voltage cables and apparatus. The permit raised for this job by White and Wegner was originally devised for the 66kV switchyard and not for the 11kV switchroom. White then made amendments to the permit to identify further isolations necessary to allow work to proceed on the 11kV switchroom. The defendant's crew signed on to the amended permit after the isolation of the 66kV switchyard but before isolation of the 11kV switchroom. 32. White then identified that additional isolations would be necessary to allow work to proceed on half of the 11 kV switchboard. Four additional isolations were hand-written on SJI 6282 by White: a. 5721 RM Main 11 kV Switch. b. 5741 MC 415V MCB. c. 7781 MC 415V MCB. d. 5717 Bus Tie. 33. Wegner decided that red and white barrier tape be erected to identify the parts of the switchboard that were to remain live even after the above additional isolations, and strung the tape on the board accordingly. This tape covered the live parts of the switchboard, including the bus tie cubicle. Mr Dyson then went and checked the barrier tape around the cubicles to make sure the barrier tape was across the bus tie cubicle door which it was and it was all the way across the back of the bus tie cubicle panel. Mr Dyson then brought Ms Brock and Mr Suszek over and explained to them that all the panels with the barrier tape around there were to be considered live and that their job would be from the right hand side of the barrier tape. Mr Dyson physically showed them and pointed it out and explained to them that at the present time, the entire 11kV switchboard was still live as Mr White and Mr Wegner were required to go around and isolate the switchboard. Mr Dyson asked Ms Brock and Mr Suszek whether they were comfortable and they both said yes. Mr Dyson then told them that he was going to the 66kV switchyard with the other crew to perform some testing and told them that if they have any problems to come and get him. 34. White and Wegner then carried out the additional isolations for the 11 kV switchboard listed above. As part of the isolation procedure, Brock and Suszek went to the bus tie breaker (the fourth of these isolations) with White and Wegner to put danger tags on the bus tie breaker and to do this the bus tie breaker door was opened. Brock said "we removed the barrier tape and put the tags on the breaker. The breaker was racked out…withdrawn". That is, it was pulled forward within the cubicle and thereby breaking the contact with the bus bars located on the inner rear wall of the cubicle. As there was no trolley to enable the bus tie breaker's total removal it was left partially within its no 4 cubicle in the switchboard. This acted as a circuit breaker allowing maintenance to take place on the cubicle on the right-hand side of the bus tie cubicle. It is unclear whether the barrier tape remained over the front of the cubicle after the bus tie breaker was racked out, or whether it was moved to one side at that time. It is clear however that it was moved to one side by the time Brock and Suszek removed the bus tie breaker wholly from the cubicle. 35. The people who were in attendance at these isolations, including the bus tie breaker isolation, were Mr White, Ms Brock and Mr Suszek. Mr Wegner also was in attendance at the bus tie breaker isolation. 36. Although there was a fixture inside the cubicle at the rear enabling the locking of the shutters covering the busbars, ACDM did not place a padlock there during its performance of the isolation procedure. Behind the upper shutter there were live bushings as half of the switchboard remained energised through the No.1 Incomer. Each shutter had the word "BUSBAR" written on it. 37. Brock and Suszek attached personal danger tags to the additional isolations including to the front of the bus tie breaker. White also attached a danger tag to the bus tie breaker. 38. Wegner then identified that a circuit breaker trolley would be needed to allow servicing of the HV circuit breakers and left to obtain a trolley. 39. Around 10:00am Brock and Suszek went to the 66kV switchyard to speak with Dyson and told him that they now had their isolation and then returned to the 11 kV switchroom. 40. Brock and Suszek were clearly of the view that their job scope that day included maintenance of the bus tie breaker and White subsequently confirmed that that was his expectation as well. 41. Some time later Wegner returned to the 11 kV switchroom with the trolley. He found Brock working at the front of the switchboard and Dyson working at the rear. The job at the rear of the switchboards was to remove the covers on the back and to check the bus system in the back for heat marks and cleanout. Wegner informed Ms Brock of the presence of the trolley and asked her "if she needed anything, she declined and told [Wegner] to leave it there." Wegner left the switch room to perform other duties elsewhere at the processing plant. 42. Brock started servicing the HV circuit breakers commencing with the No. 2 Incomer circuit breaker which had been placed on the floor after removal. The maintenance activities included resistance testing, general condition inspections and cleaning of the circuit breaker and also wiping out the cubicle in which the breaker was placed and in behind the shutters at the back thereof and wiping the bushings inside. 43. After the trolley arrived Brock went to the cubicle at the furthest right and pulled the circuit breaker onto the trolley to service it. Before servicing the circuit breakers, Ms Brock tested for dead with Mr White. Ms Brock's live line tester kept going off, so Mr White went and got his and then Ms Brock and Mr White tested for dead together. Brock then put the circuit breaker back and moved on to the next one. From the circuit breaker test reports filled in by Brock, this appears to have been the Hunter Drift and Tunnel Conveyor circuit breaker. 44. At around 11.15 am Dyson returned to the switchroom and spoke with Brock and Suszek. Dyson said that both Brock and Suszek told him that "everything was going good" and that they could not see any problems. Dyson received a call from the crew in the 66 kV switchyard requesting gear, so he sent Suszek to deliver the required equipment. 45. Two employees of another contractor to ACDM, were working in the 415V switchroom next door to the 11kV switchroom in which Dyson, Suszek and Brock were working. One of the other contractors came into the 11kV switchroom to tell Dyson that they were testing cables through to the 11 kV switchboard and that all persons should be kept away from the rear of the 11 kV switchboard while the testing took place. Dyson then started to set up his computer for testing the protection relays on the 11 kV switchboard. He was positioned at the front of the No. 2 Power Factor Unit cubicle. 46. When Suszek returned from the switchyard, Dyson advised him of the testing by the other contractor and asked him to assist Brock with circuit breaker maintenance until he received confirmation from the other contractor that it was all clear. At this stage Brock had arrived at the bus tie breaker with the trolley after she carried out maintenance of the cubicles on the right-hand side of the bus tie cubicle. Dyson said that he explained to Brock and Suszek that "their job would be from the right hand side of the barrier tape". Suszek helped Brock remove the bus tie breaker from the cubicle out on to the trolley. Mr Dyson said that this was against his instructions to Brock and Suszek. 47. Brock then removed the panel from the front of the bus tie breaker for servicing of the breaker switch mechanism. The panel with danger tags attached was placed on the floor near the bus tie cubicle. 48. While Brock was servicing the bus tie circuit breaker Suszek began wiping out the now empty bus tie cubicle with the shutters in place. It was not the job of Suszek to wipe out the bus bars, or bushings at the rear of the cubicle, only the area where the breaker sits. The bus bars and bushings were left to Brock. 49. There was another call from the crew in the 66kV switchyard requesting more test equipment and Suszek again went to deliver items to that location. 50. Brock turned her attention to the bus tie cubicle to finish removing dust. Brock stated that she had followed Ampcontrol's work procedure in relation to the performance of her tasks in relation to the previous cubicles. 51. She lifted the lower bus bar cover in the rear of the cubicle and wiped down the 11 kV bushings in the lower bus bar behind that cover, which were connected to the de-energised (right) side of the board. In performing this action, Brock did not follow Ampcontrol's work procedure to test for dead before proceeding. Brock said "my mind wasn't completely on the job. I lifted the shutters to clean them out. I cleaned the bottom one out and then I went to clean the top one out and that's when I got the electric shock. I knew the breaker had been tagged and I just… I knew the breaker couldn't go back in but I wasn't thinking about the busbar." 52. At about 12.15 pm Brock then lifted the upper busbar shutter at the rear of the bus tie cubicle and when she began to wipe the bushings behind the shutter, she received an electric shock from the energised (left) side of the board. 53. Brock said that "everything sort of went black" and she experienced immense pain through her upper body and went numb from the waist up, having no feeling in her arms. She suffered burns to her right index finger and left thumb. 54. Ms Brock received initial treatment and assistance at the site from personnel of both ACDM and the defendant. Mr White phoned for transport by ambulance to Muswellbrook Hospital as part of the defendant's emergency response. The ambulance officers provided initial treatment and further treatment was provided by a medical practitioner at the hospital. Brock returned to full time work in a limited capacity about four days later. Instruction 55. The communication between the personnel from ACDM conducting the required isolations and the personnel from the defendant failed to provide adequate warning of, protection from, and access to the live parts of plant in the switchroom. Supervision 56. Dyson was in the 11kV switchroom, at the western end of the 11kV switchboard (ie to the right of Brock) at the time of the incident. At the specific time of the incident, the vision of Ampcontrol's supervisor, Dyson, was obscured by the open door of one of the No 2 incomer cubicles and he was sitting down using his computer to start a testing program. 57. In regard to ACDM's system, the Anglo Coal Contractor Management Standard requires the electrical manager (or equivalent) to monitor compliance with electrical requirements and to provide guidance and advice. White was co-ordinating the maintenance activities of several contracting companies as well as Dartbrook's own employees on about 10 different work jobs spread throughout the DDCCP facilities on 20 June 2003. White was not in the in the 11kV switchroom when Brock received the electric shock and had not been present for some time prior. 58. On the day Dyson was supervising two work crews at different locations separated by about 1 kilometre by road. The initial planning for the scope of work was for the whole of the defendant's crew to complete each job in turn. Weather concerns and time pressure influenced Dyson to split the crew into two working parties, one doing the 66kV job and the other completing the 11kV work. This created a situation where Dyson was dividing his time between two locations and work parties. Dyson had been called from the 11kV switchroom a number of times during the morning. Systems Failures 59. The defendant had recognised the risk posed by its employees working on or near exposed high voltage conductors at customers' work sites, and had taken action in relation to these risks, developing and implementing a work instruction that requires specific safety precautions regardless of the customers' operating procedures. 60. Brock did not apply the defendant's work instructions when undertaking work on the bus tie cubicle. Systems of work prior to the incident 61. The defendant had a documented corporate safety policy and documented Safety Management System. 62. The defendant had a number of documented work instructions relevant for work with high voltage, including WI-028 entitled "High Voltage Access". 63. WI-028 contained a procedure known as ISTEP that outlined the minimum precautions that must be taken before working on or near high voltage conductors. The procedure contained five steps: isolate, secure, test, earth and proceed. 64. All employees, including Brock, were trained in work instructions WI-028 for high voltage access. Following the incident 61 The defendant conducted further toolbox sessions conducted with employees to raise awareness of the issues immediately identified from the accident. 62 The CEO of the Ampcontrol Group issued a Safety Update that was sent to all companies in the group for dissemination to all employees in the organisation. 63 The Board of Ampcontrol Pty Limited (the defendant's parent company) directed that the triennial external audit sought an independent review of the company's OHS management systems. This was additional to an internal review of processes and procedures. 64 The Field Service Checklist was revised to reinforce compliance with the high voltage access work instruction. 65 The defendant fully co-operated with the DPI in relation to DPI's investigation into the incident concerning Ms Brock. Relevant Principles 7 In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R (2005) 215 ALR 213. In that case, their Honours were of the view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case, s8(1) of the Occupational Health and Safety Act 2000 with ss21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999)). The court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor. The court could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea). 8 Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383, correctly, given the consideration in Markarian, recognised this "instinctive synthesis" approach to sentencing saying at [57]: The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole. 9 Proper regard is had to express legislative provisions and to the relevant statutory regime (Markarian at [27]). The object of the Act is to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health, safety and welfare at the workplace. Of particular relevance is the effect of s21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing. Consideration 10 The Court must assess the objective seriousness of the offence or, as the Full Bench has said, "the nature and quality of the offence" (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 (at 474)). 11 The defendant company is a wholly owned subsidiary of Ampcontrol Pty Limited. Ampcontrol has been operating for over 40 years. The defendant corporation, represents its Service Group. On the day of the incident, the defendant company was the employer of a team of employees providing electrical maintenance work for Anglo Coal at the Dartbrook mine. The maintenance work was being performed on a large electrical switchboard in the Coal Preparation Plant at Dartbrook. 12 At approximately 6.30am on the morning of 20 June 2005, the defendant's employees arrived at the Coal Preparation Plant. They attended a toolbox meeting with employees from Anglo Coal. The system of work was outlined to them. They were informed that, although it had originally been intended to isolate the entire switchboard which had two sources of power into it labelled Incomer 1 and Incomer 2, the Incomer 2 was to be isolated but Incomer 1 was still to provide electrical power through the switchboard. That left part of the switchboard energised. In deciding to leave Incomer 1 as a source of power, the original system of work in place for the maintenance task had to be amended. Employees were informed part of the switchboard would still have an active source of power. An employee of Anglo Coal and an employee from the defendant company, the foreman on the task, attended to the isolation of the one line, Incomer 2 onto the 11 kV switchboard, located within a switch room. The crew then went to the site to perform the maintenance. 13 The defendant company's employees, Ms Brock and Mr Suszek, attempted to take out the bus tie breaker in No. 4 cubicle of the switchboard. Danger tags had been put on it. Also a warning tape, known as a barrier tape, was across cubicle No. 4. When the bus tie breaker was removed, the barrier tape had been pushed to the side and the warning danger tags were then taken out along with the bus tie breaker. Then a shutter was lowered within the cubicle, however, the shutter was not locked down. 14 Mr Suszek performed a number of maintenance duties as did Ms Brock. However, Mr Suszek was called away when working on cubicle No. 4 and Ms Brock, intending to assist by completing the cleaning of the cubicle, lifted the shutter at the rear of the bus tie cubicle and began to wipe out the bushes. It was at this point she received an electrical shock. Part of the cubicle No. 4 still carried the electrical current through the Income 1 line. 15 I accept from the evidence that the defendant's employees were well trained professionals who were instructed as to the existence of the live line within the switchboard. Nonetheless, the defendant cannot, in its defence, rely upon a submission that its employees were highly skilled. There had to be a rigorous re-evaluation of the work method when the changes to the maintenance task were determined and one part of the switchboard remained alive. Having taken away both the warning tape across the cubical and danger tags attached to the bus tie breaker, when Ms Brock assumed the task of cleaning the cubicle, all warning signs had been removed and the shutter, while down, was not locked and she was thereby exposed to a risk to her safety. The obligation to ensure safe working is an ever present one, even with an inattentive or distracted employee (WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [45]-[46]). 16 There was a failure of the defendant company to properly instruct, to properly supervise and to properly ensure that the system it had in place recognised the danger therein. I am satisfied, therefore, there was a foreseeable element to the offence which results in the offence being perceived as more serious in its nature (Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal & Coke Pty Ltd (1999) 92 IR 8). 17 In this consideration of penalty elements of both specific and general deterrence are relevant (Capral Aluminium Limited v WorkCover Authority of NSW (2000) 49 NSWLR 601 at [71]–[80]). 18 Specific deterrence is an element for consideration. The defendant company is a corporation which provides technical services to two inherently dangerous industries, the electrical and mining industries. Specifically great care must be taken to ensure safety in the performance of every site specific task. Generally, the corporation has a good industrial record but, given it is working in two inherently dangerous industries, it must apply constant vigilance and abundant caution to every aspect of its operation and in every step of its preparation for maintenance tasks. I refer to the steps taken in this maintenance task, because the defendant raised for consideration that the isolation task, before maintenance, was the responsibility of Anglo Coal. Five steps are taken in the system of work: to isolate, to secure, to test, to earth and only then to proceed. In the performance of the system of work there was error. The shutter should have been locked down and, in the placement of the traditional safety features, tags, tapes, the system should not have allowed for their removal. In the maintenance of heavy industrial electrical components, great caution must be taken. The Court questions whether the mining industry should have required only partial isolation of such a switchboard and whether the defendant should have agreed to work in such circumstances. I consider both specific and general elements of deterrence must be taken into account in this consideration as to penalty. 19 However, I am satisfied that, after the incident, there has been a significant review of the defendant's work methods. They have been outlined through the affidavit of Dr Alan Broadfoot who serves as the CEO of the defendant company. 20 I note the Board of Directors have taken an ongoing interest in ensuring the pre-existing procedures in the system of work have been refined. I accept their attendance at Court is acknowledgment of their contrition. 21 I note that Ms Brock was given considerable attention and was able to return to work within four days. She assures the Court that the attention she received was caring. She has, however, moved on, and I have no doubt suffers some fear as an effect of the incident. Further, in requiring her co-operation for this litigation, the defendant asked her to re-live the event. Perhaps not wise, nor necessary. 22 I accept the company had, both before and since the incident, a continual commitment to occupational health and safety. I accept that it appropriately reviewed and rigorously invigorated its instruction procedures. Toolbox sessions are now more regularly conducted to ensure awareness is raised. The field service check list has been revised. As to the particular incident, the site safety procedures have been redefined. 23 The defendant has recognised the risk posed on or near high voltage conductors and has taken the appropriate action in relation to that risk. I accept it has developed and implemented a work instruction that requires specific safety precautions. It has addressed, along with an acknowledgment that it has to co-ordinate with Anglo Coal's operating procedure that, in the final analysis, under the Occupational Health and Safety Act it, as an employer, carries the burden for the health and safety of its employees. 24 It is common ground the defendant co-operated with the Department's investigation of the incident. The company has an outstanding safety record given it operates within two identified, dangerous industries. The corporation has operated for 40 years and the defendant company, its subsidiary, has operated for 20 years. Neither has a prior recorded breach of the Act. 25 Given there are no prior convictions, the maximum penalty is $550,000. 26 I also accept the defendant company is a fine corporate citizen. It participates in activities within the communities in which it provides services and it encourages its employees to contribute. I accept it also fosters engineering research and educational centres in engineering. 27 In Rodney Morrison v Anglo Coal (Dartbrook Management) Pty Limited [2008] NSWIRComm 172, the question of the contribution to the risk arising from this particular incident was explored at [27] and [28]. At [28] the Court expressed the view that culpability and contribution to the identified risk be shared by both Ampcontrol (Res Management) Pty Limited, this defendant, and Anglo Coal (Dartbrook Management) Pty Ltd. Nothing I have heard today changes my view that both defendants carry equal contribution to risk to safety herein examined. However, the question of parity arises in this consideration. Anglo Coal (Dartbrook Management) Pty Ltd, as a defendant, had two prior convictions. The maximum penalty was therefore raised from $550,000 to $825,000. It was ordered to pay a fine of $200,000. However, this defendant faces a maximum penalty of $550,000. It has no prior convictions. In such a circumstance, while the defendant contributed equally to the risk, penalty must be addressed on a different basis but there must be comparative fairness to each penalty allowing also for different subjective features. 28 The defendant relies upon the authority of R v Thomson; R v Houlton (2000) 49 NSWLR 383 in submitting it is entitled to a deduction for the utilitarian value of the plea. Such discount is offered to defendants who enter an early plea in recognition of the practical effects of such a plea on the administration of justice. The prosecution filed proceedings on 15 June 2007. This incident occurred in June 2005. It is difficult to accept that in the interest of justice, it took the prosecution so long to determine to prosecute, especially when a guilty plea was accepted at the earliest possible opportunity. I accept the defendant should have the advantage of a 25 per cent discount for the utilitarian value of the plea. 29 Nonetheless, this was a serious offence. A penalty must be fixed which reflects the seriousness of the offence, although it is not one in the worst category. The ramifications, however, could have been most serious. It was held by Hill J in Tyler v Sydney Electricity (1993) 47 IR 1 (at 5): The gravity of the damage or injury actually resulting from breach does not, of itself, dictate the amount of penalty. However, the gravity or otherwise of the potential risk flowing from breach and its foreseeability are clearly relevant . . . 30 I find the defendant guilty. 31 The defendant is fined in the sum of $120,000. Orders 32 Accordingly, the Court makes the following orders: 1. In matter No. IRC1014 of 2007, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $120,000 with a moiety to the Department of Primary Industries. 3. As there has been no agreement between the parties as to the quantification of costs, I will hear the parties on this issue in the event no agreement can be reached. Leave to relist at short notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.