Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Pile v Rouland [2012] NSWIRComm 149 Hearing dates: 10 December 2012 Decision date: 20 December 2012 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: In relation to Rodney Rouland: (a) the defendant, Rodney Rouland, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in matter IRC 201 of 2011, to which he entered a plea of guilty; (b) the defendant is fined the sum of $9000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. In relation to Forbye Sutherland: (a) the defendant, Forbye Sutherland, is found guilty of a breach of s 9 of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in matter IRC 202 of 2011, to which he entered a plea of guilty; (b) the defendant is fined the sum of $9000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8, s 9 - contractor and sub-contractor performing electrical upgrade work at vineyard - employee not licensed to work unsupervised - employee left to work alone - despite no live work policy employee undertakes work on live distribution board - employee electrocuted - serious breach found in each case - general and specific deterrence considered - numerous subjective factors taken into account - personal financial circumstances of each defendant examined - insufficient material to warrant significant reduction in penalty - ability for time to pay penalty noted - s 10 application not made out - penalties impose Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 NSW Apprenticeship and Trainee Act 2001 Occupational Health and Safety Act 2000 Category: Principal judgment Parties: Inspector Keven Pile (Prosecutor) Rodney Rouland (Defendant in IRC 11/201) Forbye Sutherland (Defendant in IRC 11/202 Representation: Mr Reitano of counsel (Prosecutor) Mr Bennett of counsel (Defendant in IRC 201 of 2011) Mr Phillips SC (Defendant in IRC 202 of 2011) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Bridgeford & Associates (Defendant in IRC 11/201) NECA Legal Pty Ltd (Defendant in IRC 11/202) File Number(s): IRC 201 of 2011 IRC 202 of 2011 Judgment 1Before the Court for sentencing are two defendants who have entered guilty pleas to breaches of the Occupational Health and Safety Act 2000 ("the Act"). Mr Rodney Rouland ("Mr Rouland") has entered a plea of guilty to a breach of s 8(1) of the Act while Mr Forbye Sutherland ("Mr Sutherland") has entered a plea of guilty to a breach of s 9 of the Act. These breaches and pleas arise in relation to the same workplace accident. 2The circumstances in which these breaches occurred, for present purposes, can be briefly stated. (A more detailed account of those circumstances is set out in the Agreed Statement of Facts that were similar in both cases and the Agreed Statement of Facts in Mr Rouland's matter appears as an annexure to this judgment). Work was being performed at Paspaley Vineyard at Henry Lawson Drive, Mudgee in March 2009. In 2008 the owner of the vineyard had engaged Hendrik Pty Ltd (as corporate trustee for Asbroek Business Trust No 1 t/as "Wineries by Design") to develop the winery, including a grape processing facility. Through its corporate structure, Hendrik, via its sole director, Mr Asbroek, designed electrical circuitry, including a number of switchboards and parts to be used in the construction of the electrical circuitry comprising the winery distribution board. This work was being undertaken with the assistance of multiple sub-contractors. 3After a tender process, Mr Forbye Sutherland ("Mr Sutherland") t/as "4B Electrical" was engaged to undertake the electrical work involving the construction and installation of switchboard and other significant points within the grape processing facility. Mr Sutherland was a local electrician who was contracted to purchase, assemble and install many of the electrical components such as cables, conduits, sockets, lights, cable channels, circuit breakers, exit signs, the main switchboard and the winery distribution board. As a licensed electrical contractor, Mr Sutherland was the electrical contractor at the site and engaged a number of electrical sub-contractors to assist in the electrical work. Mr Sutherland was self-employed. He engaged electrical subcontractors, including the partnership of Kristin and Rodney Rouland ("Mr Rouland") t/as KRAK Electrical ("KRAK"). 4The defendant, Mr Rouland, was a partner in KRAK and was an employer whose employee was engaged on the electrical work. Mr Rouland was a licensed electrical contractor and employed Jouke Adolf Swiegers ("Mr Swiegers"). Mr Swiegers had been employed by KRAK from late May 2006 and he possessed a craft certificate for electrical work which provided him with recognition as an electrical tradesman. Mr Swiegers was experienced in carrying out electrical work in a variety of areas and had long experience with that work: while holding a number of qualifications, they did not permit Mr Swiegers to carry out unsupervised electrical work. At the time of the accident, Mr Swiegers was nearing the completion of a TAFE course relating to wiring rules and once completed, he would have been able to apply for a Qualified Supervisor's Certificate - electrical from the Office of Fair Trading. 5Just prior to 4 March 2009, Mr Rouland, (who was well know to Mr Sutherland) agreed that Mr Swiegers could assist Mr Sutherland to undertake electrical work at the winery. The work involving Mr Swiegers concerned running cables from the cross-flow filter to the winery distribution board as well as fitting motors and starters and installing power points and lights. The work was to occupy two days. On the first day, Mr Swiegers, while working alone to complete the tasks of laying the cables prior to electrical connection being finalised on the following day with the assistance of Mr Sutherland, appears to have unnecessarily opened the winery's distribution board that was live and in the course of feeding in cables, he was electrocuted and later died in hospital. 6The particulars of the s 8(1) breach committed by Mr Rouland nominated the risk to health as being the risk of Mr Swiegers being electrocuted while accessing and performing work on or near electrical installations and circuits. Mr Rouland's failures were to ensure that employees performing electrical work did not work on electrical installations or electrical circuits while there was live electrical current being conducted or whilst the electrical installation they were working on was energised in that the defendant did not: (i) isolate electrical current and de-energise electrical installations before electrical work was undertaken; (ii) check that the electrical installations remained isolated and de-energised while electrical work was being undertaken. The particulars stated that, as a result of the defendant's acts and omissions, Mr Swiegers was exposed to the risk and was fatally injured. 7Mr Rouland's plea of guilty was entered to an Amended Application for Order. That plea was entered during the first day of a three-day hearing where, although there were agreed facts, a number of matters remained in contest between the prosecutor and the defendant. Apart from proceeding under a different section of the Act, the charge against Mr Sutherland was particularised in a similar way although it was particularised that Mr Sutherland's undertaking was to manage, oversee, monitor, supervise and perform electrical work at the vineyard. The prosecutor noted that, in each case, the defendants had no prior relevant record and that the maximum fine was $55,000. 8The prosecutor's evidence was the same in relation to each case. It involved a factual investigation report prepared by Inspector Pile and a number of coloured photographs of the site taken by the Inspector. Also tendered were: a Safe Work Method Statement ("SWMS") for the vineyard prepared by 4B Electrical Services and an electrical SWMS for the vineyard prepared by KRAK; a technical report by Mr Lawson, an electrical engineer; a NECA Safety Guide for employees in the Electrical Communications and Data Industries; and, a WorkCover Low Voltage Electrical Code of Practice 2007. 9Mr Lawson's report contained the following conclusions: After my examination of the distribution switchboard at the north-eastern end of the grape processing facility building and taking into account the details provided by Gerald Asbroek during the inspection on 6th March 2009, I have come to the following conclusions: * At the time of the accident the circuit breaker labelled "Winery Distribution Panel" on the main switchboard was in the "on" position. * ·At the time of the accident the isolator in the distribution switchboard was in the "on" position thus energising all of the switchboard's components. * ·At the time of the accident the handle of the distribution switchboard isolator had been removed and was found lying on the top of the distribution switchboard enclosure. * ·At the time of the accident the two fastening bolts securing the escutcheon panel to the distribution switchboard enclosure had been removed and the escutcheon panel was open exposing all of the switchboard's components. * ·At the time of the accident the three bare copper busbars extending below the subcircuits assembly were "alive" and when the deceased was manoeuvring the third cable under these bare busbars the back of his left hand came into contact with the middle and right hand bare busbars inflicting electrical burns. In addition the deceased right hand / wrist and / or face could also have been in contact with the switchboard metal escutcheon panel, that was connected to earth via the metal hinges, providing a path for electric current through the body causing electrocution. * ·The discolouration seen on the middle and right hand bare busbars would have been caused by the burning of the deceased's skin on the back of his left hand due to the passage of electric current. * ·The deceased would have been aware that the distribution switchboard components were energised because: 1. The switchboard isolator was in the "on" position, the handle of the switchboard isolator had been removed by the use of a tool and the handle placed on the top of the switchboard enclosure. 2. The two escutcheon panel securing bolts had been removed by the use of a tool. 3. The escutcheon panel was open allowing access to the energised switchboard components. 4. This type of switchboard is designed and built to prohibit the opening of the escutcheon panel while the isolator is in the "on" position. This is achieved by the fact that when the isolator is in the on position the isolator handle is positioned across the slot preventing the opening of the escutcheon panel (refer to photograph 22 on page 35). When the isolator is in the "off" position the slot in the panel lines up with the shape of the isolator handle thus allowing the escutcheon panel to be opened. * ·Gerald Asbroek informed me that, on Wednesday 4th March 2009, there were no operational reasons for the electricity supply to be maintained in the distribution switchboard while work was being undertaken in the distribution switchboard. Gerald Asbroek informed me that the only outgoing circuit from the distribution switchboard in operation on the day of the accident was the supply to an adjacent stainless steel box that contained storage tank temperature monitoring equipment and that this equipment could be taken out of service for up to five hours. * ·Whilst it is not a requirement of AS/NZS 3000:2007 (Wiring Rules), it would have been good installation practice to have fitted an insulated covering over the three bare copper busbars protruding from below the subcircuits assembly in the distribution switchboard. (The fitting of a cover is not to be taken as giving approval to work on the switchboard whilst it is energised. The matter of working alive is thoroughly covered in Clause 207 of the Occupational Health and Safety Regulation 2001 and the WorkCover NSW Code of Practice Low Voltage Electrical Work). 10In his affidavit Mr Rouland set out his qualifications as a licensed electrical contractor. He described KRAK as a small electrical partnership providing electrical services to household and business in the Central Tablelands around Orange, Bathurst and Mudgee. He noted that for the financial year ending 30 June 2012 the business grossed approximately $790,000 and the previous year had grossed nearly $630,000. The net profit in 2012 was over $160,000 and in 2011 it had been approximately $145,000. After meeting the costs of running the business, Mr Rouland earned a taxable income of approximately $103,000 for the financial year ending June 2012. Mr Rouland spoke of current trading conditions being difficult with the business billing only $225,000 for the year to date with work in progress estimated at being $12,000 and $15,000. That covered work done but where a bill had not yet been rendered for the work not completed. The business employed one electrician and two apprentices and prior to the accident, the electrician was Mr Swiegers. 11Details were provided of Mr Rouland's experience as an electrician and his employment as a site supervisor and his involvement in large projects. He had been responsible for the day-to-day operations of a significant company, including occupational health and safety matters. He had met Mr Sutherland while holding this position and had come to know him as a methodical and competent electrician. Mr Sutherland also carried out supervisory duties for the same company. While working with that company, Mr Rouland came to know Mr Swiegers and had been impressed by his ability, work ethic, competency and the manner in which he performed his duties, including safety. KRAK commenced in 2005 and Mr Swiegers became its first employee in 2006. By this time he had become a close personal friend. 12Mr Rouland dealt with the approach of KRAK to occupational health and safety in some detail. In particular, the safety systems adopted by the business included a prohibition on employees working "live." In observing Mr Swiegers over the years, he had never been seen to work "live", contrary to these rules. In the operation of his business, Mr Rouland had routinely and personally carried out on-site risk assessments and had held the equivalent of toolbox meetings to discuss the work for that day and how it would be carried out in the safest possible way, ensuring that no live work was being carried out. There were a number of programmes and further qualifications that were obtained both by Mr Rouland and Mr Swiegers and in 2008, his business joined the National Electrical Contractors Association as the outcome of a conscious decision to formalise safety practices in the business. As a result, the business developed a number of formal processes, including the use of SWMS. Examples of those statements, applicable at the time of the accident, were in evidence. Mr Swiegers had acknowledged that he had been given the SWMS that was applicable to this work: it included an undertaking not to work live. The former occupational health and safety policy was updated in late October 2008 with a key component being the no live work requirement. A copy of that policy was also placed in evidence. It was noted that Mr Swiegers had a number of qualifications as well as wide experience. 13The circumstances in which Mr Swiegers came to be working at the vineyard with Mr Sutherland were detailed with Mr Rouland observing that he had no difficulty allowing Mr Swiegers to work with Mr Sutherland as the work was routine in nature and had been performed many times by Mr Swiegers. He was also aware of Mr Sutherland's approach to safety and knew that Mr Swiegers would not be required to perform any live work. At the time of the accident, Mr Swiegers had been provided with a Ford utility supplied by the business containing all appropriate electrician's equipment and personal protective equipment, including Volt sticks in order to identify the existence of an energised circuit. In the utility were a SWMS, the occupational health and safety policy, a job safety analysis book provided to employees of the business and the NECA red book as well as Mr Swiegers' lockout locks and tags. 14The circumstances in which Mr Rouland became aware of the accident and the death of Mr Swiegers was dealt with in some detail in the evidence. Mr Rouland clearly spent some time caring for the family of Mr Swiegers and provided economic support as well as advice as the family came to grips with their tragic circumstances. The business paid additional monies to the family and offered to pay for the funeral arrangements. Advice was given about various entitlements available to the family. Mr Rouland and his wife maintained contact on a regular basis with Mr Swiegers' wife until she re-married in late 2011. 15Following this accident, Mr Rouland re-issued the SWMS and spoke to his employees and workers in the industry generally, emphasising the absolute necessity of not working live. He placed greater emphasis on employees being provided with and using Volt sticks that identified the existence of energised circuits and all new employees were to be trained in the SWMS and required to understand and sign off on that statement, including policies and procedures of the business emphasising the no live work policy. A former safety officer with Public Works was engaged to audit and review the safety procedures of the business and all recommendations were adopted. As a result of the accident, Mr Rouland no longer engaged sub-contractors and used only his employees in order to avoid communication problems and problems with adherence to the safety policies of the business. He had organised for all staff to undertake a St Johns Electrical Rescue course to ensure that people knew how to remove victims from a charge situation and how to resuscitate them, if necessary. He provided references attesting to the good safety approach adopted by the business. Mr Rouland noted that it was extremely difficult to cope at times following Mr Swieger's death: he had lost a good mate as well as a valued employee and doubted that he would ever get over the death of Mr Swiegers. 16In Mr Rouland's case, a report prepared by Mr Barry Dawson was also tendered. Mr Dawson was a licensed electrician with a number of other qualifications and was a member of the New South Wales Vocational Training Tribunal as well as being a representative of the Department of Trading and Licensing Panel and the Electro Technology Industry Curriculum Committee. He had been provided with a copy of the technical report prepared by Mr Neil Lawson. Mr Dawson was asked to prepare a report in relation to the accident involving Mr Swiegers and had been provided with a number of background documents for that purpose. He was asked to consider and answer two questions, namely: Taking into account Jouke Swiegers' age, experience and training, what degree of supervision should have been provided to enable Jouke to carry out his work safely? Was the fact that Jouke Swiegers did not hold an electrical contractor's licence causally connected to the tragic accident involving Mr Swiegers? 17In relation to those questions, Mr Dawson provided the following answers: As to Question 1: (1) A person with the qualifications and experience of Jouke Swiegers would have required minimal supervision in the performance of his duties as instructed by the licensed electrician on that project, that day. By minimal supervision, I mean that he could have been instructed what his work schedule for the day was, carried out that work and then had it checked at the end of the day a licensed electrician to ensure compliance with the wiring rules. This is the necessary degree of supervision for a person with Jouke's training and experience and in my experience is the degree of supervision provided in the electrical industry for similarly skilled persons. (2) His experience, age and qualifications place him in an entirely different position to an apprentice, trades assistant or a recently qualified tradesman. For instance, a newly engaged first year apprentice requires constant supervision. A second or third year apprentice ought to be capable under minimal supervision to undertake duties such as laying cables and connecting cables to de-energise apparatus. A fourth year apprentice should be able to perform more difficult tasks with minimal supervision i.e. wiring a de-energised board. The type of work capable of being performed by trade assistants again depends on the training and experience of the trade assistant - it could range from constant to minimal supervision depending on the nature of the work which is required to be performed. As to Question 2: The non attainment of a contractor's supervisor licence would not have been a contributing cause to the incident as: (i) Jouke Swiegers was a qualified tradesman having attained his trade status in South Africa and had that trade status recognised in New South Wales. (ii) South African trade training is similar to trade training in all Commonwealth countries, including Australia and New South Wales being ultimately based on the "British System". Importantly, all apprentices in New South Wales and Commonwealth countries are instructed against working live. (iii) The educational instruction against "live work" is expected to be reinforced at the workplace by employers engaging in a no live work policy and the industry standard safety red book (which the employee signs off on). (iv) The trade training undertaken by Jouke Swiegers in South Africa would have included instruction against "live work". (v) Jourke Sweigers had: (a) signed off on NECA red book; and (b) been provided with Safe Work Method Statements identifying the risk of electrocution, the need to de-energise, fit dangers tags to isolation devices and test that the work area had been safely isolated by confirming that the area was "DEAD" before commencing work. The SWMS are referenced back to the NECA red book; (c) instructed not to work live; and (d) provided his employer with an undertaking not to work live. (vi) Jouke Swiegers' training and work history in New South Wales would have enabled him to have had his South African trade qualifications recognised in New South Wales. Indeed, Jouke Swiegers was recognised as a qualified tradesman in New South Wales. (See Craft Certificate Electrical (Mechanic) issued 13 March 2003 in Annexure "2"). (viii) Jouke Swiegers was currently undertaking the relevant course to enable him to become licensed. While the licensing course does contain safety aspects, those aspects merely add to the requirement not to "work live". (What are the safety aspects). (viii) Jouke Swiegers was currently undertaking a course to obtain a contractor's licence. To obtain this licence, Jouke Swiegers would have to have demonstrated his knowledge of the Wiring rules - Australian Standard 3000/2007. The knowledge required is directed to ensure that the technical aspects of wiring are performed correctly, i.e. what wiring is to be used under the prevailing circumstances, taking into account the technical requirements and specifications for the job. The wiring rules focus on what the job requires by way of wiring, not how to perform the work safely - for example see 7.2 of the Rules. Generally: (4) I agree with the conclusion contained in the technical report of Neil Lawson, that Jouke Swiegers took specific steps to override the safety system. If Jouke Swiegers' had not overridden the safety system he would have been able to work safely on a de-energised board. Jouke Swiegers' training and experience would have armed him with the knowledge that he was not to work on an energised board - working live. In view of his training and experience the activity carried out by Jouke Swiegers working on the live board was inexplicable. (5) My conclusion is had Jouke Swiegers complied with his employers instructions not to work live and his own undertaking not to work live the tragic incident would have been avoided. 18The evidence for Mr Sutherland was contained within his affidavit and numerous annexures. Mr Sutherland had commenced his career in the electrical trade in Local Government and in early 1999 commenced with Manildra Flour Mills as the maintenance electrician. In this position he completed a number of training courses and certificates of attainment were placed in evidence. In September 2000 he began working for A J Stockman Pty Ltd as an electrical fitter/mechanic. That company was based in the Bathurst area and he was employed as the site manager for the Mudgee district and gained considerable management experience. In this position he was responsible for ordering materials and managing staff on a daily basis, including ensuring safety at project sites. During this period no time was lost because of injuries which Mr Sutherland attributed to his focus on safety. He gave examples of how that safety record had been achieved. He was provided with a reference by the Managing Director of A J Stockman Pty Ltd after he left that business. There were then periods of engagement as a maintenance electrician with a winery during which further qualifications were obtained and a period of working in the UK in various agricultural roles. In this overseas work he was also provided with a reference. In June 2004 he resumed employment with A J Stockman Pty Ltd as electrical manager and then in 2006 he began his own business as a sole trader, trading as 4B Electrical Services. In this position he specialised in domestic, rural, industrial and commercial works. A number of other qualifications were obtained from June 2004. During his employment with Manildra Flour Mills he was an active member of the Site Safety Committee and he gave details of his personal approach to safety in that position. 19In relation to the work at the grape processing facility at the Paspaley vineyard, Mr Sutherland had provided quotes to Mr Asbroek of Wineries by Design and upon those quotes being accepted, he commenced work at the facility in mind-November 2008. He described himself as the electrician on site for the majority of the time but only acting under the instructions of Mr Asbroek. Wineries by Design was the principal contractor and he worked at the winery on a daily basis but was not guaranteed all the winery work nor was there a contract in place. Mr Asbroek prioritised the work each day and verbally set deadlines on a job-to-job basis. 20Mr Sutherland had prepared an SWMS using a template from the National Electronics and Communications Association. That 62-page document was never requested by anyone in relation to the work on the grape processing facility. 21In performing this work at the winery, Mr Sutherland engaged a number of sub-contractors, including KRAK. He knew each sub-contractor well and had worked with them on a number of occasions on various projects over the years. When he commenced at the facility he was taken through a site induction by the site supervisor and noted a variety of other work, including plumbing, welding and general construction work being carried out while he and his sub-contractors were carrying out electrical work. That general construction type work affected the electrical work he was conducting and he conferred on a daily basis with workers carrying out the other work in relation to scheduling tasks and sharing equipment. He stated that Mr Asbroek provided minimal supervision. 22In relation to the accident, Mr Sutherland stated that at the end of work on the previous day before, he had isolated and worked on the winery distribution board being the board where Mr Sweigers was electrocuted the following day. On finishing that work he ensured that the escutcheon was closed and the front door was locked and he observed that the main switch was fitted correctly. 23A few days prior to 4 March 2009 he had spoken to Mr Rouland and sought help with the winery work but Mr Rouland was unable to perform that work and made his employee, Mr Swiegers, available to assist. Mr Sutherland knew Mr Rouland to be the director of KRAK and he had performed work with Mr Rouland as a sub-contractor and on other occasions Mr Rouland had sub-contracted to Mr Sutherland. Mr Sutherland was also familiar with Mr Swiegers as an employee with KRAK since 2006. He had worked with Mr Rouland and had worked with Mr Swiegers since 2001. He had formed the opinion that Mr Swiegers was a safe and competent electrician. Mr Swiegers was also a friend of both Mr Sutherland and Mr Rouland. Mr Swiegers had performed work at the facility on previous occasions, running cables for two days and later, running cables for another two days in relation to air conditioning fans. 24The events of 4 March 2009 were then dealt with. Mr Swiegers arrived on site and Mr Sutherland observed that his work vehicle appeared to contain all the equipment a tradesman would require for the type of work to be performed, including lockout tags and testing equipment. They walked around the worksite and Mr Sutherland described the cabling work to be performed and in doing so, pointed out that the winery distribution board was "live" and was being used to run power outlets throughout the winery. Mr Swiegers was told that Mr Sutherland had a no live work policy but there was no need to go into the distribution board and that the cables could be curled up underneath that board to be connected after all the circuit breakers were present and available. The circuit breakers had not yet arrived. Further, Mr Sutherland said that if Mr Sweigers needed to isolate anything he was to call and they would do it together. The job tasks had been give priority by Mr Asbroek and Mr Swiegers was further informed that if he had any issues or questions he was to call Mr Sutherland on his mobile or contact two other workers at the site. 25Before leaving the site, Mr Sutherland locked the switchboard and made sure that the area surrounding the switchboard was safe. He then proceeded to Mudgee to spend time with his son but was later contacted about another job that required urgent attention and so he contacted Mr Swiegers for assistance. That job was attended to, commencing late on the morning of 4 March 2009 and Mr Swiegers had left that job by 1.00 pm. Mr Sutherland told Mr Swiegers that he would call later to see how the work at the winery was progressing and would be back at the winery at approximately 5.00 pm. On two occasions during the afternoon he tried to contact Mr Swiegers on his mobile telephone but did not receive an answer. Just before 6.00 pm, Mr Sutherland was informed about the accident and the fact that Mr Swiegers had been electrocuted. 26Mr Sutherland expressed surprise that Mr Swiegers had been electrocuted because he did not believe he was at risk if he had performed the task assigned to him. He could not have been electrocuted if he had not opened the escutcheon of the distribution board and there was no requirement for him to do so. On arriving at the facility Mr Sutherland made observations about what work was being performed by Mr Swiegers at the time and he noted that Mr Swiegers had removed the main switch and opened the escutcheon on the distribution sub-board he was working on but could see no reason why that was done. He further stated that he was not aware that Mr Swiegers was not a licensed electrician. He was aware that Mr Swiegers had obtained a trade certificate as an electrician in South Africa but only later became aware that he had obtained a craft certificate under the NSW Apprenticeship and Trainee Act 2001 and a construction industry white card. He was in the process of obtaining his electrician's licence and had reached the last stage of that course which involved a theoretical examination. 27In his affidavit, Mr Sutherland detailed a number of remedial steps taken following the accident. They included: enforcing the no live work policy; closer supervision of the work of all licensed and unlicensed electricians; and, closer scrutiny of the qualifications and licenses held by people engaged. He acquired and implementing the NECA safety management system and the paper system involved in that scheme led Mr Sutherland to engage a bookkeeper to maintain the system. This obligation arose in circumstances where his financial position left him with limited time to devote to his business in view of his caring responsibilities. A NECA toolbox training package was purchased and Mr Sutherland updated the daily process to include written risk assessments, SWMS sign-offs, new employee induction training, company issued PPE, monthly toolbox talks, addressing selected safety training of contractors, casuals, part-time and full-time employees, including work experience students. There was evidence of various registers now used for safety in Mr Sutherland's operation. Where unlicensed persons were engaged, he ensured that person only worked in his presence. In addition he had continued to increase his qualifications, including four TAFE courses and a certificate from the Clean Energy Council. 28Mr Sutherland expressed his sincere regret for the accident that caused the death of his friend. He believed that he had taken steps now to ensure he would not be in a position where he would again be in breach of the Act. He detailed steps that he took after the accident to confort Mr Swiegers' wife and offer support to the family. Mr Swiegers' colleagues and friends, including Mr Sutherland, have continued a yearly "get-together" in memory of Mr Swiegers. Since the accident, if he saw anyone working unsafely or working unsupervised that should not be doing so he made them aware of his situation and told them they should cease what they were doing. He continued to contribute to the training of young people in the Mudgee area. There were certificates of participation in schemes dealing with structured workplace learning programmes and High School work experience. 29In relation to his financial position, 4B Electrical Services ceased trading at the end of June 2011 and immediately after that Mr Sutherland commenced trading as 4B Electrical Services Pty Ltd. He was the sole director of this company. He took that step on the advice of his accountant and on the understanding it would make it easier to comply with safety systems. He was now focused on the commercial and rural section of his business. In February and April 2012 he had entered contracts for approximately $22,000 and nearly $13, 000 respectively. He produced a risk assessment completed prior to commencing work in relation to one of those contracts. 30Since August 2009, Mr Sutherland had sole responsibility for the care of his son for three days per fortnight. In August 2010 this was extended to five days per fortnight and in August 2001 the arrangement altered to four days per fortnight, including school holidays. His son was to start school in 2013 and Mr Sutherland would then have responsibility for his care on five days and nights per fortnight. He said he was not able to work on the days that his son was with him and he now worked part-time and in addition, paid child support at the rate of $190 per month. Working part-time had a significant effect on his income. He produced personal tax returns for the financial year 2010/2011 and the financial year 2011/2012. He also produced tax returns for Electrical Services Pty Ltd for the 2011/2012 financial year. A further document showed that the company had assets of approximately $196,000 but liabilities of $228,000. 31As to his personal living circumstances, Mr Sutherland said that he now resided in a two-bedroom granny flat in Mudgee. He had started to build a new home but that work had ceased pending the outcome of this case. In October 2012 he entered a plea of guilty to a single breach of s 14(4) of the Home Building Act, an offence of failing to supervise the electrical work that was done by Mr Swiegers in March 2009, not being present while the work was being performed and not personally ensuring that the work was done correctly. In the Local Court, Mr Sutherland was fined $15,000 plus court costs. Mr Sutherland was not required for cross-examination and in particular, his financial records were not scrutinised. DELIBERATION 32Submissions for each defendant did not directly address the issue of the objective seriousness of each offence but in substance appeared to accept that categorisation. The submissions concentrated upon surrounding factors that tended to reduce the overall seriousness of each offence. Senior counsel for Mr Sutherland submitted that the gravamen of the offence was the failure to ensure that work was not performed when there was live electric current present, the failure to de-energise the electrical installations before work was undertaken and the failure to check that those installations remained isolated whilst electrical work was being undertaken. That submission may be accepted but these offences arose in circumstances where it was entirely foreseeable that any electrical work that was performed on live circuitry was inherently dangerous and raised the risk of electrocution. That risk arose in relation to Mr Swiegers in spite of both defendants having a no live work policy and otherwise having basic but sound safety procedures. Despite the existence of those systems and policies, Mr Swiegers appears to have taken steps to override the isolation system in order to conduct work that was not required to be conducted on that day. While the defendants each point to the fact that Mr Swiegers had no history of acting in such a way and was generally recognised as being a competent and well-trained worker, the Court has frequently pointed out in other cases that employers and non-employers alike must be diligent to have in operation safety systems that address the possibility of a person working contrary to instructions or for some reason disobeying basic safety rules. Here, Mr Swiegers was working alone in circumstances where Mr Sutherland had not checked his licence to perform electrical work, had assumed that he was licensed and where Mr Rouland should have informed him that was the case and that Mr Swiegers should not work unsupervised. The simple answer to this predicament was not just the instruction not to work live but to take the simple and straightforward step of isolating the power while work was being performed. In each case, therefore, the offence is to be considered as representing a serious breach of the Act. 33Submissions for the defendants accepted that both general and specific deterrence should play a significant role in setting an appropriate penalty. It was submitted for Mr Sutherland that his caring responsibilities had resulted in a significant reduction in the time he was now working and that specific deterrence should play a reduced role. While there is some merit in that submission, nevertheless, Mr Sutherland conducts an electrical contracting business in an inherently dangerous industry. Continuing participation in that industry but with reduced time to be fully involved in it carries its own risks. This factor should not lead to any significant reduction in the element of specific deterrence. In relation to Mr Rouland, as with Mr Sutherland, steps have been taken to address the risk exposed by this accident but the family company continues to be active in the industry and there is no justification in reducing the element of specific deterrence. 34In all matters there are a number of subjective considerations. The prosector has accepted that in each case there was an early plea: primarily, that arose from pleas of guilty being entered to an Amended Application for Order and the significance of the amendment. It can be accepted that there was an important reduction of the particulars that had been initially relied upon by the prosecutor. Little attention, however, was paid to the fact that in Mr Rouland's case, the guilty plea was entered after the lunch adjournment on the first day of a three-day hearing. Having considered the prosecutor's concession in relation to his matter and the nature of the amendment made to the particulars, it is not necessary to distinguish between the two defendants on this account and they should, therefore, both be entitled to a 25 per cent discount on the penalty for their early pleas and their utilitarian value. 35Both defendants are first offenders and have been participants in this dangerous industry for sufficient time for that record to have significance: they both provided references concerning their usual approach to safety and their good citizenship. Both defendants have operated with basic yet effective safety systems and both prohibited live work. Both have taken prompt steps to address the issue of live work exposed by this accident and there has been a general review of their work systems. Both defendants co-operated with the WorkCover investigation and that is an important consideration. Their evidence, together with their early pleas and the various ways they have assisted Mr Swiegers' family, demonstrates to the satisfaction of the Court that they have both taken responsibility for their part in this unfortunate event and have demonstrated true remorse and contrition. All of these factors serve to mitigate the final penalty to be imposed. They are both considered to be broadly equal in their culpability. 36Each defendant has raised their financial circumstances as a consideration having regard to the provisions of the Fines Act 1996. The prosecutor did not contest reliance on the financial circumstances of each defendant and their financial position was not subject to cross-examination. While an application under the Fines Act carries with it the requirement to bring forward sufficient information to support the application, once that material is before the Court it would be of real assistance to its deliberations if either those matters were accepted or subjected to some further analysis. In the present case, Mr Rouland operates a small family business and although being profitable, it appears now to be suffering in the present financial conditions. There is clearly a reduction in the work being performed by the business but it continues with an electrician and an apprenticeship. In relation to Mr Sutherland, his circumstances primarily relate to the effects of his carer's responsibilities and his inability to work full-time. While he has suspended work on the home he is building and wishes to await the result of these proceedings, nevertheless, his reduced earning capacity appears to allow his home building to continue, at least sometime in the future. He has incurred a fine in proceedings arising out of the same accident but there is no evidence that he had difficulty in paying that fine. Having regard to these matters, there is insufficient evidence to warrant any significant reduction in the fines to be imposed. In both cases the most appropriate course would be for the defendants to apply to the Registrar and possibly WorkCover for time to pay the fines that will be imposed. 37One further matter requires attention. During submissions, counsel for Mr Rouland applied for his client be dealt with under the alternative provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999. It was readily admitted that this was not a trivial offence but attention was focused upon the safety rules the family business imposed upon working live and the experts' reports that observed how Mr Swiegers had, apparently, unnecessarily, overridden the system of isolation built into the switchboard. The submission relied upon Mr Rouland's prior unblemished record, his good character supported by independent persons and the extenuating circumstances arising from Mr Swiegers' own conduct. In various ways these matters are taken into account in fixing an appropriate penalty. It is, however, unusual in this jurisdiction for orders to be made under s. 10 of the Crimes (Sentencing Procedure) Act: an extenuating circumstances case needs to rise above factors that might ordinarily be taken into account in mitigating the penalty to be imposed. The Court is not persuaded that this is such a case in relation to Mr Rouland. ORDERS 38Having regard to the above matters, the Court makes the following orders: In relation to Rodney Rouland: (a) the defendant, Rodney Rouland, is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in matter IRC 201 of 2011, to which he entered a plea of guilty; (b) the defendant is fined the sum of $9000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. In relation to Forbye Sutherland: (a) the defendant, Forbye Sutherland, is found guilty of a breach of s 9 of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in matter IRC 202 of 2011, to which he entered a plea of guilty; (b) the defendant is fined the sum of $9000 with half that sum to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS 1. At all material times the prosecutor, Inspector Keven Pile, was duly appointed under division 1 of Part 5 of the Occupational Health and Safety Act 2000 (NSW) ('the Act') and empowered under section 106(1)(c) of the Act to institute proceedings in this matter. 2. Paspaley Pearls Properties Pty Ltd ('Paspaley') is the owner of the property known as 'Paspaley Vineyard' located at Henry Lawson Drive, Mudgee NSW ('the site'). Paspaley, planned to develop a winery on the site, and through its agents designed a 600 tonne winery and thereafter commenced construction. 3. In approximately February 2008, Paspaley engaged Hendrik Pty Limited, as corporate trustee for Asbroek Business Trust Number 1, trading as 'Wineries by Design' ('Wineries'), to develop the winery. The agreement was for Wineries to design and construct the winery, which included a Grape Processing Facility at the site. 4. At all material times Gerald Asbroek ('Mr Asbroek') was the sole director and company secretary of Wineries, and responsible for the control of the Corporate Trustee for Asbroek Business Trust Number 1, trading as 'Wineries by Design'. Mr Asbroek is an engineer by profession, a qualified electrician, and is licensed to engage in electrical and civil building construction in South Australia. 5. Mr Asbroek managed the operations of Hendrik from his home office in South Australia. He did not attend the site daily. He attended the site regularly between January and February 2009 to ensure that work was progressing and that deadlines were being met, and was on the site on 4 March 2009. Mr Asbroek was personally involved in designing the electrical circuitry including a number of switchboards and the selection of parts intended to be used in the construction of the electrical circuitry comprising the winery distribution board. Mr Asbroek was aware the electrical work was progressing with the assistance of multiple sub-contractors but did not check the qualifications of the sub-contractors. 6. After a tender process Mr Asbroek engaged Forbye Sutherland, trading as '4B Electrical', a local electrician, to undertake the electrical work which involved the construction and installation of switchboards and other significant points within the Grape Processing Facility ('the electrical work'). Mr Sutherland was contracted to purchase, assemble and install many of the electrical components and equipment such as cables, conduits, sockets, lights, cable channels, circuit breakers, exit signs, the main switchboard and the winery distribution boards. Mr Sutherland was a licensed electrical contractor. Mr Sutherland was the electrical contractor at the site and engaged a number of electrical sub-contractors to assist in undertaking the electrical work. The component parts for the power boards, which were designed by Mr Asbroek, were ordered and installed by Mr Sutherland. Mr Sutherland was a self-employed person. 7. Mr Sutherland's electrical sub-contractors included the partnership of Kristen and Rodney Rouland, trading as 'KRAK Electrical', who were also engaged to perform the electrical work. 8. At all material times Mr Rouland was a partner of KRAK Electical and was an employer whose employees were engaged in the electrical work. Mr Rouland was a licensed electrical contractor. 9. Jouke Swiegers ('Mr Swiegers') was employed by KRAK Electrical since about 29 May 2006. At all relevant times Mr Swiegers possessed a craft certificate for electrical work which recognised him as an electrical tradesman. Mr Swiegers was experienced in carrying out electrical work having worked at AJ Stockman Pty Limited for five years on work involving: * installation of single phase, three phase and multi-core control cables in commercial and industrial premises. * installation of mains and sub-circuit cables in domestic premises. * cable tray and conduit installation. * fitting off of electrical equipment including power points, lights, switches, three phase motors and control equipment. * switchboard wiring. * domestic fixed appliance and wiring repairs. * testing of electrical installations. Mr Swiegers also worked for DAS Electrics in South Australia, commencing there on 24 June 2000 as a casual trades assistant and subsequently as a permanent employee involved in a major industrial shutdown project. During his employment with DAS, Mr Swieger's work included three phase and one phase installations, running sub-mains, final circuit cabling, switchboard wiring, fitting off of lighting, power and appliances, alterations to existing wiring and upgrade work, organising and mechanical fitting of industrial cable tray and large cables. From February 1996 until September 1999, Mr Swiegers was employed by PGM Electric & Refrigeration - South Africa at which time he obtained experience in: * low and medium tension supplies up to 11kw. * M.C.C. panels, star delta motors, direct online connections, forward and reverse, installation of starters and motors, servicing the motors including replacing bearings, testing of motors, electrical installations. * wiring of buildings. * refrigeration. * repair of all household appliances. * gained experience in the use of instruments, such as: * fluke multimeter * 500 v mega tester * tungsten tester (amp readings) * electronical leak detector * gas flame detector in cooling systems * ultraviolet leak detector * arcglow fluorescent leak fluid Mr Swiegers also had completed the following courses and gained the following qualifications: * Trade Certificate from the Electrical Contracting Industries Training Board Republic of South Africa. * Craft Certificate for electrical work recognising him as an electrical tradesman dated 13 March 2003. * General induction occupational health and safety course for construction work in New South Wales conducted by WorkCover - in July 2004. * National Certificate of Competency Licence provided by WorkCover -licence due to expire on 11 December 2013. * OHS Certification Australia issued on 3 March 2002. * Cablers Licence - valid to 11/02/2010 * Driver's licence - class C&R. * Certificate identifying training in work clearances for contractors conducted for the Australian Institute for Petroleum Limited - 2 May 2007. * Certificate III Electro Technology Electrician - Completion of unit code 9080F - electrical installation and planning - NSW TAFE. Mr Swiegers was undertaking a TAFE course in relation to Australian Standard 3000 - Wiring Rules. Once he had completed this course he would have been able to apply for a Qualified Supervisors Certificate - Electrical from the Office of Fair Trading 10. At some time before September 2008 construction of the Grape Processing Facility commenced at the site. The construction work included some electrical work. From about February 2009 the site was concurrently a construction area and an operational winemaking facility. 11. In late January or early February 2009 Mr Sutherland received, assembled (where necessary) and installed three switchboards at the site. 12. The winery distribution board was mounted on the north-eastern end of the Grape Processing Facility building. The winery distribution board enclosure was made of stainless steel. The electricity supply for the winery distribution board was from a submain from the Grape Processing Facility main switchboard. The main switchboard was located against the north-western wall of the Grape Processing Facility building. 13. At some time before 4 March 2009 Mr Asbroek instructed Mr Sutherland to energise the electrical circuits to ensure power could be run to operational parts of the site. 14. At some time shortly prior to 4 March 2009 Mr Rouland agreed with Mr Sutherland that Mr Swiegers would assist Mr Sutherland to undertake the electrical work at the site. The electrical work was running cables from the cross-flow filter to the winery distribution board, as well as fitting motors and starters, and installing power points and lights. The work was due to be undertaken over two days commencing 4 March 2009 and finishing on 5 March 2009. At the time Mr Swiegers went to assist Mr Sutherland: * Krak Electrical had a no live work policy which Mr Swiegers had agreed to comply with. * Mr Swiegers had acknowledged and signed off on the no live work policy. * Mr Swiegers had been issued with Safe Work Method Statements reprinted in August 2008. * Mr Swiegers had been given the opportunity to read and understand the contents of the Safe Work Method Statements. * Mr Swiegers agreed to comply with statutory regulations and industry safety rules. * Mr Swiegers had undertaken not to do live work unless authorised by his employer and to observe all requirements of the company. * Mr Swiegers had been provided with a National and Electrical Communications Association Safety Book and had read and understood its contents, again undertaking not to do live work unless authorised by his employer. * Mr Swiegers had in his car the company's OH&S Policies and Procedures, Safe Work Method Statements, the NECA red book and lockout locks and tags. 15. On 4 March 2009 Mr Sutherland and Mr Swiegers arrived at the site at about 9:15am and had a 15 minute discussion (approximately). Mr Sutherland told Mr Swiegers about the tasks to be completed that day which involved, fitting motor controls, three phase outlets, running cables from the motor controls to the cross flow ventilation filter and electrical apparatus and running cables from the motor controls back to the area immediately below the winery distribution board. Mr Sutherland told Mr Swiegers that the winery distribution board was energised. Mr Sutherland told Mr Swiegers that there were insufficient circuit breakers to be able to complete the work that needed to be completed on the winery distribution board which involved connecting the cables and circuit breakers to the winery distribution board. Mr Sutherland told Mr Swiegers that he would obtain the required circuit breakers during the day and the remaining work being the connection of the cable to the winery distribution board would be completed the next day. Mr Sutherland told Mr Swiegers should there be a need to contact him, he could contact him on his mobile phone or should contact Mr Black (a wine maker working at the site) or Mr Cucuk who were two other people working at the site. 16. After giving Mr Swiegers instructions on what electrical work he was required to undertake, Mr Sutherland left the site to attend to other business. He left the site at about 9:30am. After Mr Sutherland left the site no one was present. Mr Swiegers was, when he was working at the site that day, working alone without direct supervision from the time that Mr Sutherland left the site until the time that he was electrocuted. 17. Mr Swiegers left the site at about 11:00am to assist Mr Sutherland at another site and returned at about 1:00pm and continued working at the site. 18. Towards the end of the day, Mr Swiegers opened the door of the winery distribution board, used a tool to remove two screws attaching the escutcheon panel to the winery distribution board enclosure and then used a tool to remove the operating handle of the main isolator that was in the closed 'on' position. He placed the handle on the top of the winery distribution board. He opened the escutcheon panel, and pushed three cables up through the plastic glands. An escutcheon panel is a hinged panel located between the internal components of the board and the external door. The handle needs to be turned to a horizontal position (de-energising the board if it is in place) to allow the panel to open. A tool is required to remove the bolts. By carrying out the above activities, in particular removing the isolator handle Mr Swiegers disconnected the safety interlock device built into the switchboard. Subsequently any activity carried out by Mr Swiegers on or in the switchboard was carried out with the switchboard being in an energised state. There were no operational reasons which required Mr Swiegers to work on the board in an energised state - power to/from the board could be disconnected for five hours. The distribution board in accordance with previous practice at the site could have been shut off - de-energised. 19. Mr Swiegers was at the time of the incident installing three PVC orange sheath circular cables (cables) from the new equipment in the Grape Processing Facility to the distribution switchboard. This involved attaching the cables on to an existing cable tray installed above a passageway between a row of stainless steel storage tanks and behind the winery distribution board. The cables were to enter the bottom of the winery distribution board in the same way as the existing cables. 20. When Mr Swiegers commenced the electrical work he opened the door to the winery distribution board, used a tool to remove two screws that attach the escutcheon panel to the board, and then used a tool to remove the operating handle of the main isolator which was in the closed 'on' position. 21. Mr Swiegers then accessed the energised area of the winery distribution board to provide for the placement of cables. Mr Swiegers pushed the cables through the base of the winery distribution board. Whilst manoeuvring the third cable under the bare busbars the back of his left hand came into contact with the bus bars inflicting burns. It is probable that either Mr Sweigers right hand wrist or face was in contact with the escutcheon panel thus causing the electric current to travel through his body causing electrocution. 22. When Mr Swiegers's left hand came into contact with the energised busbars, and his right hand came into contact with the metal escutcheon plate and/or stainless steel switchboard plate, he was subjected to electrocution by 415 volt electricity. There were no eye witnesses to the incident as Mr Swiegers was working alone. A short time later Mr Swiegers was found by a co-worker. 23. In due course the body of Mr Swiegers was conveyed to Mudgee District Hospital where he was admitted and pronounced dead. Following an autopsy at Dubbo Base Hospital on 10 March 2009 the cause of death was determined to be "left ventricular heart failure due to electrocution due to electrical contact with dorsum of left hand". 24. The risk of electrocution associated with work on live electrical systems was recognised prior to the incident. 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. Decision last updated: 20 December 2012