When a boss not only intentionally allows a subcontractor to work near live high-voltage power lines but in fact begs them to do so and does not inform them about the danger, you have an extreme case of negligence.
Not surprisingly, there is an extreme penalty to match.
On May 5, NSW District Court Judge AC Scotting handed down a $1 million penalty to WGA Pty Ltd over an incident which saw subcontractor Christopher Cullen suffer burns to 30 per cent of his body. Cullen, who was standing on a window ledge whilst installing aluminium angles to the outside of windows at an apartment complex, suffered an electric shock after a 2.7-metre angle he was holding came into contact with (or in close proximity to) high voltage power lines.
The penalty is the largest imposed to date under the NSW Work Health and Safety Act 2011 and was double the previous highest issued in 2014 after an earlier incident in which a worker also suffered electric shock due to power line contact.
In terms of negligent acts, this was extreme. WGA director Mark Hassan had not told Cullen about the presence of the power lines or that he should not go out onto the window ledge to install the angles unless power was isolated in those lines. Nor was there any barrier tape or signage warning about the risk posed by the lines. Despite not having previously conducted high-density residential work or worked in the vicinity of power lines (most of his previous work had been on more straightforward residential jobs), Cullen received no site induction or tool box talks. Instead, Hassan had pleaded with him to perform the work as this needed to be completed before the scaffolding was removed the following weekend.
Worse still, just 28 days prior to the incident, a SafeWork inspector had issued two improvement notices to WGA after finding that that the scaffolding on the outside of the apartments could not be used without putting a person within three metres of the high-voltage upper power lines. No exclusion zone had been established to prevent a person coming within that distance. Earlier in March of that year, WGA had been issued with three prohibition notices for similar incidents – the inspector explaining to Hassan how easy it would be for a worker to pick up materials such as scaffolding or lengths of steel, turn around and come into contact with the power lines. Physical and visual barriers were needed, Hassan was told.
In sentencing, Scotting concluded that WGA had followed a ‘non-existent’ safety system and had shown disregard for its safety obligations.
This was not an isolated case of record penalties of late. In April, waste management company Cleanaway Operations was fined a record $650,000 for breach of the Commonwealth WHS Act after a worker was injured in a chemical fire during a production trial at a chemical waste processing plant, the highest penalty imposed thus far under a Comcare initiated proceeding.
In March, a Queensland sole trader operating an amusement ride business was handed out the highest ever penalty given to an individual under work health and safety legislation in that state. Last December, logistics company Toll Transport Pty Ltd copped a record $1 million fine in Victoria following an incident in which a stevedore was killed as a result of being crushed by a trailer while helping to load cargo onto a ship.
Alena Titterton, a health and safety lawyer and partner at Clyde & Co, said penalties for poor practices are on the rise. Prosecutors and enforcement agencies, as well, are adopting a tougher stance in terms of appealing penalties which they see as inadequate and demanding more from companies who enter into enforceable undertakings in order to avoid convictions.
In terms of prosecutors and appeals, Titterton says there are a number of examples of late. In March, the Queensland District Court increased a fine levied against caravan and trailer importer and assembler VH&MG Imports from $90,000 to $125,000 over an incident which saw the death of worker Troy Hooper after piston components of a strut on the lower end of a trailer he was assembling separated from the rod and he was struck in the right eye by a cylinder. On May 16, the NSW Court of Criminal Appeal doubled the penalties handed down against Silver City Drilling from $112,00 to $212,500 in relation to an incident where a 26-year-old was left a wheelchair bound quadriplegic after being knocked off a platform and struck by a pipe while operating a drill rig at the Ashton Coal Mine near Singleton in NSW.
In terms of enforceable undertakings, Titterton said companies are now having to pay as much as $750,000 to $1 million in terms of safety measures which they are forced to undertake in order to avoid a conviction.
She said the courts have been particularly strong in cases where known hazards have not been adequately managed. In the WGA case, for example, Titterton said risks associated with electricity contact are well known.
“I think it is fair to say that penalties are increasing,” Titterton said. “We are now starting to see $1 million plus penalties being issued by courts around Australia in case of serious safety breaches.”
Whilst stressing that it is regrettable that this was necessary, Titterton said these penalties will most likely prove to be constructive in terms of the message the send to the small number of employers who fail to address serious safety issues.
Nevertheless, she said, significant penalties have thus far been disproportionately concentrated around a small number of industries and amongst small and medium sized businesses where the managing director has a high level of personal exposure to the work site. To drive home the message about broader responsibilities, she would like to see more of these levied against directors of larger companies who may have less involvement with the actual site.
Also, seeing these penalties levied across a broader range of sectors would provide employers across a diverse spectrum of the economy with specific examples about lessons which could be applied across their own operations.
In addition, Titterton would like to see more prosecutions against those who may not operate right at the coal face but whose actions nevertheless impact safety outcomes. In the construction sector, for example, she said prosecutions largely focus upon contractors and subcontractors. Oftentimes, however, dangerous behaviour is driven in part by unrealistic time frames or costs which are imposed on the builder by clients. Were more clients to be prosecuted, Titterton said, it would open the way for contractors to engage them in discussions about time frames and costs which were reasonable in order for work to be performed safely and properly.
Meghan Hoare, a personal injuries lawyer at Slater and Gordon, said the trend is clearly toward higher penalties and that courts are showing little tolerance for employers who fail to show adequate regard for the safety of their workers. This is particularly the case, she said, where there has been clear knowledge of serious risks, inadequate steps taken to prevent these and a lack of effort to train workers or at least make them aware about potential hazards.
Hoare expressed frustration about the number of cases where death or serious injury occurs which could have been prevented by straightforward actions. These include use of barriers, signage and exclusion zones; adequate protective equipment; ensuring that workers have proper training and inductions; and regular toolbox meetings.
“What our lawyers are observing is that unfortunately some workers are still being put in situations where they are at serious risk of at times quite catastrophic injury or even death,” Hoare said. “Courts are sending a strong message that safety has to come first.”
In terms of lessons which employers can learn from the aforementioned cases, both Titterton and Hoare stressed the need for proactive safety management. Hoare added that the higher penalties will weigh heavily upon employers and help to drive change in how hazards and risks are managed.
“Clearly, the courts have this tool and what we have seen is that they are willing to use it to send a strong message,” she said.
“And I think the message that the courts are sending with these fines is certainly in line with community expectations that workers deserve to go home safely to their families every night and that placing workers in harm’s way is simply not acceptable to either the courts or the community.”
Sadly, there remain a minority of employers who fail to take adequate regard of serious workplace hazards.
The message from courts, prosecutors, enforcement agencies and the community is clear: this is not to be tolerated.