SafeWork (NSW) v Activate Fire Pty Ltd, Safe Work (NSW) v Unity (NSW) Pty Ltd (2017)

Facts

Construction work was performed on the roof of a retirement home. Mr Gumbleton, who was a labourer, and Mr Stadler (a licensed plumber) were working in a manhole in the roof space.

About 1.5m from the manhole in the roof space, a screw was protruding through a piece of timber that had been installed to support an air-conditioning duct (the duct). At an earlier point in time, a double insulated electrical lighting cable (the cable) had become positioned on top of the sharp point of the screw and underneath the duct. When Mr Gumbleton leant on the duct, the screw punctured the cable, electrifying the duct. Mr Gumbleton suffered an electric shock because at the time he was touching the steel pipe that he had been installing as part of the system. The steel pipe acted as an earth and allowed the electrical current to flow through his body.

SafeWork NSW prosecuted Unity and Active Fire in relation to the incident.

Unity was engaged to design, supply and install the fire sprinkler system at the facility. It in turn contracted with Active Fire to design, install and certify the system at the facility. Active Fire retained the responsibility for the provision and implementation of the safe work method statement (SWMS), the certification of the system, and the ordering and delivery of the necessary materials to the site. At all times Unity and Activate Fire were reliant on Hanna Plumbing to provide the labour to install the system, to satisfy their respective contractual obligations. Mr Gumbleton was an employee of Hanna Plumbing.

The matter was defended by both companies that were ultimately both convicted.

Judgment

Judge Scotting identified the risk of injury was “one of electric shock caused by direct contact with live electrical wires in the event that the wires were damaged in the course of work”. In reaching a guilty verdict, the Judge was satisfied beyond reasonable doubt that the defendants failed to comply with their health and safety duty in that they failed to take one of the reasonably practicable steps set out in the particulars of the breach alleged by the prosecution.

The prosecution advanced six particulars and only one was proved beyond reasonable doubt. The one that was proved was the failure to ensure that the power to the administration wing of the premises was isolated and proved dead (de-energised) prior to the commencement of the installation work in the roof space of that wing.

The defendants submitted this was not reasonably practicable due to the expense of isolating the area as well as the required need for electricity in the greater facility area.

However, the Court found that it was reasonably practicable because:

a. the work could have been completed without the provision of power in the roof space, as it was after the incident;

b. there was no cost to either of the defendants in asking the operators of the aged care facility to isolate the power – Judge Scotting inferred from the retirement home’s previous compliance with the defendants’ requests to isolate the power would mean an additional request would have been accepted; and

c. implementing this particular control would not have been disproportionate to the risk.

Lessons

The decision emphasised the requirement for the prosecutor to prove their case beyond reasonable doubt. Throughout the decision, the Court found that the defendants made omissions and had not performed their responsibilities to the best of their ability. However, the prosecution was only able to prove that one step (which had not been taken) was reasonably practicable.

Therefore, it is important that you clearly identify the reasonably practicable steps that workers can implement in relation to risks, particularly serious risks, and implement those that are not grossly disproportionate to the risk of injury.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.