Workcover Authority of New South Wales (Inspector Reynolds) v Northpower [2001] NSWIRComm 104 (7 June 2001)

Last Updated: 12 June 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority of New South Wales (Inspector Reynolds) v NorthPower [2001] NSWIRComm 104

FILE NUMBER(S): IRC1033

HEARING DATE(S): 02/03/2000

DECISION DATE: 07/06/2001

PARTIES:

PROSECUTOR:

WorkCover Authority of New South Wales (Inspector Adrian Reynolds)

DEFENDANT:

NorthPower

JUDGMENT OF: Glynn J

LEGAL REPRESENTATIVES

PROSECUTOR:

Mr M Cahill of counsel

SOLICITORS

Mr G McCann

WorkCover Authority of New South Wales

DEFENDANT:

Mr R Warren of counsel

SOLICITORS

Mr D Hunter

Somerville Laundry Lomax

CASES CITED: Capral Aluminium Limited v WorkCover Authority of NSW (Inspector Mayo-Ramsay) [2000] NSWIRComm 71; (2000) 99 IR 29

Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) [(1990) 90 IR 464]

Lowe v The Queen (1984) 154 CLR 606

Postiglione v The Queen (1997) 189 CLR 295

R v Thomson; R v Houlton [2000] NSWCCA 309

R v Winchester [1993] 58 ACrim R 345

Slattery (1996) ACrimR 519

SRA v WorkCover Authority of NSW (Inspector Dubois) [2000] NSWIRComm 261]

Veen v The Queen [(1987-88) 164 CLR 465]

WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd [(1998) 83 IR 211]

WorkCover Authority of NSW (Inspector McDonald) v Commonwealth Steel Company Limited [(1999) 90 IR 297]

WorkCover Authority of NSW (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383

WorkCover Authority of NSW (Inspector Gilbert) v EnergyAustralia (formerly Sydney Electricity) [(1998) 85 IR 99]

WorkCover Authority of NSW (Inspector Sheppard) v The State Rail Authority of NSW (unreported; 99/3369; 6/10/00; Wright J, President)

WorkCover Authority of NSW (Inspector Keenan) v NorthPower (formerly known as Northern Rivers Electricity) (unreported; Fisher P; IRC96/5172; 9/2/98)

LEGISLATION CITED: Occupational Health & Safety Act 1983 s 16(1) s 49(2)

Crimes Act 1900 s 439

Crimes (Sentencing Procedure) Act 1999 s 22

Electricity (Workers' Safety) Regulation 1992

JUDGMENT:

- 20 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: GLYNN J

7 JUNE 2001

MATTER NO. IRC1033 OF 1999

INSPECTOR ADRIAN REYNOLDS (WORKCOVER AUTHORITY OF NSW) v NORTHPOWER

Prosecution under s 16(1) of the Occupational Health and Safety Act 1983.

JUDGMENT

1 This matter is a prosecution by Adrian Reynolds (the prosecutor) as an inspector of the WorkCover Authority of New South Wales (WorkCover) of NorthPower (the defendant) for breaches of s 16(1) of the Occupational Health and Safety Act 1983 (the Act). The matter was heard on 2 March 2000.

2 A plea of guilty was entered by the defendant.

3 Judgment in this matter has been delayed. On 2 May 2000 two prosecutions by WorkCover of PF Thearle & Co, the employer of Mr Flick, were reallocated from Hungerford J, to whom they had originally been allocated, to myself. The basis for that re-allocation was succinctly stated by Hungerford J to the parties as being the usual rule that co-defendants be sentenced with the same mind.

4 Following that re-allocation, the hearing of the two prosecutions was set for 11 July 2000. On that date, the defendant (PF Thearle & Co) made an application, acceded to by the prosecution, for an adjournment. A question had been raised in other proceedings as to the validity of summonses, based on an alleged irregularity in the way they had been issued. PF Thearle & Co understood, though not precisely to what extent, the same point arose with respect to the summonses in these proceedings. The matters were stood over, with leave, to allow the other proceedings to be finalised. The matters were relisted on 19 October 2000 to set a date for hearing, that being 1 March 2001, the earliest date convenient to the parties. On that date, there was a further adjournment to 19 March 2001 at the instance of PF Thearle & Co, acceded to by the prosecutor.

5 The summons against NorthPower alleges that:

the defendant, being an employer, on the 6 March 1997 at the Wardell Sewerage Treatment Works, Kays Road, Wardell, in the State of New South Wales, DID FAIL to ensure that persons not in its employment, in particular, Anthony Flick and Raymond Whitney were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health & Safety Act, 1983 in such case made and provided.

6 The particulars of the charge are:

a) The defendant, at all material times employed Glenn Wooldridge as an electrical tradesperson.

b) The defendant, at all material times, contracted with Ballina Shire Council to supply, install and commission the kiosk electrical transformer and supply mains at the said Wardell Sewerage Treatment Works Construction site.

c) The defendant, at all material times, owned the kiosk electrical transformer at the said site and controlled access to the said kiosk electrical transformer.

d) The defendant failed to ensure the kiosk electrical transformer was not electrically energised whilst electrical cables were installed to the said transformer.

e) The defendant failed to ensure that only trained and authorised persons pursuant to the Electricity (Workers Safety) Regulation 1992, were able to gain access to the live kiosk electrical transformer.

f) The defendant failed to ensure that Anthony Flick and Raymond Whitney were supervised by a trained person pursuant to Clause 9 and 43 of the Electricity (Workers Safety) Regulation 1992, whilst undertaking work upon a live kiosk electrical transformer.

g) As a result of the said failures, Anthony Flick suffered an electrical shock and burn injuries and Raymond Witney was placed at risk of injury.

7 As described in the Agreed Statement of Facts:

...

9. The circumstances leading up to the accident were that Ballina Shire Council who owned the site, had contracted P F Thearle & Co Pty Limited to carry out electrical installation work. As part of their contract P F Thearle & Co Pty Limited were required to run mains cables from the kiosk transformer on site to an adjacent electrical switch room.

...

14. Anthony Flick carried out the job of pulling cables through an underground conduit located between the switchroom and kiosk transformer with the assistance of the apprentice Raymond Whitney. The cables installed were three active cables, one neutral cable and two earth cables. These cables were fed through the kiosk transformer and pulled through the conduit to the switchroom.

15. After the cables were fed through the conduit and cut and lugged, Anthony Flick decided he would connect the earth cables to the low voltage earth bar of the kiosk transformer. In attempting to bolt the first cable lug to the earth bar by reaching in with his left hand, he came into contact with a live 240 volt cable termination to a surge diverter located at the rear of the transformer cubicle and connected to the low voltage earth bar.

16. In regard to Flick's decision to connect the earth cables, this was outside of Flick's scope of work. In his statement to WorkCover Inspectors, Flick said:

Q: "What instructions were you given by the tradesperson from NorthPower (Glen Wooldridge) in relation to the work you were to carry out inside the transformer"?

A: "To cut and lug cables and prepare for them to terminate".

Q: "Did you discuss exactly what you were going to do with him in relation to the work you were going to perform inside the transformer in relation to lugging the cables".

A: "No, I didn't discuss it exactly what I was going to do".

Q: "Did you advise him you were going to bolt the earth lugs to the transformer earthbar"?

A: "No, it wasn't until after I lugged them and thought they were going to be a danger or safety concern, if I left them floating they could have shorted or touched live equipment because in lugging the much larger active conductors you do not need obstructions which could become dangerous such as those loose earth cables".

Q: "Did he advise you specifically what work you were to undertake inside the transformer"?

A: "He advised us we were not to connect the active conductors but no mention was made of earths, I assumed it would have been safe for me to have connected the earths because earth bars are seen as safe and non-hazardous"

In Glen Wooldrige's statement to WorkCover Inspectors, he said:

Q: "Did you advise Anthony Flick specifically what work you were to undertake inside the transformer"?

A: "I advised Anthony that we would connect the mains".

Q: "What about the two earth cables did you advise him you would connect them to the transformer"?

A: "I advised Anthony that we would connect the mains"

Submissions - Prosecution

8 Mr M Cahill of counsel for the prosecutor said that Mr Flick was doing the job of pulling cables into the transformer. What was required was to bring these cables to the low voltage point and the low voltage supply point was inside the box. The conduit was inside the 500mm safety work zone within which, under the Electricity (Workers' Safety) Regulation 1992 (the Regulation), Mr Flick was not entitled to access without authorisation or supervision, and even then, only as a sub-contractor to NorthPower who had been trained and was aware of the process that was required and was working safely in accordance with that Regulation. There is no doubt that insofar as what Mr Flick did at the time he suffered the shock was outside the scope of what he discussed with Mr Wooldridge and did not form part of the request for access. Mr Flick should not have been granted access at all. Neither Mr Flick's employer, Thearle & Co, nor Mr Flick, were ever so authorised or trained in accordance with the Regulation to work inside the 500 mm limits on that low voltage side.

9 Once Mr Flick was given access to the low voltage side of the substation, the unit being energised, there was an obligation upon NorthPower either to prevent him from going in and doing the work or, alternatively, to ensure that the substation was isolated, that is de-energised, and that he was properly supervised at all times. The significance of the contract with NorthPower was that it required the contractor to do the work which put the employee in the substation.

10 There is clearly a question of fact that is a matter of some central importance in relation to this matter which is the question of just how Mr Flick came to be doing the sort of work he was doing: whether it was, as a consequence of some unexplained, unexpected indeterminable failure on the part of Mr Wooldridge to comply with the strict requirements of his employment and code set out in the Regulation, or whether it reflected part of a practice which was on foot at the time and which was inherently dangerous and contrary to the Regulation requirements.

11 It offends common sense that what Mr Wooldridge did in that granting access in these circumstances was uncommon and was not usually done by employees, ie. in relation to a request from the contractor working for some other party for access to pull cables through. It was treated by the NorthPower employees and by Mr Flick as commonplace.

12 It is consistent with NorthPower's own documents, with the work requested, with the worksheet process by Mr Bielefield, with Mr Wooldridge's and Mr Flick's behaviour and with the hazard document created by NorthPower after the event that this was not something that arose as a one-off incident, but was a particular practice. That practice, which by its nature is inherent with dangers, represents a gross failure on the part of NorthPower, given that the worker who was granted access was not authorised under the legislation to be granted access because he was not a sub-contractor directly working for NorthPower. He had not been trained by NorthPower or supervised by NorthPower. This was a NorthPower installation. NorthPower controlled access. NorthPower controlled whether it was live or isolated. NorthPower controlled what work was done on it by whom and when.

13 In those circumstances, whilst this is a matter that falls within s16, it is not a matter which entitles the defendant to say failure to supply those workers with a safe system of work, and all those things that come with it is not a matter for its concern but is the employer's breach.

14 To be added to that is the fact that this particular sub-station had two defects. One was the use of the earths green and yellow coloured-coded cabling on live-wiring. That merely adds to the significance of the breakdowns in the system because leading up to this event, this item was commissioned by NorthPower, with defects in it which were capable of being identified and which should have been identified prior to commissioning. The second defect was the positioning of the connections to the particular point within the unit itself. That was not in accordance with the specifications laid down by NorthPower and indeed not in accordance with practice.

15 The last submission is a matter of particular significance in the light of the defendant's prior history. Not that it was a history that contains a large number of prior offences but it contains the one previous offence (see (Inspector William Keenan for the WorkCover Authority of New South Wales v NorthPower (formerly known as Northern Rivers Electricity) (Teale) (unreported; Fisher P; 96/5172 and ors; 9/2/98) which involved a fatality and was an incident of such sufficient significance that it, together with other matters of similar kind, resulted in 1996 to an industry-wide review. These are matters the similarity which have been highlighted in the evidence and are matters of significance which the Court should take into account in making an assessment of the criminality having regard to the observations made by the High Court in Veen v The Queen (Veen) [(1987-88) 164 CLR 465 at 477], and by the Full Bench of this court in Lawrenson Diecasting Pty Ltd v WCA NSW (Inspector Ch'ng) [(1999) 90 IR 464].

16 The litany of failures that occurred indicates a complete failure of the defendant's occupational health and safety system in respect of the subject incident.

17 The defendant's failure to ensure that simple precautions were followed in circumstances where Mr Flick and Mr Whitney were exposed to the ultimate risk of injury, namely loss of life, whilst working on the defendant's installation, moves the subject breach even closer to the "worst case" category or scenario.

18 Further having regard to the defendant's previous record and to the fact that the defendant is a public electricity supply authority, both general and specific deterrence require the imposition of a condign penalty.

19 Insofar as the question of penalty is concerned, in the comparison that was made by the defendant between the penalty imposed in the matter involving Mr Teale and the present case, the maximum penalty which was then applicable was $250,000. This is a matter in which there is a pre-existing conviction. It is a matter in respect of which the $750,000 maximum is available and, it is an appropriate matter to regard the matter as involving serious breaches and, hence, the maximum should be considered.

Submissions - Defendant

20 Mr R Warren of counsel on behalf of the defendant submits that this is an accident that occurred as a result of two principal causes. Firstly, Mr Flick should not have been granted access to the sub-station. Secondly, Mr Flick, when he was granted that access, went beyond the scope of the duties that were required of him apparently by his employer. Mr Flick was supposed to pull the cables to the top of the conduit, lug them off and attach appropriate devices. To do what he did he had to reach virtually blind in behind that conduit.

21 He acknowledges that he did not tell NorthPower that he was going to do that. What is agreed is that he acknowledges it was not part of his job to do that. He knew that there were live wires inside that substation. Certainly NorthPower admits that clearly once he opened the door and started putting his hand inside he was within 500 millimetres of live cables. This is why NorthPower readily pleaded guilty. They accept they have done the wrong thing.

22 The defendant also took some issue with the prosecutor's submissions likening NorthPower to a quasi employer and being responsible for the situation. In his written submissions, the prosecutor sets out a number of assumed risks and comments on the work procedure adopted by Mr Flick as being inherently unsafe. Those submissions are more akin to a s 15 prosecution than to one under s 16. Mr Flick was not employed as a subcontractor to NorthPower, nor was Mr Whitney. They were employed by a subcontractor to Ballina Shire Council.

23 In saying that, NorthPower did not shrink, and never had, from the serious responsibilities that s 16 imposes upon NorthPower in these circumstances and which it has acknowledged up front. The situation is that NorthPower should not have given access and would not give access now. It is not a question of NorthPower even now failing to put some practice into place.

24 The defendant also took issue with the prosecutor's suggestion that in some way NorthPower knew what was going to happen. It was not a common occurrence. This is one of, on the evidence, fourteen similar sub-stations. The earlier ones were not to be found to be at fault but it was some nine later ones that were supplied that were found to be at fault in relation to these wires.

25 When one looks at the size of the operation of NorthPower with eleven hundred employees, one questions whether it could ever be considered that this was a common practice to have a contractor connecting up a small and relatively rare sub-station. It was a most uncommon circumstance. Certainly it is one that should have been foreseen. Clearly that is a circumstance that NorthPower has to meet.

26 The Court may come to the conclusion, which the defendant urged, that NorthPower could not reasonably have been expected to know what Mr Flick would have done after he had specifically been told where the line of demarcation was, that being that Mr Flick was going to pull the wires and Mr Wooldridge was going to connect.

27 The prosecutor says the circumstances of this case are significantly similar to the circumstances of Teale and then says further, citing the authority of Veen No.2, that this demonstrates that the defendant has shown a continuing attitude of disobedience. There are significant and substantial differences between the two cases, as an examination of Teale shows. In that case there was no formal system of risk assessment in place. The other factors the Court would find are clearly more akin to a circumstance of employer/employee relationship, which Northern Rivers indeed was in that circumstance.

28 The present case is an entirely different situation from that of an employee being sent out without proper safety equipment. In this case there was a small sub-station in a dangerous condition. Mr Wooldridge conducted a risk assessment, done by Mr Wooldridge for Mr Wooldridge. He was the worker himself and he was assessing what he had to do. He told Mr Flick of the live terminals. That is another specific circumstance where there is an entirely different situation between Mr Teale's tragic circumstances and these. The person to whom Mr Wooldridge reported the specific hazard identification ignored it and certainly went beyond his area of work that had been notified to NorthPower he was to do.

29 The defendant strongly rejected the prosecutor's submission that there has been a breach of basic proper safe working methods by NorthPower. There was a risk assessment done. There was a warning given to Mr Flick as to the live wires. There was an indication from NorthPower as to where the line of demarcation was.

30 In the Teale situation, Mr Teale was doing Northern Rivers work under the direction of Northern Rivers with Northern Rivers equipment and Northern Rivers' direct involvement. Here it was an entirely different circumstance.

31 The defendant would submit that the Court would be impressed with Mr Coleman's candid, knowledgeable and extensive evidence, and with the significant steps that NorthPower has now taken with regard to the way it deals with occupational health and safety. Safety is dealt with at all levels. Its number 1 priority is to ensure safety.

32 NorthPower is an employer and an owner of premises, relevant to this case in s 16, who does take occupational health and safety seriously. It acknowledges its responsibility and it is doing positive things about it. It is still improving. It still has room to improve. It is getting down to the margin now as to the experience and the frequency of lost time injuries, but here is an employer who does embrace all of the objects of the Occupational Health and Safety Act.

33 It was before the court in the Teale matter in 1998. The Court has evidence on how it has improved even since then and the defendant asked the Court to take that into account and that credit be given to NorthPower for the enormous steps that have been taken.

34 There has been evolution of the risk assessment process, of the hazard identification process and of the notification to subcontractors. In this case Mr Flick was not employed by a subcontractor to NorthPower.

35 The prosecutor raises that the court here is obliged to look at NorthPower as a second offender with the maximum penalty available being $750,000. The defendant asked the Court not to do that.

36 It falls here to address the circumstances of the previous offence.

37 The offender on the occasion of Mr Teale's tragic death in 1994 was Northern Rivers. NorthPower did not come into existence until 1 March 1996. Subsequent to the judgment in Teale, in a judgment involving Energy Australia, Hungerford J came to the conclusion that criminal liability could not be transferred to EnergyAustralia from one of its predecessors. The defendant asked that the Court consider that is indeed a first time incident for NorthPower and that indeed the maximum penalty should more attune to $550,000 as the maximum as being a first corporate offender rather than the $750,000 as proposed by the prosecutor.

38 The matter of Winchester is not akin to this case at all. This is a plea notified early, not after the defendant had seen the whole case. NorthPower has acknowledged its wrong.

39 NorthPower co-operated fully with the WorkCover Authority in their investigation and acted quickly to notify the apparent fault in the sub-station with respect to the colouring of the wire covering and proceeded to more fully investigate both that matter (and remedy it) and the accident.

40 The defendant took strong exception to the prosecutor's submission, that having regard to the answers provided by Mr Kelly on behalf of the defendant, NorthPower's assistance to WorkCover may be doubted. Mr Kelly might not have always given the answers that WorkCover or the inspector were looking for or wanted to hear but that surely does not mean he was not co-operating.

41 In summary NorthPower seeks from the Court that it consider the penalty on the basis of the maximum of $550,000. If one looks at the matter that came before Fisher P involving the unfortunate death of Mr Teale, whereas his Honour fined NorthPower $75,000, NorthPower submits that the circumstances in that case are so significantly different as to warrant a significantly lesser fine than that.

42 The defendant is entitled to rely on its ready plea of guilty, its past record, its co-operation with the WorkCover Authority, its continued and open commitment to all of the provisions of the Occupational Health and Safety Act, and the exhaustive changes it has made since the accident to its occupational health and safety procedures which are evolutionary processes. It further relies on what is a demonstrated significant improvement in its workplace accident record which is directly related to its acknowledged commitment to occupational health and safety.

43 The Court should treat favourably, to the extent of leniency, the sentencing and imposition of a penalty upon NorthPower.

Evidence

44 The Court had before it the following material, tendered without objection:

a) Agreed Statement of Facts;

b) Inspection Report of Inspector Keenan;

c) Colour photographs;

d) Report of Senior Inspector Edward Dugdale;

e) Letter of G J Faulks dated 30 May 1996 and NorthPower document entitled "offer to supply to Wardell's sewerage treatment plant" dated 23 May 1995;

f) Pamphlet entitled "electrical safety for electrical workers";

g) Statement of Vincent James Kelly, Regional Manager North, NorthPower;

h) Prior convictions record of NorthPower issued by the Workcover Authority of New South Wales on 29 February 2000;

i) Bundle of NorthPower documents. Documents included in that bundle (ex.10) included a copy of the Hazard Alert issued by the defendant on 10 March 1997 to all staff in relation to the accident, extracts from various Electricity Association of NSW Codes of Practice and extracts from various NorthPower Procedures.

45 The only witness called to give evidence was Ian Robert Coleman who is employed by NorthPower as the General Manager of Safety. He has a Diploma of Electrical Engineering from the Footscray Technical College in Victoria and a Bachelor of Commerce Degree from Melbourne University. He worked with the State Electricity Commission of Victoria for over 34 years. At the time he left that body he held the position of Chief Engineer Distribution and also Chief Electrical Inspector. He was employed by Northwest Electricity some seven years ago as Area Manager out at Moree. Some nine months later he was appointed General Manager of Northwest Electricity based at Inverell and approximately three and a half years later there was a merging of eight distributors in the northern part of New South Wales into one entity called NorthPower, which was finalised on 1 March 1996.

46 NorthPower covers approximately 40 percent of New South Wales, extending from the Queensland border down to around Tea Gardens, that area being equivalent to about one and a quarter times the area of Victoria. NorthPower also supplies into Queensland in Goondiwindi, Inglewood and Texas. It has some 1100 employees.

47 NorthPower is one of the 250 largest companies in Australia. It has assets of over $1.1 billion, an annual revenue of $400,000 [sic] and its world-wide credit rating is given as AA.

48 As General Manager Safety Mr Coleman reports directly to the Chief Executive Officer of NorthPower. This is a unique situation in the electricity supply industry in Australia, not just in New South Wales. NorthPower Board, when it first met in March 1996, decided that safety was its number one corporate value and actually appointed an Environmental & Safety Committee of the Board to consider all elements of safety from a corporate point of view and to ensure a safety program was actually carried out. It also is fairly unique on his understanding, that an organisation of NorthPower's size has a Committee comprising four Directors who themselves form a sub-committee of NorthPower to deal specifically with occupational health and safety matters. Also unique, as he understood it, is that once or twice a year that Committee meets with grass roots people, linesmen and electricians, to really find out what exactly is happening at the ground floor level. Both parties get benefits out of that frank exchange of information.

49 Northern Rivers Electricity was one of the predecessor organisations.

50 Mr Coleman rejected in cross examination the proposition put to him that it was the manner in which the earth-coloured conductors had been installed, that had ultimately resulted in Mr Flick being injured. He said that Mr Flick had put his hand in and made contact in an area the photographs show is obscured. Mr Coleman doubted if Mr Flick actually saw that the cables were incorrectly colour coded.

51 Mr Coleman denied that this is a job done everyday of the week. It was a job that is done irregularly.

Consideration

52 The thrust of the prosecution's submissions to support its claim that this breach was close to the "worst case" category and required the imposition of a condign penalty went to two main themes. The first of these was that in granting Mr Flick access to the transformer, Mr Wooldridge had been acting in accordance with an inherently unsafe practice that was commonplace and not a one off incident. That unsafe practice represented a gross failure as to safety on the part of NorthPower.

53 The second of the themes was that this accident replicated one that had resulted in the death of an employee of Northern Rivers Electricity in 1994 and that NorthPower still had in place work practices that had contributed to the 1994 fatality.

54 The prosecution made its comparison with the circumstances of the death of Michael Teale, as considered in Keenan for the WCA v NorthPower (Formerly known as Northern Rivers Electricity (Teale) (unreported; Fisher P; IRC96/5172 et alia; 9/2/98) on a very limited basis. Although it referred to many failings, it concentrated on one factor which it was alleged was common to Teale and to the incident giving rise to this prosecution, and submitted that:

the present case involved a repetition of many of the failings, which resulted in Mr Teale's death. It was merely good fortune that the incident did not result in two further fatalities as a consequence of failings in the Defendant's work safety system, which should never have happened.

55 However, the particular point of comparison with Teale on which the prosecution based its attack/submissions concerned the system in place at the time of Mr Teale's death in 1994 which resulted in Mr Teale and his fellow worker, both employees of Northern Rivers, being assigned a job late on a Friday afternoon, by another employee of Northern Rivers who took the job without making any assessment of its urgency or what it involved. Furthermore, there was no procedure in place by which Mr Teale would make such an assessment.

56 In this case, the work was handed over to Mr Wooldridge in the normal manner, by Mr Bielefield, without any consideration by anyone in management of what was involved in that job. Mr Coleman agreed that, in that respect, that was exactly the same situation as applied in 1994 when the job was assigned to Mr Teale and his fellow worker.

57 In the present case, the job taken by Mr Bielefield was recorded on the work request form by him, and assigned to Mr Wooldridge without consideration by Mr Bielefield of what Mr Wooldridge was going to be called upon to do. Mr Coleman said Mr Bielefield's role was to take the work that was required without any analysis of field work. He was never required to decide what was required on the site.

58 NorthPower has developed risk assessment procedures to be undertaken by NorthPower employees, in this case, by Mr Wooldridge, in respect to work carried out by them as employees of NorthPower. That contrasts with situation that existed within the Northern Rivers at the time of the Teale accident.

59 The present procedure is that the work site risk assessment and control document is filled out daily. At the time of the accident Mr Wooldridge was required to complete the document and either positively or negatively answer the questions and checks that are expressed there. All field staff were required to do that from the time of the introduction of the system in June the previous year. In fact some 3,000 work site assessments are undertaken on average every month, every year.

60 Mr Wooldridge had practical experience in filling out work site risk assessment forms. He had been trained in June 1996 and since that date had been carrying out risk assessment at each work site on a daily basis. He had not been audited on any such process at the time of the accident, which occurred only a few months after the introduction of that process.

61 The prosecutor appeared to be confused as to the purpose of the Risk Assessment form filled in by Mr Wooldridge in relation to the kiosk electrical transformer, the site of the accident. That form was a check list for Mr Wooldridge in relation to the work that Mr Wooldridge was to do. It was not a check list written up by Mr Wooldridge for Mr Flick. As part of his responsibilities under that check list, Mr Wooldridge did note under the heading "Hazard Identification" that there were "live terminals - alert electrician". He did so, in circumstances, of course, where he should not have even granted access to Mr Flick, the latter being a non-authorised person and not qualified under the Regulation.

62 There were certainly deficiencies in the risk assessment form completed by Mr Wooldridge. These were acknowledged by Mr Vince Kelly as set out in para 36 of the Agreed Statement of Facts:

"The main deficiency was that Glenn should have identified that Flick was not appropriately authorised under Item 2 of the Pre Job Checks. Hence he should not have given Flick access to the substation". Other deficiencies were identified. ..."

63 Mr Wooldridge had been employed by the defendant or by its predecessors for some 15 years. The records of training undertaken by Mr Wooldridge were set out under three headings: regulatory, general and authorisations. There were some 21 courses listed under "general" and they included OH&S Safe Work Practice in 1995 and 1999. Soon after the accident he also undertook a refresher course in Risk Assessment and Hazard/Near Miss Reporting.

64 NorthPower, in its 1999 Annual Report, advised that it averaged 3,062 Worksite Risk Assessments per month, audited at an average rate of 8.4% per month. Mr Coleman said that that average was maintained, other than in the holiday season, throughout the year.

65 NorthPower also produces Worksite Risk Assessment Statistics on a monthly basis. Those statistics show the number of assessments conducted and the number audited in each of NorthPower's regions e.g. Tweed, Lismore, Ballina (where the accident occurred) etc. The purpose of that document is to make sure not only that the risk assessments conducted by the audits are actually carried out but the information in it is fed back to employees, displayed on notice boards, and it is also reported in the executive monthly report which goes to the board of directors. If the figures drop below a certain figure Mr Coleman makes enquiries as to work managers and safety personnel asking why they are not getting out into the field and doing more audits.

66 Thearle & Co, Mr Flick's employer, was not a contractor accredited by NorthPower under the Code of Practice for Contestable Works. Mr Coleman said that was an obvious first question to be asked by NorthPower when Thearle sought access on 4 March 1997 to the transformer at Wardell for the installation of the mains. The detailed job description set out in NorthPower's service request was even more specific: "mains into padmount sub at new sewerage works". Mr Wooldridge should have recognised that authorisation was required and access should not have been given to Mr Flick.

67 The end of the conduit through which Mr Flick pulled the cables was located inside the low voltage side of the substation. For him to carry out that work he had to access that low voltage area.

68 The "Offer of Supply" letter sent by NorthPower to Ballina Shire Council on 30 May 1996 (the 1996 document) as to work to be done on the Wardell Sewerage Treatment Plant said "The electrical contractor is therefore required to provide customer mains to this point," i.e. to the low voltage terminals".

69 Mr Coleman, when taken to the 1996 document by the prosecutor said that he thought Mr Cahill was reading into that more than was intended by those words; that was spelling out what, not how. Mr Coleman understood that what is said in the words and the meaning behind them is: the cable needs to be supplied at an appropriate length so it can be connected by NorthPower personnel to those particular terminals. It was common practice for the contractors to provide cables and to cut them off outside the particular pillar or appropriate box and not to make any connections within that box.

70 The 1996 document was, as it seems to have been tacitly acknowledged by Mr Coleman, open to different interpretations as to the point at which the Electrical Contractor was required to provide customer mains. My understanding of the evidence of Mr Coleman and of the NorthPower documents tendered is that the wording to be found in the 1996 document has been clarified in the later documentation.

71 The current "Conditions for Electricity Construction Works", specific to the location of consumer's terminals in Ground Mounted Substations, make it very clear that the Electrical Contractor is required to provide Consumer mains to the entrance of the substation:

"... the cables to be taken inside the substation and connected to the appropriate low voltage terminals by our [NorthPower] staff...the low voltage compartment of the Padmount Substation can only be accessed by authorised NorthPower staff."

72 That rewording, it seems to me, addresses any ambiguity as to the roles of the Electrical Contractor and of NorthPower, in relation to the connection of consumer mains to a Padmount substation that may have been seen to exist at the time of this accident. In my view, the defendant recognised a defect in its documentation that may have given rise to an unsafe work situation and had taken steps to remedy that defect.

73 It seems to me, on a review of the evidence, that the placement of the end conduit through which Mr Flick pulled the cables, inside the substation, was not usual. Mr Coleman was not clear why the actual conduit was within the actual substation and not outside. I do not know how it came to be placed there in the first place. The fact that it was located inside was one of the facts on which the prosecutor based its claim that it was a common practice for contractors to be given access to substations to pull through cables.

74 The following questions and answers taken from Inspector Keenan's interview with Mr Kelly are but two of many directed to and answered by Mr Kelly in the course of that interview in relation to that claimed "common practice":

Q59. "Prior to the accident how long had this procedure been occurring where unauthorised contractors access NorthPower equipment?"

A "While electrical contractors are technically competent to pull in such cables, the procedure of unauthorised contractors accessing energised NorthPower equipment was not permitted. There are no known occurrences prior to this incident."

Q60. "Prior to the accident how long had this procedure been occurring where unauthorised contractors access NorthPower equipment without supervision of an authorised person?"

A "NorthPower field staff are trained in the requirements of the Electricity (Workers Safety) Regulations and are aware that unauthorised contractors should not be allowed to access NorthPower assets that have been energised. In the past, there has been a practice whereby contractors have been allowed to pull cables into substations prior to the substations being energised."

75 There is no evidence that there existed a "practice ", as was claimed by the prosecutor, of granting, without authorisation, access to energised substations, as was done in this case, to contractors. It takes more than an assertion that "it offends common sense "to accept that granting such access was uncommon, to substantiate that very serious claim by the prosecutor.

76 In Teale, Fisher P spoke of the accident being "the result of many culminating failures that disclosed a profoundly unacceptable disorganisation of safe working" [by Northern Rivers Electricity].

77 Fisher P then went on to say that "what has to be said is that the "newly arrived" employer, NorthPower, has reacted with vigor to the unsatisfactory circumstances it inherited and necessarily takes responsibility for. The story of restoring safe working methods is a compelling one, as are the results being obtained...The defendant can properly claim amelioration of penalty on this account".

78 The results referred to above included those noted by Fisher P:

The impact of these events [i.e. the elements in the Strategic Plan which had been adopted by NorthPower] was illustrated by some statistical comparisons. Prior to the recited events, Northern Rivers Electricity index stood at 44 while over the range of all organisations subsequently incorporated the rate was 34.8. The rate in NorthPower at September 1997 was 11.9. The effect of this was that prior to merger and the formation of NorthPower, 131 lost time injuries at an average of 11 per month were recorded. During the last 12 months [i.e. 1997/98] this figure has fallen to less than 3 per month and in August 1997 there were no lost time injuries in the whole month. The statistics are impressive.

79 An updating of those figures was provided in these proceedings.

80 Lost time injuries in 1998/99 were sixteen, in 1997/98 eight, in 1996/97 forty seven and in 1995/96 one hundred and fifteen. In other words, lost time injuries between 1995/96 and 1998/99 have gone from around 11 per month to a little over one per month.

81 The increase of 8 lost time injuries in 1998/99 over 1997/98 resulted from manual handling injuries eg lifting conductors. The respondent has introduced a program called Backlift which aim to overcome manual handling problems.

82 The Lost Time Injury Frequency Rate (LTIFR) was 7.2 in 1998/99, 3.5 in 1997/98, 16.2 in 1996/97 and around 33 in 1995/96. The LTIFR was reduced by 78% in the three years to 1998/99. Mr Coleman said that as at 31 January 2000, the LTIFR was 5.9 and NorthPower was working towards its aim of getting that figure to zero.

83 Amongst the additional Highlights for the year set out in its Annual Report 1999 were the following:

A) Received three National Safety Council of Australia/Southcorp 1998 Safety Awards of Excellence, including Overall Winner for 'Outstanding Contributions to Occupational Health and Safety', and Winner 'Company-wide Safety Systems' for the second year.

B) Achieved National Safety Council of Australia Health and Safety Management System (Version 2) performance of Four-Stars, with Safety Management System key elements to a five star level [the highest level].

C) Second ISO 9002 certification for Quality Systems for three contestable parts of the network business.

D) Achieved ISO 14001 international certification of our Environmental Management System for the whole business - at our first attempt.

84 The new Electricity Supply (Safety Plans) Regulation 1997 under which a number of codes of practice were produced, and under which there were NorthPower's own procedures, came into operation in about March, 1998. Subsequently codes of practice were progressively developed. One of those was the Code of Contestable Works in which the New South Wales Electricity Association accredits electrical contractors who are then authorised by a particular electricity organisation. That organisation is charged with responsibility to ensure these people are trained and are aware of all the safety requirements that have to be taken by those individuals and their competency is assessed. Under the system, to obtain authorisation in NorthPower, a contractor must be trained in NorthPower safety system, must be trained in NorthPower safe work procedures, and must satisfy NorthPower that they are prepared to comply with that system. They are also to apply NorthPower work procedures, work practices and safety systems when they carry out work.

85 Tendered in evidence by agreement was a Record of Interview between Vincent James Kelly who was, at the time of the accident Regional Manager North for NorthPower, and District Co-Ordinator William Kevin Keenan, an Inspector with WorkCover. Mr Kelly advised Inspector Keenan that he had the power to legally speak on behalf of NorthPower in relation to the accident the subject of this prosecution. The interview took place on 20 November 1998. It commenced at 9.23 am. It was interrupted at 12.23 pm and resumed at 1.29 pm. The interview ceased at 4.13 pm. The Record of Interview was set out over 49 pages, recording 259 questions and answers.

86 NorthPower was criticised by the prosecution in its submissions on sentence:

In the present case the Defendant assisted the WorkCover Authority in its investigation by making its employees and in particular, Mr Kelly, available to be interviewed by Inspector Keenan during the course of his investigation. But, having regard to the answers provided by Mr Kelly on behalf of the Defendant, the value of that assistance may be doubted.

87 In support of that submission Mr Cahill referred to the questions and answers numbers 254, 241 and 243.

88 Question 254 was in the following terms:

Do you wish to make a written statement about this matter.

89 The answer was "yes", and was followed immediately by an answer almost one page in length set out in a way that suggested the answer actually replicated a written statement. That answer dealt with Glen Wooldridge, his experience, the error of judgment NorthPower said he made, some background as to the practice in allowing electrical contractors access to non-energised substations and to the express failures of Mr Flick to adhere to safe working practices.

90 Question 241 asked Mr Kelly's opinion as to whether NorthPower had adequate procedures to ensure the safety of electrical contractors who were to access live equipment and in particular, the substation in question. In the answer to Q. 241 Mr Kelly said he believed NorthPower had adequate procedures in place and said "Glenn" had made an error of judgment.

91 Question 243 went to his opinion as to whether the substation was in the safest possible condition, with specific reference to the surge arresters. Mr Kelly's answer to Q.243 went to the requirement for adequate work procedures where energised equipment was involved. He dealt with the location of the surge divertors and the possible effects of their being [incorrectly] coloured yellow/green.

92 According to the prosecution those answers were an attempt to avoid the effect of the written documentation, being the contract, the request for work, and the work document that was set out. It was, it was claimed, in effect an attempt to shuffle responsibility for this incident down the line. It put the blame on the employee and not on the organisation where it belonged. The prosecutor said that the tenor of the answers provided by Mr Kelly was that this was an isolated error on the part of Mr Wooldridge; that there was no systemic side to it at all; that there was no failing on the part of NorthPower and that the real breach, for want of a better term, was the work that was done by Mr Flick and that that was somehow not the responsibility of NorthPower or at least it was not directly the responsibility of NorthPower, it was really somebody else's fault, and that NorthPower should be relieved of any breach of the duty which they had but there was some other party to whom the Court could look to attach responsibility, namely, the employer or Mr Flick himself for not exercising safe work practices; but the obligation is one which inherently NorthPower owed and was one which, inherent in it, had an obligation to have regard to things which were foreseeable as a consequence of inadvertence or even negligence.

93 In my view, in no way has NorthPower shied away from accepting responsibility for this incident. NorthPower's view was that the principal cause of this accident was the failure on the part of Mr Wooldridge to comply with normal practice and grant access to an unauthorised person. Time and time again in giving his evidence, Mr Coleman stated that Mr Wooldridge should not have given Mr Flick access to that substation. The Electricity (Workers' Safety) Regulation makes provision for sub-contractors of NorthPower to be granted access to an installation of this type. Access was only to be granted to such a contractor where NorthPower had trained the contractor. Mr Flick was not a contractor of NorthPower, but for Ballina Council.

94 NorthPower's recognition that there were failures of other links in the chain that resulted in this incident does not mean that it is trying to shuffle responsibility down the line, as was the prosecutor's submission.

95 It is a recognition of the reality of the situation.

96 Amongst the deficiencies of NorthPower in its dealings with Mr Flick, as suggested by the prosecutor in cross-examination of Mr Coleman, was that NorthPower had not drawn to Mr Flick's attention the fact that the conductors in the substation had been incorrectly colour coded to show them as earths, whereas, in fact, they were live. Mr Coleman was also taken to various aspects of Mr Flick's preparation and training, areas which on any view of the matter were not NorthPower's responsibility.

97 If NorthPower had had that information as to defects in the transformer earlier than this accident, and not acted on it, the case now before the Court would have been a very different one, even if no person had been injured.

98 It was the thrust of such questions that led me to inquire as to whether other proceedings had been put in train by WorkCover as an outcome of this accident in relation to other persons or entities. I was advised that one other prosecution had been launched, but that was not against the manufacturer of the nine defective substations.

99 The manufacturer's response to NorthPower's oral advice on 10 March 1997, and to later written advice, as to the accident was:

The manufacturer's [sic] requested that NorthPower inspect all similar transformers and replace any yellow/green wiring with the appropriately coloured PVC or remove completely. (A123: Kelly interview.)

100 Vincent James Kelly, in the record of interview on 20 November 1998 already referred to, said the particular kiosk at which this accident occurred had been purchased under Contract C93/33 dated 15 December 1993 by Northern Rivers Electricity, a predecessor of NorthPower, and installed at Wardell on 14 August 1996, a date prior to the amalgamation of those entities. It had been commissioned on 21 August 1996. Inspector Keenan was advised of the name of the supplier from whom the kiosk was purchased, and of the name of the manufacturer. They were one and the same. Inspector Keenan was also told that nine transformers of similar defective construction to that involved in the accident had been purchased from that manufacturer. (Because no prosecutions have been launched by WorkCover against the manufacturer, and it did not appear in these proceedings, I do not name it.)

101 Some evidence as to the relative responsibilities of NorthPower and of the kiosk's manufacturer in the commissioning of such kiosks, is to be found in the extensive interview with Mr Kelly.

102 The transformer involved in the accident to Anthony Flick had been designed by the manufacturer to the specification given to it by Northern Rivers Electricity in December 1993.

103 The following questions and answers are also relevant to the submissions made by the prosecution set out earlier in pars 14 and 15:

Q125 Prior to the accident did NorthPower have a written procedure for the commissioning of transformers in general or transformers similar to that involved in the accident to Anthony Flick?

A Operating Procedures dated 5 March 1993 and 24 June 1993 covered operating this type of transformer. Commissioning was subject to a specific switching sheet (in this case switching sheet No 10541).

Note: For NorthPower read Northern Rivers Electricity.

...

Q129 Is it a normal practice for supply authorities to check the equipment they are supplied by a manufacturer prior to installation or during commissioning to ensure they have been provided with the correct design required?

A The manufacturer of this transformer was fully accredited to AS 3901, ISO 9001, NZS 9001. See letter dated 14/12/93. NorthPower relied on this Quality Assurance.

Note: For NorthPower read Northern Rivers Electricity.

...

Q131 As a result of your investigation did you discover whether anyone from Northern Rivers Electricity conducted an acceptance check/inspection of the transformer involved in the accident when it was supplied by the manufacturer?

A Record of inspection of this transformer by Northern Rivers Electricity cannot be located.

...

Q134 Do NorthPower now have a formal procedure for checking new electrical equipment supplied to them?

A NorthPower purchases from Quality Assured suppliers and carries out random checks on goods supplied as part of the requirements of its Quality System (see NorthPower Contracting Services Document 'Inspection & Testing').

104 Mr Kelly was shown a copy of the relevant specification contract (C93/33) as to the specified position of the surge arrester and asked:

Q146 Can you explain why the surge arresters installed to the kiosk transformer involved in the accident don't conform with this specification?

A No documentation can be located to authorise a variation from the Specification.

Q147 Can you explain why the location of the surge arresters specified in document number 16 (iv) section 17.3 were not identified during the commissioning process or when the transformer was received from the manufacturer?

A The connections, as they were, did not affect the serviceability of the transformer.

Q148 In view of the process of a supply authority providing such comprehensive specifications to the manufacturer wouldn't you automatically assume that a supply authority would inspect the equipment supplied by the manufacturer to ensure it complied with their contract specification?

A Specifications are made comprehensive so that the authority can rely on the manufacturer's Q A System.

105 In relation to the transformer itself, the submissions of the prosecution concentrated on omissions by NorthPower in relation to its commissioning and to defects in it not being in accordance with the specifications laid down by NorthPower. NorthPower did not commission the transformer nor was it manufactured to NorthPower's specifications. The transformer had been commissioned and installed to specifications laid down by Northern Rivers Electricity, one of eight electricity bodies which were amalgamated to form NorthPower as from 1 March 1996.

106 On the record there is a pre-existing conviction against NorthPower, that being in relation to the Teale matter.

107 On 30 October 1998, Hungerford J delivered judgment in WorkCover Authority of N.S.W (Inspector Gilbert) v EnergyAustralia (formerly Sydney Electricity) (EnergyAustralia) [(1998) 85 IR 99]. In that case the defendant had assumed liability for breaches of the OH&S Act 1983 committed by Sydney Electricity. In proceedings before him on 12 September 1996, Cahill VP had raised the question as to who was the proper defendant. In later proceedings before Hungerford J, EnergyAustralia sought, and was granted, without opposition from WorkCover, leave to withdraw the plea of guilty and to substitute a plea of not guilty.

108 In the course of that judgment, Hungerford J said:

The matter before the Court is a prosecution by Frank Gilbert, as an inspector of the WorkCover Authority of New South Wales, of the defendant EnergyAustralia (formerly Sydney Electricity) for a breach of s.15(1) of the Occupational Health and Safety Act 1983 ...

That hearing proceeded in the usual way until the question of the defendant's prior convictions arose; EnergyAustralia did not have any. The prosecutor sought to rely on earlier convictions of its predecessor, Sydney Electricity as the original defendant, and of Sydney Electricity's predecessor, Sydney County Council. The prosecutor submitted that those convictions should be taken into account in determining the penalty to be imposed against EnergyAustralia in the present matter.

...

... The prosecutor conceded that if it be found EnergyAustralia was not the proper defendant then the appropriate course would be for the charge to be dismissed. On the other hand, if EnergyAustralia be found to be the proper defendant then it accepted that the essential ingredients of the offence, in terms of the agreed statement of facts, had otherwise been established sufficient to enter a guilty verdict and to impose a penalty. The immediate issue which therefore arises is whether, in accordance with the applicable statutory provisions, EnergyAustralia is the proper defendant ...

... It may be undoubted, in my view, that the ordinary rule is that on the dissolution of a defendant statutory corporation to a criminal charge the charge abates and effectively lapses. That must be so, it seems to me, because there would be no continuing legal person in existence against which the proceedings could be maintained. However, where the legislature has created a successor statutory corporation then whether any criminal liability of the former body be assumed by the new body will depend upon the terms of the statute effecting the dissolution of the one and the creation of the other ...

...I accept that the natural meaning of the word "liability" is apt to embrace both criminal responsibility and civil responsibility: see Byrne v. Garrisson [1965] V.R. 523 at 528. However, it seems to me, whether in any particular case the "liability" referred to so extends must depend upon the statutory context in which it is used.

109 Hungerford J's conclusion was as follows:

For the foregoing reasons, I conclude that EnergyAustralia is not the proper defendant to the charge laid against Sydney Electricity for a breach of s.15(1) of the Occupational Health and Safety Act. On the dissolution of Sydney Electricity and on the repeal of the Sydney Electricity Act the said charge abated and effectively lapsed; Sydney Electricity ceased to exist and there was no statutory provision to enable the prosecutor to continue proceedings against the same legal person. The transfer of all of the liabilities of Sydney Electricity to MetNorth Energy (MetNorth 1) was restricted to the transfer of civil liabilities and not criminal liabilities.

Accordingly, a verdict of not guilty to the subject charge must be entered in favour of EnergyAustralia and the summons dismissed. I so order.

110 In Teale, Fisher J commenced his discussion by stating:

These proceedings were brought against the defendant NorthPower, the successor in law to NorthPower Energy formerly known as Northern Rivers Electricity, whose principal office was at 9 Short St, Port Macquarie. NorthPower as a consequence of statutory transmission assumed the liabilities including criminal liabilities such as they may be of its predecessors.

111 In Teale, Fisher P later referred to inherited circumstances that it "necessarily" took responsibility for. It is not indicated in the judgment whether the issue of the statutory transmission of criminal liabilities was actually argued.

112 The legislative background showing the translation of Northern Rivers Electricity to NorthPower was set out in Teale:

2. I seek to bring proceedings against NorthPower (hereafter "the defendant") a body incorporated pursuant to Section & (Schedule 1 part 2) Energy Services Corporations Act 1995 whose name was changed from NorthPower Energy to NorthPower by the Energy Services Corporations Act 1995 Regulation. The defendant was formerly known as NorthPower Energy pursuant to the Electricity (Amalgamation of Electricity Distributors) Order 1995 and incorporated pursuant to Section 6(1) Electricity Act 1945. Prior to this the defendant was known as Northern Rivers Electricity constituted pursuant to the Electricity (Amendment)Act 1993 and incorporated pursuant to the laws of New South Wales

113 As was said by Hungerford J in WCA v EnergyAustralia (at p.115) whether in any particular case "liability" extends to embrace both criminal and civil responsibility must depend upon the statutory context in which it is used.

114 Legislation referred to in Teale included the Electricity Act 1945 and the Energy Services Corporations Act 1995, both of which Acts were considered in conjunction with legislation specific to EnergyAustralia and its predecessors

115 The judgment in Teale was handed down on 9 February 1998.

116 The EnergyAustralia judgment was handed down on 30 October 1998.

117 Mr Warren advised that:

North Power considered its situation subsequent to that judgment and it was way out of time for appeal and determined that in the light of public policy it would let the matter sit where it sat. It is now faced clearly with, at least in theory if not in practice, a conviction against its name.

118 In Veen (164 CLR at 477), the High Court considered the principles to be applied on sentencing in respect of prior offences of the defendant:

There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.

119 Those well established principles were accepted by a Full Bench of this Commission (Wright J, President, Walton J, Vice President and Peterson J) in Lawrenson Diecasting Pty Ltd v WorkCover Authority of NSW (Inspector Ch'ng) [(1999) 90 IR 464 at 477].

120 It should also be noted that Hill J in WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd [(1998) 83 IR 211 at 223], having said that he proposed to have appropriate regard to the principles set out in Veen and other cases, said he proposed to have regard also to the fact that offences under the OH&S Act do not require any mens rea or element of fault. A Full Bench agreed with that statement of Hill J in SRA v WorkCover Authority of NSW (Insp Dubois) [2000] NSWIRComm 261 at par 23 (unreported; Wright J, President; Walton J Vice-President; Hungerford J; 99/6321; 15/12/00).

121 The question as to whether NorthPower in Teale was correct or incorrect in accepting liability for the actions of its predecessor Northern Rivers Electricity, was not argued in this case nor am I in any position to make a finding as to that issue. However, in exercising my discretion as to penalty I take into account the circumstances in which that penalty came to be imposed and the circumstances in which it stayed on the record.

122 At no time did NorthPower permit Mr Flick to commence work he was not authorised to perform. Mr Flick was granted access to a substation to which he should not have been granted access. The work which Mr Wooldridge understood, after discussions with Mr Flick, that Mr Flick was to do was "to cut and lug cables and prepare for them to terminate." In a general sense the granting of access permitted or allowed Mr Flick to try to connect to the miscoded earths. Such connection was not permitted in the sense of being authorised by NorthPower through Mr Wooldridge, a proposition which I understand was advanced by the prosecutor.

123 Subsequent to judgment in this matter being reserved, the Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ) on 17 August 2000 delivered judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, the guideline judgment as to pleas of guilty in criminal proceedings. The guideline adopted and set out in that judgment is as follows:

160. The Court should adopt the following guideline applicable to offences against State laws:

(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In come cases a plea will not lead to any discount.

124 The guideline is to be considered with the relevant provision of the Crimes (Sentencing Procedure) Act 1999 which replaced s 439 of the Crimes Act 1900 and which provides:

22(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account:

(a) the fact that the offender has pleaded guilty, and

(b) when the offender pleaded guilty or indicated an intention to plead guilty,

and may accordingly impose a lesser penalty than it would otherwise have imposed.

(2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court.

125 The guideline was adopted and discussed by Wright J, President in WorkCover Authority of New South Wales (Inspector Robert Sheppard) v The State Rail Authority of New South Wales (unreported; 99/3369; 6/10/00). After setting out the guideline, his Honour said:

Also relevant is the approach followed and applied many times by this Court in R v Winchester (1992) 58 A Crim R 345 ...

...

I consider it is appropriate to apply the guideline judgment in R v Thomson; R v Houlton in determining the fine that should be imposed on the defendant in these proceedings. Subject to that consideration, the principles that should be applied are clear and well settled: see, for example, Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales at 474-476 and Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at 21-24. ...

126 Having suggested that the value of the defendant's assistance could be doubted the prosecutor went on to submit that, nonetheless, if the Court was satisfied that the defendant co-operated with the authorities, then it was entitled to have that assistance taken into account in mitigation of the penalty to be imposed. Further, a plea of guilty should attract a discount for utilitarian considerations, such as the saving of costs and valuable court time. However, the prosecutor relied upon Winchester [(1992) 58 A Crim R 345] to support its submission that the defendant's plea had been made in the face of a strong Crown case and so should not attract as great a discount as a plea which more clearly reflected an expression of remorse and contrition.

127 In Winchester (at p 350), Hunt CJ at CL with whom Smart and Grove JJ agreed, said:

A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p 12.

The important point to be made is that leniency is afforded upon the second ground as a result of purely utilitarian considerations, as with the "discount" allowed for assistance given to the authorities: Cartwright (1989) 17 NSWLR 243; Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248. The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.

Encouragement will be given to early pleas of guilty only if they lead (and are seen to lead) to a substantial reduction in the sentence imposed.

...

In cases where admissions are made immediately and a plea of guilty is entered in the Local Court (such as the present), the reduction made in the sentence imposed should be substantial and it should be seen to be such.

128 I am at a loss to understand the apparent reluctance of the prosecutor to give any, or at the most, only faint, credit to NorthPower for its efforts to improve safety for those involved in or affected by its operations.

129 That reluctance was highlighted by the following contention found in the prosecutor's written submissions on sentence:

Further, it is significant to note that the kiosk transformer was found during the course of the subject investigation to be one of nine kiosk transformers supplied and installed in the NorthPower region which were incorrectly wired, including:-

(a) The connection of surge diverts at the neutral bar - contrary to specification; and

(b) The use of cables bearing earth colour-coded insulation as live wiring contrary to relevant standards.

No explanation has been offered as to how these nine transformers were commissioned whilst failing to comply with the relevant specifications and/or the relevant Australian Safety Standards.

130 The accident that gave rise to these proceedings occurred on 6 March 1997.

131 The prosecution of NorthPower was initiated in the Commission by summons on 8 March 1999.

132 (The attention of WorkCover and the defendants in matters nos. 99/1033 and 1034 has been drawn to the fact that the period between the accident and the issue of summonses was prima facie outside the two year period provided for in s 49(1). The explanation by WorkCover of its reliance on Rule 133 of the Industrial Court Rules was accepted by NorthPower and PF Thearle in May 2001. In brief, that was that time runs from the day after an event and if the last day of a prescribed period for something to be done falls on a day the Registry is closed, that thing may be done on the next day that the Registry is open. In both prosecutions the accident occurred on a Saturday. The end of the calendar two year period fell on a Saturday. The last day of the statutory two year period, in accordance with Rule 133 was therefore on the following Monday, 8 March 1999. The Court also accepts that position.)

133 WorkCover was advised within days of the accident as to the fault within the substation as to the incorrect colour coding on the wires.

134 In the interview with Mr Kelly on 20 November 1998, Inspector Keenan pursued details of the manufacturer/supplier, contract specifications etc of the particular substation. In that interview Mr Kelly advised Inspector Keenan that the kiosk transformer at which this incident occurred had been commissioned on 21 August 1996.

135 Section 49(2) of the Act provides, as to proceedings for an offence against s 18 (manufacturers) that:

(2) Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1):

(a) within 2 years after the act or omission alleged to constitute the offence, or

(b) within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred,

which provides the longer time for proceedings to be instituted.

136 On the basis of s 49(2), taking into account the Court may not have exact dates eg as to notification to WorkCover of the incorrect colour coding, it would seem that WorkCover probably had a period until mid-September 1998 (the longer of the two periods available to it under s 49(2) ), in which to institute proceedings against the manufacturer.

137 The Court was not provided with any indication that such action had at any time been contemplated by WorkCover against a manufacturer who, it alleges in these proceedings, supplied nine (my emphasis) incorrectly wired kiosk transformers to the defendant, and, without which such incorrect wiring, NorthPower's acknowledged creation of a risk to safety may not have translated into an actual accident. I do note that even without the accident, the creation of that risk was a breach of s 16.

138 I have dealt with this point at some length, not on the basis of the principle of parity, which was not raised by the defendant, but on the basis of the prosecutor's submissions in relation to NorthPower's responsibilities as to the incorrect wiring of those kiosk transformers.

139 However, as already noted, WorkCover proceeded against NorthPower and against PF Thearle & Co Pty Limited in relation to the incident of 6 March 1997 involving the installation of electrical cables to the kiosk transformer at the Wardell Sewerage Treatment Works.

140 That does raise for consideration the application of the principles of parity and/or consistency in relation to penalty.

141 In Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71 ((2000) 99 IR 29) it was said (at p 56) that principles of parity and consistency have different applications. Consistency is relevant to the sentencing of different offenders with similar characteristics who have committed similar crimes, and to the sentencing of co-offenders in the same crime. The principle of parity is usually considered applicable only to the sentencing of co-offenders in the same crime. However, as Walton J, Vice-President, observed in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 435-436:

Whilst the principle of parity normally operates in relation to co-offenders or across the range of those convicted of the offence in question (see Signato v The Queen (1998) 194 CLR 656 at 670 and in relation to the same crime Postiglione (1997) 189 CLR 295 at 309), this Court held in Warman (at 341) that where defendants (not being co-offenders) are prosecuted under different sections of the Act, the Court should nonetheless adopt an approach to sentencing which 'shows consistency and not disparity in punishment in the same way as discussed by Mason J in The Queen v Lowe (1984) 154 CLR 606]' where there exists common factual circumstances giving rise to the charges. ...

142 The principle of parity operates to ensure equal justice, but the principle does not require equal sentences where there exists differences between offenders which warrant a different approach: Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 325, 338 and 340.

143 Examination of all the circumstances that were involved in the accident at Wardell shows that the offences, to which both defendants pleaded guilty, were qualitatively different.

144 The accident arose out of an unfortunate confluence of events. One was the lack of provision by PF Thearle & Co Pty Ltd of a safe system of work and proper training on kiosk transformers for its employees, or in accordance with the Regulation, which gave rise to risks to the safety of those employees. The failure by NorthPower's employee was twofold, first, in granting access to such transformers to non-authorised persons, and, secondly, in not remaining to supervise the work. The fact that the transformer to be worked on was not only not de-energised but had live conductors incorrectly colour coded as earth conductors provided a risk to any person accessing it. The contribution of each of the actors (including the manufacturer) to the accident stood alone.

145 In the case of the defendant, PF Thearle & Co there does not appear to have been any prior recognition by it that either in regards to its systems of work, or its training of employees in installing electrical cables, its employees were exposed to risk in carrying out such work and that there reposed on it a duty to ensure, in terms of s 15(1) of the Occupational Health & Safety Act, the health, safety and welfare at work of all its employees.

146 Even if NorthPower's employee had stayed to supervise the work of Mr Flick at the transformer, and, indeed, if he had made the terminations, the placement of the cables in the switchroom (in a heap) was unsafe and a risk should any person pick them up once they had been connected at the other end to the energised transformer. If Mr Wooldridge had remained on site to supervise in accordance with NorthPower's requirements, and carried out NorthPower's part of the work, the accident may still have occurred if the transformer was not de-energised, but the victim at the transformer end was more likely to have been Mr Wooldridge. It is a matter of speculation in such a case as to what might have happened if one of the defendant's employees had been simultaneously working on the switchboard end of the cables.

147 By way of contrast to PF Thearles' approach, NorthPower had recognised the risk to safety that would arise in the event that access was granted to the energised kiosk transformers to unauthorised persons. The steps that it had taken to obviate that risk had included training of its employees and putting in place procedures governing access by non-employees and non-authorised persons.

148 I find that the primary cause of this accident was the failure of NorthPower's employee, Mr Wooldridge to implement in full the worksite risk assessment procedures put in place by NorthPower. Other than by putting in some time limits as to the period within which employees must be audited as to their understanding and implementation of worksite risk assessments, I find it difficult to see what additional measures NorthPower could take to make sure an employee actually understood those procedures and tried to ensure that they were followed. That, in my view, is a factor to be taken into account, in assessing, in the defendant's favour, the extent of mitigation to be granted to the defendant. A secondary factor was a lack of clarity in the documentation supplied by NorthPower to Thearle as to contractors' responsibilities. That matter has been addressed by NorthPower by a change to its documentation.

149 NorthPower has impressive safety procedures in place. The risk to safety of which NorthPower, in the conduct of its undertaking, is guilty comes down to its failure to audit in good time the performance of its employee, Glen Wooldridge, to ensure that he fully understood NorthPower's safety requirements, particularly as to granting access to energised equipment by persons not qualified to do so by NorthPower. That failure was not the outcome of lack of concern for or neglect of safety by NorthPower. The audit process was one to which, in hindsight, it would have been wise to have given higher priority and devoted more resources. Having said that, I am of the view that the offence is one which falls into the lower range.

150 Nothing put by the prosecutor persuaded me that the reduction in sentence for an immediate plea should be otherwise than substantial insofar as NorthPower is concerned. I discount the fine I consider appropriate by 25 per cent to take account of that plea.

151 In considering penalty, I also take into account the defendant's involvement in, and implementation of, safety programmes and procedures; the priority placed by NorthPower on safety as indicated by its active sub-committee comprising four of its Directors; the work site hazard program in place since June 1996, and in which all employees are fully trained and which is reviewed each year (latest revision 17 January 2000), and is, as Mr Coleman said, "based on continual improvement".

152 The defendant is entitled to a full discount on penalty for its early plea of guilty, and a further discount of 10 per cent for its full co-operation with WorkCover, contrition expressed not only in that co-operation but in Mr Coleman's presence in the Court, and NorthPower's practical and continuing commitment to safety and its remedial actions. Contrition was expressed by Mr Coleman who said that both he and NorthPower regretted that this accident ever happened and certainly regretted that the injuries to Mr Flick occurred. As a result they have done everything that they possibly can to prevent any accident such as that ever occurring again.

153 The prosecutor relied on the prior conviction on NorthPower's record to support his submission that the subject breach moved "even closer to the worst case category" and should be considered in the context of the maximum penalty of $750,000.

154 On the basis of all I have set out in consideration of this prosecution, I do not accept that submission. The evidence presented in this case does not, in the terms set out in Veen (164 CLR at 477), show this accident to have been other than "an uncharacteristic aberration" and does not show that NorthPower has manifested, in this instant offence "a continuing attitude of disobedience to the law". The evidence would certainly not justify "condign punishment" as sought by the prosecutor. However, if access had not been granted by NorthPower to that energised transformer to the non-authorised employees of PF Thearle & Co, the risk to safety in relation to those employees would have reduced to that extent. (Even if the final connections to the transformer had been undertaken by NorthPower, the Thearle employees would still have been exposed to risk by that company's work practices in relation to the cables in the switchroom.)

155 I take into account that where the maximum penalty for an offence has doubled then existing sentencing patterns are to move in a sharply upward manner: see WorkCover Authority of New South Wales (Inspector McDonald) v Commonwealth Steel Company Limited [(1999) 90 IR 297 at 309-310 which applied the approach in Slattery (1996) A Crim R 519 at 524 per Hunt CJ at CL].

156 I find the defendant guilty of the offence as charged and order that a conviction be entered against it. Taking into account the discount of 35% the Court has found to be appropriate, the defendant is fined an amount of $60,000 with a moiety to the prosecutor.

157 The parties are to confer as to costs. The Court is to be advised within twenty one days if agreement cannot be reached.

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LAST UPDATED: 07/06/2001