Inspector John Sibilant v Stowe Australia Pty Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 119 (24 June 2008)

Last Updated: 27 June 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector John Sibilant v Stowe Australia Pty Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 119



FILE NUMBER(S):
IRC 2229

HEARING DATE(S):
17 June 2008

DATE OF JUDGMENT:
24 June 2008

PARTIES:
PROSECUTOR:
Inspector John Sibilant

DEFENDANT:
Stowe Australia Pty ltd



CORAM:
Haylen J


CATCHWORDS: Occupational Health and Safety Act 2000 - s 8(1) - fatal accident in course of electrical upgrade of telephone exchange - evidence and submission on penalty - objective seriousness of offence accepted by defendant - numerous mitigating circumstances considered - first offender in 98 year corporate history - documented safety system addressed relevant risks but system not enforced - general and specific deterrence necessary considerations in setting appropriate penalty - substantial steps taken following accident - contrition - penalty imposed





LEGAL REPRESENTATIVES

PROSECUTOR
Mr M Joseph SC with Mr Naylor of counsel
SOLICITORS:
WorkCover Authority

DEFENDANT:
Mr I Neil SC with Mr P Moorehouse of counsel
SOLICITORS:
Toomey Pegg Drevikovsky


CASES CITED:
Inspector John Sibilant v Stowe Australia Pty Ltd 2000 [2008] NSWIRComm 42]

LEGISLATION CITED:



TEXTS CITED:




JUDGMENT:

- 19 -

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: HAYLEN J
24 June 2008

Matter No IRC 2229 of 2006
INSPECTOR JOHN SIBILANT v STOWE AUSTRALIA PTY LTD
Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

JUDGMENT
[2008] NSWIRComm 119

1 Stowe Australia Pty Ltd ("Stowe), in contested proceedings in this Court, has been found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 (see [2008] NSWIRComm 42, a judgment delivered on 6 March 2008). In those proceedings Stowe was described as a sizeable company that, in 2002 and 2003, was involved in installation, servicing and maintenance of telecommunications/data networks and electrical power equipment. As part of that undertaking Stowe had won a tender for the emergency and exit lighting upgrade of a number of Telstra telephone exchanges. On 15 January 2003, four of Stowe's employees were engaged in this upgrading work at a Telstra telephone exchange located in Livingstone Road, Marrickville. During the afternoon of 15 January 2003, the team leader, Mr Robert Cowderoy, was electrocuted while installing a new exit light and despite attempts at resuscitation made by fellow employees and Ambulance officers, Mr Cowderoy later died. The circumstance of Mr Cowderoy's death was the subject of a Coroner's Inquest and the Coroner's findings were announced late in April 2004. In late April 2006, Inspector Sibilant commenced proceedings in this Court alleging that, in relation to this incident, Stowe had breached s 8(1) of the Occupational Health and Safety Act.

2 The particulars of the charge were that Stowe had failed to ensure the health, safety and welfare at work of its employees and in particular, Robert Cowderoy, Panagiotis Mihail, Paul Novak and Michael Harrison in that it failed:

(a) to provide, promulgate and/or maintain a system of work for the installation and upgrading of emergency and exit lighting at the Undercliffe exchange that was safe and without risk to the health and safety of its employees in that:

(i) it failed to ensure that the Method of Procedure, the Occupational Health and Safety Plan and the Safe Work Method/Procedure Statements for the Emergency and Exit Lighting Upgrade at various Telstra telephone exchanges including the Undercliffe exchange, were on-site at the Undercliffe exchange at all times that work was being carried out by or on behalf of the Defendant;

(ii) it failed to ensure that the Method of Procedure, the Occupational Health and Safety Plan and the safe Work Method/Procedure Statements for the Emergency and Exit Lighting Upgrade at various Telstra telephone exchanges including the Undercliffe exchange, were being followed by its employees including Robert Cowderoy and Michael Harrison;

(iii) it failed to ensure the use by its employees of adequate electrical circuit isolation techniques;

(iv) it failed to ensure that its employees, when connecting electrical circuits, followed a technique of connecting such circuits in a sequence that resulted in the load side being connected first and the (actual or potential) power source side being connected last;

(v) it failed to ensure that comprehensive electrical circuitry investigation and identification was undertaken prior to the commencement of electrical installation work;

(vi) it failed to ensure that a comprehensive site-specific risk assessment of the Undercliffe exchange was conducted prior to the commencement of electrical installation work.

(b) to provide such training and instruction as may be necessary to ensure the health and safety at work of employees engaged in the installation and upgrading of emergency and exit lighting at the Undercliffe exchange in that:

(i) it failed to provide adequate training or instruction to Michael Harrison, a qualified electrician employed by the Defendant and engaged in the installation and upgrading of emergency and exit lighting at the Undercliffe exchange, in the content and application of the Safe Work method/Procedure Statements for the Emergency and Exit Lighting Upgrade at various Telstra telephone exchanges including the Undercliffe exchange;

(ii) it failed to provide adequate training or instruction to Michael Harrison in the use of voltage testing devices in particular the "Wattmasta Yellow Volt Stick Model No N10145 1000 Volt AC rating";

(iii) it failed to provide adequate training or instruction to Michael Harrison in relation to the use of a technique of connecting electrical circuits in such a sequence that resulted in the load side being connected first and the (actual or potential) power source side being connected last;

(iv) it failed to provide adequate training or instruction to its employees, in particular Robert Cowderoy, Panagiotas Mihail, Paul Novak and Michael Harrison, in electrical circuit isolation techniques.

3 Each of the particulars was found to be established on the evidence called in the proceedings. In the course of reaching those conclusions it was evident that Stowe had compiled and issued detailed work procedures and those work procedures were designed to ensure that the work to be performed could be safety undertaken. Despite the usual practice, these method statements were not present at the site and the direct supervision at the site provided by both Mr Cowderoy as the team leader, and by Mr Bright as the project manager, had not ensured that these essential documents were on site and there was a failure to ensure that the practices set out in those documents were followed. The significance of the absence of those documents and the failure to follow those safety procedures was that the electrical circuitry as documented on the various sites could not be guaranteed as to its accuracy and there was also the risk of unusual features of the circuitry, such as encountered at the Marrickville Exchange, where one switch was powered from two distribution board sources at different levels in the building. These matters made it necessary for the circuitry to be identified before work commenced, thus allowing the preparation of a properly informed risk assessment. The system of work adopted at the Exchange did not follow this course. Further, the absence of the documented work method statements on site and their unavailability to the workforce meant that the team effectively adopted their own practices for the performance of the work.

4 At the sentencing hearing, the prosecutor did not call any further evidence but conceded that Stowe had no relevant prior record and thus, the maximum penalty that could apply was $550,000. Two affidavits were read on behalf of the defendant: that evidence is dealt with in the following paragraphs.

5 Mr David Madson had been Stowe's executive chairman since 2007 and was the defendant's managing director between 1980 and 2007. He described the defendant as being an electrical contractor operating in New South Wales and elsewhere in Australia for approximately 98 years. He referred to the company as one of the largest electrical contractors operating in the industry, employing 1400 persons of whom approximately 900 were electrical staff licensed and unlicensed, with a further 280 electrical apprentices. It was clarified that approximately 800 of those employees were employed in New South Wales. For many years approximately half Stowe's work had been carried out in the construction industry and principally involving new construction work, while the other half the company's work consisted of a wide variety of general electrical work such as that involved in the Telstra Exchanges project.

6 Mr Madson dealt in detail with Stowe's industry participation, especially through the National Electrical and Communications Association ("NECA") in order to improve safety within the industry. An example of that participation was the development by Stowe of the Safety Guidebook that appeared to be one of the first of its kind in the industry. That book was in publication before 1990 and was designed to provide a consistent safety message for an industry that had a significant rate of labour mobility. Stowe volunteered the guidebook and the work behind it to the NECA without charge so that it could be used to prepare a NECA Guidebook: that offer was taken up and the NECA published its first guidebook in approximately 1990 substantially based on the Stowe book. That Guidebook had become known in the industry as the "Red Book" and was in evidence in the current proceedings as usually being given to the company's employees at the commencement of their employment.

7 Stowe had provided a number of its senior employees to NECA for the purposes of consulting and developing industry guidelines. The WorkCover Authority had the practice of consulting the NECA whenever changes were proposed to electrical legislation, regulations or codes of practice. On such occasions, Stowe's engineering manager, Mr Roger Sharp was generally chosen by the NECA to represent the industry and this reflected Mr Sharp's standing in the industry and the fact that he was widely recognised as an authority on electrical safety. In addition, the company had consistently contributed staff and support to NECA's safety committee over a number of years and had played a leading part in the NECA devising and preparing an industry manual for the purposes of facilitating the return to work of injured workers. Apart from the company frequently making Mr Sharp and other employees available to address or assist with industry training programmes or seminars related to safety, the company had also made staff available to serve on the committees of Standards Australia especially in relation to the SAA Wiring Rules published as AS 3000. Mr Madson had served on the committee of regulators, supply authorities and contractors that was responsible for formulating and periodically reviewing the standard since its formulation in approximately 1980. Other technical staff from Stowe had also served on the committee, with Mr Sharp chairing the committee for at least 12 years. For his work Mr Sharp had received a Standards Association Award in 2000.

8 Since the accident in January 2003, Stowe had introduced a number of measures to enhance the safety of its staff. In response to the Coroner's recommendation that the company's staff be reminded of aspects of testing and the use of testing equipment including volt sticks, all staff were required to attend compulsory safety meetings with the express purpose of training them in the importance and proper methods of testing electrical equipment strictly in accordance with the Low Voltage Electrical Work Code of Practice 2001. These meetings occupied between two and three hours.

9 Other measures taken included compulsory six monthly Stowe safety talks introduced since 2003. Mr Madson noted that topics addressed in these meetings included correct risk assessment procedures, testing and isolation procedures, from time to time the need for testing equipment, the introduction and use of isolation kits, a company policy of not working "live" and the company's injury management procedures and the operation of the return to work co-ordinator. Following the accident involving Mr Cowderoy, the company had put together isolation kits and issued them to all front line electrical staff. Initially those kits included danger tags and lock dogs but with a change in regulations making it mandatory to use lock dogs when isolating electrical circuits, the contents of the kit now reflected this requirement. There were checks to ensure that all such staff were given kits that contained the appropriate locking devices.

10 Following the accident other steps taken by Stowe included:
· the provision of additional training to managerial and supervisory staff designed to develop appropriate attitudes and to enable the staff to effectively manage health and safety within their areas of responsibility. This additional training was provided annually to all managers and supervisors and comprised of a two day course conducted by the National Safety Council of Australia;
· external scrutiny of the occupational health and safety system was sought by Stowe and the system was audited by consultants licensed by Standards Australia. The external audit found that Stowe's systems complied with Australian Standard AS 4801-occupational health and safety management systems;
· as a result of being present during the proceedings in this Court, Mr Madson became concerned that the company's safety policies and procedures had become too numerous and detailed to convey clear messages to the workforce and so Stowe engaged external consultants 18 months ago to assess how those policies were understood and complied with. The consultants were also briefed to ensure that re-written policies and procedures were simple, straightforward and to the point and were able to stand alone so that they could be read without reference to other material. Stowe now made information available to all staff in the field through the intranet with links to all relevant codes, regulations, legislation and guidelines in order that all employees had ready access to the source documents underpinning the company's documentation. Workshops had been conducted at several local and interstate venues to consider new draft policies and it was anticipated that the final version of the policies and procedures would be available for adoption by the end of June 2008. When implemented, the new policies and procedures were to be introduced in new training sessions and in that way were to be delivered to all staff.

11 A lengthy extract of company records was provided to demonstrate the width of topics and the frequency of training and instruction provided by the company to its employees. That document recorded general safety training and talks but did not include inductions or safety talks related to particular jobs where the records were kept at the site of those jobs. One particular entry showed that a employee, since October 2001, had attended 17 safety talks conducted by relevant workplace committees at approximately six monthly intervals and that was in accordance with the requirements of the company that all front line operational staff attend such talks every six months. There were also other aspects that covered training, including basic life support (CPR) courses and the company had expanded those courses in recent years to include electrical awareness and manual handling. These courses were of a half-day duration. Details were also given of awards received by Stowe in 2005 and 2007. The awards, provided by State branches and the National NECA, dealt with a variety of work including innovative work procedures that successfully controlled significant hazards in an unusual work environment without lost time injury and work on apprenticeship safety inductions. The 2005 award concerned work in New South Wales, while in 2007 one award referred to work in Victoria and three awards referred to work performed by the company in Queensland.

12 Evidence was also given of other safety initiatives undertaken by the company:
· for over 10 years Stowe had implemented regular emergency resuscitation training for its employees, purchased equipment for training purposes and used its own accredited training staff or external providers. The cost of the training was approximately $350 per employee and Mr Madson considered that the company was "one of the pioneers" in the industry of this type of training. This training had become mandatory in Queensland but that was not the position in New South Wales or Victoria. There were at least three occasions when company staff had successfully resuscitated workers from other companies;
· in October 2001, the company became one of the first electrical contractors to participate in WorkCover's Premium Discount Scheme ("PDS"), involving submission to four audits over a two and a half year period and involving various branches. The company achieved all the bench marks laid down by WorkCover and was found to comply with all the requirements of the PDS;
· in recognition of the importance of staff input and consultation, the company had documented occupational health and safety consultation and committee arrangements which were placed before the Court. It was noted that occupational health and safety committee members received a four day safety training course accredited by WorkCover;
· Stowe employed five full-time safety officers in major centres of operation in three States including New South Wales while smaller regional branches had some part-time safety officers who undertook safety functions along with other duties. In New South Wales there was one full-time safety officer;
· in the last 12 months the company had spent nearly $4.5 million in relation to occupational health and safety, involving $300,000 being spent in external consultant trainers and auditors, $1.25 million on salaries for full-time and part-time safety officers, $.5 million on safety and protective equipment and $2.5 million on employee induction site and general safety training.

13 In relation to the company's 98 year history, Mr Madson stated that the fatal accident involving Mr Cowderoy was the only incident, so far as he had been able to ascertain, where the company had been convicted of any offence under occupational health and safety legislation. He described the company as a family company with a current managing director being a third generation member of the family to lead the company.

14 Mr Madson, along with a number of Stowe senior managers, had attended Mr Cowderoy's funeral and the company had matched employee donations collected for Mr Cowderoy's family such that a total of nearly $4,000 was forwarded to the family, together with a letter from Mr Madson on behalf of the company expressing the collective sorrow of the company and its employees for the loss of Mr Cowderoy. Mr Madson offered the family support including assistance in relation to financial affairs if requested by the family. Mr Madson had also been in telephone contact with Mr Cowderoy's father and had again expressed the company's sorrow. A former general manager of Stowe was also asked by Mr Madson to speak to Mr Cowderoy's family after his death because of a connection between them and Mr Madson was aware that there were further meetings after that initial meeting. All employees who were working with Mr Cowderoy at the time of the accident had received paid leave and counselling and they all remained employees of Stowe except for Mr Bright who was no longer employed by Stowe. After the accident, those employees were given the opportunity to request a transfer to a different type of electrical work and Mr Mihail, as an example, transferred to new construction work where identifying and isolating live circuits rarely occurred.

15 In cross-examination, Mr Madson stated that Mr Bright, by mutual arrangement with the company, ceased employment with Stowe approximately two months ago. Mr Madson stated it was fair to say that he was disappointed with Mr Bright's understanding of his occupational health and safety obligations that he witnessed in Court during evidence, and subsequently investigated Mr Bright's performance in other areas and had discovered shortcomings that were perceived to be general shortcomings. Those matters were discussed with Mr Bright and it was by mutual agreement that his employment was terminated. Mr Bright had given evidence before the Coroner and although Mr Madson was not present during that evidence, the perceived shortcomings in his performance had been addressed by further training but ultimately no change in attitude to his obligations had occurred. Mr Madson said that he did not take responsibility for Mr Bright's shortcomings - his role was to make sure that the Stowe safety plan was implemented and that there were people to undertake that task. After arranging further training for Mr Bright, he heard Mr Bright's answers in the proceedings in this Court about his responsibilities and deemed those answers to demonstrate that Mr Bright was not carrying out his obligations. As the matter evolved, Mr Madson had learned about Mr Bright's role and after the accident he had asked Mr Bright some questions and the answers given were not correct.

16 Following satisfaction of the auditing under the PDS scheme, the external auditor had drawn attention to the availability of other levels of accreditation such as the occupational health and safety systems certification to AS/NZ 4801 described as the "highest publicly recognised level of occupational health and safety achievement in Australia". Having had that matter drawn to its attention, Stowe pursued that certification and achieved it at its first attempt. It involved a more rigorous audit and as part of that audit Stowe was required to undertake internal audits of its system to make sure it was being implemented. In his role, Mr Madson was frequently not on site but he did visit sites and he had people reporting to him who were auditing the system to make sure that it was being complied with by Stowe employees. Audits could take two forms with the occupational health and safety officer being able to conduct an audit but preferably the company trained people, such as Mr Bright and others, who were to carry out regular audits every time a site was visited and they were trained to observe and ensure systems were implemented and safety training was carried out. Those audits were carried out by supervisors as a matter of course and every day there was a formal recorded audit but there were a number of audits that were required to be performed monthly. The company had been carrying out a form of audit before commencing the PDS audit scheme in 2002 but the frequency of those audits increased after that time, with supervisors and managers being trained and encouraged to carry out more audits.

17 In the six months of operation of the Telstra project, Mr Cowderoy in his role was not expected to undertake audits but Mr Madson expected Mr Bright, whenever he visited the site, to observe the systems and to see what was not being performed in accordance with the safe work method statements and to ensure that corrective action was taken. A summary of audits were sent to Mr Madson and there was a monthly meeting that considered a comprehensive safety report running to seven or eight pages that listed audits carried out and any corrective action taken. That process had been continuing for some years. Mr Madson had told Mr Bright to perform audits and it was part of the company's procedures that they be reported monthly. In New South Wales the safety officer was located in Sydney and had been employed on a full-time basis from the 1980s. His title was safety co-ordinator and his role was to make sure that training occurred and that audits were undertaken and that officers visited sites as required but the primary role for safety rested with the line managers who were co-ordinated by the safety co-ordinator and provided information to him. The safety co-ordinator ensured that people such as Mr Bright were properly trained and understood their responsibilities.

18 Mr James Tinslay was the chief executive officer of NECA, the national employer association for the electrical and communications industry. He had held that position since January 2007 and prior to that had been the chief executive officer of the New South Wales Chapter from 1988. He had worked as an electrical engineer with the Standards Association of Australia, being responsible for a number of standards including AS 3000 and the wiring rules. Mr Tinslay was aware of the details of the prosecution of Stowe and had read the Court's judgment in relation to the breach of the Occupational Health and Safety Act.

19 Mr Tinslay had been involved with Stowe, its directors and officers since 1982 when he was the executive officer of the SAA Committee dealing with wiring rules. That Committee was made up of a range of experts and was responsible for formulating and reviewing the wiring rules. The wiring rules was the base document for electrical safety in the electrical contracting industry and had long been referred to as the "bible" of the electrical contracting industry. Since 1982 a number of senior employees of Stowe had made significant contributions to aspects of occupational health and safety in the industry.

20 Mr Tinslay spoke of his involvement over the years with senior employees of Stowe noting that in 1982 Mr David Madson, managing director of Stowe, was one of four national NECA representatives on a committee responsible for the revision of the SAA Wiring rules. Mr Madson was regarded as having a leading role in the work of the committee, including drafting and reviewing work in his personal time as well as attending meetings during business hours. Mr Madson, for a number of years, continued as a member of that committee and was regarded as a valuable contributor in reviewing the work of the committee and offering constructive feedback. Mr Roger Sharp, engineering manager of Stowe, had for 20 years been the chairman of the Standards Committee on Wiring Rules and was considered by Mr Tinslay to be the foremost expert in the safety of electrical wiring systems in Australia. Mr Sharp spoke regularly at seminars both within Australia and overseas regarding safety within the industry and seminars were generally held during business hours. Mr Sharp dedicated a significant amount of the company time and personal time to this commitment. A number of other senior employees were also mentioned for their activities in relation to the NECA's safety committee. Whenever Stowe was asked to contribute employees to NECA's safety activities, the company was willing to do so. Mr Tinslay also spoke of Mr Sharp's wide activities, especially in relation to occupational health and safety issues that were canvassed with the Government and WorkCover. Mr Sharp had been extensively involved in seminars at the request of the NECA.

21 Over a long period of time, Mr Tinslay was able to observe the activities of Mr Madson as well as other senior members of Stowe. Stowe had been continuously represented on the New South Wales Chapter Occupational Health and Safety Advisory Committee. The company was the first within the electrical contracting industry to prepare an employee safety handbook and the company made the handbook available as a model for the NECA to establish the national employee "red book". Stowe had readily agreed to allow the document to be used as a base for the industry wide document and had input into the national publication. Mr Tinslay was of the view that the distribution of the booklet had made a significant contribution to safety throughout the industry. Stowe had also been the driving force behind a recently published document by the NECA entitled "Suitable Duties Manual". Stowe was the first company in the industry to attempt to prepare its own return to work manual and again the company volunteered its draft manual to the NECA to use as a basis to produce a generic manual for the industry. Mr Tinslay's view was that, over the past 20 years, Stowe had contributed more to the work of NECA in continuing to improve the status of occupational health and safety in the electrical contracting industry than any other company in that industry. He had no hesitation in stating that, in his 20 years of involvement with Stowe, the company had demonstrated a commitment to safety and had made an important contribution to the promotion and improvement of safety generally within the electrical contracting industry.

DELIBERATION
22 The prosecutor submitted that on a proper consideration of the width and scope of the deficiencies found in the defendant's system of work, it could be readily concluded that this was a serious breach. The existence of a reasonably foreseeable risk of injury would necessarily result in the offence being more serious in nature. In the present case, the risk of injury from being electrocuted was obvious and the gravity of the risk was significant. The defendant's safe work method and procedure statements specifically referred to and contemplated the risk of electrocution and those statements, which formed part of the occupational health and safety plan, if followed would have averted the risk. The Court had noted in its primary decision that many aspects of the safety procedures were not being followed at the Marrickville site. The prosecutor described the primary failure by the defendant as not ensuring that the method of procedure, the occupational health and safety plan and the safe work method statement were on site and were followed. The significance of the absence of those document was that the site plans of circuitry could not be taken as accurate and there was a risk of confronting unusual and complex circuitry such as occurred at the Marrickville Exchange. In such circumstances it was vital for there to be a prior identification of the circuitry and having established the circuitry, to then undertake an appropriate risk assessment. The way in which the site actually operated left the employees to their own devices and did not ensure their safety. Mr Bright, the project manager for the upgrade, was in a position to enforce the safety procedures promulgated by the defendant but he failed to do so. There was a failure to enforce the defendant's safety rules and there was a failure to instruct the employees and to give them adequate training for the type of work, including training in the use of testing equipment: these particulars were all found against the defendant. Effectively, at this Exchange and in the upgrade programme that this team worked upon there was no more than a paper system. The defendant's own system of controls, the NECA safety book and the Low Voltage Code of Practice all provided well known precautions against the risks inherent in the performance of work on the exchange upgrade project and at the Marrickville Exchange.

23 It was readily conceded by senior counsel for the defendant that the offence found to have been proved was an objectively serious offence but there were a number of matters that operated to mitigate the seriousness of that offence. The defendant submitted that the following matters were significant in mitigating the otherwise admittedly objective seriousness of the breach: firstly, this was not a case in which there was no system to ensure employees' safety; secondly, the Court had found that the system adopted by the defendant, if followed, would have achieved its purpose; thirdly, the Court had found that the system established by the defendant was not followed so that the defendant's failure was in not following or maintaining the system whether by training, instruction or supervision; and, fourthly, in those circumstances such a failure was objectively less serious than a failure to have any system at all.

24 On a proper assessment of the defendant's system, that system prohibited work on live lines and that system had not been advertently departed from. The employees were all aware of that rule. The failure found by the Court in this case was that, on one occasion at one exchange, the employees in question were not equipped to apply the rule but that was not evidence of a systemic failure. The defendant's long history of participating in an inherently dangerous industry underlined the isolated nature of this breach: a point had to be reached when good fortune could not explain a good record, nor was it established that the defendant's system was just a paper system in all its operations - the breach was one confined to a narrow area of its operations.

25 The system followed by the defendant would have resulted in an early assessment of the risks involved in performing the work. The Court had accepted Mr Glass's opinion that the comprehensive risk assessment and the identification of the circuitry should all occur before any work was commenced on the replacement or alteration of the fittings. This was a very significant part of the prosecution case but in cross-examination, Mr Glass was unable to find any passage in the relevant standard or code that, in terms, required these steps to be taken before the work commenced. This was significant in the context that it was one thing for an employer to fail to follow a clear industry code, requirement or practice but that is not what had occurred in this case. Here, the prosecution suggested that there were numerous aspects to the breach but the central point of the prosecution case was the failure to identify the relevant circuits, although there were subsidiary issues such as testing methods, methods of connecting new wiring and instruction and training in relation to the specified matters. In relation to the requirement to connect new wiring by connecting the load side first, that instruction appeared in the company's document but for some unknown reason, was not followed by Mr Cowderoy and Mr Harrison. On a proper reading of the evidence, Mr Harrison simply could not recall these instruction and, in terms, did not state that he had never received such instruction.

26 The defendant's concession that the breach found by the Court was an objectively serious breach was a concession properly made. It is accepted that it is proper to take into account the fact that the defendant had a well established and documented system (ironically, as suggested by Mr Madson in his evidence, possibly an over-documented system and that impacted upon its effectiveness) and that if followed, that system would have operated to avoid the risks found to exist in undertaking the work at the Marrickville Exchange. The case established against the defendant is a failure to enforce and maintain such a system. The policy against working on live lines was achieved by the numerous procedures laid down by the defendant but those procedures were not on site, had been read only once at the beginning of the project (some six months prior to the accident) and were not available to the working team in the performance of its day-to-day duties.

27 The evidence does not allow a global finding that there was a systemic failure by the defendant in all its operations or even in relation to the other numerous sites involved in the Telstra upgrade project: the failure of the system is established in the few days that the work team were at the Marrickville Exchange. While the defendant pointed to Mr Glass being unable to identify where the relevant code and standard required the circuits to be identified prior to commencing work and thus allowing a comprehensive risk assessment to be undertaken, it is to be remembered that requirement was part of the contract that the defendant had entered into regarding the Telstra upgrade. It was the approach of its own safety rules. As Mr Glass stated, of necessity the codes and standards deal in generalities and attempt to address all circumstances but the circumstances of the work and the nature of the work at the Marrickville Exchange and commonsense as an electrical contractor required that the circuits be identified prior to work commencing and thus enabling a comprehensive and effective risk assessment to be undertaken. If that had occurred at the Marrickville Exchange, identification of all of the circuits would have exposed the switch that was powered by two different distribution boards at different levels of the Exchange. The breach, as accepted by the defendant, is a serious breach and the seriousness of that breach will be considered in the context of those factors.

28 It was also properly conceded by senior counsel for the defendant that general deterrence was an appropriate consideration in setting a penalty. Different considerations were said to affect the issue of specific deterrence. The defendant conceded that it continues to operate and that is a relevant factor. However, the evidence was said to demonstrate that it had a low likelihood of re-offending. The evidence demonstrated the good industrial citizenship of the defendant, provided details of the steps it had taken before and after this incident and showed that over its long history it had a good safety record. The defendant was held in high regard within the industry and within industry associations and was regarded as a leader and had given leadership in industry safety. It had taken numerous steps to address the risks exposed by Mr Cowderoy's death and had increased the frequency of audits to ensure that its systems were being followed in the workplace. The defendant was now engaged in the extensive task of reviewing all its rules to ensure that they were less complex and more readily understood and did not need to be read along with other documents such as industry codes and standards. While all of these matters can be accepted as reflecting well on the defendant, this is not a case where it can be readily concluded that specific deterrence has a small or negligible role nor can it be concluded that there is a low likelihood of the defendant offending again. The facts of this case show that a well-resourced and well respected participant in this industry, notwithstanding its 98 year unblemished record, found itself in a position where the features of its safe system were simply not being adhered to in one of its workplaces. In those circumstances, although the defendant has demonstrated a worthy safety history, it is not appropriate to give reduced significance to specific deterrence in setting an appropriate penalty.

29 It is accepted that the defendant has an otherwise good safety record and has applied its resources to achieving workplace safety. This has also involved the defendant becoming very active in the NECA at State and national levels and it has received a number of awards for its work. The defendant is entitled to receive the leniency permitted to a first offender and here, significantly, a first offender with a history of 98 years' activity in an inherently dangerous industry. The defendant has also demonstrated its contrition in the manner in which it treated its workforce following the accident and in the assistance and treatment of Mr Cowderoy's family. The significant steps it has taken in relation to its safety systems following the accident also speak well of the defendant and its approach to safety. These matters will be taken into account in mitigation of the penalty.

ORDERS
30 (a) The defendant, Stowe Australia Pty Ltd, is found guilty of a breach

of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in Matter No IRC 2229 of 2006

(b) The defendant is fined the sum of $190,000 with half that sum to be paid to the prosecutor by way of moiety.

(c) The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court.

As requested by the parties, any issue relating to a claim under s 114 of the Act for the costs and expenses of WorkCover's investigation of the offence is reserved and may be relisted on the application of either party.




LAST UPDATED:
24 June 2008