First Category 1 offence in NSW. (Reckless behaviour)

In Stephen James Orr v Cudal Lime Products Pty Ltd; Stephen James Orr v Simon Shannon [2018] NSWDC 27, the NSW District Court convicted a person conducting a business or undertaking (PCBU) with a Category 1 offence – the first prosecution of its kind – where an electrical shock lead to a fatality.

The incident occurred in August 2014 when a resident living in a cottage on a quarry suffered electrocution whilst having a shower in the bathroom of the cottage.

A category 1 offence attracts maximum penalties of

Cudal Lime Products Pty Ltd (CLP) operated a mineral mining and processing operation at an open cut limestone quarry in Cudal, NSW. Near the mine was a cottage in which Mr Barry Perceval, Plant Operator and his partner, Ms Liehr resided. On 27 August 2014, Ms Leihr was electrocuted after she came into contact with the metallic flexible shower hose and metallic waste drain in the shower which had become electrically charged due to a fault in the electrical system at the nearby mine.

The mine had a history of electrical issues and the mine safety plan (MSP) required electrical work to be undertaken by a qualified electrician or electrical engineer in accordance with the Australian Electrical Standard. At the beginning of 2014 the switchboard at the cottage was replaced after an arc fault damaged the old switchboard. At the time, CLP directed its Production Officer / Team Leader, Simon Shannon, who was not a qualified electrician or electrical engineer to perform electrical work on the switchboard.

CLP was charged with and pleaded guilty to the Category 1 offence of, without reasonable excuse, engaging in conduct that exposed Ms Liehr to a risk of death or serious injury and was reckless as to the risk of death. Mr Shannon also pleaded guilty to a Category 2 offence of failing to comply with his health and safety duty and exposing Ms Liehr to a risk of death or serious injury.

The Court found that the direction by CLP to Mr Simon Shannon to undertake work on the switchboard was motivated by a desire to save costs. The Court stated:

"the direction of an unqualified person to install the switchboard to save costs was an act devoid of social utility, so that the foresight of the possibility of the risk of serious injury or death arising was sufficient to constitute recklessness."

The Court found that the risk of death was foreseeable and that there were a number of reasonably practicable steps available to eliminate this risk
The reckless disregard by CLP of the risk was aggravated by a history of electrical issues at the quarry that ought to have put CLP on notice of the need to maintain and improve the safety of the mine.

Ultimately, CLP was fined $1.2 million, which was discounted by 25% to a fine and conviction of $900,000 as a result of its guilty plea.

Further, Mr Simon Shannon entered a plea to the less serious offence available under s 32 of the Act. The court determined a fine of $64,000 which was reduced by 25% for the plea of guilty to a conviction and fine in the amount of $48,000.