Construction company receives NSW record $1m WHS fine for electric shock  

Australia May 8 2017 

In a decision handed down on Friday 5 May 2017, construction company WGA Pty Ltd (WGA) has been convicted and fined AUD 1 million from a maximum of AUD 1.5 million after the NSW District Court found that its director deliberately let a subcontractor work near live high-voltage powerlines in order to avoid delaying a construction project. The fine is the largest penalty imposed for an offence under the NSW Work Health and Safety Act 2011 (WHS Act) to date. 

This doubles the previous largest fine of $500,000 in NSW for a breach of the WHS Act. The fine was issued to Ulta Group Pty Ltd in November 2014 for a similar incident in which a worker suffered an electric shock when he contacted power lines whilst placing reinforcing steel rods into a block wall at a construction site. 

WGA was the principal contractor on a residential construction site in Sydney and engaged a subcontractor, Christopher Cullen, to install windows in a set of apartments. 

The apartment building had been constructed in close proximity to powerlines that ran along King Georges Road, South Hurstville. The upper power lines were owned by Sydney Trains and conducted 33,000 volts. 

On 19 June 2014, Mr Cullen was standing on a window ledge and installing aluminium angles to the outside of the windows. Mr Cullen suffered an electric shock when the 2.7m angle he was holding came in contact with (or in close proximity to) the high voltage upper powerlines. According to witnesses, he appeared to be on fire after being thrown backwards on the scaffolding. 

Mr Cullen suffered burns to 30 percent of his body and required extensive medical treatment and rehabilitation. He has been unable to return to work. 

WGA pleaded not guilty to the WHS Act charges but did not appear in court for any of the hearings. 

A SafeWork NSW inspector had issued two improvement notices to WGA on 22 May 2014 (just 28 days prior to the incident), after the Inspector found that the scaffolding on the outside of the apartments could not be used without putting a person within three metres of the high-voltage upper powerlines. No exclusion zone had been established to prevent a person coming within that distance. 

During the course of March 2014, WGA was issued with three prohibition notices in respect of similar contraventions. During conversations with the inspector about the issue prior to the first prohibition notice, Mr Hassan had replied with words to the effect of "I don't really see it as such a problem" and "why would someone reach out and touch it.  The risk was then detailed to Mr Hassan by the inspector with words to the effect of: 

“All it would take is for a worker to pick up materials, such as scaffolding or those lengths of steel, turn around and they could easily come into contact with the power lines. It is unrealistic to expect busy construction workers to simply remember the power lines and stay away from them. That’s why you need to have physical and visual barriers, particularly if you are not always on site when work is taking place. Tiger tails are not a control measure and do not provide protection against electric shock or electrocution.  ” 

Mr Cullen commenced work on the site in May 2014. He did not receive an induction or attend any tool box talks during the course of his work at the site. Mr Cullen had not previously conducted high density residential work or worked in the vicinity of power lines, as he usually performed more straightforward residential and renovation work. 

Judge Scotting heard that in June 2014, WGA sought, but failed to obtain, approval from Sydney Trains to isolate the powerlines so that work could be carried out because the building had been constructed too close to the upper power lines and the conditions for turning the power back on could not be met. There was written evidence that in May 2014 Mr Hassan had acknowledged (to both the inspector and Sydney Trains) that the power needed to be isolated before undertaking the work that Mr Cullen was required to perform. 

WGA director, Mr Hassan, then "pleaded" with Mr Cullen to install the angles on the windows facing the powerlines because the work needed to be completed before the scaffolding was removed the following weekend. 

Mr Hassan did not tell Mr Cullen about the presence of live powerlines, that they were high voltage, nor did he receive instruction that he should not go onto the window ledge to install the angles unless power was isolated in those lines. There was no barrier tape or signage in place warning Mr Cullen of the risk posed by the high-voltage power lines. Further, Mr Cullen was not made aware that an improvement notice had been issued in respect of the work. 

Judge Scotting found that WGA had actual knowledge of the risk posed by the work and the control measures that were required to alleviate the risk. Mr Hassan had been provided with a copy of the Code of Practice Working Near Overhead Power Lines and the NSW Transport System Guide Working around Electrical Equipment, as well as clear and unequivocal instructions from the SafeWork NSW Inspector and Sydney Trains about the control measures that were required to avoid this very risk. Judge Scotting stated that: "the likelihood of the pleaded risk occurring was high if the control measures were not adopted. The potential consequences were catastrophic in that an electric shock was likely to cause death or serious injury because the upper power lines were carrying 33Kv." 

Judge Scotting took the view that the fact that the power could not be isolated did not affect the reasonable practicability of the necessary measure to stop work on the window ledge by either waiting until the power was isolated before allowing Mr Cullen to do the work or directing Mr Cullen not to work on the window ledge unless the power was isolated. Sydney Trains was in the process of trying to find a solution to the problem (created by WGA in constructing the building too close to the power lines). Judge Scotting stated that "WGA should have delayed the work until a solution was found". 

Judge Scotting concluded that WGA had a "non-existent" safety system for Mr Cullen's work, had shown a “blatant disregard of its safety obligations” and that its “level of moral culpability for the offence was high”. He found WGA guilty of breaching s 19(1) and 32 of the WHS Act, imposing a penalty of AUD 1 million and AUD 50,460 in prosecution costs. 

Other record penalties

Victoria : In December 2016, logistics company Toll Transport Pty Ltd was fined a record AUD 1 million in relation to an incident in which a stevedore was fatally crushed by a trailer while helping to load cargo onto a ship.  

Queensland: In March 2017, a sole trader operating an amusement ride business was fined AUD 80,000 after a worker was fatally crushed by an amusement ride at Collingwood State School’s Christmas Carols in 2014. The fine was the largest penalty issued to an individual in Queensland under the state’s work health and safety legislation. 

Australian Capital Territory:  In August 2015, Canberra construction company Kenoss Contractors was fined AUD 1.1 million over the death of a truck driver Michael Booth, who was electrocuted when his tip truck touched low hanging power lines on the company’s work site. 

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