On 2 September 2021 the defendant company was convicted after a trial in the Toowoomba Magistrates Court of an offence under section 40C of the Electrical Safety Act 2002 (‘the Act’), for failing to comply with its duty under section 30 of the Act to ensure, so far as was reasonably practicable, that its business or undertaking was conducted in a way that was electrically safe. Following the sentence hearing on 30 September 2021, the defendant was fined $80,000. No conviction was recorded.
The defendant appealed against its conviction. The Office of the Work Health Safety Prosecutor appealed against the sentence on the ground that it was manifestly inadequate.
The appeal was heard on 14 February 2022 before his Honour Judge Rafter SC. Judgement was delivered on 31 March 2022. The defendant’s appeal against conviction was dismissed. His Honour allowed the appeal against sentence brought by the Office of the Work Health and Safety Prosecutor, increasing the fine imposed on the defendant to $100,000.
Incident and outcome at first instance
The defendant engaged another company to install edge protection on the roof of a shed at their premises. On 13 July 2018, a worker of the other company attended the defendant’s premises to complete the work. The worker was on the roof of the shed holding a 6.5-metre length of steel rail. The shed was in close proximity to live overhead powerlines. The rail came into contact with, or in close proximity to, a 11KV uninsulated powerline. This caused an electric shock pathway to flow from the powerline, through the steel rail, and into his body. The worker sustained severe burns to his feet and to his left hand. He required surgery, including skin grafts, and was hospitalised for 6 weeks.
Prior to the incident, the defendant had received a notice from Energex advising of the proximity of the live powerlines to the shed, cautioning the defendant against accessing the roof, and warning of the need to prevent others from doing so. Despite this notice, the defendant failed to prevent access to the roof or to warn workers of the proximity of the live powerlines.
On 2 September 2021, following a trial in the Magistrates Court at Toowoomba, the defendant was found guilty of the offence. A fine of $80,000 fine was originally imposed. No conviction was recorded.
Appeal against conviction
The defendant maintained a submission made at trial, that the defendant was a mere ‘consumer’ of electricity, which in and of itself, without more, did not create a duty of care under section 30(1) of the Act. Judge Rafter SC rejected this argument, noting that it overlooked section 30(2)(c) of the Act, which outlines that the duty also arises where the work performed by a business or undertaking involves contact with or being near to exposed parts of electrical equipment (as defined in the Act), whether or not the work being performed is itself electrical work. His Honour concluded that the Acting Magistrate was correct to find that the defendant business held a duty to ensure that persons performing the work were electrically safe. The appeal against conviction was accordingly dismissed.
The Office of the Work Health and Safety Prosecutor brought an appeal against sentence on a number of grounds, including that the sentence was manifestly inadequate.
In allowing the appeal, Judge Rafter SC was satisfied that the decision at first instance was vitiated by error and that the penalty imposed upon the defendant was inadequate.
Having regard to the circumstances of the offence, the defendant’s lack of prior convictions, the cooperation of the defendant at trial by making admissions, and the impact of a fine on the defendant, his Honour concluded that the appropriate penalty was a fine of $100,000. No conviction was recorded.
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Sections 30 and 40C of the Electrical Safety Act 2002