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Record $1 Million Fine for WHS Incident Provides a Free Lesson for Everyone

By Sally McCutcheon

30th May 2017

The District Court of NSW handed down a landmark fine on 5 May 2017, doubling the previous maximum penalty imposed in NSW. Judge Andrew Scotting fined construction company WGA Pty Ltd $1 million and ordered them to pay over $50,000 in costs for breaching the Work Health and Safety Act.

WGA Pty Ltd (‘WGA’) was the principal contractor on a residential apartment construction site in Sydney. The site was located near 33,000 volt power lines owned by Sydney Trains and which power the Illawarra train line.

On 22 May 2014 WGA had been issued with 2 improvement notices after an Inspector from SafeWork NSW discovered that the scaffolding outside the building could not be used without putting a person within 3 metres of the high voltage power lines. Three prohibition notices had been issued in March 2014 for similar contraventions.

SafeWork NSW and Sydney Trains provided WGA’s Director, Mr Mark Hassan, with advice about working safely near power lines including instructions about appropriate control measures that needed to be implemented in order to manage the risk.

WGA engaged subcontractor Christopher Cullen to install windows. Mr Cullen commenced work on the site in May 2014.  He was not inducted to the site and did not attend any tool box talks.  Mr Cullen had no experience doing high density residential work or with working near power lines.

On 19 June 2014, just 28 days after the improvement notices were issued to WGA, Mr Cullen, then 49, was installing a 2.7m piece of aluminium on a window ledge on the outside of the building. Mr Cullen received an electric shock and burns to 30% of his body when the aluminium angle came into contact with (or close proximity to) the high voltage power lines.  Mr Cullen was hospitalised for 3 months, required extensive skin grafts and multiple surgeries and has not been able to return to work.

In May 2014 WGA had sought approval from Sydney Trains to isolate the power lines so that work could be carried out. Sydney Trains did not grant approval, however, they were trying to come up to a solution to the problem which had been created because the building had been constructed too close to the power lines.

In order to avoid delays to the construction process, Mr Hassan pleaded with Mr Cullen to install the aluminium angles. Mr Cullen was not told about the improvement notice, about the presence of live, high voltage power lines or that he should not go onto the window ledge to install the angles unless the power was isolated.  No barrier tape or signage noted the risk imposed by the power lines.

WGA pleaded not guilty but was convicted and fined heavily. Judge Scotting noted that the risk was significant and the employer’s moral culpability high because it had shown a ‘blatant disregard for its safety obligations’. The Court found that WGA had actual knowledge of the risk and the relevant control measures but failed to implement them and protect Mr Cullen.

This case reinforces the trend towards higher penalties, particularly for known risks. It is imperative that employers are proactive in risk management and implement control measures that are outlined in codes of practice, legislation and other guidance material.

If you have questions about WHS in your workplace or need assistance to make your risk management processes more robust, contact Sally McCutcheon on 4760 0100.

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