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$1 Million WHS Prosecution Sets NSW Record High

In early May 2017 the NSW District Court fined a PCBU $1 million for breaches of section 19 of the NSW WHS Act. This is the highest NSW WHS fine so far. It strengthens what looks like a trend in Australia for Courts to set a higher level of WHS fines.

This article explains what happened that resulted in this $1 million fine, the lessons that other PCBUs and workers may learn from the incident, and the trend to higher WHS fines in Australia.

The Incident

Though this incident happened in the construction industry PCBUs and workers from other industries may well benefit from this insight into what caused this serious incident.

The PCBU in this case engaged a subcontractor to install windows in a block of apartments that were under construction. The apartments were located very close to Sydney Trains’ powerlines that carried 33,000 volts.

A window angle the subcontractor was holding came into contact with the powerlines. There was an explosion and the subcontractor was thrown backwards and appeared to be on fire. He suffered burns to 30 % of his body. This incident happened in June 2014 and he is still unable to return to work.

During the three months period prior to the incident a SafeWork NSW Inspector had reason to issue 3 Prohibition Notices and 2 Improvement Notices about matters relating to work being done close to the powerlines.

Why did the Judge impose a record high fine of $1 million?

1. The PCBU knew about the risks but failed to follow the SafeWork NSW Inspector’s directions, or follow the guidance in the Code of Practice Working Near Overhead Power Lines or the NSW Transport System Guide Working around Electrical Equipment.

2. The subcontractor had not previously been involved in high-density development work or worked in the vicinity of powerlines.

3. The PCBU:

- did not tell the subcontractor that the Inspector had issued Prohibition and Improvement Notice about the construction work and the power lines

- did not give the subcontractor a site induction or have him attend tool box meetings

- did not tell him that there were live high voltage power lines close to the building

- did not put barrier tape up or put signage in place to warn the subcontractor about the live power lines

4. The PCBU had applied to Sydney Trains to isolate the powerlines but Sydney Trains approval had not been given by the time when the PCBU pleaded with the subcontractor to do the job now because the scaffolding was due to be removed on the following weekend.

It is not surprising that the Judge concluded that the PCBU had not provided the subcontractor with a safe system of work, had shown a blatant disregard for safety obligations, and had a high level of moral culpability for the incident.

A trend towards higher WHS penalties

A number of recent articles have suggested that there is now a trend towards higher WHS penalties. The most recent writing on this theme is in the latter part of an excellent article written by lawyers A Titterton and L Bochenek at Clyde & Co. The article is entitled Million Dollar Misdeed

They make the point that PCBUs who do not take precautions to handle a known risk may receive higher penalties than in the past, particularly when the likelihood of an incident occurring is high and the consequences include a fatality or serious injury.

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