The NSW District Court (the Court) has heard how following an incident involving the low voltage pole changeovers which caused significant injuries to a worker, a similar incident occurred about nine weeks later, this time causing a fatality.
In January 2019, a crew of Ausgrid Management Pty Ltd (Ausgrid) workers were instructed to undertake a low voltage pole changeover. Two workers were in a cherry picker and were to transfer the live conductors from the existing pole to the new replacement poles. While undertaking this work, one worker’s body came into contact with a live conductor and he suffered burns to the front and back of his body.
After this incident, Ausgrid issued safety alerts, initially pausing all low voltage pole changeover work. It also established a working group in relation to performing live low voltage pole changeovers.
On 2 April 2019, another group of workers attended a site in Riverwood to carryout a low voltage cross arm changeover. This work involved the live changeover of low voltage conductors from the old pole to the new pole. While carrying out the task on a cherry picker, a worker came into contact with energised conductors. He suffered burns to his left arm and right upper back and later died as a result of his injuries.
Ausgrid was charged with and pleaded guilty to failing to comply with a duty to ensure the health and safety of workers so far as reasonably practicable where such failure exposed workers to risk of death or serious injury in breach of section 32 of the Work Health and Safety Act 2011 (NSW).
In SafeWork NSW v Ausgrid Management Pty Ltd [2023] NSWDC 164, the Court heard that before the incident on 2 April 2019:
Following the incident, Ausgrid required the changeover of a low voltage cross arm task to be performed de-energised.
In setting the penalty, the Court considered that the offence was objectively serious. In particular it noted that while Ausgrid did have systems in place to protect workers, those systems had failed twice. For the Court, these failures were “completely unacceptable in an inherently dangerous industry”. Further, the Court also considered the offence to be serious given the extreme foreseeable harm in light of the previous January 2019 incident and that the steps to avoid the risk were available and straightforward.
The Court noted that while the tasks performed in both incidents were not the same, they were similar, and the steps taken by Ausgrid after the first instance were inadequate in the extreme. For the Court, that an incident occurred nine weeks later demonstrated a significant failure in Ausgrid’s WHS system. It stated: “An objective observer might well expect that the first incident would result in a response by the defendant such that the risk is extensively minimised, and the workforce is protected. Sadly, that was not the case.”
Ausgrid was convicted and fined $800,000. The penalty amount was reduced to $600,000 for it early guilty plea.
Employers have a primary duty of care to ensure the health and safety of workers so far as is reasonably practicable. While in this matter Ausgrid was not prosecuted for both incidents, the Court had regard to the rectification steps taken after the first instance and considered them to be inadequate. Further, the Court was also concerned that the steps taken after the earlier incident had failed not long after.
Where a safety incident or near miss occurs, employers should take the opportunity to re-examine and reassess its work health and safety system thoroughly to ensure that it is robust and adequately addresses foreseeable risks.
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