|Defendant||Anthony Robert Russell|
|Section||20(1) & 20A(2)|
|Offence Date||24 February 2012|
|Description of Breach(es)||
Being an employee, failed to take reasonable care to avoid adversely affecting the safety or health of any other person through any act or omission at work, and buy that failure caused serious harm to such a person.
In 2011, a construction company was engaged for substantial renovation works to the TAFE campus on the corner of Richmond and Oxford Streets, Leederville (Leederville TAFE).
The construction company engaged Bluetrend Investments Pty Ltd, trading as WA Plumbing Solutions (WAPS), to carry out associated plumbing works.
As at 24 February 2012, Carlo GIANCOLA was effectively the site supervisor at Leederville TAFE for WAPS. Mr GIANCOLA had worked for WAPS for approximately 7 years, and had been a supervisor there for approximately 2 to 3 years.
Mr GIANCOLA reported to the head supervisor for WAPS, Anthony RUSSELL. Mr RUSSELL's duties included attending various WAPS sites throughout the day to direct and check the progress of work. As at 24 February 2012, he had been the head supervisor for approximately 2 years, and had been with WAPS for approximately 7 years, after completing his apprenticeship.
As at 24 February 2012, first-year apprentice (19 years old) and second-year apprentice (18 years old) were working for WAPS at Leederville TAFE.
Mr GIANCOLA was directly responsible for the day-to-day supervision of the first year apprentice and the second year apprentice at Leederville TAFE.
The second year apprentice had been directly employed by WAPS since leaving school following completion of Year 11.
The first year apprentice had been employed as an apprentice plumber by Plumbing and Painting Training Company, trading as MPA Skills (MPA), since May 2011, following 15 weeks as a pre-apprentice.
Among other businesses, MPA ‘hires' apprentices out to ‘hosts'. As at 24 February 2012, the first year apprentice had been placed with WAPS for approximately 6 to 9 months.
Works prior to 23 February 2012
One of the jobs for which WAPS had been engaged at Leederville TAFE was the running of a new 150-mm fire line, to replace the existing 100-mm connection.
Prior to February 2012, WAPS located and excavated the existing fire line, and laid trenches for the connection of the new fire line to the existing system.
The construction company then arranged for the Water Corporation to install a new hydrant valve which would link the mains valve, which was outside the lot on which Leederville TAFE was situated, to what would be the new fire service.
The construction company had also arranged for the laying of a concrete footing along the interior of the boundary of the lot on which Leederville TAFE was situated. A boundary wall was to be constructed on this footing.
The hydrant valve was installed on behalf of the Water Corporation in late January or early February 2012. For some reason, the hydrant valve was installed outside both the concrete footing and the boundary of the lot on which Leederville TAFE was situated. This was unusual, as it should have been installed inside the lot.
WAPS returned to Leederville TAFE in February 2012 to finish laying and connecting the new fire service.
23 February 2012
As at 23 February 2012, the first year apprentice and the second year apprentice had been working for WAPS at Leederville TAFE for approximately 3 weeks.
On 23 February 2012, Mr GIANCOLA asked the first year apprentice to assist the second year apprentice in running the new 150-mm fire line to the hydrant valve.
In the afternoon of 23 February 2012, the first and second year apprentices were working in an area. They were running pipes for a check valve that would then be connected to the hydrant valve as part of work for a booster for the new fire service. Mr GIANCOLA was checking in on them and working with them every now and then. Mr RUSSELL was not on site.
The first year apprentice, the second year apprentice and Mr GIANCOLA were working inside the concrete footing on 23 February 2012.
The trench containing the hydrant valve, including the area below the concrete footing, had already been excavated as at 23 February 2012. Clearly visible in that trench, on the outside of the concrete footing, was electrical danger tape, an orange conduit (Orange Conduit), and another thicker pipe or conduit below that (Lower Pipe).
There was also a thinner (40-mm) reticulation pipe clearly visible running transversely across the trench at ground level, just inside the concrete footing (Existing 40-mm Reticulation Pipe).
On 23 February 2012, the first year apprentice asked Mr GIANCOLA what work they would be doing the next day. Mr GIANCOLA told him that they would be running the fire line under the concrete footing from the check valve to the hydrant valve.
The first year and second year apprentice did not have a plan of the proposed pipe layout. Mr GIANCOLA did, and would instruct them where the pipes were to run.
On 23 February 2012, Mr GIANCOLA explained to the second year apprentice that they would need two ‘elbow' offsets to redirect the fire line under the concrete footing, the Orange Conduit and the Lower Pipe, and back up to the hydrant valve.
Mr GIANCOLA went to purchase the offsets for this purpose.
Mr GIANCOLA had seen the electrical danger tape, the Orange Conduit, the Lower Pipe and the Existing 40-mm Reticulation Pipe. He recognised the Orange Conduit as a low-voltage (LV) electrical conduit. Although the presence of a LV conduit would suggest that the area might be outside the lot boundary, WAPS had encountered other redundant conduits within the lot. Ordinarily, Mr GIANCOLA would have enquired with CPD to determine what the Lower Pipe was. However, he did not see the need in this case, because he had decided to use the offsets to avoid the pipe entirely.
Mr GIANCOLA and Mr RUSSELL had spoken by telephone and agreed that the fire line would be offset to the hydrant valve because there were ‘services' in the way. Again, this would have suggested that the area might be outside the lot boundary.
24 February 2012
On 24 February 2012, the first year apprentice and the second year apprentice arrived at Leederville TAFE at approximately 6 a.m. and started getting ready to do their work for the day running the fire line.
Mr GIANCOLA and Mr RUSSELL were also on site.
Both the apprentices went over to the area in which they had been working the previous day to continue connecting the fire line to the hydrant.
Mr GIANCOLA came over and stood in the area. He instructed the apprentices to connect the hydrant valve to the fire service line using 100-mm high-density polyethylene (HDPE) pipe, travelling under the concrete footing.
A flange was required to connect the hydrant valve to the fire service line. The first year apprentice went to install an HDPE flange in accordance with Mr GIANCOLA's instructions.
On doing so, the first year and second year apprentice considered that there would not be enough space for the socket to fit on the flange, between the hydrant valve and the Lower Pipe.
The first year and second year apprentice knew that the Orange Conduit was an LV electrical conduit due to its colour and the presence of the danger tape.
However, they did not know what the Lower Pipe was. They assumed that it was not an electrical conduit, because it was not orange.
The first year and second year apprentice discussed what they should do, and the second year apprentice then went to check with Mr GIANCOLA, who was with Mr RUSSELL, between approximately 30 and 50 metres away.
The second year apprentice told Mr GIANCOLA that a 40-mm copper pipe was in the way of the connection to the hydrant valve, and asked Mr GIANCOLA what to do. The second year apprentice was referring to the Lower Pipe, which was in fact thicker than 40 mm, and was not made of copper.
Mr RUSSELL consulted a plan of the existing services, and identified the pipe in question as a 40-mm reticulation line that he was aware had been or was being made redundant.
Mr RUSSELL did not go to look at the pipe himself. He had not taken particular notice of the location of the hydrant valve, and assumed that, as usual, it had been installed inside the footing and inside the lot boundary.
In fact, Mr RUSSELL had identified the Existing 40-mm Reticulation Pipe. As noted, this was a reticulation line running along the surface, on the inside of the concrete footing which corresponded with Mr RUSSELL's assumptions.
Mr RUSSELL instructed the second year apprentice to drill into the pipe with a tech screw to see if water came out, which would mean that it was ‘live' (i.e., not disconnected). (Tech screws have a seal on the end, so if they are used to drill into a live water pipe the leak can be sealed by fully drilling in the screw.)
Drilling into a water pipe in this way was not standard procedure for WAPS or in the industry generally.
Mr GIANCOLA, to whom the second year apprentice had initially directed the query, should have suspected that the second year apprentice was actually referring to the Lower Pipe, having seen and worked in the area in question.
However, Mr GIANCOLA deferred to Mr RUSSELL, and so did not correct Mr RUSSELL's misunderstanding.
The second year apprentice returned to the trench and conveyed Mr RUSSELL's instructions to the first year apprentice.
The first year apprentice asked the second year apprentice whether he was sure about these instructions. The second year apprentice replied that he was. The first year apprentice assumed that Mr RUSSELL's instructions would be correct, due to Mr RUSSELL's position with WAPS and experience.
The second year apprentice fetched a tech screw from Mr GIANCOLA's vehicle. The first year apprentice took a tech bit from his own vehicle. He already had a drill at the trench.
At approximately 6:30 a.m., the first year apprentice stood side-on to the Lower Pipe, facing north, so that he would not get wet if the pipe was ‘live', and started drilling into the pipe.
Almost immediately, the first year apprentice told the second year apprentice that something did not seem right.
In fact, the Lower Pipe was not a water pipe. It was an 11,000-V high-voltage (HV) mains electrical conduit, which was why it was located outside the lot boundary.
The construction company had obtained Dial Before You Dig documents for Leederville TAFE when the footings were constructed around the lot boundary. These documents would have identified that the Lower Pipe was an HV conduit.
However, either WAPS did not request these documents from the construction company, or WAPS received them but did not particularly refer to them, on the mistaken assumption that WAPS would not be working outside the lot boundary.
As the first year apprentice drilled into the Lower Pipe, there was an explosion caused by a phase-to-earth flashover, which threw the first year apprentice out of the trench.
Another apprentice came over and started pouring water on the first year apprentice's arm and leg, which had been burnt in the explosion.
Mr GIANCOLA took the injured apprentice to Royal Perth Hospital, where he was treated for partial thickness burns to his left hand, forearm and knee. After discharge he received ongoing treatment, including occupational therapy, until February 2013, a year after the incident. Without this treatment, he would likely have been left with exceedingly limited use of his left arm below the elbow.
The injured first year apprentice has been left with noticeable scarring to his hand and forearm, and associated minor limitations in performance of activities of daily living. He has been assessed as having 4% permanent whole-of-person impairment.
The injured first year apprentice was certified as entirely unfit for work until 21 March 2012, when he was cleared to return to restricted duties. He returned to full duties from 9 May 2012.
As a result of the incident, the mains power was temporarily cut to the area surrounding Leederville TAFE.
Later on 24 February 2012, at the request of Mr RUSSELL and the construction company, Western Power attended Leederville TAFE and replaced and lowered the Lower Pipe to create space for the flange and socket to fit to the hydrant valve.
In early March 2012, at the request of the construction company, the Water Corporation arranged for the hydrant to be brought inside the lot boundary. The construction company removed the footing in that area for that purpose.
Failure to take reasonable care
On 24 February 2012, when the second year apprentice asked how to deal with what was in fact the Lower Pipe:
i) Mr GIANCOLA should have:
ii) Mr RUSSELL should have:
Taking any or all of these measures would have reduced the risk of the first year apprentice drilling into the Lower Pipe, and consequently suffering the injuries referred to above, on 24 February 2012.
The Accused entered a guilty plea and was convicted. The Magistrate would have imposed a $8000 fine but reduced it to $6000 for early plea.
|Conviction Date||02 May 2014|
|Court||Magistrates Court of Western Australia - Perth|