|Dale Francis Mortley
|8 February 2013
|15th December 2014
|6th February 2015
|8 February 2013
|15th December 2014
|6th February 2015
|Description of Breach(es)
Charge 1: Being an employee, failed to take reasonable care to ensure his own safety and health at work, contrary to sections 20(1) and 20A(3) of the Occupational Safety and Health Act 1984.
Charge 2: Being an employee, failed to take reasonable care to avoid adversely affecting the safety and health of his colleague through any act or omission at work, and thereby caused the death of his colleague, contrary to sections 20(1) and 20A(2) of the Occupational Safety and Health Act 1984.
JCW Electrical Pty Ltd (ACN 141 195 708) (JCW) is a corporation that operated an electrical contracting business from premises located at 7A Stuart Street, Bunbury.
8 February 2013
On 8 February 2013 at approximately 7:30 a.m., Dale Mortley (a licensed electrician employed by JCW) and an 18-year-old trades assistant employed by JCW who was not licensed to perform electrical work attended a residence at East Bunbury (Premises) to perform electrical work at the Premises, including installing a new chandelier in the combined dining/lounge room.
Upon arrival, Mr Mortley and the trades assistant were asked to perform further work, including replacing down-lights in the kitchen, and in the combined dining/lounge room: the replacement of an existing wall light (in the dining area); and the modification of two separate existing switches such that each switch would operate the chandelier (known as a two-way switching system).
The existing light switches that were to be used for the chandelier were alongside each of the two sets of doors into the dining/lounge room, from the entrance hallway to the lounge area, and from the kitchen to the dining area respectively.
Before starting any electrical work, Mr Mortley confirmed that the existing wall light in the dining area was connected by switching it on. He then went to the switchboard and observed that there were two 8A fuse wedges in the switchboard. It is common knowledge amongst electricians that light circuits on older properties such as the Premises are generally protected by 8A fuse wedges.
It is also common knowledge amongst electricians that, while there are generally two light circuits for a modern house the size of the Premises, older houses such as the Premises typically only have one light circuit.
However, the number of light circuits in any particular house cannot be conclusively presumed simply based on the age or size of the house.
Mr Mortley pulled out the two 8A fuse wedges, having identified them as being on the light circuits at the Premises.
Mr Mortley then returned to the lounge and performed a function test to confirm that the existing wall light was no longer live. The function test was a visual test undertaken by turning the switch for the wall light on and off and observing that the wall light, which had been working when Mr Mortley had turned it on earlier, was no longer working.
Mr Mortley then tested that the wall light circuit was not live using a multimeter, before installing the new wall light. The trades assistant assisted him but did not do any electrical work.
Mr Mortley then installed the chandelier. This involved measuring out the room and determining the location of the new chandelier, then checking the safety of the roof space above the lounge/dining room before entering the roof space in order to find a fixing point. The trades assistant accompanied Mr Mortley into the roof space and assisted him but did not do any electrical work.
Mr Mortley and the trades assistant then went back into the lounge room, where Mr Mortley screwed the chandelier to the roof fixing point and poked the light cable from the chandelier (which was not connected to any electrical circuit) into the roof cavity.
Mr Mortley then prepared to install the two-way switching system. He first pulled the switches out of the wall so they were hanging out by their conductors. It was not possible for Mr Mortley to perform a function test on the light circuit using the light switch, as there was no corresponding light installed at that time.
Further, because there was no neutral or earth cable at the light switch, it was not possible for Mr Mortley to check whether the light switch was live using his multimeter without creating a reference point. The most common way to do this would have been to run a wire from the earth socket of a power point elsewhere in the house, to be attached to his multimeter along with the conductor running to the light switch. If the conductor running to the light switch was live, the multimeter would indicate that a circuit had been created through the conductor to the earth at the power point.
Mr Mortley did not do so. He relied upon the function test which he had performed on the wall light located in the same room, and the multimeter test which he had performed on the wall light.
It is not common practice when wiring a house to have two separate light circuits in the same room. However, it cannot be conclusively presumed that this will not be the case.
Mr Mortley also used a volt stick to test the light circuits to the switches. He had previously tested the volt stick on a power point at the Premises. A volt stick is a device that is designed to glow if there is power running through a circuit.
Because the volt stick did not glow, and because the light switch for the wall light and the wall light circuit had been proven by a multimeter to be isolated, Mr Mortley was satisfied that the circuits to the switches were not live.
Having so satisfied himself, Mr Mortley assessed the cables to identify whether he needed to add anything to convert the circuits into a two-way switching system.
The switch in the dining area, near the kitchen, did not need a new cable.
The switch in the lounge area, near the entrance, only had a standard twin active cable, which meant that it needed a further single core cable to be added. A standard twin active cable consists of a dual sheath containing two separate cables: a red cable, which is typically used as the active cable running from the mains to a switch; and a white cable, which is typically used as the switch cable running from the switch to the light, and so is not continuously live. A standard twin active cable does not contain a neutral or earth cable.
Mr Mortley decided to add a new single core cable to the lounge switch as part of the new two-way switching system to the chandelier, in accordance with standard practice.
He also decided to replace the old twin active cable with a new twin active cable, to be joined in the roof to the cabling for the other switch in the dining area. Older twin active cables have more insulation than modern twin active cables, and so replacing the old twin active cable with a new cable would allow more room to fit the new single core cable. The existing twin active cable would be used to pull the new cables through the conduit, and then be removed and discarded.
Mr Mortley stripped the red cable, which was the active side of the existing twin active cable, to expose the conductor, which he fashioned into a loop.
He then stripped the new twin active and single core cables, which he threaded back through the loop in the existing twin active cable and twisted to create a secure joint.
He then wrapped the cable joint with electrical tape to further secure it and to prevent it from catching as it was being pulled up the conduit.
Mr Mortley went up into the roof space to pull the existing twin active cable up the conduit from the switch in the lounge area, which would drag up the attached new cables. However, he found that the roof in the area of the relevant conduit was too low for him to access the existing twin active cable to the switch. He told the trades assistant that he would remove some tiles and access the area externally from the roof. The trades assistant, who was smaller than Mr Mortley, volunteered to enter the roof space and reach the cable instead.
Mr Mortley had satisfied himself, prior to entering the roof space previously, that there were no apparent hazards such as exposed wires or spiders, and agreed to let the trades assistant do so. The trades assistant had assisted Mr Mortley previously in roof spaces at other jobs.
Mr Mortley went up into the roof space with the trades assistant and stayed there, in a less cramped area, until the trades assistant had reached the cable, whereupon Mr Mortley returned to the lounge.
Mr Mortley fed several metres of cable up to the trades assistant in the roof space via the conduit from the switch by the entrance to the lounge. During this time, Mr Mortley was speaking with the trades assistant about the progress of the cable being fed up through the conduit.
After a few minutes, Mr Mortley and the house owner, who was in the kitchen, heard a thump from the roof space above the lounge area.
Mr Mortley called out to the trades assistant to check on him. When Mr Mortley did not receive a response he quickly walked to the manhole and again called out to the trades assistant. Upon again receiving no response, Mr Mortley went into the roof space and found the trades assistant unconscious.
Mr Mortley called down to the house owner to telephone an ambulance, which she did while Mr Mortley commenced CPR on the trades assistant.
A neighbour of the house owner arrived soon after to assist Mr Mortley with the CPR.
On entering the roof space, the neighbour asked Mr Mortley whether there were any live cables in the vicinity. Mr Mortley responded no. The neighbour grabbed the cable that the trades assistant had been pulling up and tossed it aside.
The trades assistant was taken to hospital but was confirmed deceased shortly after.
Cause of the trades assistant's death
Investigations established that, on the way up the wall conduit into the roof space, the stripped conductor on the red cable of the existing twin active cable had been partly extricated from the tape that Mr Mortley had wrapped around the join between the existing and new cables, exposing the conductor. The trades assistant had been holding this exposed conductor when he came into contact with a copper gas pipe in the roof space.
Unbeknownst to both Mr Mortley and the trades assistant, the light circuit that they were working on was still live. The copper pipe consequently acted as an earth for the current to flow to from the exposed light circuit, through the trades assistant's body, fatally electrocuting the trades assistant.
Although Mr Mortley had handled the exposed conductor in the lounge room, it is likely that he was not electrocuted because his boots and the wooden floor of the room insulated him from earth.
How the circuit came to be live
When Mr Mortley had gone to the switchboard prior to commencing work at the Premises, he had pulled each fuse wedge that he had identified as being on a light circuit for the Premises.
As noted, he had concluded that those fuses were on the light circuits because they were marked as 8A fuse wedges. In respect of porcelain fuses of the general era from which the fuses at the Premises dated, it is common knowledge among electricians that residential light circuits are generally protected by 8A fuses, and other circuits 15A fuses.
Mr Mortley did not consider that he needed to turn all power to the Premises off at the mains as he was only working on light circuits initially. Instead, he intended to test that he had isolated any light circuit that he would be working on prior to actually working on it.
It is not necessarily unlawful, nor is it unusual, for electricians to selectively isolate only the circuits that they will be working on, rather than turn off all power at the mains. Mr Mortley did not turn off all power to the Premises because the house owner was home and was doing washing.
Because Mr Mortley had concluded that the circuits that he had disconnected at the switchboard were the only light circuits for the Premises, his subsequent confirmation, visually and using his multimeter, that he had successfully isolated the dining area wall light circuit, and his double-checking the lounge switch with his volt stick, confirmed to him his view that he had successfully isolated all the light circuits for the Premises.
In fact, the circuit running to the switch at the entrance to the lounge room was connected to a different circuit to the wall light, and was protected by a different fuse wedge, which Mr Mortley had not pulled. That circuit was therefore live when Mr Mortley and the trades assistant were working on it.
That circuit was not protected by a residual current device (RCD) for the Premises, which would have cut power if current had leaked to earth, such as through a human body. At the time at which the Premises were built, it was not a requirement for lighting circuits to be protected by a RCD.
Although, as noted, Mr Mortley had identified what he had concluded were the only light circuits for the Premises by reference to the 8A current ratings of the fuse wedges, it would have been more accurate had he referred to the current rating on the fuse bases. To do so, he would have had to pull out all of the fuse wedges, thereby turning off the power to the entire Premises.
Had he done so, he would have seen that the fuse base for the light circuit running to the switch at the entrance to the lounge area, which had a 15A fuse wedge, was also marked as 8A.
In respect of porcelain fuses of the general era from which the fuses at the Premises dated, it is common knowledge among electricians that, although light circuit fuse wedges are usually 8A, it is possible for a 15A wedge to be used instead.
In respect of porcelain fuses of that era, 8A and 15A fuse wedges are the same size, so a 15A wedge will still fit into an 8A fuse base. Subsequently, plastic 10A wedges were adopted in place of 8A wedges. These 10A wedges were no longer the same size as 15A wedges. Fuses generally have now been replaced by circuit breakers.
In respect of porcelain fuses of that era, it is effectively not feasible to confirm the current rating on a fuse base when the base is fitted with a fuse wedge.
When Mr Mortley opened the switchboard before commencing work, he therefore could not see that the fuse base for the circuit running to the light switch at the entrance to the lounge area was in fact marked 8A. Also, the switch board was not labelled with descriptions of the circuits, and so fuses protecting the light circuits were not marked as being such.
This may explain his failure to identify and pull that fuse wedge.
Why the circuit was not identified as live
At all material times, AS/NZS 4836:2011 - Safe working on or near low-voltage electrical installations and equipment (Standard) has applied to any situation where there is reasonable possibility that an electrical worker, or any conducting medium that the worker may be carrying or touching, may come closer than 500mm to exposed energised conductors or live conductive parts.
The Standard emphasises the common knowledge among electricians that all electrical conductors and parts must be treated as energised until proven de-energised.
Mr Mortley had been trained as an electrician by undertaking a course of study at the South West Institute of Technology while at the same time working for an electrical contractor.
On commencing work as a licensed electrician with JCW, JCW did not give Mr Mortley further training or instruction as to the testing of circuits for energisation, on the basis that that area was basic knowledge for a qualified and licensed electrician.
Early in their studies, apprentice electricians are trained to rely on a multimeter to prove that a circuit is not live.
Mr Mortley did not use a multimeter to test the light circuit for the chandelier lounge switch at the Premises, although he had earlier used a multimeter to test the wall light circuit. As noted above, he used a volt stick to check the lounge switch circuit, following the other tests which he had conducted on the other lights in the same room.
JCW supplied its employee electricians, including Mr Mortley, with multimeters. It did not supply them with volt sticks.
Through training and experience, it is common knowledge among electricians that volt sticks, although a useful double-check, should not be relied upon to confirm that a circuit is not live.
Mr Mortley used the volt stick with the intent of double-checking the tests which he had conducted on the other light circuit in the same room.
Volt sticks work on proximity and are designed to glow if there is power running through a circuit. It is known that they can give false negatives if, for example:
• they are out of battery; or
• they are applied in the proximity of a non-live neutral cable, or the switch side of a twin active cable, particularly in respect of older cables, which tend to have thicker sheathing (such as the cable running to the switch at the entrance to the lounge room of the Premises).
These phenomena may explain why Mr Mortley's volt stick failed to identify that the circuit running to the switch at the entrance to the lounge room of the Premises was still live when he and the trades assistant were working on it.
Following the death of the trades assistant, the Electrical Licensing Board required Mr Mortley to have his competence reassessed. Mr Mortley successfully passed the required examination.
Failure to take reasonable care
On 8 February 2013, Mr Mortley failed to take reasonable care, in that he should have, by using a multimeter, ensured that, before any work was done by himself or the trades assistant on any circuit at the Premises, that circuit was conclusively proven to be isolated.
Doing so would have reduced or eliminated the risk of Mr Mortley and/or the trades assistant being electrocuted, and therefore the risk of the trades assistant being fatally electrocuted, on 8 February 2013.
Potential hazards in roof spaces
There are a number of serious electrical hazards that may be present in the roof space of premises at which main supply has not been fully isolated.
For example, previous electrical work may not have been performed safely, with the result that there may be exposed and unterminated conductors in the roof space, or circuits may be crossed or wired to the wrong fuses at the switchboard.
Further, vermin may have damaged cables or junction boxes, leaving exposed conductors.
Conductors left exposed in this way may be concealed by insulation, and may be in contact with metal items in the roof or parts of the roof frame, rendering those items potentially live themselves.
The switchboard at the Premises, although legally compliant, was of an age such that the potential for these hazards, or misidentification of circuits by an electrician, was high, particularly given that the switchboard was sparingly labelled.
Since April 2008, the Director of EnergySafety has published the Code of Practice: Safe low voltage work practices by electricians (CoP) as a set of guidelines pursuant to section 33AA of the Electricity Act 1945 (WA).
The CoP recommends that live work not be allowed on domestic electrical installations. In the CoP, "live work" includes working in close proximity to live exposed electrical equipment (such as may be present in a roof space), such that accidental or inadvertent contact with such equipment is possible.
At all material times, the Standard has, as noted, applied to any situation where there reasonable possibility that an electrical worker, or any conducting medium that the worker may be carrying or touching, may come closer than 500mm to live exposed electrical equipment. This comprehends the potential hazards arising in roof spaces.
Prior to 8 February 2013, Master Electricians Australia (MEA), an electrical contracting industry group, released press releases.
In January 2013 WorkSafe published a Bulletin headed 'Working on roofs and in roof spaces' (WorkSafe Bulletin). The WorkSafe Bulletin has been available for public viewing from 21 January 2013 on the WorkSafe website. It was advisory in nature, and not of binding legal effect.
The WorkSafe Bulletin emphasised that, in order to manage the risks associated with work in roof spaces, all electricity to the property should be turned off at the mains before starting work.
Nonetheless, as noted, it is not necessarily unlawful, nor is it unusual, for electricians to selectively isolate only the circuits that they will be working on, rather than isolating all power at the mains.
As at 8 February 2013, JCW had not implemented a formal safety system, and particularly did not have any policy or procedure requiring its employees to isolate all power to a property before entering the roof space.
However, as at 8 February 2013, JCW had begun the process of implementing a formal safety system called 'SafetyConnect' with the assistance of MEA, which provides its members with safety management systems in exchange for payment of an ongoing annual subscription. MEA commenced operations in Western Australia on 25 June 2012.
JCW became a member of MEA on 1 November 2012, and requested assistance with establishing a safety management system. JCW purchased the SafetyConnect system in November 2012.
On 19 December 2012, MEA conducted an initial meeting with JCW at which the safety management system, known as SafetyConnect, was introduced. Later that day, MEA conducted an induction meeting, at which JCW's then employees were given a broad overview of SafetyConnect for their purposes. Mr Mortley was present at this meeting.
The next meeting, a 'first safety meeting', was scheduled to be held at JCW's offices at 1:00pm on 8 February 2013. Both Mr Mortley and the trades assistant were scheduled to attend this safety meeting. That meeting was to cover general occupational safety and health principles, such as hazard identification, risk assessment and implementation of controls.
This meeting was postponed due to the incident at the Premises on that date. Subsequent to 8 February 2013, a policy was added to the SafetyConnect package that was headed 'Working in ceiling, crawl in spaces and on conductive roofs' (CCICR Policy), which included a prohibition on work in roof spaces without supply being isolated at the switchboard, due to the 'potential for conductive parts in these high risk areas becoming energised'.
Subsequent to 8 February 2013, JCW has formally implemented the comprehensive SafetyConnect package, including written isolation procedures and job safety analyses, and the CCICR Policy.
JCW has also separately emphasised to its employees that electricity must be turned off at the mains prior to any work being undertaken in roof spaces. This was done in the days following the incident on 8 February 2013, before JCW recommenced work.
Practicable measures that could have been taken
Prior to and as at 8 February 2013, it was reasonably practicable for JCW to have implemented a system by which its employees were instructed and required to ensure that the mains power was isolated before entering any roof space.
Taking this measure would have reduced or eliminated the risk of Mr Mortley or the trades assistant being electrocuted, and therefore the risk of the trades assistant being fatally electrocuted, on 8 February 2013.
The Accused entered a guilty plea and was convicted on 15 December 2014. The Magistrate sentenced the Accused on 6 February 2015 and fined the Accused $6800.00 global fine after the 25% reduction. Ordered to pay costs of $2294.10. Application for spent conviction order was refused.
|Magistrates Court of Western Australia - Bunbury
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