Paradise Outdoor Building Company Pty Ltd v Steward [2022] QCA 118

Michael Creedon | Laura Berry | Renee Shike

Key takeout

Where a person or entity has an electrical safety duty to not expose individuals to a risk of death or serious injury or illness, that duty will not be abrogated when another person or entity concurrently has the same duty.  Each person must comply with their respective duties.

The standard of proof required for a finding that a person or entity could have eliminated an electrical safety risk is that the court must be satisfied beyond a reasonable doubt.  However, if a court incorrectly applies the law for this standard of proof, an appeal may not be allowed if there is no substantial injustice to the applicant or if the outcome would have been the same if the error did not occur.

Facts

Paradise Outdoor Building Company Pty Ltd (Paradise) engaged two employees, Mr Nolan and Mr Traynor, to change the advertising skin on a sign adjacent to the Bruce Highway .  Energised power lines ran parallel to the highway, with the top corner of the advertising sign being just 2.6 metres from the power lines.  In the course of changing the advertising skin, the conductive aluminium sail track became energised.  Mr Nolan received an electric shock and suffered serious injury.

Paradise was convicted of a category 2 offence under section 40C of the Electrical Safety Act 2002 (Qld)(Act).  Paradise was found to have had an electrical safety duty that it failed to comply with, exposing an individual to a risk of death or serious injury or illness.

Paradise’s appeal to the District Court was dismissed.  Paradise sought leave to appeal to the Court of Appeal. Ordinarily, an applicant will only be granted leave where an appeal is necessary to correct a substantial injustice to the applicant and there is a substantial argument that there is an error requiring correction.

Electrical duty

Under section 40C of the Act, Paradise had an obligation to conduct its business in a way that is electrically safe.  It should have ensured that the risk of death, shock or injury from electricity to any person was eliminated as far as was reasonably practicable, or if this was not possible, it should have minimised the risk.  

In order to achieve this, Paradise was required to explore measures including de-energising, isolating or re-routing the power line.  At trial, evidence was given that Ergon Energy (Ergon) could have raised the power line to remove the sign from the exclusion zone at the request of Paradise.  It was estimated this would have cost between $4,000 and $4,500.  This action was undertaken after the incident.  Based on this evidence, the Magistrate concluded this was a readily available and inexpensive way of eliminating the risk.  Therefore, Paradise breached its duty under the Act.

Paradise appealed on  the basis that the District Court erred in:

1. law by failing to provide reasons for dismissing Paradise’s contention that the Magistrates Court failed to apply the correct standard of proof;
2. its interpretation and application of sections 30 and 40C of the Act;
3. failing to take into account the conduct of Ergon in its assessment; and
4. law by treating contraventions of section 68 of the Electrical Safety Regulation 2013 (Regulation) as amounting to a contravention of section 30 of the Act.

Decision

The application for leave to appeal was refused.

Ground 2 – Standard of proof and causation in assessing the applicant’s electrical safety duty

The Magistrates Court must be satisfied beyond reasonable doubt that the electrical duty was breached. Paradsie relied on the Magistrates Court’s observations that it could be ‘reasonably expected’ that the electrical risk could have been avoided if POBC had contacted Ergon.  However, these words were used at an interim stage in the judgment, before the Magistrates Court considered the evidence from Ergon.  

It was on Ergon’s evidence that the Magistrates Court was satisfied beyond reasonable doubt that Paradsie could have eliminated the risk to its employees.  Therefore, the Court of Appeal found the Magistrates Court correctly applied the standard of proof and found beyond reasonable doubt that Paradise breached its duty under section 40C of the Act.

 The Court of Appeal said that the Magistrates Court must have been satisfied beyond reasonable doubt that the lines would have been moved.  However, the Court of Appeal accepted that such a finding was reasonably arguable on the evidence provided by Ergon and that the Magistrates Court was, in fact, satisfied beyond reasonable doubt.  Therefore, it was inappropriate to grant leave to appeal on that point.

Paradise also argued that the Magistrates Court failed to establish that Paradise’s breach was a significant or substantial cause of Mr Nolan’s injury.  This dismissed as the question was not whether Paradsie’s failure to discharge its duty caused Mr Nolan’s injury, but rather whether it caused Mr Nolan to be exposed to the risk of death or injury.

Ground 4 – Incorrect application of the regulation

The District Court treated contraventions of section 68 of the Regulation as amounting to a breach of section 30 of the Act.  Section 68(1) of the Regulation provides that people cannot be within the 3 metres of powerlines, known as the exclusion zone.  There was no express provision for the Regulation to inform the electrical safety duty under the Act.  However, the Court of Appeal considered that the error was not a reason to set aside the decision as the substance of section 68 of the Regulation was repeated in the Electrical Safety Code of Practice 2010 – Working Near Overhead and Underground Electrical Lines, which was admissible as evidence.

Although the Court of Appeal found deficiencies in the District Court’s application of the Act, the errors did not create a substantial injustice requiring rectification.  Therefore, the application for leave to appeal was dismissed.

Other grounds of appeal

It was not necessary to consider the first ground of appeal as the Magistrate correctly applied the standard of proof as set out in ground 2.

The third ground of appeal relied on Ergon’s duty to ensure the power lines were a safe distance from the sign under the Regulation.  Paradise appealed on the basis that the District Court did not take this into account.  Paradise contended that the obligation to raise the lines rested solely on Ergon.  The Court of Appeal upheld the findings of the lower courts concluding that Paradsie’s duty arose when it became aware of the risk in 2008.  Under the Act, more than one person can concurrently have the same duty and each person must comply with their respective duty.  Therefore, Paradise’s duty was not abrogated by Ergon’s concurrent duty.  Any breaches by Ergon were unnecessary to consider as there were no proceedings against it.