INSIGHT

WHS prosecutor made to pay costs

By Alana Perna
Employment & Safety

In brief 2 min read

A Queensland safety prosecutor has been directed to pay a defendant's costs after learning information on day one of the trial that put it on notice its expert evidence did not support the charge brought.

Key takeaways

  • This case indicates that parties should properly investigate and acknowledge any facts that directly challenge the success of their claim. A failure to do so, including by regulators, may invite costs to be awarded against them.

Background

In February 2017, a maintenance worker attended a commercial premises in Brisbane to check two submersible pumps he installed the previous year, which had stopped working and were causing groundwater to accumulate in the basement area. He was found deceased and submerged in 30 centimetres of water.

The commercial premises was owned by Constantinos Kouzoukas. He leased out the property but retained control over its electrical equipment.

A coronial inquest found that the worker likely received a non-fatal electrical shock from a decommissioned refrigeration unit with faulty earthing before suffering a fatal abnormal cardiac arrhythmia. The Coroner concluded there was some equipment in the basement that was not electrically safe but Kouzoukas had reasonably believed it was safe.

The State Work Health and Safety Prosecutor, Aaron Guilfoyle, charged Kouzoukas with breaching section 38 of the Electrical Safety Act 2002 (QLD) (the ESA), which requires a person who is in control of electrical equipment to ensure that it is electrically safe.

In February 2021, the Brisbane Magistrates Court held that there was insufficient evidence to demonstrate Kouzoukas had failed in his duty under the ESA or the Work Health and Safety Act 2011 (Qld). This finding was consistent with the findings in the Coronial inquest.

Kouzoukas successfully applied for costs of $95,000.

The decision

The prosecutor unsuccessfully appealed the order for costs in the Queensland District Court.

In upholding the order for costs, the District Court was particularly persuaded by evidence that, on the first day of trial, the prosecution was made aware, via an email chain in January 2020, that an electrical engineering expert questioned the electrical evidence and whether electricity was involved in the fatality, stating that there was 'no evidence' to rule that the death was caused by electric shock.

Since the prosecution was made aware of facts likely to be fatal to its success on day one of the trial, and chose to continue its prosecution, the District Court held that the Magistrate did not err in awarding costs in favour of Kouzoukas.