MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Agius v Fed Consulting Services Pty Ltd; Agius v Stephen Gelo

[2026] ACTMC 2

INDUSTRIAL LAW - Work Health and Safety - Category 2 offences - construction - injury from excavator - guilty findings

Work Health and Safety Act 2011(ACT), ss 7, 12A, 17, 18, 19, 28, 32, 244A

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

Kirk v Industrial Court of New South Wales [2010] HCA 1

Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117

Orr v Hunter Quarries Pty Limited [2019] NSWDC 634

SafeWork NSW v Scharfe [2021] NSWDC 260

WorkCover Authority of New South Wales (inspector Gordon) v Gregory Ronald Wallis (unreported, Full Bench of the Industrial Relations Commission, 1996

WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67

1. The Defendants, Fed Consulting Services Pty Ltd (Fed Consulting) and its Director, Stephen Gelo, are charged with Category 2 Work Health and Safety offences contrary to s 32 of the Work Health and Safety Act 2011 (WHS Act). The offences are strict liability offences (s 12A, WHS Act).
2. The charges arise from an incident which occurred on 17 November 2022 at a site in Gungahlin where construction of the Sierra Apartments had commenced (the Site). On that day, a worker at the Site, Ziabur Rahman, suffered injuries to his right foot as a result of an excavator bucket landing on it. Ultimately, a toe on his right foot had to be amputated and he required an extensive skin graft for his foot.
3. Mr Gelo was the operator of the excavator. He is charged with failing to comply with his duty under s 28 of the WHS Act to take reasonable care that his acts did not adversely affect the health and safety of Mr Rahman. Fed Consulting is charged with failing to comply with its duty under s 19 of the WHS Act, as a person conducting a business, to ensure (so far as was reasonably practicable) that the health and safety of other persons was not put at risk from work carried out as part of Fed Consulting's business.
4. The key issue that is in contention between the parties is how the incident occurred. If, as the Prosecution alleges, Mr Gelo made a deliberate decision to lower the excavator bucket knowing that Mr Rahman was in the vicinity of it, there is no dispute that both Fed Consulting and Mr Gelo will have breached their respective duties. On the other hand, if, as Mr Gelo gave evidence, he immediately stopped the excavator once he realised that someone was in the vicinity of it, and the excavator (including the bucket) simply rocked forward as a result (and that is how the excavator bucket came to contact Mr Rahman's foot), there is no dispute that Fed Consulting and Mr Gelo will not have breached their respective duties.
5. The Prosecution also submitted that I should find that Mr Gelo was using his mobile phone while he was operating the excavator, which he could not safely do because it would distract him from what he was doing. The Prosecution submitted that Mr Gelo's simultaneous operation of his mobile phone and the excavator was a substantial cause of Mr Rahman being exposed to a risk of harm because Mr Gelo would have been distracted from the safe handling of the excavator.
6. While it is clear that Mr Gelo did use his phone at various points on 17 November 2022, including at a time that was close to the time when Mr Rahman's foot was injured, I am not satisfied that he was using it at the time of the incident or in the lead-up to it. As the Defendants submitted, the precise timing of the incident is not known and, accordingly, the phone records that were tendered at the hearing cannot establish what the proximity between Mr Gelo using his phone and the incident occurring was.
7. The only person to have seen Mr Gelo apparently on the phone was Mr Rahman, however, Mr Rahman did not see Mr Gelo holding his mobile phone. He gave evidence that, earlier in the day, he had seen Mr Gelo wearing headphones, but he gave no evidence about the kind of headphones that he saw Mr Gelo wearing and there is no evidence that those headphones enabled Mr Gelo to use his mobile phone (for example, through a Bluetooth connection). It is possible that what Mr Rahman saw was an earpiece for the UHF radio that Mr Gelo said he always had on to communicate with others at the Site.
8. Further, in cross-examination Mr Rahman was not able to definitively say that Mr Gelo was wearing headphones at the time of the incident. Even if he was, and even if they did permit him to use his mobile phone, Mr Rahman's observation that Mr Gelo was speaking loudly in the cabin of the excavator is not only explicable on the basis that he must have been on the phone. He may, for example, have been trying to speak to Mr Rahman or venting about something (including about Mr Rahman approaching him while he was operating the excavator).
9. Accordingly, my decision turns on whether Mr Gelo did, or did not, deliberately lower the excavator bucket while Mr Rahman was in its vicinity.

1. As is the case in all criminal prosecutions, the Prosecution bears the onus of proving the guilt of the Defendants. The Defendants do not have to prove that they did not commit the offences with which they have been charged.
2. The standard of proof the Prosecution must meet is proof beyond reasonable doubt. The Defendants cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of their guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendants, or I am unsure where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.
3. I note that, while I have referred to the Defendants collectively, I must consider the case against each Defendant separately when considering my verdicts. I will return a separate verdict in respect of each individual Defendant.
4. I must determine whether each of the witnesses who gave evidence at the hearing was a reliable witness. That is, whether I can rely on the evidence that the witness gave and so find the facts about which the witness has given evidence as proved. I can accept part of the witness's evidence and reject part of that evidence or accept or reject it all. The law does not require me to give all evidence the same weight.
5. I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the Prosecution and Defendants are entitled to my verdict free of partiality, prejudice, favour or ill-will.
6. Mr Gelo gave evidence at the hearing. He was not required to do so. He could have elected not to give evidence. He thereby became a witness in the hearing and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse, because he is a defendant in the proceedings, than the evidence of any other witness in the hearing and must be considered in the same way as the evidence of other witnesses. However, by giving evidence, the Defendants did not assume any onus to prove anything at the hearing.
7. I note that the Defendants submitted that one of the Prosecution witnesses, Darren Hill, had a motive to fabricate evidence, being that he wished to ensure that blame for the incident would be placed on Mr Gelo rather than anything that the company he had worked for (Chase Construction (ACT) Pty Ltd (Chase)) had done. A motive to lie or to be untruthful, if it is established, may affect the credibility of a witness. Where there is evidence that a Prosecution witness has a motive to lie, my task is to consider that evidence and determine whether I am nevertheless satisfied that the evidence given was truthful. That is not something that the Defendants need to prove and, if I reject the submission that the witness had any motive to lie, that does not automatically lead to a conclusion that their evidence is truthful. I cannot be satisfied that a witness is telling the truth merely because there is no apparent reason for them to have lied.
8. I give myself what is known as the Liberato direction, given the conflict between the evidence of the Prosecution witnesses and the evidence given by Mr Gelo. In this context, I remind myself that a preference for the Prosecution's evidence is not enough. I must not convict unless I am satisfied beyond reasonable doubt of the truth of that evidence. Similarly, even if the evidence relied upon by the Defendants is not positively believed, I must not convict if that evidence gives rise to a reasonable doubt about the Defendants' guilt.
9. In short:

(a) if I believe Mr Gelo's evidence, or if I think it might be true, I must find the Defendants not guilty;

(b) if I do not believe the account relied on by Mr Gelo, I should put it to one side. The question remaining is, has the Prosecution, on the basis of the evidence that I do accept, proved the Defendants' guilt beyond reasonable doubt.

1. The Defendants submitted that I should also give myself what is known as a Murray direction. In summary, a Murray direction is required where proof of the commission of an offence, or at least an element of it, depends on the evidence of a single witness. In those cases, the evidence of the witness must be scrutinised with great care in order that the Court can satisfy itself that it can safely act upon his or her evidence to the standard required in a criminal trial. The Defendants submitted that I cannot safely act upon the evidence of Mr Rahman to establish the elements of the case that is brought against each of them.
2. I do not consider that a Murray direction is required in this case because the Prosecution's case against each of the Defendants does not depend on the evidence of Mr Rahman. In particular, there is evidence before the Court of Mr Gelo making certain admissions after the incident which support the Prosecution case (insofar as it is contested by the Defendants). If I accept that Mr Gelo made those admissions, and that those admissions accurately described what occurred, that would provide a sufficient basis for finding that the incident occurred in the way alleged by the Prosecution.

1. The following facts, setting out the chronology of events leading up to the incident in which Mr Rahman's foot was injured, are uncontentious.
2. In 2022, Chase was the principal contractor responsible for the construction of the Sierra Apartments in Gungahlin. It engaged Capello Commercial Hydraulics & Civil Pty Ltd (Capello) to undertake civil works at the Site for that project.
3. In or around October 2022, Capello engaged Fed Consulting to undertake excavation work at the Site. This required that a number of holes be dug for various purposes and that concrete be poured into the holes to create a level base. Mr Gelo dug the holes with an excavator.
4. Concrete was delivered to the Site in a concrete agitator truck. Because of the number of holes that were dug at the site, there was insufficient space for the concrete truck to access the holes to pour concrete directly into them. As there was no concrete pump, Mr Gelo transported the concrete from the concrete truck to the holes in the bucket of the excavator. To ensure that the excavator was stable when it was driven, Mr Gelo drove with the bucket around 100mm to 200mm above the ground.
5. On or about 16 November 2022, Mr Gelo completed Chase's site induction for the Site. Part of that induction required consideration of a PowerPoint presentation developed by Chase which identified the importance of a safe system of work. It read, relevantly:

Safe Systems of Work - it is everyone's responsibility to work in accordance with WHS Legislation, Statutory/Industry codes of practice and Standards, the Chase SHEQ Plan, manufacturers' safe operating instructions for plant and equipment, and the approved Safe Work Method Statements.

Worker's Duty of Care - it is the responsibility of all workers to work in a safe manner to protect the health and safety of themselves and others. No worker shall conduct themselves in a manner that might cause an incident or injury to themselves, other workers or members of the public.

1. Mr Gelo signed Capello's Safe Work Method Statement 'Excavation - Civil, Bulk and Detailed Works' (Excavator SWMS) on 11 October 2022. The Excavator SWMS noted that working in an area with movement of powered mobile plant was a high risk activity and that the potential consequences of a worker being struck by a swinging boom were catastrophic (involving death or permanent disability).
2. Such consequences were stated to be likely if the hazard was uncontrolled but unlikely if controls were applied. Identified controls included the enforcement of an exclusion zone around the excavator, including between the excavator cabin and the excavator bucket. No one was to enter the exclusion zone whilst the plant was operational in excavation mode. Amongst other people, the excavator operator was responsible for enforcing that control.
3. The Excavator SWMS also noted that excavator operators needed to be aware of workers entering the blind spots of the excavator, which included a blind spot between the excavator cabin and the excavator bucket. The operator was required to stop immediately if a worker entered a blind spot at any stage.
4. On 17 November 2022, Mr Gelo was at the Site operating an excavator. Fed Consulting issued an invoice to Capello for the work that Mr Gelo completed on that date.
5. Mr Rahman and the Site supervisor, Sean Casey, were also working at the Site on 17 November 2022. Both men were Capello employees, with Mr Rahman having been employed as a labourer. Mr Rahman did not have any trade qualifications but did have three years' experience as a labourer.
6. Mr Gelo was a highly experienced excavator operator and had obtained a Statement of Attainment in the 'Conduct Civil Construction Excavator Operations' unit of competency from the Aus Loadshifting 'Resources and Infrastructure Training Package' (a nationally recognised qualification) in October 2017.
7. Around 1pm on 17 November 2022, Mr Casey was inside one of the holes, levelling the ground with concrete. This hole was approximately 10 metres from where a concrete truck was parked. Mr Casey asked Mr Rahman, who was at the hole assisting Mr Casey, to obtain more concrete as he needed a little bit more.
8. Mr Rahman attempted to take concrete out of the bucket of Mr Gelo's excavator with a shovel. In doing so his right foot was injured. No one saw how Mr Rahman approached the excavator and how he was injured except for Mr Rahman himself and, possibly, Mr Gelo.
9. As Mr Gelo said in his evidence, the injury must have resulted from the bottom of the excavator bucket hitting Mr Rahman's foot. There was nothing else in the vicinity that was heavy enough to have caused the kind of injury that Mr Rahman suffered and, while Mr Rahman gave evidence that his foot was hit by the top of the bucket, logically it must have been the bottom of the bucket that contacted Mr Rahman's foot given that Mr Gelo had positioned the bucket low to the ground as he drove around the Site. That is the case whether or not the bucket contacted Mr Rahman's foot as a result of the excavator rocking forward (as the Defendants submitted occurred) or as a result of Mr Gelo lowering the bucket for Mr Rahman to take concrete from it (as the Prosecution submitted occurred).
10. Around 1.28pm, the ACT Ambulance Service received a call to attend the Site, which they did at around 1.40pm. They transported Mr Rahman to hospital. As noted at the beginning of this decision, a toe on Mr Rahman's right foot ultimately had to be amputated and he required an extensive skin graft for his foot.

1. Mr Rahman, Mr Gelo and Mr Casey all gave evidence at the hearing. In addition, the following witnesses also gave evidence in relation to what they saw or were told about the incident:

(a) Chris Bogie, the safety coordinator for Chase at the time of the incident;

(b) Darren Hill, the safety, health, environment and quality manager for Chase at the time of the incident; and

(c) Glenn Hart, the safety manager for Capello at the time of the incident.

(a) Josh Causer, the group safety and environment manager for Chase since August 2023 (taking over from Mr Hill);

(b) Jayden Butcher, the safety manager for Capello since September 2024 (taking over from Mr Hart);

(c) Rebecca Davis, a WorkSafe ACT investigator for this matter; and

(d) Jason Betts, a Telstra officer and security analyst.

1. The evidence of Mr Causer, Mr Butcher and Ms Davies was not directed to the cause of the incident but, rather, was largely directed to construction industry and Site specific safety practices, including safety systems and instructions. Mr Betts gave evidence in relation to the times when Mr Gelo's phone was used on the relevant day.

1. Mr Rahman gave evidence that Mr Casey asked him to get more concrete for the hole they were working in. Mr Rahman said that Mr Casey suggested that Mr Rahman use a small bucket to carry the concrete. Mr Rahman said that, when Mr Casey asked him to get more concrete he was on the right hand side of the excavator (from the perspective of the excavator operator), 4 metres away. None of this evidence was challenged by the Defendants.
2. Mr Rahman gave evidence that he decided to get the concrete from the excavator bucket with a shovel but, as he was doing so, it hit him. Initially, he described the bucket as suddenly hitting him but later in his evidence he said that it was not sudden but, rather, that it was just moving by the time he was hit.
3. In Mr Rahman's initial description of the incident, he also said that the excavator was 'moving around', however he did not explain what he meant by that (for example, whether he was referring to the excavator itself, or just to the bucket), nor at what point in the sequence of events that occurred. In later evidence he said that the excavator was not moving as he approached it. He also gave evidence that the excavator bucket was not moving when he was about to take concrete from the bucket.
4. Consistently with his evidence that the excavator was not moving, Mr Rahman also said that, before the incident happened, Mr Gelo was talking to Mr Casey. Mr Rahman understood that Mr Gelo was asking Mr Casey where to put the additional concrete. While this evidence was not challenged in cross-examination, I note that Mr Rahman also gave evidence that Mr Casey was in the hole in which they were working, 4 metres from where the excavator was when he approached it, and neither Mr Rahman, Mr Casey nor Mr Gelo gave evidence of Mr Casey approaching Mr Gelo, or vice versa, to discuss where Mr Casey should take concrete next. Mr Casey did not think that he spoke to Mr Gelo about Mr Rahman taking concrete out of the excavator bucket.
5. Although Mr Casey was not asked directly, he did not give any evidence about a conversation with Mr Gelo concerning the next location he was to take concrete. My impression of his evidence is that he was focused on the job he was undertaking and did not pay Mr Gelo or the excavator much regard.
6. Similarly, while Mr Gelo was not asked directly, he did not give any evidence about a conversation with Mr Casey as to where he should deliver concrete next. Mr Gelo's evidence was that Mr Casey and Mr Rahman were working in a large hole and he was doing his own tasks, 'going around filling in all the other holes on my own'. He said that he did not hear anyone yelling at him as he drove along after picking up the load of concrete. As I will come to in discussing Mr Gelo's evidence, he also gave evidence that he was driving straight from the concrete truck to the next hole and was intercepted by Mr Rahman along the way.
7. In the initial part of his evidence, Mr Rahman did not give evidence about any interactions with Mr Gelo, with his description of what occurred focusing on his approach to the excavator, putting his shovel into the bucket (or at least extending it towards the bucket) and being hit. However, when asked about the excavator operator (Mr Gelo), Mr Rahman described interacting with Mr Gelo before he was hit.
8. Mr Rahman said that, before taking concrete, he looked at Mr Gelo and Mr Gelo said 'okay'. He gave evidence that he needed Mr Gelo's instructions because it was a safety rule and because he wanted to make sure that Mr Gelo was not going to do anything while he was getting the concrete. Mr Rahman said that he cannot read English properly (which impacted his capacity to understand the relevant induction documents) but that a friend of his explained certain safety rules to him. Mr Rahman said that his friend explained that he could only approach the excavator when it was not operating and that he needed to ask the excavator operator before he approached the excavator.
9. In circumstances where Mr Rahman only gave evidence of holding a shovel and looking at Mr Gelo, it might seem surprising that Mr Gelo could have understood what Rahman wanted and given him approval to proceed. However, as Mr Gelo said in one part of his evidence, he assumed that Mr Rahman wanted to take some concrete from the bucket, as was the case. Such an assumption would make sense too, given that Mr Rahman was assisting Mr Casey to level concrete in the holes that had been dug at the Site, and Mr Gelo was conveying concrete from the concrete truck to the holes. Of the limited range of possibilities for why Mr Rahman was there, one obvious one was that he wanted more concrete for the hole that he and Mr Casey were working in.
10. Mr Rahman's evidence as to the manner in which he approached the excavator was difficult to follow, although not necessarily inconsistent, as I initially thought that it was.
11. Mr Rahman gave evidence that he was standing in front of the iron rod that was in the ground next to the hole where he and Mr Casey were working when he interacted with Mr Gelo. However, if Mr Rahman was to the side of the excavator (as he said he was), it is not clear that Mr Gelo would have been able to see him because there was a blind spot to Mr Gelo's right, where the excavator engine was positioned.
12. Mr Rahman then gave evidence that he could see and hear Mr Gelo speaking (as indicated earlier in these reasons, he thought Mr Gelo was speaking on the phone, given that he was speaking loudly and no one else was around, although he conceded that he could not see a phone), and that it was at that point that Mr Gelo said it was okay. Mr Rahman said that Mr Gelo also raised his hand, showing his thumb or finger, which he took to be confirmation that it was okay for him to proceed. Similarly, in cross-examination, Mr Rahman said that he looked at Mr Gelo before approaching the excavator and did not approach the excavator until Mr Gelo had indicated to him that it was okay.
13. Given the noise and design of the excavator, Mr Rahman could only have witnessed seeing and hearing Mr Gelo if he was near the excavator cabin. Consistently with that view, Mr Rahman said that he was very close to the excavator and estimated that the distance was less than half a metre.
14. Initially, it seemed to me that that evidence was inconsistent with Mr Rahman's evidence that he first interacted with Mr Gelo from his position near the iron rod, particularly as Mr Rahman gave evidence that he was 4 metres from the excavator when Mr Casey asked him to get more concrete. However, on reviewing the photographs of the Site that were tendered at the hearing, I am not sure that it is inconsistent.
15. The photographs show that there was not much space, either side of the excavator, for it to pass between the hole that Mr Casey and Mr Rahman were working in, and the hole on the other side of the excavator. Even if Mr Rahman had been 4 metres from the excavator when Mr Casey asked him to get more concrete, if he was near the iron rod when he interacted with Mr Gelo he could well have been within less than half a metre from the excavator.
16. There is a question as to whether Mr Rahman could see Mr Gelo from that position, given Mr Gelo's evidence that he could only see the left hand side of the bucket from where he was sitting. If Mr Rahman was closer to the bucket of the excavator than the cabin, his view of Mr Gelo would not have been blocked by the engine but, the photographs of the excavator that were taken at the Site, and of a similar excavator at a different location, support Mr Gelo's evidence that his field of vision to his right was impacted (by the excavator arm and the frame of the cabin).
17. Mr Rahman was challenged in cross-examination as to his capacity to hear Mr Gelo if the excavator was operating, however Mr Rahman explained that the excavator was not moving and that Mr Gelo pulled up the front part of the cabin (initially described as the mirror, although that appears to be a misinterpretation, with Mr Rahman later referring to the front part of the cabin) such that Mr Rahman could clearly see what he was doing. Mr Rahman said that it was while he was in that location that Mr Gelo told him it was okay to proceed. In re-examination, Mr Rahman said that it was only after the excavator completely stopped and Mr Gelo pulled up the front part of the cabin that he went into the space between the cabin and the bucket (where he was ultimately injured).
18. It is not clear whether, when Mr Rahman referred to the excavator completely stopping, he meant that it had been moving previously and stopped moving or whether he was referring to the engine being turned off rather than being left to idle. The phrase Mr Rahman used is consistent with the excavator moving to some extent, although that is inconsistent with other parts of his evidence. In circumstances where he had said, in cross-examination, that the excavator wasn't moving at all when he approached it but that the engine was on, and that the excavator was completely stopped when Mr Gelo pulled up the 'front mirror', it is possible that Mr Rahman's reference to the excavator completely stopping referred to the engine being turned off, but I cannot be sure.

1. The reliability of Mr Rahman's evidence is difficult to assess. One reason for this is that it was difficult to follow at times, including in relation to the following issues:

(a) how soon after approaching the excavator he was hit by the bucket;

(b) the extent to which the excavator and/or the excavator bucket was moving during the incident; and

(c) his location when interacting, and the timing of his interactions, with Mr Gelo.

1. It is possible that there were inconsistencies in his evidence in relation to these issues (both internal inconsistencies and inconsistencies with Mr Gelo's evidence) although, as I have explained above, that is not necessarily the case. At the very least, his recollection that Mr Gelo was talking to Mr Casey prior to the incident is not consistent with the evidence of Mr Casey, Mr Bogie or Mr Gelo, and does not appear to be accurate.
2. Assessing the reliability of Mr Rahman's evidence is also complicated by the fact that he gave evidence through an interpreter. It was not a smooth process and that may have impacted Mr Rahman's capacity to respond to the questions asked of him accurately or the capacity of the interpreter to accurately articulate Mr Rahman's evidence.
3. Relatedly, perhaps, there was one part of the transcript which did not accord with my notes as to what I understood Mr Rahman to have said in response to a question put to him in cross-examination - that the excavator was moving slowly towards him. His answer in the transcript is recorded as being "No, I didn't see. It was moving", however I understood his evidence to have been that no, he did not see it moving.
4. A further difficulty that arises in assessing the reliability of Mr Rahman's evidence is, as the Defendants submitted, that Mr Rahman accepted in cross-examination that he had made a claim for compensation for the injury he suffered as a result of the incident and that he understood that it was an important part of his claim that the incident was his employer's fault. His evidence was that he took care in approaching the excavator and that it was Mr Gelo who was responsible for the incident, but his recollection may have been coloured by his interest in the proceedings.
5. Despite the above, there are also several aspects of Mr Rahman's evidence which support its reliability. In particular:

(a) his evidence that he interacted with Mr Gelo in a way that indicated that he wanted to take concrete from the bucket is consistent with admissions that Mr Gelo made to other witnesses following the incident, that he deliberately lowered the bucket to make it easier for Mr Rahman to take concrete from the bucket;

(b) his evidence that he did not approach the excavator, or at least the excavator bucket, without Mr Gelo's approval, is consistent with Mr Rahman's understanding of the safety rule that his friend had explained to him and with Mr Rahman's concern that he not be impacted by anything that Mr Gelo might do with the excavator; and

(c) the fact that Mr Rahman had a specific, somewhat detailed, recollection of seeing and hearing Mr Gelo pull up the front part of the cabin, talking (as it appeared, to Mr Rahman, on the phone) and giving Mr Rahman approval to proceed (verbally and with a hand gesture), aspects of which he repeated during his evidence, is indicative of a genuine recollection which is consistent with Mr Rahman's evidence that he interacted with Mr Gelo before he tried to take concrete from the bucket.

1. Ultimately, I am not satisfied that I can confidently make findings based on Mr Rahman's evidence alone, however my concerns in relation to the reliability of Mr Rahman's evidence are not such that I am unable to accept his evidence at all. A significant factor in determining which parts of Mr Rahman's evidence I can accept is the extent to which it is corroborated by other evidence.

1. Mr Gelo gave evidence that, prior to the incident, he picked up a load of concrete from the concrete truck and started to drive to a hole past where Mr Casey and Mr Rahman were working. Mr Gelo said that the hole that Mr Casey and Mr Rahman were working in was about 10 metres from the concrete truck and that the hole itself was about 6 metres long. He said that the hole he was driving to was about 5 metres past the end of the hole that Mr Casey and Mr Rahman were working in.
2. Mr Gelo gave evidence that he saw Mr Casey and Mr Rahman at the hole they were working in when he turned the excavator around after picking up the concrete. Mr Gelo said that Mr Casey and Mr Rahman went into the excavator's blind spot as he drove towards the next hole into which he was to deposit concrete. Mr Gelo explained that there was a blind spot to his right as his view was restricted by the excavator engine and arm.
3. Mr Gelo gave evidence that, as he drove past Mr Casey and Mr Rahman he could not see them as they were in the excavator's blind spot. He said he could not hear anything as it was very loud in the cabin. He said he was driving slowly (no more than 5 km/hr) in order to avoid any concrete spilling out. Nevertheless, he said it took a matter of seconds to traverse the 10 metres to the hole that Mr Casey and Mr Rahman were working in. I note that it would take the excavator 7 seconds to travel 10 metres at 5 km/hr.
4. Mr Gelo said that he saw a shovel appear from his right hand side, being directed towards the bucket, but he could not see anything else as his visibility in the cabin was limited to the left hand side of the bucket. He said he took the pedals off to stop the excavator and it rocked as a result. He said he put the bucket down, engaged the dead man switch and got out of the excavator. He then saw Mr Rahman hopping around.
5. Mr Gelo said that he was not aware that Mr Rahman wanted to take concrete from the bucket, although when he was asked whether he told anyone that he lowered the bucket so that Mr Rahman could get concrete out, he initially said that he assumed that that is what Mr Rahman wanted to do. He said that he stopped the excavator, put the bucket down, engaged the dead man switch and saw Mr Rahman hopping. He then repeated his earlier evidence that he did not see Mr Rahman, and that he just saw a shovel appear at the side of the excavator. In submissions, Mr Gelo stated that I should understand the reference in his evidence to what he assumed that Mr Rahman wanted to do as being an assumption he made after the incident occurred.
6. Mr Gelo said that he never saw Mr Rahman wave at him or try to speak to him and that he never gave Mr Rahman any signal to indicate that Mr Rahman could take concrete from the bucket.
7. In cross-examination, Mr Gelo accepted the proposition that his evidence was that Mr Rahman darted across and that he braked suddenly, resulting in the excavator rocking and the bucket striking Mr Rahman's foot although, as I have just described, that is not what Mr Gelo had said in his evidence-in-chief. In his evidence-in-chief, he described the excavator rocking as a result of stopping the excavator and he described as a subsequent action putting the bucket down, prior to Mr Rahman hopping around. Mr Gelo did not give any evidence as to how, or at what stage, the bucket contacted Mr Rahman's foot. Later in his cross-examination, Mr Gelo said that it was not until he saw Mr Rahman hop away that he put the bucket down.
8. It was put to Mr Gelo that he had been sitting in his excavator, and that it had been at a standstill when he saw Mr Rahman under the boom of the excavator, however, he denied that suggestion. He denied knowing that Mr Rahman was next to the bucket and denied lowering the bucket to assist Mr Rahman.
9. Mr Gelo initially said that he could not recall anyone asking him what had happened and, specifically, that he did not recall speaking to Mr Hill about the incident. It is clear from the evidence of other witnesses and contemporaneous documentary evidence that he was asked what had happened and that he did speak to Mr Hill the day after the incident. Mr Gelo later gave evidence that he could not recall how many people asked him what had happened but he did recall calling the Capello manager to advise him that Mr Rahman had been injured and, in cross-examination, he said that the manager asked him what had happened.
10. Similarly, in cross-examination, Mr Gelo could not recall telling anyone on the day what had happened when it is clear from the other evidence that he did. Indeed, it is implausible that he did not speak to anyone about the incident and, on his own evidence, he at least spoke to the manager at Capello over the phone and he later gave evidence that he had told certain people what he recalled happening.
11. Despite Mr Gelo's evidence that he could not recall telling anyone on the day what had happened, he denied telling Mr Casey, Mr Bogie, Mr Hill and Mr Hart that he had lowered the bucket to make it easier for Mr Rahman to get concrete out. Somewhat inconsistently with his evidence that he could not recall telling anyone what had happened, he said in cross-examination that he told Mr Casey what had happened. As I will discuss, however, Mr Casey's recollection of what Mr Gelo told him differs from the version of events that Mr Gelo described at the hearing.

1. The reliability of Mr Gelo's evidence is undermined by:

(a) inconsistencies in his evidence in terms of when in the sequence of events he lowered the excavator bucket;

(b) his apparently limited recollection of speaking to anyone about the incident;

(c) inconsistencies in his evidence as to whether he spoke to anyone about the incident on the day it occurred; and

(d) inconsistencies between his evidence and the consistent evidence of other witnesses as to what Mr Gelo said had occurred on the day of the incident (as I have discussed below).

1. On the other hand, the consistency between Mr Gelo's evidence that, initially at least, Mr Rahman approached the excavator while he was driving it, and Mr Casey's recollection of what Mr Gelo told him after the incident (evidence I discuss below), provides support for the reliability of at least some aspects of Mr Gelo's evidence.
2. Like my assessment of the reliability of Mr Rahman's evidence, I am not satisfied that I can confidently make findings based on Mr Gelo's evidence alone, however, my concerns in relation to the reliability of Mr Gelo's evidence are not such that I am unable to accept his evidence at all. I also keep in mind, of course, that if the version of events that Mr Gelo described at the hearing might be true, then I must find the Defendants not guilty of the charges that have been brought against them.

1. Mr Casey gave evidence that he spoke to Mr Gelo about what had happened when he, Mr Gelo and Mr Bogie were dressing Mr Rahman's foot. He said that Mr Gelo told him that Mr Rahman had come towards him wanting concrete while he was driving the excavator, so he stopped the excavator and put the bucket down to make it easier for Mr Rahman to get concrete out and the bucket was put on Mr Rahman's foot.
2. Mr Casey's recollection was not challenged in cross-examination.
3. Mr Bogie was at the Site at the time the incident occurred. He was responsible for health and safety at the Site that day. He was approximately 10 metres from the excavator, on its left hand (cabin) side. While he did not witness the incident (he said he was watching the concrete truck leave the Site), he gave evidence that, prior to the incident, he observed Mr Rahman at the hole that he and Mr Casey were working in and observed Mr Gelo sitting in the excavator. He said that the excavator was stationary (in idle mode), with the bucket around 100mm to 200mm off the ground with concrete in it. He gave evidence that, 30 seconds later, he heard Mr Rahman screaming and observed that the excavator was in the same position in which he had seen it prior to the incident.
4. Mr Bogie said that he, Mr Gelo and Mr Casey went to Mr Rahman's aid. He said that, while they were attending to Mr Rahman, he asked Mr Gelo what had happened. He said that Mr Gelo told him that he had moved the bucket to make it easier for Mr Rahman to get concrete out.
5. In cross-examination, Mr Bogie was challenged in relation to his recollection that the excavator was stationary and maintained his recollection that it was parked, but also expressed some uncertainty. He said that he did not know if it was moving or not, although he believed, to his knowledge, that it was not moving. When queried whether he could be sure, he said that he did not recall.
6. Mr Bogie was also challenged on his evidence in relation to what Mr Gelo had told him, with it being put to him that Mr Gelo told him that he saw Mr Rahman with a shovel near the excavator bucket and stopped. Mr Bogie said that he did not recall Mr Gelo saying that, although he accepted that he may have done so.
7. Mr Hill gave evidence that he and Mr Bogie spoke to Mr Gelo at the Site on the day after the incident. He said that Mr Gelo told them that he lowered the excavator bucket to assist Mr Rahman because it was approximately 200mm off the ground, which would have been a manual handling issue. He said that Mr Gelo explained that Mr Rahman was too close to the bucket and his foot was injured.
8. Mr Hill was challenged in cross-examination with respect to his recollection as to what Mr Gelo had told him, but he maintained that Mr Gelo told him that he had lowered the bucket to assist Mr Rahman to shovel concrete out of the bucket. He was not able to say whether Mr Gelo told him that he saw Mr Rahman near the bucket and stopped the excavator when he saw him.
9. Mr Hill was also challenged as to Chase's interest in the matter, with it being suggested to him that Chase would be blamed for the incident. Mr Hill disagreed. He said that, as principal contractor, Chase had certain safety obligations for the project but that there were also safety arrangements for which Capello was responsible. He did not accept that responsibility fell on him personally either.
10. It was also suggested to Mr Hill in cross-examination that the version of events that he recalled Mr Gelo giving was very helpful to Chase because it put responsibility on Mr Gelo, however Mr Hill reiterated that Mr Gelo told him that he had lowered the bucket to assist Mr Rahman to shovel concrete. He said that he prepared an investigation report based on what Mr Gelo had told him.
11. Mr Hill said that he prepared a notifiable incident report for WorkSafe ACT and an investigation report for Chase. He said that he filled out the details of the incident on page 4 of the notifiable incident report based on conversations with Mr Gelo and Mr Bogie.
12. Page 4 of the incident report states that Mr Gelo noticed Mr Rahman approaching the excavator and lowered the bucket 200mm from ground level and ceased operation movements. It states that Mr Rahman positioned himself near the bucket to shovel concrete from the bucket and indicated to Mr Gelo to lower the bucket to the ground as he was having trouble retrieving cement from the bucket. The report states that Mr Gelo commenced lowering the bucket to the ground but, as a result of Mr Rahman being positioned too close to the bucket, the edge of the bucket was lowered onto the side of Mr Rahman's right foot.
13. It was put to Mr Hill in further cross-examination that he wrote what he did in the incident report to put blame on Mr Gelo and away from Chase, however Mr Hill said that he stated the facts.
14. Mr Hart attended the Site following the incident. He gave evidence that he spoke to Mr Casey and Mr Gelo about it. He could not recall what Mr Gelo had said happened. His recollection of what he had been told about the incident was refreshed by an incident report he had filled out but he said that what he had written in the incident report was a collection of information given to him during his visit to the Site. While he said that Mr Gelo was part of the conversation, he could not recall who told him that the bucket had been lowered to make it easier for Mr Rahman to remove concrete. I do not place any weight on Mr Hart's evidence in relation to what he said Mr Gelo told him had occurred.

1. Subject to one aspect of Mr Bogie's evidence, I do not have any reservations about the reliability of the evidence given by the other witnesses, who gave clear evidence, made appropriate concessions as to the limits of their knowledge or recollections and maintained their respective recollections under cross-examination (albeit that Mr Bogie was not confident, when pressed in cross-examination, as to his recollection that the excavator was not moving when he saw it - I have discussed this issue further below).
2. The evidence of Mr Casey, Mr Bogie and Mr Hill as to what Mr Gelo told them had happened, close to the time of the incident, was consistent between their accounts and with the incident report that Mr Hill prepared close to the time of the incident. Mr Casey's evidence in that regard was not challenged by the Defendants.
3. I considered the possibility that Mr Hill's evidence may have been influenced by Chase's interest in fault for the incident resting with Fed Consulting, and not it, as alluded to in the Defendants' submissions, but I do not consider that any interest of Chase did influence Mr Hill's evidence, nor the report that he prepared.
4. The Defendants did not identify any possible failing on Chase's part that may have influenced Mr Hill to place blame on Mr Gelo rather than Chase and, as Mr Hill explained in his evidence, Capello retained safety obligations in relation to what occurred on Site. Mr Hill gave matter of fact evidence as to what he recalled and how he recorded what Mr Gelo told him in his investigation report, and his oral evidence was largely consistent with the investigation report and with the evidence of Mr Casey and Mr Bogie.
5. There is an aspect of Mr Bogie's evidence that may be incorrect, which was his evidence that the excavator was stationary for around 30 seconds before Mr Rahman's foot was injured.
6. Mr Gelo gave evidence that, although Mr Bogie said that he was watching the concrete truck leave at the moment Mr Rahman was injured, the concrete truck did not leave. Mr Gelo submitted that that undermines the credibility of Mr Bogie's recollection that the excavator had not moved between the time 30 seconds prior to the incident when Mr Bogie says that he saw it, and the time of the incident. Mr Gelo submitted that a photograph that was taken of the excavator after the incident, at or near to the location of the incident, supports the credibility of his recollection as there is a concrete truck pictured behind the excavator.
7. I am not able to make any findings about whether the concrete truck that was present immediately prior to the incident was the same concrete truck pictured in the photograph. It is clear from the evidence of Mr Gelo and Mr Bogie that more than one concrete truck came to the Site on the day and there are no records in evidence as to when they arrived at, and departed from, the Site. As adamant as Mr Gelo was in his evidence that it was the same concrete truck which was pictured in the photograph and the concrete truck which had been present just prior to the incident, Mr Gelo was facing the opposite direction to the concrete truck when he drove away from it and is unlikely to have looked at the concrete truck, particularly whilst he was distracted by Mr Rahman. As Mr Bogie noted in his evidence, it was only he, Mr Casey and Mr Gelo who rendered assistance to Mr Rahman, which indicates that the concrete truck driver was not still present.
8. However, as I have noted in my discussion of Mr Gelo's evidence, his evidence that Mr Rahman approached the excavator while he was driving it is consistent with Mr Casey's recollection of what Mr Gelo told him after the incident. I accept that that is what happened in the lead up to the incident.
9. This may mean that Mr Bogie was mistaken about what he recalled observing in the lead up to the incident, although that is not necessarily the case. Mr Gelo's and Mr Casey's evidence is reconcilable with Mr Bogie's evidence if Mr Bogie saw the excavator after Mr Gelo had stopped it for Mr Rahman and if there was then a period of around 30 seconds during which Mr Bogie looked towards the concrete truck while Mr Rahman interacted with Mr Gelo and Mr Gelo lowered the bucket for Mr Rahman to get concrete out more easily.
10. That is a plausible explanation, and it is therefore not clear that Mr Bogie was mistaken in his recollection that the excavator was stationary on the two occasions that he observed it. Mr Gelo submitted that 30 seconds is not long for everything that Mr Rahman said occurred to have occurred, but I consider that it would be sufficient time for Mr Rahman to have moved from whatever position he was in when he got Mr Gelo's attention, to a position nearer the cabin (keeping in mind the close proximity of the iron rod to the path that Mr Gelo must have taken), for him to interact with Mr Gelo and for Mr Gelo to have lowered the excavator bucket. It must also be kept in mind that 30 seconds was just Mr Bogie's estimate of how long he looked away for.
11. Further, even if Mr Bogie was mistaken in his recollection (which would be the case if, as Mr Gelo gave evidence at the hearing, Mr Rahman was injured when Mr Gelo stopped the excavator and the bucket simply rocked forward onto his foot, such that less than 30 seconds would have elapsed from the time that the excavator stopped and Mr Rahman's foot being injured), I do not consider that that would undermine the reliability of Mr Bogie's recollection as to what Mr Gelo told him had occurred after the incident which, as I have noted already, is consistent with the evidence of Mr Casey and Mr Hill and the description of the incident that Mr Hill included in his incident report.
12. I accept the evidence of Mr Casey, Mr Bogie and Mr Hill that Mr Gelo told them that he had lowered the excavator bucket to make it easier for Mr Rahman to take concrete from it, and that Mr Rahman's foot was injured when he did so.

1. I find that Mr Gelo was driving the excavator away from a concrete truck, in order to deposit concrete in one of the holes at the Site, when Mr Rahman got his attention somehow. At that time, Mr Rahman was near the iron rod next to the hole that he and Mr Casey were working in. As a result, Mr Gelo stopped the excavator near the iron rod.
2. I cannot be sure precisely where Mr Rahman was standing and where Mr Gelo stopped the excavator when Mr Rahman got his attention, however I find, beyond reasonable doubt, that at that time or shortly after, Mr Rahman communicated to Mr Gelo that he wanted to take some concrete from the excavator bucket and that Mr Gelo indicated to him that he could do so. I find that, at this point, Mr Rahman was sufficiently close to the excavator cabin to see Mr Gelo talking and make a hand gesture indicating his approval. It is likely that he was under the boom of the excavator at that point.
3. I find, beyond reasonable doubt, that Mr Gelo lowered the excavator bucket to make it easier for Mr Rahman to shovel concrete out. He may have lowered it twice, as the incident report that Mr Hill prepared records, but, regardless, I find that Mr Gelo made a deliberate decision to lower the bucket with Mr Rahman in its immediate vicinity. I find that the excavator bucket was lowered onto Mr Rahman's foot at that time.
4. That Mr Gelo deliberately lowered the excavator bucket to assist Mr Rahman is supported by the evidence of Mr Casey as to what Mr Gelo told him had happened immediately after the incident. Mr Gelo's evidence was that he told Mr Casey what had happened and, even though Mr Gelo denied telling Mr Casey that he lowered the bucket to make it easier for Mr Rahman to take concrete, Mr Casey's recollection on this point was not challenged. It is also consistent with the evidence of Mr Bogie, Mr Hill and the incident report that Mr Hill prepared.
5. As I have found earlier in these reasons, I accept the evidence of Mr Casey, Mr Bogie and Mr Hill. Accordingly, I find that Mr Gelo told them that he lowered the excavator bucket to assist Mr Rahman.
6. I further find that what Mr Gelo told Mr Casey, Mr Bogie and Mr Hill is in fact what happened. This is for four reasons.
7. First, the version of events Mr Gelo told these witnesses was, to some extent at least, contrary to his interests, and therefore an admission that he was at fault. It is difficult to imagine why he would make an admission that was not true. I note that Mr Gelo did not give evidence that he was mistaken, or mis-spoke, when he told the other witnesses what happened but, rather, denied that their recollection was correct. My acceptance of their evidence necessarily involves a rejection of Mr Gelo's evidence on this issue.
8. Secondly, Mr Gelo gave this version of events close in time to the incident occurring.
9. Thirdly, the version of events that Mr Gelo told the other witnesses is consistent with the interaction that Mr Rahman said that he had with Mr Gelo, in which he communicated to Mr Gelo somehow that he wanted to take concrete from the excavator bucket.
10. Fourthly, the version of events that Mr Gelo told the other witnesses is consistent with the likely chain of events. The version of events that Mr Gelo described in evidence is improbable.
11. As I have found above, I accept Mr Gelo's evidence that Mr Rahman approached the excavator while he was driving but, on Mr Gelo's version of events, Mr Rahman walked towards the excavator bucket directly without being able to be seen by Mr Gelo (because he was in Mr Gelo's blind spot) and without giving Mr Gelo any notice that he wanted to approach the bucket (with Mr Gelo just seeing the shovel that Mr Rahman was holding appear from his right). Mr Rahman must, on Mr Gelo's evidence, have approached the excavator bucket in the short period of time that passed between the excavator leaving the concrete truck to when it was passing the hole that Mr Casey and Mr Rahman were working in - something in the order of 7 seconds - and tried to take concrete from the excavator bucket as it was moving.
12. Even accepting that workers do not always take appropriate measures for their own safety, this is an unlikely scenario. Not only would it have been dangerous, but it would have been difficult to do.
13. There is little space between the blade and the bucket of the excavator. The photographs of the excavator at the Site show a distance of less than 2 metres. I assume that the photographs taken of the excavator at the Site show the excavator bucket in a similar position to when the incident occurred, given that the photographs were taken after the incident occurred (seemingly to document the incident site). Having the bucket close to the cabin also makes sense, as the bucket would be less susceptible to bumps in the path (and therefore less likely to spill) and the excavator would take up less space (and would therefore be safer to operate) than if the bucket was protruding further from the cabin.
14. Given that the tracks (wheels) of the excavator were moving the excavator forward, Mr Rahman would have put himself in obvious danger of having the blade in front of the tracks hit him as the excavator continued to move forward. That would be the case even if the bucket was positioned further away from the cabin than is pictured in the Site photographs. As Mr Rahman said in evidence, he needed Mr Gelo's instructions because he wanted to make sure that Mr Gelo wouldn't do anything with the excavator that would impact him.
15. Further, trying to take concrete while the excavator was moving would be difficult to do and, given that the excavator was, on Mr Gelo's evidence, simply tracking towards the next hole, where he would stop the excavator anyway, it does not make sense for Mr Rahman to have tried to do it. Even if the excavator was moving slowly, it would be difficult for Mr Rahman to walk at the same pace as the excavator was moving, in a confined space, while shovelling concrete out of the excavator bucket. Similarly, if Mr Rahman had just tried to take concrete from the bucket and leave immediately, it would be very difficult for him to walk into the space between the bucket and the blade, take concrete from the bucket and leave the space without being hit by the blade as the excavator continued to move forward.
16. Even if Mr Rahman had entered the space between the blade and the bucket without notice to Mr Gelo, it is almost certain that Mr Rahman would, for the above reasons, have tried to get Mr Gelo's attention (as he said he did) before trying to take concrete from the excavator bucket. This, of course, supports Mr Rahman's version of events, but it also means that it is very unlikely that his feet would have been pointing in the direction of the bucket (which they must have been in order for his toe to have been injured by the bucket) because Mr Rahman would have been facing Mr Gelo to some extent in order to get his attention.
17. Contrary to the version of events described by Mr Gelo in his evidence, the likely chain of events is as described by Mr Rahman, and as Mr Gelo told the other witnesses had happened, namely that Mr Rahman approached the excavator, got Mr Gelo's attention and indicated that he wanted to take concrete from the excavator bucket, and that Mr Gelo acknowledged that request and lowered the bucket to make it easier for Mr Rahman to shovel concrete out of the bucket.
18. I accept, beyond reasonable doubt, that that is how the bucket came to contact Mr Rahman's foot. Accordingly, I accept Mr Rahman's evidence in that respect and reject Mr Gelo's evidence. I am not satisfied that Mr Gelo's evidence - that he did not see Mr Rahman and simply stopped the excavator when he saw Mr Rahman's shovel (and that that is how the excavator came to contact Mr Rahman's foot) - even might be true.

1. As noted at the beginning of these reasons, having made the above findings as to the cause of the incident, there is no dispute that the Defendants breached their respective WHS duties. The reasons why that is the case are set out below.

1. Fed Consulting was a person conducting a business or undertaking (PCBU). It was a company which had been engaged by Cappello to carry out excavation work at the Site, which it was doing on 17 November 2022.
2. As a PCBU, Fed Consulting owed a 'primary duty of care' under s 19 of the WHS Act to workers and others. One aspect of that duty was the need to ensure, so far as was reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking (s 19(2), WHS Act).
3. Under s 17 of the WHS Act, the duty imposed on Fed Consulting to ensure the health and safety of others required it to eliminate risks to health and safety, so far as was reasonably practicable and, if that was not reasonably practicable, to minimise the risks so far as was reasonably practicable. In determining what was reasonably practicable, s 18 of the WHS Act required that regard be had to all the circumstances, including:

(a) the likelihood of the hazard or the risk concerned occurring;

(b) the degree of harm that might result from the hazard or risk;

(c) what the person concerned knows, or ought reasonably to know about the hazard or risk and ways of eliminating or minimising the risk;

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

1. Under s 7 of the WHS Act, a person is a 'worker' if the person carries out work in any capacity for a PCBU, including work as an employee, a contractor or a sub-contractor or an employee of a contractor or sub-contractor, a student gaining work experience and a volunteer.
2. Mr Gelo was, in addition to being the director of Fed Consulting, a worker carrying out work for Fed Consulting. Under s 28 of the WHS Act, Mr Gelo was required to take reasonable care to ensure that his acts or omissions did not adversely affect the health and safety of other persons.
3. That duty is complementary to the duty owed by a PCBU under s 19 of the WHS Act. It imposes obligations on a worker 'to assist a PCBU to ensure safety, so far as that is reasonably practicable, by co-operating in the elimination or minimisation of risk' (SafeWork NSW v Scharfe [2021] NSWDC 260 (Scharfe) at [97]). However, a worker does not have to exercise reasonable care to eliminate or minimise all risks to another person at the workplace. A worker is only obliged to exercise reasonable care not to expose a person to a risk to their health and safety as a result of the immediate conduct of the worker (Scharfe).
4. In determining what reasonable care is required in the circumstances, the question to be asked is what should, in all the circumstances, reasonably be expected of a person holding themselves out to be able to undertake the relevant work (WorkCover Authority of New South Wales (Inspector Thomas) v Cruden (1996) 67 IR 469 at 475). Relevant circumstances include the worker's state of knowledge, qualifications, experience and role on-site, and the extent to which it could be foreseen that the worker's act or omission would affect the health and safety of another person (Scharfe, citing WorkCover Authority of New South Wales (inspector Gordon) v Gregory Ronald Wallis (unreported, Full Bench of the Industrial Relations Commission, 1996)). The test 'is an objective one and the act or omission need not be deliberate' (Scharfe at [93]).

1. Under s 32 of the WHS Act, a person commits a Category 2 offence if the person fails to comply with a health and safety duty (including a duty under s 19 and s 28 of the WHS Act) and the failure exposes an individual to a risk of death or serious injury or illness.

1. In relation to the charge brought against Fed Consulting, the Prosecution must prove that:

(a) it was reasonably practicable for Fed Consulting to ensure the health and safety of persons at the Site;

(b) Fed Consulting failed to take reasonably practicable steps to ensure the health and safety of those persons (including Mr Rahman); and

(c) there is a causal connection between that failure and the persons being exposed to a risk of death or serious injury. In this respect, the Prosecution must prove that the act or omission of the person was a significant or substantial cause of the individual being exposed to the risk (Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [130]).

1. In relation to the charge brought against Mr Gelo, the Prosecution must prove that:

(a) he failed to take reasonable care to ensure that his acts or omissions did not adversely affect the health and safety of persons at the Site (including Mr Rahman); and

(b) there is a causal connection between that failure and the persons being exposed to a risk of death or serious injury (as discussed above in relation to Fed Consulting).

1. Under s 244A of the WHS Act, the conduct of Fed Consulting's officers and employees (including Mr Gelo) is taken to have been engaged in by Fed Consulting with respect to the physical elements of the offence with which Fed Consulting was charged.
2. I note that it is not necessary for the Prosecution to establish that a person has suffered harm, or that a person has been exposed to a risk of harm, for a PCBU to have breached the duty identified in s 19 of the WHS Act (Kirk v Industrial Court of New South Wales [2010] HCA 1 at [13]). It is the existence of the risk, and the failure to take reasonably practicable steps to eliminate (or, if that is not reasonably practicable, minimise) the risk that constitutes a breach of s 19 of the WHS Act.
3. Thus, while an incident causing harm may be evidence of the presence of a risk, it is not necessary that there have been an incident in order to establish a breach of s 19 of the WHS Act. A distinction must be drawn between the specific risk that manifested in the incident and the general class of risk on which the analysis must focus. Risk in this context means the possibility of danger and not necessarily actual danger (Orr v Hunter Quarries Pty Limited [2019] NSWDC 634 at [14] - [16]) although the likelihood of the danger arising is a relevant consideration under s 18 of the WHS Act in determining what control measures were reasonably practicable in the circumstances.

It was reasonably practicable for Fed Consulting to ensure the health and safety of persons in the vicinity of the Site

1. In order to establish that it was reasonably practicable for Fed Consulting to ensure the health and safety of persons in the vicinity of the Site, the Prosecution must identify the relevant risk with sufficient precision to determine if it was reasonably practicable to eliminate the risk or, if not, if it was reasonably practicable to minimise it (Orr v Hunter Quarries Pty Limited [2019] NSWDC 634 at [17]).
2. In this case, the Prosecution has identified the relevant risk as being the risk to persons at the Site, in particular Mr Rahman, suffering death or serious injury as a result of being struck and/or crushed by an excavator (or its parts) whilst working at the Site.
3. The reasonably practicable step that the Prosecution identified that Fed Consulting ought to have taken to guard against that risk, but did not, was lowering the excavator bucket only in circumstances where Mr Rahman was not in the vicinity of the excavator bucket. As noted at the beginning of these reasons, the Prosecution also pointed to the need for Fed Consulting to operate the excavator without using a mobile phone, however, I am not satisfied that the evidence establishes that Mr Gelo was using a mobile phone at the relevant time.

1. It is obvious, given the size of an excavator, that the likelihood of a person at the Site being struck or crushed by the excavator operated by Fed Consulting was high whenever a person was in the immediate vicinity of the excavator while it was being operated. Consistent with that view, I note that the Excavation SWMS identifies that work in an area with movement of powered mobile plant is a high risk work activity. The incident itself provides some evidence of the risk identified by the Prosecution.

Degree of harm that might result from the risk

1. The degree of harm that might result from the risk eventuating was significant. The bucket was heavy, weighing 670kg. Mr Gelo understood that, with a full load of concrete, it weighed about 1.2 tonnes. It was made of steel and Mr Gelo gave evidence that it was approximately 1 metre high and 1.5 metres wide.
2. I agree with the Prosecution that, given these specifications, any contact between the bucket and a person could result in death or serious injury. The serious injury sustained by Mr Rahman provides some evidence of the degree of harm that might result from the risk eventuating as a result of the bucket moving just a short distance (100mm to 200mm) into a person.

Fed Consulting's knowledge of the risk and ways of eliminating or minimising the risk

1. The duty imposed by s 19 of the WHS Act requires knowledge of the risk arising from the defendant's conduct. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable (Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]). However, the duty is not limited to preventing foreseeable risks of injury, but requires the PCBU to protect against all risks, if that is reasonably practicable (Orr v Hunter Quarries Pty Limited [2019] NSWDC 634 at [22]).
2. The relevant state of knowledge is to be assessed objectively. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances (Laing O'Rourke (BMC) Pty Ltd v Kinwin [2011] WASCA 117 at [33]).
3. Nevertheless, I accept the Prosecution submission that Fed Consulting had a subjective awareness of both the risks posed by the use of excavators to persons at the Site and of the necessary control measures.
4. Prior to the incident, Mr Gelo signed the Excavator SWMS. As I have noted above, the Excavator SWMS:

(a) identified that work in an area with movement of powered mobile plant is a high risk work activity and that the potential consequences of a worker being struck by a swinging boom were catastrophic (involving death or permanent disability);

(b) stated that such consequences were likely if the hazard was uncontrolled but unlikely if controls were applied. Identified controls included the enforcement of an exclusion zone around the excavator, including between the excavator cabin and the excavator bucket. No one was to enter the exclusion zone whilst the plant was operational in excavation mode. Amongst other people, the excavator operator was responsible for enforcing that control; and

(c) noted that excavator operators needed to be aware of workers entering the blind spots of the excavator, which included a blind spot between the excavator cabin and the excavator bucket. The operator was required to stop immediately if a worker entered a blind spot at any stage.

1. Mr Gelo gave evidence that he was aware that operating an excavator carried safety risks, including that a person could die or suffer serious injury if they are struck by a moving part. He agreed that that is why it is important to be careful when operating the excavator. He described it as a fairly obvious risk, and one that is well known in the construction industry.
2. Mr Gelo agreed that it he was required to operate the excavator in accordance with the manufacturer's operating manual, which included a requirement that there could not be any person on, under or around the excavator before operating it, and that the excavator be clear of people before being operated. Mr Gelo was aware that the risk of a person being struck by a moving part is more likely if a worker is in the immediate vicinity of the excavator.
3. Mr Gelo gave evidence that he was aware that it was not safe to lower the excavator bucket if a worker was standing immediately next to the bucket. Mr Gelo said that he would not have deliberately lowered the bucket if Mr Rahman was standing next to the excavator bucket because an injury would occur. He said he would pull the dead man switch up and stop straight away. He said that if he knew that Mr Rahman wanted to shovel concrete from the bucket and he wanted to lower the bucket to assist him to do that, he would tell Mr Rahman to move away so that he could lower the bucket to the ground, and only then would Mr Rahman be able to go to the bucket.
4. Of course, I have found that Mr Gelo did deliberately lower the bucket even though Mr Rahman was standing next to the excavator bucket. Mr Gelo should have taken the steps that he identified were appropriate in the circumstances.
5. Other witnesses, including witnesses who held safety roles for Chase and Capello at the time of the incident, gave similar evidence as to the knowledge within the construction industry of the safety risks posed by the use of an excavator and of the control measures that needed to be taken to ensure the safety of persons at a construction site where an excavator is being used. Mr Bogie and Mr Hart gave evidence of the risk of a worker being hit if they are in a plant operating zone and Mr Bogie gave evidence of the general rule that a machine is powered down if a worker enters the plant operating zone. Mr Hill noted that the operation of an excavator is a high risk construction activity. He said that the biggest risk of an operator moving their bucket when a worker is in its vicinity is a fatality.
6. Mr Bogie said, similarly, that if a person wanted to come into a plant operating zone, they would inform the operator by eye and then the operator would power the machine down and lower the bucket. He said that the engine would then just be idling.
7. It is clear from the evidence of the various witnesses, the Excavator SWMS and the excavator operating manual that the risk posed by the use of the excavator, and the control measures that were appropriate to eliminate or minimise that risk, was knowledge that Mr Gelo not only ought to have had as an experienced excavator operator, but in fact knowledge that he did have.
8. For the same reasons, I am satisfied that Fed Consulting, as an excavation business, not only ought to have known of the risks posed by excavators to persons at the Site, and the control measures that needed to be taken to guard against those risks but that, through Mr Gelo, it did have that knowledge. As Mr Gelo said, the risk is a fairly obvious one, and one that is well-known in the construction industry.

Availability and suitability of ways to eliminate or minimise the risk

1. The Prosecution submits that Fed Consulting ought to have lowered the excavator bucket only when Mr Rahman was not in the vicinity of the bucket. The corollary of that submission is that Fed Consulting ought not to have lowered the bucket if Mr Rahman was in the vicinity of the excavator bucket.
2. That control measure was not only available and suitable, but mandated. As I have noted, Mr Gelo agreed that he was required to operate the excavator in accordance with the manufacturer's operating manual, which included a requirement that there could not be any person on, under or around the excavator before operating it, and that the excavator be clear of people before being operated.
3. Mr Gelo was aware that the risk of a person being struck by a moving part is more likely if a worker is in the immediate vicinity of the excavator and was aware that it was not safe to lower the bucket if a worker was standing next to the bucket. Following these control measures would have eliminated the risk to persons at the Site, including Mr Rahman, suffering death or serious injury as a result of being struck or crushed by the excavator (including the bucket) whilst working at the Site.
4. As Mr Gelo also gave evidence, all he needed to do if Mr Rahman was standing next to the excavator bucket wanting to shovel concrete from the bucket was to tell Mr Rahman to move away so that he could lower the bucket to the ground and then permit Mr Rahman to go to the bucket. He said that that is what he would have done if he knew that Mr Rahman wanted to shovel concrete from the bucket and wanted to lower the bucket to assist him to do that. I have found that he did know that that is what Mr Rahman wanted to do and did lower the bucket to assist him.

Cost associated with available ways of eliminating the risk

1. There was no cost to Fed Consulting in following the available control measure.

1. Having regard to the above considerations, I am satisfied that it was reasonably practicable for Fed Consulting to ensure the health and safety of persons in the vicinity of the Site, including Mr Rahman. In order to discharge its duty under s 19 of the WHS Act, Fed Consulting was required to stop operating the excavator whilst Mr Rahman was in the vicinity of the excavator bucket and, specifically, was required to tell Mr Rahman to move away from the excavator before lowering the bucket. I am satisfied, beyond reasonable doubt, that its failure to do so means that it failed to comply with its duty under s 19 of the WHS Act.
2. This is so even if the way Mr Rahman initially approached the excavator was unsafe. I would have come to a different conclusion if, as Mr Gelo gave evidence, Mr Rahman had walked to the excavator bucket without warning and Mr Gelo had simply stopped the excavator in order to avoid hitting Mr Rahman. In that case there would not have been anything that Mr Gelo could have done. As I have found, however, Mr Gelo deliberately lowered the bucket once he had stopped the excavator and became aware that Mr Rahman wanted to take concrete from the excavator, without requiring him to move away from the excavator first.

Mr Gelo failed to take reasonable care to ensure that his acts and omissions did not adversely affect the health and safety of other persons

1. For the same reasons as I have articulated in relation to Fed Consulting, I am satisfied that Mr Gelo failed to take reasonable care to ensure that his acts did not adversely affect the health and safety of other persons at the Site.
2. Fed Consulting operated through Mr Gelo, who was a qualified and very experienced excavator operator, as well as the director of an excavation company. In his capacity as a worker, Mr Gelo:

(a) was responsible for conduct which an informed objective observer, having regard to all the circumstances, would reasonably have foreseen would affect the health and safety of another person;

(b) was aware of the risk posed by operating the excavator while Mr Rahman was in the vicinity of the excavator including, specifically, lowering the bucket while Mr Rahman was in its immediate vicinity;

(c) would reasonably be expected not to lower the excavator bucket while Mr Rahman was in the vicinity of it, given his knowledge of the risk to Mr Rahman's safety of doing so (and the general knowledge in the construction industry to the same effect) and the simplicity (and costlessness) of telling Mr Rahman to move away from the excavator before he lowered the bucket; and

(d) despite the above, deliberately lowered the excavator bucket whilst Mr Rahman was in the immediate vicinity of the bucket.

The Defendants' failure to comply with their respective primary duties exposed individuals to a risk of death or serious injury

1. I am satisfied beyond reasonable doubt that the Defendants' respective failures to comply with their primary duties of care exposed Mr Rahman to a risk of serious injury.
2. As I have found above:

(a) the degree of harm that might result from a person at the Site being struck or crushed by the excavator operated by Mr Gelo was significant;

(b) given the weight of the excavator bucket, and the fact that it was made of steel, any contact between the bucket and a person could result in death or serious injury; and

(c) the serious injury sustained by Mr Rahman is some evidence of the degree of harm that might result from the risk eventuating.

1. The particular failing of Mr Gelo and, through him Fed Consulting, that the Prosecution has established is that Mr Gelo deliberately lowered the excavator bucket when Mr Rahman was in the immediate vicinity of the bucket. Given that the bucket was only around 200mm above the ground, that action is unlikely to have exposed Mr Rahman to a risk of death, but it clearly exposed Mr Rahman to a risk of serious injury to his legs and feet given the construction, size and weight of the bucket.

1. For the above reasons, I am satisfied, beyond reasonable doubt, that the Prosecution has established the elements of a Category 2 offence with respect to the conduct of both the Defendants, having regard to the respective duties that they owed under s 19 (Fed Consulting) and s 28 (Mr Gelo) of the WHS Act.
2. I find Fed Consulting Services Pty Ltd guilty of committing a Category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011.
3. I find Stephen Gelo guilty of committing a Category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011.

I certify that the preceding one hundred and sixty-eight [168] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.