GRD Minproc Ltd v Inspector Richard Mulder

CATCHWORDS: APPEAL - first instance decision offence proven under s 8(2) of the Act - erroneous conclusions of the trial judge - particulars of offence made out - defence rejected - appeal dismissed

Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

CASES CITED: Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 22 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166

APPELLANT: Mr H J Dixon SC and Mr A B Gotting of counsel Solicitors: Mr S B Price Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel Solicitors: Ms F E Miller Workcover Authority of NSW

CORAM: Boland J, President Walton J, Vice-President Backman J

Application by GRD Minproc Ltd to appeal against a judgment of Justice Kavanagh given on 14 March 2008 in Matter No IRC 1085 of 2006

1 On 12 July 2004, two employees of Axis Metal Roofing Pty Ltd, a subcontractor of the appellant, GRD Minproc Ltd, were performing work preparatory to installing roof cladding in an area known as Fan Room No 1 Area at a construction site. The work was performed on a ground floor, although there was an underground room beneath the ground floor. There were penetrations on the ground floor that were covered with 100 millimetre by 100 millimetre square mesh. At approximately 1:45 pm, the two workers were attempting to move a panel of roof cladding when one of them stood on the mesh, the mesh moved and the worker (Louay Sadik) fell through the penetration to the underground room below. 2 The penetrations in Fan Room No 1 were at first covered with plywood. After inspection, the appellant's Site Safety Committee (on which all the major contractors were represented) ordered a mesh cover (with 200x200mm squares) be placed over each penetration in Fan Room No 1. After further inspection by the Site Safety Committee it was then decided the mesh may catch a work-boot so finer mesh (100x100mm squares) was ordered to cover each penetration. The cover mesh on the penetration through which Mr Sadik fell was 100x100mm. The covering mesh was attached to each end of three reinforcing bars, called reo-bars, placed under the steel flange of the penetration. The mesh was secured with double looped tie-wire tied to the reinforcement bars. The new system for covering the penetrations was then inspected by the Site Safety Committee and it found the penetrations were secure on 8 June 2004. 3 On 14 March 2008, Kavanagh J delivered her judgment in Inspector Richard Mulder v GRD Minproc Ltd [2008] NSWIRComm 22. Her Honour found an offence proven under s 8(2) of the Occupational Health and Safety Act 2000 against the appellant, GRD Minproc Ltd. 4 Kavanagh J found that GRD Minproc Ltd contravened s 8(2) of the Act in that it failed to: ensure that persons other than its employees, and in particular, Louay Sadik, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work, contrary to s8(2) of the Occupational Health and Safety Act 2000.

5 Kavanagh J found each failure asserted by Inspector Mulder proven. Her Honour found that the appellant had: a) failed to ensure that penetrations at the construction site and, in particular the covers to penetrations in Fan Room No 1, were secured in a manner that ensured that people working near the penetrations were not at risk of falling through the penetrations;

b) failed to ensure that there was a proper and appropriate inspection of the area in which persons were working, known as Fan Room No 1, so as to identify and rectify any risks associated with inadequately guarded or secured penetrations; c) failed to adequately identify the risks to persons working in the area known as Fan Room No 1 and to warn persons working in that area about the risk created by inadequately guarded or secured penetrations;

d) as a result of the defendant's failures Louay Sadik and other persons working at the construction site were placed at risk of injury.

7 Both parties agreed that leave to appeal should be granted. The consensus between the parties was that the appellant did not need leave to appeal, as the appeal was as of right under s 196 of the Industrial Relations Act 1996 and s 5AA of the Criminal Appeal Act 1912. The parties agreed the finding that the offence was proven was a conviction for the purpose of s 5AA and that leave to appeal should be allowed, if required. The Relevant Facts

8 The decision of Kavanagh J proceeded on the basis of some agreed relevant facts; see [6]: There was tendered an Agreed Statement of Facts outlining the circumstances on the site leading up to the alleged breach by the defendant corporation and the state of the site after the incident which relevantly reads: 3. In October 2002 Waste Services NSW entered into a public/private partnership with Global Renewables Ltd to construct the UR-3R Facility at Eastern Creek, New South Wales. Global Renewables Ltd was at all material times jointly owned by GRD Ltd (the defendant's parent company) and Hastings Funds Management Ltd. Global Renewables Ltd developed, owns and operates the Eastern Creek UR-3R Facility under contract to Waste Service NSW. 4. At all material times GRD Minproc Ltd ("GRD Minproc") was contracted to design and construct the UR-3R facility at a construction site located at the Waste Management Centre, Wallgrove Road, Eastern Creek, in the state of New South Wales ("the site"). 5. On 30 January 2004 GRD Minproc, as the main contractor, entered into a contract with Axis Metal Roofing Pty Ltd ("Axis"), as a subcontractor, to install and erect wall & roof cladding at the site. The contract between GRD Minproc and Axis was a written contract no. 50766-3008. 6. Axis commenced work at the construction site in March 2004. 7. GRD Minproc contracted Process Engineering to provide construction/project management services at the site including the provision of a Construction Manager. [The Construction Manager had overall responsibility to implement the HSE plan on site, ensure that contractors complied and adhered to HSE requirements and monitor and report on OHS issues that were raised]. Mr Griffith performed the role of Construction Manager at the site. 8. Mr Griffith was a director at Process Engineering. Mr Griffith was an employee of Process Engineering. He was a member of the site safety committee. In the role of providing a Construction Manager, Process Engineering required Griffith to be on the site at all times performing the duties required of the defendants Construction Manager as required by the contract between GRD and Process Engineering. This included displaying 'due diligence' in all health and safety matters, ensuring that risk assessments were conducted for all major site activities and ensuring that all persons on site were informed of hazards associated with their work and making sure all occupational health and safety requirements were adhered to. 9. GRD Minproc also contracted JR Wright Consulting Pty Ltd as a Mechanical Supervisor for specific areas of the Construction site. James Wright ("Wright"), director of JR Wright Consulting Pty Ltd performed the role of Mechanical Supervisor and was responsible for supervising installation and erection of wall and roof cladding; plastic pipe installation; pipe work systems and mechanical fit out in compost hall area. Wright was required to report to the defendant. 10. At all material times Axis employed Louay Sadik ("Sadik") as a 1st year apprentice roof plumber. Sadik was 16 years of age on 12 July 2004. Sadik commenced employment with Axis in February 2004. 11. At all material times Axis employed Shayne Riley ("Riley") as a labourer. Riley had been employed by Axis for approximately six years at the time of the incident on 12 July 2004. 12. At all material times Axis employed Peter Smits ("Smits") as the on site leading hand at the site. Smits was responsible for the supervision of Sadik and Riley on 12 July 2004. 13. Axis commenced work in an area at the site known as Fan Room No 1 on 9 July 2004 and continued to work in that area again on 12 July 2004. The area was on the ground floor with an underground room below it. This was known as the plenum. There were a number of penetrations in the floor of the fan room which opened to the plenum below. 14. Prior to Axis commencing work on the wall and roof cladding for Fan Room No 1 the civil works in this area were to be completed. The civil works contractor at the site was Arenco Pty Ltd ("Arenco"). Prior to 2 June 2004 Arenco used plywood to cover the penetrations within Fan Room No 1. The plywood covers were replaced with 200 x 200 mm square mesh to allow both light and ventilation to the plenum below. 15. During a Site Safety Committee inspection on 2 June 2004 members of the Safety Committee expressed concerns that someone could get their boot caught within the gap of the 200 x 200mm mesh. The Safety Committee then decided to upgrade the penetration covers with smaller 100 x 100mm squares. The penetrations were covered with 100 x 100 mm square mesh ("mesh"). [The penetration through which Sadik fell had been covered with reinforcing bars tied at right angles into a mesh configuration ("mesh configuration") of approximately 100mm x 100 mm squares using tie wire]. 16. The covers of each penetration were secured by reinforced Steel bars and double ties. A standard type of tie wire was used to secure the mesh or mesh configuration to the reinforcing bars placed under the steel flanges around each penetration. 17. The change of the penetrations was completed prior to the next Safety Committee inspection on 8 June 2004. 18. After Arenco Pty Ltd's hand over of the Fan Room No 1 area and prior to Axis commencing work in Fan Room No 1 Axis's director Hugh Tabone undertook an inspection of the work area. He checked the penetrations and considered them to be securely covered. Prior to commencing work, Axis requested that other trades not undertake work in the fan room area whilst they were working there to avoid congestion and requested the fans installed within Fan Room No 1 be removed to allow less clutter and better access to the site. Wright was responsible for the removal of the fans, which was carried out prior to Axis commencing work in Fan Room No 1 area. 19. On 12 July 2004 at approximately 1.45pm Sadik and Riley were attempting to move a 12m Colorbond Aramax roof sheet to place it upon timber provided to make room for the next roof sheet which required brackets to be fixed. They proceeded to slide the sheet along with Riley pulling the sheet and Sadik pushing it from the other side. [Whilst pushing the sheet Sadik placed one foot on the mesh configuration covering a penetration. The mesh configuration slipped and tipped beneath Sadik's foot exposing the penetration. Sadik lost his balance and fell through the penetration down to the concrete plenum floor approximately 4.4 metres below. The penetration was approximately 820mm in width. 20 The incident was witnessed by Riley. Riley attempted to grab Sadik as he fell but was unable to reach Sadik in time. Following the incident Riley looked into the penetration through which Sadik had fallen. It was dark but he could see that Sadik was lying still. He called out but received no response. He then sought assistance from co-workers working in a boom lift at the western end of the fan room. A ladder was obtained to access Sadik and first aid notified. 21. As a result of the incident on 12 July 2004 Sadik suffered from a broken left forearm with medium nerve injury. Sadik was off work from 12 July 2004 to 9 September 2004. Sadik returned to work under suitable duties from 9 September 2004. 22. On 12 July 2004 shortly after the incident, Martin Fahey an employee of Arenco Pty Ltd was asked by Mike McKenzie and Charlie Katancamp on behalf of GRD Minproc, to undertake rectification work by resecuring all penetration covers in the fan rooms. Three or four of the penetration covers in the area were not properly secured as the wire ties that were supposed to be attached to the reinforcing bars under the steel flange appeared to be cut at one end. [The covers were sitting over the penetrations but were not securely tied down which would allow the covers to slide off the penetrations. 23. Axis as a subcontractor was required to comply with the Health Safety & Environment (HSE) Plan adopted by GRD Minproc. Axis was also required to submit their own HSE Plan to GRD Minproc for review. 24. Axis indicated that it was using two OHS Management Systems to cover the UR-3R Facility project. A Site Specific Safety Plan dated 9 August 2004 and OHS&R Management system dated 10 August 2004. The documents provided to WorkCover are dated post the incident date of 12 July 2004. Hugh Tabone director of Axis indicated that similar documents were in place at the time of the incident. 25. Part of GRD Minproc's HSE plan was for subcontractors to conduct daily documented inspections of subcontractor work areas, pre-start meetings and the development of Job Safety Analysis (JSA) for work to be carried out. JSA's were to be submitted to Griffith for review. Smits said that he did a site inspection on 12 July 2004 and that a pre start meeting took place. No records were produced by Axis for the site inspection on 12 July 2004. 26. The purpose of the Pre-Start meeting included informing employees of any changes to the Job Safety Analysis through a review, and any changes to the worksite. Each employee in attendance was required to sign off on this activity. Other general safety issues were also to be discussed i.e hardhat requirements, safety harnesses, PPE. Nothing specific for the work undertaken by Sadik and Riley on 12 July 2004 was discussed at the pre-start meeting which took place on that day. 27. Sadik and Riley were trained in installing of brackets on roof sheeting approx 4 to 6 weeks prior to commencing work in Fan Room No1. The training provided was verbal and "on the job" training. Both Sadik and Riley had been inducted for work at the site. 28. Prior to Axis being given access to the site of Fan Room No 1 GRD Minproc's supervisor was to hand over the area safe. Wright stated that an inspection of the site was done and all penetrations appeared to be securely covered and the deck clear. 29. Prior to Axis recommencing work at the site following the incident on 12 July 2004 the mesh and mesh configuration were welded down to prevent them from being untied, or moved or otherwise interfered with so that they remained securely in position or serve the purpose of securely covering the penetrations in such a way as to prevent someone falling through them.

9 In the first instance judgment, Kavanagh J found the offence proven. 10 The particulars of the charge were broken into three parts: i) failing to adequately secure; ii) failure to inspect appropriately the penetrations in Fan Room No 1; iii) and failure to forewarn persons at its place of work of the ongoing risk to safety. 11 As to the first particular, the appellant had called expert evidence, that of an engineer, Doctor Robert Casey, to state that the system chosen for the mesh coverings of the penetrations in Fan Room No 1 was safe. After considering that evidence, Kavanagh J acknowledged that it was possible for that system to be considered safe in an idealised form. See [46]: [46] The prosecution rightly conceded that had all of the ties and all of the reinforcement bars been attached in the ideal way, that is, the bars placed equidistant and the metal ties were each fixed in the pony-tail form, the system adopted would have been safe. 12 Her Honour, however, considered that a number of individual variables could alter whether the system was safe or not: [50] The design and implementation of the system of coverage of the penetration chosen by the defendant company to make safe a recognised and identified hazard in Fan Room No.1 (amongst others) was not adequate. I conclude from the expert evidence, the system chosen allowed the mesh to slip with the application of force and the penetration could be opened in a number of varying circumstances. Dr Casey's view was that it would not have been possible for a person to fall through the mesh correctly affixed. However, if the reo-bars were not equidistant one from the other and if the ties were not double knotted - if one or more of a number of such variables were in place - then the mesh could slide off the top of the flange and uncover the penetration thereby revealing the known risk. The risk of a fall through the penetration was neither impossible to anticipate nor entirely speculative. It was a known risk. If one or more of the number of variables to the "idealised" system occurred, the mesh was vulnerable to the application of force. 13 Her Honour also canvassed the possibility that the ties of the penetration may have been cut by a third party. Though this was not discounted as a possible cause of the system failing, it was considered unlikely.

14 The crux of her Honour's decision, that there was a failure to ensure the penetrations in Fan Room No 1 were properly secured, is found at paragraph [51]: [51] The mesh did in fact slip when Mr Sadik applied force. Whether one or more of the variables mentioned by Dr Casey was in place on the day of the incident or whether the cover had been previously cut by persons unknown (unlikely on the evidence), the system failed. The defendant had an absolute obligation to ensure a safe workplace and to ensure the penetrations in Fan Room No.1 were safely secured. It failed. and [54] and [55]: [54] In order to be satisfied there was failure by the defendant company to ensure the system chosen to secure the penetrations in Fan Room No.1 was not safe, it is not necessary for this court to determine which factor in a number of possible variables actually caused the penetration cover to slide off. [55] Therefore, there was a clear causal connection between the risk of a fall of 4.4 metres and the failure of the defendant, by its act in choosing the system of coverage of the penetrations, to adequately secure the penetrations.

15 Kavanagh J also concluded that there was a failure by the appellant to ensure proper and appropriate inspections (see [68] and [69]): [68] The defendant failed in its obligation to safely secure the penetrations, but the numerous inspections carried out by the defendant or under its auspices, by contractors, provided further opportunities to recognise and remedy defects in the system chosen to secure the penetrations. However, such inspections were generally by sight. From the visual inspections conducted prior to the incident the witnesses were able to say the ties were in place and the bars were not hanging loose. However, such an inspection could never identify the fact, as revealed by Dr Casey, that if some/all of the ties were not threaded correctly they could, with force, fail. I accept from Dr Casey's evidence that standing on the mesh would not have revealed the insecurity as the mesh would have resisted the force of a body weight pressing down. Further, no inspection required a check the reo-bars were placed equidistant one from the other. [69] Given the variables identified by Dr Casey, a "proper" inspection would have required the defendant to: ensure each tie had a double pony tail knot; ensure the reo-bars were placed equidistant one from the other; ensure the mesh had not been cut on one side of the covering and each mesh tie was in place. The inspections were not of this identified rigor - perhaps because of the assumption the system was safe so long as the mesh was tied with wire to the reo bars. There was, as a matter of fact, a failure to appropriately inspect the area of Fan Room No.1 so as to identify the known risk was on-going.

16 As to the third aspect of the particulars, Kavanagh J found that there was a failure to warn of the risk of inadequately secured penetrations (see [70] and [71]): [70]... I do not accept the obligation to warn arose only if the employer knew the penetrations were not properly secured. In a situation where the penetrations were not properly secured there was an obligation on the defendant to warn of the ongoing risk.

[71] Given I have found each asserted failure has been established, I find the charge brought under s8(2) proven and find the defendant breached s8(2) of the Act in that it failed to ensure safety for persons in the conduct of the its undertaking at its place of work.

17 Kavanagh J also found that the appellant failed in its defence under s 28(a). Her Honour considered in paras [75] and [76] the basis for the defence raised, but in [83] considered the defence failed : [75] In raising the defence under s28(a), the defendant submitted that given the system in place for the coverage of the penetrations and the inspections conducted it was not reasonably foreseeable the risk would materialise. Given its genuine and reasonable belief that the system was safe, the defendant contended, the slipping of the mesh off a penetration in Fan Room No.1 was not foreseeable. [76] The defendant further submitted the mesh covering may have slipped for a number of reasons including the covers were cut open prior to the incident by persons unknown, so the risk was in such an instance unforeseeable. The defendant contends the relevant risk was of a fall through the penetration so the method of security employed ensured the risk would not materialise. … [83] I find it was reasonably practicable for the defendant to comply with its obligations under s8(2) of the Act to ensure that persons were not exposed to risks from the conduct of the defendant at its workplace, namely, by appropriately covering of the penetrations in Fan Room No.1. The defendant therefore fails in raising a defence under s28(a).

18 Mr H J Dixon SC and Mr A B Gotting of counsel appeared for the appellant. The submissions of the appellant were in summary that: (a) The trial judge erred in concluding that the appellant failed to ensure a safe system for the coverage of the penetrations;

(b) The trial judge erred in concluding that the system was not safe and that the design and implementation of the system was not adequate;

(c) The trial judge misconstrued the evidence of Dr Casey;

(d) The trial judge erred in concluding that there was a failure to ensure that there were appropriate and adequate inspections;

(e) The trial judge erred in concluding that the appellant had an obligation to warn workers of a known hazard that was otherwise addressed by a safe system;

(f) The trial judge erred in concluding that the failure of the appellant to warn the workers of a known hazard added to the foreseeability of the incident; and

(g) The trial judge erred in considering the defence available pursuant to s 28 of the Act. 19 The submissions of the appellant moved on the premise that the ties of the penetration were cut by a third party.

20 It was submitted there was no evidence that the appellant cut the ties, arranged for the cutting of the ties, authorised another person to cut the ties or permitted the interference with the ties. There were no acts of the appellant which caused or contributed substantially or significantly to the existence of the risk of falling through the penetration.

21 There was, in the appellant's contention, no causal nexus by which it contributed substantially or significantly to the risk of a worker falling down the penetration. This was because the designed system was safe and it was implemented as designed.

22 It was submitted the system when constructed ideally was safe. It was also not clear on the evidence that any of the variables were present which would make it unsafe. Even if some of those stated variables were present, say the reinforced bars were not equidistant from each other, the evidence had shown that the bars would need to be significantly out of position before lateral forces would dislodge the bars and the mesh and, on the assumption that only one loop of tie was placed at each end of the reinforced bars, it was highly unlikely that a worker of moderate build could exert sufficient force to dislodge the penetration cover.

23 In making the conclusion that the implementation of the system was inadequate, the trial judge had ignored the numerous forms of safety inspection which occurred prior to the incident, including visual inspections that showed that there were no hanging reinforced bars and no loose or cut wires.

24 The trial judge had not taken into account that the system had been implemented in the ideal way and that it had been inspected by the Site Safety Committee and Mr Griffiths, the Construction Manager of the Site on 8 June 2004, and that later Mr Douche, Operations Manager of Arenco, had inspected the penetration cover in early July and had found it to be implemented as designed.

25 The appellant argued that its inspections had been adequate and appropriate and contended that there was clear evidence of adequate inspections. It referred to the following chronology in support of that contention: a) On 9 July 2004, prior to Axis commencing work in Fan Room NO 1 Area, both Mr Tabone and Mr Smiths (both representatives of Axis) conducted an inspection of the Fan Room No 1 Area (including all penetrations in Fan Room No 1 Area) to see whether it was safe and free of hazards. b) On 9 July 2004, Mr Wright, the Mechanical Supervisor for the site, conducted, prior to Axis commencing work in the Fan Room No 1 Area, an inspection of the Fan Room No 1 Area (including all the penetrations covers in the Fan Room No1 Area, saw that all of the penetration covers were tied down (with the tie wires connected to the reinforced bars and the bars in turn connected to the flange (or "upstand") and noticed no problems with the penetration covers. Part of the purpose of the inspection was to ensure that it was safe for Axis to work in the Fan Room No 1 Area;

c) On the morning of 12 July 2004 (the second day in which Axis worked in the fan room No 1 Area), prior to work commencing by Axis workers in the Fan Room No 1 Area, Mr Smits inspected each area within the Fan Room No 1 Area to ensure that it was safe for Axis workers to work in the Fan Room No 1 Area;

d) On the morning of 12 July 2004, prior to work commencing by Axis worker in the Fan Room No 1 Area, Mr Smits visually inspected the penetration covers, gave them a kick and formed the view that the covers were "alright".

e) In terms of the visual inspection, Mr Smits looked at each of the penetration covers in the Fan Room No 1 Area to see whether they were tied and whether there were any loose reinforced bars, saw that the tie wires were in place, did not observe any loose reinforced bars and formed the view that the penetration covers were firmly in place;

f) In terms of kicking the penetration covers, Mr Smits gave each penetration cover a "nudge" once or twice on the outside edge of the mesh overhanging the flange set into the penetration, with a view to ensuring that the cover was secure and, having kicked the covers in this way, formed the opinion that there was "no doubt" that each cover was secure; and

g) In terms of the inspection generally, Mr Smits was diligent in his approach and took the inspection seriously as he wished to ensure that the Fan Room No 1 Area was safe before he allowed Axis workers to work in the Fan Room No 1 Area.

26 The appellant submitted that, given the system as designed was implemented and given that there was no basis to suspect the ties were cut, the inspections conducted on 9 July and 12 July 2004 were adequate.

27 To the extent that the trial judge found a failure to adequately inspect the penetration covers based on a failure to ensure: each tie had a double pony tail knot; the reo-bars were placed equidistant one from the other; the mesh had not been cut on one side of the covering and each mesh tie was in place, it was submitted there was no evidence that: a) the system involved "double pony tail knots"; b) the reinforced bars were not or had not been inspected to ensure they were equidistant;

c) the mesh had been cut on one side or that the inspections had inadequate to identify a cut in the mesh on one side; or

d) there was a failure during inspection to identify that "each mesh tie" was in place.

28 The basis upon which the trial judge concluded that there was a failure to appropriately inspect the area was further flawed by reason of an erroneous interpretation of Dr Casey's evidence. It was not correct to conclude from Dr Casey's evidence that each tie had to have a "double pony knot" and the reinforcement bars had to be placed equidistant one from the other to be effective.

29 The appellant disputed that it was required to warn the workers of a known risk where that risk was addressed by the system it had put in place. The appellant contended that there was no obligation on it to warn a worker of risks associated with falling through a penetration cover where that risk had been addressed by an adequate system.

30 On the appellant's contention, as there was no way of being aware that ties were cut, it was entitled to assume that the system was operating effectively.

31 It was submitted that the trial judge failed to properly deal with the appellant's defence under s 28(a) of the Act. Her Honour should have found a defence was made out under that section. 32 The appellant submitted that the action of some unknown person or persons cutting the tie was not reasonably foreseeable and that it was not reasonably practicable to make provision against that event. Several factors were said to support this: the evidence supported a conclusion that the tie wires were cut by a person or person unknown prior to the incident; the system used was not unique, but had been used earlier in other projects without any difficulty or failure; there were no known deficiencies in the system and, as found by the Court, it was the view and the opinion of a range of experienced managers and supervisors that the system was secure and did not pose a hazard; the evidence was that there was no problem or deficiency in the system which came to the attention of anyone responsible for this area of work and safety; and there was no operational need for anyone to be using the penetration to have access to the plenum below the Fan Room No 1 Area.

33 The conclusion by the trial judge, that the failure to warn of the risk posed by the penetration "added to the foreseeability of the incident", was erroneous and illogical. That some unknown person might cut the wires securing the covers was not foreseeable and it was not a known risk.

34 Mr R Reitanoof counsel appeared for the respondent. The respondent contended that the appellant's submission did not disclose any error on the part of Kavanagh J that would warrant appellate intervention. 35 The respondent submitted that the appellant had failed to prevent the risk of workers falling through the penetration by: failing to secure the penetration and the covers; failing to undertake a proper and appropriate inspection of the area; and by failing to identify and warn people about the risk posed by unsecured holes around the site. 36 The risk was falling down the penetration and it was the case that the system the appellant put in place never overcame that risk. Even though the appellant did implement a system, the system it implemented to cover the penetrations was inadequate. 37 The respondent submitted that it did not matter what had caused the penetration not to be secure, whether it was the variables identified by Kavanagh J or the act of some third party cutting the ties. This was unnecessary to the charge and not something that needed to be addressed in a strict way. 38 The appellant, it was submitted, was required to eliminate that risk. The appellant had gone some of the way to preventing that risk through the system it implemented. However, it failed in using that particular system of metal mesh and tie wire, to eliminate the risk. That system left open the prospect that the tie wires could be cut or loosened or interfered with or that the system could be altered in some way so that a failure of the system could occur. 39 The system employed later would remove the risk completely, by welding the penetrations shut. 40 The respondent submitted that there were not proper or appropriate inspections and agreed with Kavanagh J's judgment at [68]-[69]. That is, the respondent contended that the inspections on 12 July 2004 could not identify, from a standing position, tie wires that were not threaded correctly or were loose. There was no evidence that there had been an inspection that had closely looked at each and every tie wire and ensured that they were tight and correctly attached. 41 The respondent contended that the actual hole Mr Sadik fell down was not subject to an inspection which was conducted proximately in time to when Mr Sadik was working at the site near the hole he fell down. There was no inspection of that hole which involved anything more than an examination from a standing position of small wire ties that were 'affixed' close to ground level to wire mesh of a similar colour. There was no inspection which involved touching by hand, or with any other implement, the tie wires. There was no inspection that involved an act that affirmatively allowed a person to conclude that the tie wires were tied in the manner proposed by Dr Casey. Nor did any inspection involve any more than a 'nudge' from more than one position of the cover or involve someone checking that one person had not made an error in inspecting one or other of the tie wires. 42 The respondent submitted that the fact that there had been more comprehensive inspections (the site safety inspection of the 8 June and the inspection of Mr Douche) which took place before 12 July 2004 illustrated the kind of comprehensive inspection that should have taken place on 12 July 2004. 43 With respect to warnings of risk, the respondent contended that the reasoning of Kavanagh J at [70] was correct. It was submitted that giving people warning about the prospect that, if penetration covers were inadequately secured, there was a grave risk to their safety was something that the appellant had to do regardless of whether or not it considered that the covers were adequately secured. Given the evidence of Dr Casey that the covers needed to be installed in an ideal way in order to be safe, the appellant was required to warn employees of the existence of a risk should the covers not be properly maintained. 44 The respondent adopted Kavanagh J's findings for the rejection of the statutory defence at [72]-[83] of the judgment. It was contended that the appellant wanted the Full Bench, on appeal, to consider the reasonable practicability of preventing an incident rather than a risk. It was submitted that to find a defence open would ignore the obvious risk that the worker was exposed to on 12 July 2004. The appellant, in arguing a defence, continued to ignore that welding the covers in place as it did, after the incident, would have completely eliminated the risk of the worker falling through the penetration.

CONSIDERATION 45 The appellant argued that the system used by it to secure the penetrations was a safe system, consistently checked and one which did not require it to warn workers of the risk of falling through the penetration. 46 Its contention was that a correct conclusion on the facts should be that a third party disrupted the system and rendered it unsafe. This intervention was disassociated from the appellant and, because it was, the appellant could not be found to have contravened the Act or, alternatively, should have a defence available under the Act. The appellant's arguments were premised on the proposition that the intervening act of a third party in the cutting of the ties caused an unforeseen failure of a system that was safe and inspections that were adequate and that such a system, without that intervening act, operated without risk and did not require warnings that there were inadequately guarded or secured penetrations.

47 The appellant was correct in submitting that some of Kavanagh J's findings regarding the potential cause of the accident were not founded properly on the evidence. There was insufficient evidence to permit a conclusion that the existence of certain variables, such as reo bars not being equidistant or the ties not being double knotted, may have caused the mesh to slip. 48 Moreover, we accept that this reveals a tension in the judgment between the finding that if the system had been installed in an ideal way the system would have been safe and the finding that the appellant had breached the Act because of the introduction of such a system. This is because that latter finding was premised on factual conclusions that certain variables may have been in place, which might not have had a proper basis on the evidence. 49 To that extent we consider some of the conclusions of the primary judgment erroneous. However, the crux of the decision was correct and should result in the dismissal of the appeal.

50 Irrespective of whether variables existed which caused the system to fail, or whether it was an unknown person who cut the tie wires before the accident, the ascertainment of the exact cause of the accident is not determinative of whether the appellant has contravened the Act. What is important for the purposes of resolving this appeal is that Kavanagh J concluded that there was a risk of falling through the penetrations and there was causal connection between that risk and the appellant's failures set out in the particulars. In this respect, we agree with what her Honour found at [51]: ...Whether one or more of the variables mentioned by Dr Casey was in place on the day of the incident or whether the cover had been previously cut by persons unknown (unlikely on the evidence), the system failed. The defendant had an absolute obligation to ensure a safe workplace and to ensure the penetrations in Fan Room No.1 were safely secured. It failed. 51 The fundamental plank of the respondent's case was that the Act required the appellant to ensure there was no risk of falling through the penetrations. To sustain an argument that there was a contravention of the Act, the facts need only reveal that the system put in place by the appellant did not wholly eliminate the risk of falling through the penetrations, or that the series of inspections made by the appellant failed to identify and rectify that risk of falling through the penetrations and that the appellant failed to warn workers who were at risk of falling through the penetrations. All these failures are established on the facts.

52 The evidence revealed that the system, as it was and however well it was designed and checked, did actually allow for the risk of falling through the penetration and the system itself was not failsafe. This is because, accepting the appellant's construction of events, the system did not adequately deal with the prospect of the tie wires being cut, or otherwise interfered with, in such a way that would allow the penetration to be unsecured. If it be accepted that a third party cut the ties, it is clear that part of ensuring that there was no risk posed by the penetration was ensuring that the tie wires could not be interfered or loosened in any way. The appellant failed with its system in that regard. The same principle applies in the alternate scenario that the covers were not properly configured. This conclusion is particularly compelling given that the coverings were designed to prevent a fall in the midst of a construction site where the physical features of the site may be expected to change from day to day and where workmen engaged in various capacities may be engaged in or about holes or coverings. 53 The appellant contended that as the risk arose because of the unforeseeable conduct of a third party, that should be a defence upon which the appellant is entitled to rely. On that we would say this much: an act by a third party such as the cutting of wires securing a penetration cover on a busy worksite is hardly of the type of unique, unforeseen scenario which may have resulted in a defence as elucidated in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166.

54 It cannot be said that the system of inspections comprehensively eliminated, addressed or rectified the risk posed by the penetrations. Kavanagh J was correct to conclude that the inspection system did not eliminate the identified risk to safety. What is patently clear is that the inspections did not identify that the tie wires had been interfered with and that they would not hold the covers in place. Because no inspection ensured on 12 July that the ties were correctly in place and because no inspection ensured that the risk posed by the penetrations was eliminated, it was made out before her Honour that there was failure to make proper and appropriate inspections. 55 It was also clearly incumbent on the appellant to warn of risks posed to workers by the inadequately guarded or unsecured penetrations. The system in place had been installed to prevent risk and was subject to inspections to ensure it eliminated risk. Those facts indicate that the risk presented by the penetrations was ongoing and never remote. The simple fact that the penetrations were subject to inspection from time to time to ensure they did not present a risk indicates that the appellant should have provided warning.

56 It is also apparent to us, given that there was an installation of a system by way of welding mesh to the penetrations following the incident, that there was available a failsafe system which could have been implemented with minimal cost in time and resources to the appellant. 57 There was an obvious causal connection between the failure of the appellant and the risk of falling through the penetration. 58 For these reasons we consider that the particulars of the contravention are made out. 59 Kavanagh J was correct to conclude that no defences were available under the Act. The risk of falling down the penetrations was reasonably foreseeable and it was reasonably practicable to make provisions to guard against the risk. 60 We dismiss the appeal. ORDERS 1. The appeal is dismissed with costs in favour of the respondent. ______________________

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