Insp Plowright v Peter J Davis

PROSECUTOR: Ms P.E. McDonald of counsel Solicitors: Ms M. Lagana LEGAL REPRESENTATIVES: WorkCover Authority of NSW DEFENDANT: Mr R. Warren of counsel Instructed by: Newcastle Master Builders Association

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Thur 1 November 2001

IRC562 of 2001 INSPECTOR COLIN PLOWRIGHT v PETER J DAVIS (NEWCASTLE) PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 JUDGMENT [2001] NSWIRComm269 (as to Liability)

1 This is a prosecution brought by the WorkCover Authority of New South Wales through Inspector Plowright under the provisions of s16(1) of the Occupational Health and Safety Act, 1983 It is alleged the defendant corporation: P J Davis (Newcastle) Pty Limited (ACN 000 918 178) an employer, breached s 16(1) of the Occupational Health and Safety Act 1983 on 11 February 1999 at the construction site of the Metro Apartments at the corner of Scott and Watts Streets, Newcastle in the State of New South Wales in that it failed to ensure that persons not in its employment and, in particular, Garry Ward were not exposed to risks to their health, safety and welfare arising from the conduct of its undertaking at its place of work, namely, the provision of bricklaying and other services for the construction of the Metro Apartments at the corner of Scott and Watts Street, Newcastle.

2 The following particulars as to the alleged breach were supplied by the prosecution: 1. The defendant failed to ensure that the brick wall constructed in room 901 on the 9th level at the construction site at the corner of Scott and Watts Streets, Newcastle ("the brick wall") was laterally supported. 2. The defendant failed to ensure that the construction of the brick wall complied with reg 77 of the Construction Safety Regulations 1950. 3. The defendant failed to inform the principal contractor, Capitol Apartments Pty Limited that the brick wall was not laterally supported. 4. The defendant failed to warn persons about the risk associated with the brick wall not being laterally supported.

3 A plea of not guilty was entered by the defendant. 4 Ms P.E. McDonald of counsel represented the WorkCover Authority as the prosecutor and Mr R. Warren of counsel, represented the defendant. The prosecutor called five witnesses and tendered a number of records of interview conducted by the WorkCover Authority in its investigation of the incident. Also relied upon was a factual inspection report and photos of the construction site taken both before and after the incident.

5 The defendant called no witnesses but tendered a plan of the construction site into evidence.

6 A number of admissions were made by the defendant to the charge: 1. At all material times Inspector Colin Plowright was an inspector duly appointed and empowered by s 48 of the Occupational Health and Safety Act to institute proceedings in this matter. 2. On 11 February 1999 and at all material times the defendant, Peter J Davis (Newcastle) Pty Limited was a company duly incorporated. 3. On 11 February 1999 the defendant was an employer. 4. On 11 February 1999 Garry Ward was a person not in the defendant's employ.

7 A number of further factual matters, as the case progressed, were not in dispute. The construction site was a multi-storey apartment building on the corner of Scott and Watts Street, Newcastle. At the time of the incident the building was encapsulated with scaffold shade cloth and mesh. The building was constructed with concrete floors and supports with brick facia and infills. The ceilings of each floor of the building had a concrete pour except for the 9th floor which was the top floor of the apartment block. It had no concrete ceiling as it was the floor above which the roof was to be constructed. The alleged breach occurred on the 9th floor of the building in Apartment No. 901. At the time of the alleged breach there were steel support beams erected on the roof line of the 9th floor but no cladding. On 2 December 1999 the WorkCover Inspector wrote: The room had galvanised purlins overhead with an Ausmesh fall barrier. There was no cladding on the roof purlins in this section. 8 On 11 February 1999 inside Apartment No 901, plumbers were working. Mr Garry Ward, a third year apprentice plumber had been working on the site for about one and a half months. He was, on the day of the alleged breach, working in the kitchen area. He was employed by a company called HGT Australia Limited but was working under the supervision of a foreman known as George, a tradesman from True Flow Plumbing. At approximately 11.45am Mr Ward was working on pipes for the connection of gas and the hot and cold water services. He was sitting in a cross legged position cutting a 25mm gas services pipe. He was facing a wall. Behind him was the free standing and unattached wall. Another plumber, Mr Paul John Allibon, also employed by HGH Australia Limited and working under the supervision of True Flow, was walking through the hallway on the other side of the free standing wall, which defined the kitchen area, when he was required to step over a box gutter. To do so he placed his hand on the free standing wall to steady himself and the wall gave way. The wall of bricks approximately 2.610m high and 1.750m long collapsed into the kitchen area. Bricks struck Mr Ward on the back of the head. He is now a paraplegic.

9 The defendant company was responsible for the erection of all brick work on the site. The defendant company had contracted with Capitol Apartments Pty Limited ("the Principal") for all brick work on site. Relevantly the contract between Capitol Apartments Pty Limited and Peter Davis (Newcastle) Pty Ltd stated: 3. PAYMENTS (a) Before becoming entitled to any payment under this Contract the sub-contractor shall deliver to Capitol Apartments Pty Limited the following: (i) Adequate evidence in writing that all insurance covers required under this Sub-Contract Agreement has been taken out and that the policies are current in all respects in accordance with instructions to Sub-Contractor. (ii) A Certificate or Statement in writing that the Sub-contractor has complied with the laws referred to in clause 14 hereof. (iii) Terms of payment shall be in accordance with Schedule 2. All invoices/claims must be first authorised and approved by the Site Foreperson. Invoices/claims are processed through Head Office every Tuesday. Payment times stipulated are from Head Office processing and NOT from submission of invoice/claim. (b) (i) Before becoming entitled to the final payment under this Sub-Contract (including any variations) the sub-contractor shall sign a Certificate of Release certifying that he agrees to the final Contract Sum as stated on such Certificate and that upon payment of the said Contract Sum he shall release Capitol Apartments Pty Limited from all further claims thereunder. (ii) A Certificate of Statement in writing that no wages as at the date of such Certificate or Statement are due and owing by the sub- contractor to any of his employees in respect of the works.

G BRICKWORK . . . G2.1 Generally During windy conditions, or until mortar has set, or until cross walls are built, adequate bracing and scaffolding shall be provided to prevent collapse or movement of brick work. Further conditions under WorkCover and Occupational Health & Safety are to be treated as minimum requirements." 10 It is not in dispute that the defendant erected the wall. It is not in dispute that during the erection of this wall the defendant used scaffolding after the wall reached approximately waist height. It is not in dispute that after the wall was erected the scaffolding was taken down and the wall stood free standing. It is not in dispute that, following the wall being left in this condition, it was expected the carpentry tradesmen would enter the site and build between the two wall heights the kitchen servery, which servery was expected to act as a support for the free standing wall.

11 The collapsed wall, once constructed, was not tied to any structural steel beams in the ceiling area nor connected to a pre-existing brick wall at the corner of the kitchen area, a corner of which extended around to form a space for an entrance. Such structural stabilization was not contained in the plan. The plan revealed the space had not been intended to carry a door. The plan also reveals there was to be a kitchen servery between each kitchen wall to operate as a vertical support for the free standing wall. The carpenters had not been into Apartment No. 901 to erect the servery which would have braced the wall. The wall had been completed in the last days of January some ten days before the incident. It had been left freestanding for each of those days and for that period of time. 12 Evidence revealed on the other floors of the apartment construction site the walls of a similar nature were tied in to both the concrete ceilings and the concrete floors with restraints in the form of an "L" shaped tie shot. The tie shot was placed into the ceiling and floor and came down in between the joints in the brick work. They acted as stabilisers. This tying procedure was not used in Apartment 901 on level 9 as there was no concrete roof. The beams for the ceiling were in place in Apartment 901 but there was no attempt to tie in the brickwork around the steel beams or into the floor.

13 Evidence revealed there had been defects that required the re-designing of the structural steel supports for the roofline on level 9. The internal walls in Apartment 901 were built whilst this re-designing was being completed. There was a dispute as to how much steel for the roof line was erected at the time of the incident. However, photographs before the court taken on the same day as the incident reveal there were main beams and cross beams supporting joints already inserted into the roof line.

14 After the incident occurred the defendant company was brought back into the unit to re-erect the wall. In re-erecting the wall they extended the wall up and tied it into the structural steel in the roofline. They also built the brick work across to the corner wall to make a door way space. The kitchen servery carpentry was also completed. This had all been completed by 12 March 1999, as photographs of the repair were tendered, taken on that date.

15 In defence of the charge, the defendant submits on 11 February 1999, in accordance with the provisions of the Act, this was not its "place of work." The defendant relies on evidence contained in a record of interview with its Managing Director taken by the WorkCover Authority on 25 August 1999. Mr Davis answered, as follows, to questions asked by the WorkCover Inspector who referred to the Contract between the Davis company and Capitol Apartments: Q24. . . . On page 3 of section G, 'BRICKWORK Extent of Works', it states: 'During windy conditions, or until mortar has set, or until cross walls are built, adequate bracing and scaffolding shall be provided to prevent collapse or movement of brickwork. Further conditions under WorkCover and Occupational Health & Safety are to be treated as minimum requirements.' What was the intent of this section of the document? A. In my opinion while we were in charge of the area it was my responsibility to adhere to those conditions. Q.25 Who was responsible for the installation and maintenance of the adequate bracing mentioned in this contract? A. We were responsible for it while we were working in the area until such time as we handed the area over on completion. Q26. Why wasn't the brick work adequately braced to prevent collapse as per the contract agreement? A. Under our contract agreement, as I see it, during the time we were responsible for that area the wall was adequately braced and on moving out of the area, on completion, we considered the responsibility for safety in that area rested with others. That particular area had been handed over after completion approximately two weeks before this incident occurred. Q27. What systems of work did Peter J Davis Newcastle Pty Ltd have in place to ensure that walls were adequately braced laterally until such times as permanent supports were erected? A. I don't know anywhere in the contract that tells me where I am responsible for supporting walls until permanent bracing is in place. On a large job that could be a never ending thing. Q28. What systems of work could have been used on the site to ensure that this wall were adequately braced laterally until such times as permanent supports were erected? A. On every other floor on this particular wall, immediately after we had left the area, a timber stud wall was placed adjacent to it as a permanent fixture. That timber stud wall was put in place very soon after we left the area. Q29. Would it have been reasonably practicable to use this system to ensure the lateral stability to this brick wall? A. A possibility, I cannot say for sure or not. Q30. What systems of work did Capitol Apartments Pty Ltd put in place after the incident to ensure the lateral stability of brick walls? A. My position is one of being off site so day to day occurrences on that particular site, were alterations by Capital that I am not aware of. Q31. What systems of work did Peter J Davis Newcastle Pty Ltd put in place after the incident to ensure the lateral stability of brick walls? A. Our company carried on with our policies of supporting all brick walls if necessary until areas were handed over to others.

16 It is Mr Davis' contention that he erected the wall with the appropriate scaffold and only removed the scaffold to hand over the site. He contends he had handed over Apartment 901 some 10 days before to the Head Contractor and so the site was no longer the defendant company's "place of work" at the date of incident.

17 The defendant company also relies on the evidence of Mr Page who was its foreman bricklayer on the site. He gave evidence and was cross examined as follows: Q. So if the wall hadn't fallen over would any of your employees have any cause to go back to apartment number 1? A. No. Q. After 29 or 30 January, did you have any equipment in apartment number 1? A. No. Q. All walls both internal and external to apartment 1 were complete? A. Yes. Q. But, there was no roof over apartment number 1? A. No. Q. Was there a roof over apartment number 3? A. By the time that we go to apartment 3, the roof was going on. But the roof sheets weren't on but the purlin beams were in place. Q. Why did you take or instruct one of your labourers to take down the scaffold around the wall in apartment number 1, the wall that fell over? A. Well, we have to leave the area clean and tidy and without any of our material left in the apartment to hand it over to the builder. That is the part of the job, if I leave that there he comes and said to me the next day, you have got to get all your gear out for the next trade to move in. Q. What do you mean by hand over? A. The hand over means that I have finished that apartment and I have taken all my gear out of there and the next trade is allowed to go in. Q. And you call it hand over? A. Well, I would call it a hand over yes. While Mr Davis in his statement says his company supported all brick walls until the areas were handed over, his foreman, Mr Page says the scaffold support was removed to clean up the area for the next trade to move in. He opined he had to leave the site without any bricklaying material to hand it over to the builder.

18 As to the issue of there being a "handover" of Apartment 901 from the bricklayer to the head contractor, the evidence of a number of other witnesses is relevant.

19 Mr Malone, the building foreman on the site employed by Capitol Apartments said: Q. It wasn't unusual, was it, for Mr Davis to hand over his side of the brick work or his side of the construction on a unit by unit basis? A. Basically as we would finish a unit, Peter would say he could have his apprentices or his labourers come through and clean. Then, as soon as that was done and we would as I say there would be spasmodic checks, daily, weekly as far as the quality assurance went. If we could get into the area with the next trade and it was finished Peter and Peter had said it had been finished and checked by myself or Kim then we would move another trade in, the next trade, plumbers or electricians but, as far as hand over the whole area it was basically level by level. Q. But, he would hand over I suggest to you unit by unit as well? A. The thing was he was doing more than one unit at a time on that area so you would take certain amounts of area when Peter would say to be finished or cleaned. Q. And once he would say he has finished a unit he had finished a unit? A. Probably, yes as long as it is left in a way where we said it was clean and tidy and that is how we basically would need. Q. Take all his equipment out of the unit? A. Still on the same 90 per cent of the time he was still on the same floor because there were six units per floor and would work from one corner out or two corners in to a hallway because we also had a lift shaft area we were working on as well . Q. His evidence is before this court he finished unit 1 and unit 4 on the 9th level and had moved out of those areas. . . . A. I couldn't say whether that was true or false. Q. You just don't know? A. I couldn't give that being true or false. Q. You just don't know? A. No. Mr Malone therefore agrees there was an obligation on the bricklayer to leave the sites clean. However, his evidence did not endorse the view expressed by Mr Davies that the bricklayers had completed the handover of Apartment 901. It was his view, if there was a handover, it was "basically level by level".

20 Mr Gritten, the Site Manager, employed by Capitol Apartments was asked in cross examination: Q. Can I suggest to you that the wall that fell over, was the last structure that Peter Davis' company or his employees, built in unit 901? Are you sufficiently familiar with the job to comment on that? A. I am not sufficiently aware of the sequence on site. My job is to programme the works to which the brick work would just form really a line on the bar chart, okay. Q. So you can't assist her Honour as to whether to your knowledge, Peter Davis had handed over unit 1 or not? A. No. But I do believe that he was still working on level 9 somewhere. . . . Q. I suggest to you, that Mr Davis had left unit 1 and 4,well before 11 February 1999, and his company had in effect, handed them over to Capitol? A. Well you can suggest that I don't know whether we would agree with that. Q. You just don't know? A. Well I don't know without my records. Q. So you don't know? A. Put it this way: I cannot remember. Q. Just on that point, it is your recollection that there was a hand over of each separate unit as a matter of practice? A. As a practice no. Basically, it was more on a floor to floor level. Mr Gritten reveals as a practice the handover, if there was one, was basically more on a floor to floor level.

21 Further, evidence revealed the defendant company's employees were still working on the site and had a number of bricklayers working on Level 9 both on the outside of the building and within other Level 9 apartments. They were on the Level 9 working on the day of the incident.

22 As to the fact the servery had not been put in, Mr Gritten relied upon the circumstances on the site saying: Q. The work leading up to the construction of the wall had it been interrupted or disturbed in any way? A. Yes, quite frequently. Q. What was the reason for that? A. High winds, inclement weather - which is rain. Often areas you would stop work to clean areas, that was through instruction. There was also an interruption to that area in the way the structured steel was designed so we had to totally redesign that. . . . On that particular leave, from level 7 up, disturbances was quiet regular due to weather or other conditions.

When later asked about the servery he said: Q. To make the wall stable. A. Yes that's right, but because of the inclement weather and other factors, there's also a programme factor in that too, that wasn't put in for the very same reason probably the wall wasn't braced. Q. Just delay. A. Delay. Later he conceded the servery had not been completed quickly by the carpenters due to inclement weather.

23 The haphazard programming of work on Level 9 was confirmed by Mr Malone. Mr Malone was the foreman responsible for inspecting the tradesmen's work. He was on the site on the day of the incident but had been off sick for about seven to ten days before the incident. He admitted he did not know the wall was not braced. He further inferred Mr Gritten had taken over the care of Level 9.

24 Mr Warren, on behalf of the defendant, submits each individual unit is a discrete unit. He submits the procedure followed by the bricklayers was that work was completed by the defendant company, the area was cleaned and the apartment was then "handed over" into the control of Capitol Apartments. He submits in Apartment 901, the defendant company's work was completed and there had been a handover to the Principal. Therefore, the defendant submits, at the date of the breach, this was not a "place of work" as required under s16(1) of the Act of the defendant company.

25 The defendant company relies on the evidence of Messrs Davis, Page and Osmond, the bricklayer. Mr Warren on the defendant company's behalf submits the evidence of Mr Malone and Mr Gritten, of Capitol Apartments, should be rejected. Mr Warren submits the evidence of the bricklayer who built the wall is significant. Mr Osmond, the bricklayer, gave evidence of the procedure he followed when he built the wall up to waist high and then he called in for the scaffold to be erected. He then (in this case a day later) finished the wall up to a course of bricks above ceiling height so the wall could be finished off when the ceiling went into place. He recalled the wall was completed about two weeks before the incident. He was asked about the removal of the scaffold: Q. When you had completed constructing the wall what happened to the scaffolding? A. It was left there. Q. It was left there; did you remove the scaffolding? A. No, I don't touch it. Q. What is the usual practice with the scaffolding once the wall had been constructed? A. I would say once the area is all finished it is probably cleaned up, the area is cleaned up s there is no mess lying around, anything like that. Q. To clean up, does that also involve taking down the scaffolding? A. Mostly, yes. Q. Was that part of your job or somebody else's job? A. No, I was directed to got to another area. Q. Who generally on site did the cleaning up and taking down of the scaffolding? A. Usually the labourers.

26 As to the repair of the collapsed wall, after the alleged breach, Mr Osmond gave the following evidence: Q. Go to photograph 7, who told you to build it that way the second time around? A. It was already. Then, it was redesigned after that. Q. Who told you to rebuild it like that? A. It would be the foreman Mal. You mean with the bar going across it? Q. And also with the tie going into the beam? A. Yes. Q. Could it be? A. Malcolm Page directed me to rebuild the wall yes and with the carpentry the timber wall this timber work. Q. I didn't ask you that I asked you about the tie into the beam at the top? A. Yes. Q. Who directed you to do it that way? A. Malcolm. Q. He worked for Mr Davis? A. Yes. Mr Osmond was sent back into Apartment 901 to rebuild the wall after the incident by his employer, P J Davis (Newcastle) Pty Limited. 27 Mr Warren further relies on the contract between the defendant company and Capitol Apartments Pty Limited and the plan of the site. The plan indicates the wall was to be erected as a free standing wall. Mr Warren submits the plan, which only allowed for the insertion of a servery after the wall was completed, was also altered to be constructed not from cement blocks but in woods. The carpenters, not the bricklayers, were to erect the kitchen servery, which servery would then provide a lateral support for the wall after the wall was completed by the bricklayer. Mr Warren submits the bricklayers under the contract were simply required to erect the wall and after the mortar dried required to remove the scaffold, clean up and vacate the place of work. It was therefore he submits the plan itself which exposed the risk to safety at this site.

CONSIDERATION 28 The offence is pleaded under s16(1) of the Act. A breach under this section of the Act is a single offence (see Hill J in Boral Gas NSW Pty Limited v Magill (1995) 58 IR 363 at 395). 29 There are four elements to an offence under s16 of the Act. As the Full Bench commented in Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84 [at12]: In Inspector Page v Woolworths Ltd ( unreported, CT93/1044, 9 September 1994 ) , Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s 16(1). These we paraphrase as follows: 1. The defendant was an employer; 2. there were persons not employees exposed to risks to their health or safety; 3. the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work. 30 As to the first element of the offence there are admissions that the defendant company is an employer. As to the second element of the offence the facts reveal the injured workers were not employees of the defendant so there were persons not employees exposed to the risk. The facts reveal such persons were exposed to a risk to their safety and suffered injury arising from that risk. It is not denied that it was an undertaking of the bricklayers of the defendant company to construct the wall, the construction of which is the subject of the risk and alleged breach. The court finds from the admitted facts three of the alleged elements of a breach of the Act under s16(1) are proven.

31 At issue is whether the alleged breach, that is, the risk to safety occurred at the defendant's place of work. This is the necessary fourth element to an offence under s16(1). The defendant submits so far as the statutory duty under s16(1) is concerned the defendant's responsibility ceased when there was a handover of the site of Apartment No. 901.

32 The term "place of work" is defined in s4 of the Occupational Health and Safety Act, 1983 to mean "premises, or any other place where persons work". Section 4 relevantly provides: "premises" includes: (a) any land, building or part of any building, (b) any vehicle, vessel or aircraft, (c) any installation on land, on the bed of any waters or floating on any waters, and (d) any tent or movable structure. This alleged breach occurred on premises as part of a building.

33 In interpreting the obligations under s16, the Court must take into account the purposes of the legislation. Hungerford J in Kirkby v A & M I Hanson Pty Limited (1994) 55 IR 40 considered the question of general purpose and concluded in relation to s 16(1) (at 49-50): I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ , with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Incident prevention is unquestionably one of the modern responsibilities of an employer." The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179: The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against incidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit.

34 These principles were relied upon by the Full Bench in its consideration of an offence under s16(1) in WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 where the Court said (at 261): The decided cases on this issue make it plain that the question of whether the "employer's place of work" ingredient in s 16(1) is made out is a question of fact notwithstanding any broad construction of the provision that is appropriate (see, for example, Inspector Clarke v W C Meinhardt and Partners Pty Limited (unreported, Fisher CJ, 30 June 1992) and Inspector Page v Woolworths Ltd ). In Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles ) (2000) 102 IR 84 [at 51-52] the court said In Inspector Page v Woolworths Ltd (unreported, Peterson J, 9 September 1994) his Honour adopted the approach of Fisher CJ in Inspector Clarke v Meinhardt in opting for a broad construction of "place of work" in s 16(1) and referred to the "immediate environs which may be affected by the conduct of that business" as being included within the meaning of the term.

While each case will indeed be a question of fact, we consider that a broad construction of the term "place of work" in s 16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case.

35 The matter before the court is a question of fact. Even on the submissions of Mr Warren it is admitted Apartment No. 901 had been the defendant's "place of work". The question is whether it was still so at the time of the incident when the defendant alleges it had handed over the apartment to the contractor some 10 days before.

36 Cahill J, Vice-President considered such an issue in Insp Maltby v Harris Excavation and Demolition Pty Ltd (unreported decision, CT1144 of 1995, 2 May 1997). He held (at 8) . . . I am of the view that the defendant's connection with the site cannot be regarded as being at an end until a handover to the proprietor had been effected in circumstances where the proprietor's project manager signified his satisfaction that the work required had been satisfactorily completed. Until that occurred, the demolisher, in this case the defendant, in my opinion was to be regarded as possessing a place of work, and as conducting an undertaking in relation to that place of work, within the meaning of s.16(1) of the Act.

37 Evidence relevant to the consideration as to whether there had been a handover of this site is that of Mr Gritten, the Site Manager for Capitol. When asked if there was a handover and how it was done he expressed the view "Basically . . . more on a floor to floor level". Mr Malone perceived this informal practice as being done basically level by level. Neither conceded even the informal procedure was apartment by apartment.

38 The following evidence of Mr Malone's is also relevant to my consideration as to "place of work": Q. What happened when you did the quality assurance walk through if you found something not up to standard? A. Well, basically go back, see the foreman, Peter's foreman, who's ever foreman it was, depending what company it was, have a walk through and say: "This isn't right, you need to fix this" or "You need to fix that" and that would be basically done. You would have a time limit to it, the blokes would come back and get it done straightaway. Q. Before the incident do you know whether a quality assurance walk through had occurred anywhere on level 9? A. No. Level 9, I couldn't say wholeheartedly yes or no. Level 9 was very spasmodic, we had a lot of interruption to steel and design detail, a hell of a lot of rain for that time of year, more than usual. We had a lot of water proofing problems through the job and I was trying to finish off lower levels. We also had a General Manager, Mr Huxley, coming through all the time pushing the programme along to try and get other areas done. We didn't have a roof on the job, we were trying to put finish trades through. We had a lot of problems with water proofing, penetration holes. I was trying to concentrate on getting those right and the programme was being pushed more and more and harder by Capitol Apartments, suppose because of all the rain we had. So that is how that went. Q. At the time of the incident was Peter J Davis still working on level 9. A. Yes, as far as I know he would have been, yes. There were still other areas there they were working through the building still. They were on more than level 9, they had special duct areas which were being put through to come back and finish off, other design delays so Peter sort of come back but then only in and out type of jobs where they could send one or two blokes through if they were having problems with design changes.

39 He continued: Q. The perspective of 11 February 1999 was there a date when the project was to be completed? A. There have been quite a few dates I think when the project was going to be completed. Kim was more involved in that side of it. Kim did programmes when he was first employed. He was employed months before I was before the job started back in the office and he actually started in the office originally. I was employed only as leading hand and he Kim taking over the site foreman or manager and foreman. Q. From 11 February? A. I think from memory it was around about the May, the May, June of that year. Q. And was it anticipated that Peter J Davis would still be on this site until May? A. There were certain areas that could or couldn't be finished through the job. There was, other areas, pump rooms downstairs in lower levels, bits of duct work that were being had been sort of left out for design changes and whatever - Peter had to go through and touch up. That happens pretty generally on most big building sites. The main thing is getting up through the structure as quick as you can and then there was always design changes that someone may or may not realise they have got so things like pump rooms lower levels, basement areas they usually come back to those.

Mr Malone therefore revealed throughout the building the bricklayers were to return and finalise duct areas, design changes and other "touch up". He described them as "in and out jobs".

40 As to whether the site was the defendant company's place of work at the date of the breach the court finds there was not a handover of Apartment No. 901 ten days, or at all, before the date of this breach. The evidence relied upon to prove there had been a handover is in the statement of Mr Davis who said they had handed over the apartment. Also relied upon is the sworn evidence of Mr Page, the foreman, who simply said: . . . well we have to leave the area clean and tidy and without any of our material left in the apartment to hand it over to the builder. That is, part of the job, if I leave that there he comes and said to me the next day, you have go to get all your gear out for the next trade to move in.

41 I accept the evidence of Mr Gritten who said in practice the procedure followed for handover to the Principal was basically a floor by floor handover. Mr Malone, again the contractor's employee, said "as far as the handover the whole area it was basically level by level". He also gave evidence the brick layers were responsible for variations and final detailing. Mr Malone told of the expectation the defendant's workers had to go through the building and "touch up" areas and he referred to the bricklayers coming back and finishing off "in and out type of jobs". Such work I accept would have kept the defendant company on site until the end of the construction which was May 1999. I am persuaded Mr Davis continued to have responsibility on the site to perform brickwork such as variations and adjustments throughout the building until the completion of the project in May 1999. This incident occurred in February 1999. The evidence revealed the workmen of P J Davis were still working on the 9th floor level on the date of the incident both inside other apartments and on the outside of the building.

42 The defendant has led no evidence as to the particular circumstances of this handover. The two representatives of the defendant gave no evidence of the details of a particular handover of Apartment 901. The defendant's own witnesses only claim there was a handover by way of general practice, not by any formalised procedure. Further, evidence led reveals Mr Malone and Mr Gritten had not checked or audited the defendant's work in Apartment 901 which would be expected in a handover situation. Rather the evidence reveals the defendant company removed their scaffold, cleaned up and left the apartment. There is no evidence it was entered or checked until 10 days later when the plumbers arrived.

43 Further the terms of the contract do not reveal an agreement for either a floor by floor or apartment by apartment handover. The contract makes clear the final payments are not made until a Certificate of Release from claims, generally financial, is signed by the defendant company. There is no evidence as to the finalisation of the contract which was for the bricklaying on the Metro project. The defendant's connection to the site was not at an end. There was no evidence the handover to the site had been effected in circumstances where the Principal's site manager signified his satisfaction that the work required had been satisfactorily completed (see Harris Excavation).

44 From the evidence I do not accept a hand over of Apartment 901 had occurred. On 11 February 1999 the defendant in my opinion was to be regarded as possessing a place of work and as conducting an undertaking in relation to that place of work within the meaning of s16(1) of the Act.

46 The evidence before the court especially evidence related to the remedies available to stabilise the wall; evidence as to lack of co-ordination of work on level 9; evidence as to the effect the variations and changes had on the work of the bricklayers is evidence most relevant, in any consideration by the court, as to penalty.

47 The matter is stood over for listing as to verdict and penalty.

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