Inspector Chaston v M&H Bricklaying Services Pty Limited

Inspector Chaston v M&H Bricklaying Services Pty Limited - [2007] NSWIRComm 153 - NSWIRComm 2007 case summary — Zoe

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7 At the time the wall collapsed, it was 3.4 metres high. On the evidence this exceeded the height prescribed by the relevant Australian Standard of 2.7 metres. 8 At the time of the collapse, the men were working on a part of the external cavity wall of the building. The wall was being constructed in sections. The part of the wall being laid was built on top of a two layer cavity wall, which had already been constructed about two days earlier. The method of construction used was to lay the external wall first, and then to lay the internal wall, tying the two walls together as the internal wall was raised, using wall ties already placed in the external wall, as it was built. That method of construction had been used when the lower section of the wall was built and when other walls had been constructed on site. On the evidence, there was nothing unusual about that method of construction. The height to which the external skin of the wall was taken was however, unusual. 9 Walls such as that being built are usually not braced until both the external and internal walls have been built. If conditions are windy however, work will stop and a single wall can be braced. This wall was not braced before the collapse. 10 The work had begun at about 7 am. When the external wall collapsed at about 10.30 am, a considerable part of the wall had been laid. It was nearing completion height. The wall had been raised quickly, by up to six men working together on the scaffold. When it collapsed, the wall fell inwards, onto the scaffold and the men working there. It also knocked over a part of the lower double cavity wall, which had already been laid some days earlier. That part of the wall fell outwards, but did not hit anyone. 11 On the evidence a number of factors may have contributed to the collapse. Firstly, the height of the wall; secondly, the speed with which it was raised, resulting in the wall still being relatively wet, when two heavy concrete lintels were put into position, over two doorways. These lintels were not propped and the wall was then continued to be built on top of the lintels to a total height of about 3.4 metres. The wall was also not braced, despite the height to which it was taken. 12 On the evidence, in order for the wall to collapse, some lateral force must have been applied to it. There were three possibilities, at least. One, that it was knocked accidentally; another, that it was built out of plumb and the third, that the wall was knocked over by wind. On the evidence, an unsupported single brick wall, such as that here in question, can be unstable and can be knocked over by wind, if the wind is of sufficient strength. On the previous day the wind was high, the wall then being built was felt to have begun shaking, so that work was stopped and the wall was braced. That did not occur with this wall. 13 The evidence was that it was not as windy on the day of the accident, as it had been the previous day. Opinions differed as to whether or not the wind that day had any impact on the collapse of the wall. Mr Moussalli was supervising the construction of the wall. In the statement which he made to the Inspector, Mr Moussalli denied that it was a windy day. 14 In the statement made to the Inspector after the accident, by Infinity's safety officer, Mr Carney, who was on site, about to start a safety inspection when the wall collapsed, he said that he inspected the collapse but 'the inspection was unable to determine the cause of the collapse, only that it may have been due to the wind conditions in the northeasterly direction.' 15 Mr Carney was a qualified bricklayer, with over 20 years' experience in such work, before pursuing a career in the Union movement and subsequently in safety. 16 On Mr Carney's statement to the Inspector, it was the responsibility of Mr Faulkner, the project manager, 'to inspect the wall under construction to ensure the structural integrity of the structure was not impaired by wind and lateral forces'. However to his knowledge, there were no such inspections. Mr Carney offered this explanation of the accident:

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21 Mr Faulkner did not know how the accident had occurred. He had not inspected the wall being constructed, before its collapse. 22 A report by Infinity after the collapse indicated that it inspected the wall after the accident and that '[t]he inspection was unable to determine an exact cause of the collapse, only that it may have been due to a gust of wind from north-easterly direction.' 23 Other witnesses could not recollect it being a windy day. Mr Acob Yazbek, for example, recalled that it was a beautiful day and not windy. Mr Baxter's evidence was that while not windy, he observed that the wind was blowing towards the men on the scaffold and that they might have been sheltered from the wind, as the wall was raised. The meteorological evidence suggested that there were significant wind gusts measured that day at the nearest site, at Sydney airport, shortly before the time the wall collapsed. As Mr Turner accepted in cross examination, the wind conditions at Randwick would not necessarily have been identical to the conditions at the airport however. 24 The evidence of Mr Santos was that he prepared a report after the accident for the Fitzwalter Group, which noted that '[s]trong winds may have contributed to the collapse'. In cross examination, however, Mr Santos said he had not himself been concerned about the level of wind when he was on site that day, prior to the collapse. 25 On all the evidence, it is possible that wind was a factor in the collapse of this wall. It is unnecessary, however, to come to any concluded view on the actual cause of the collapse. That this wall posed a risk to safety, because it was at risk of collapse, from a lateral force such as wind, could not be doubted, given all of the evidence as to its method of construction and the height to which it was taken, beyond that fixed by the applicable Australian Standard. That it may have collapsed for other reasons, is not relevant to the question of the existence of the risk of collapse. 26 In the statement made by Mr Moussalli to the Inspector, he said he was aware of the applicable Australian Standards, and that:

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33 This evidence was consistent with Mr Carney's opinion as to how this collapse could have been prevented. 34 The evidence demonstrated that the obvious risk of this wall collapsing materialised. Mr Taric, a bricklayer of some 50 years' experience, broke both arms and suffered injuries to his neck, back, ribs and legs, when the bricks fell upon him. He also damaged his teeth when his chin hit concrete as he fell. On his evidence, about 18 courses of bricks fell. The wall was comprised of a single skin of bricks, otherwise unsupported. It was intended to tie the wall to the inside wall when that was built. Unlike Mr Carney and Mr Moussalli, he could think of no other way to build the wall. 35 Mr Baxter was a bricklayer of some 30 years' experience. He was also working on the wall when it collapsed. He broke his heel when he fell. On the previous day, he had raised a concern with Mr Moussalli about the wall which had been built that day. It was not as high as the one which collapsed, but he and another bricklayer noticed the wall moving and suggested that the wall needed to be braced. As a result, that wall was given a timber support. It did not fall, even though it was a windier day. Mr Baxter explained that he did not raise a similar concern about the wall which collapsed the following day. 36 On his evidence, that day was not as windy as the previous one and while there was a slight breeze which might have contributed to the collapse, he did not believe that wind caused it. He described the wind as blowing towards him, in the direction in which the wall eventually fell and agreed that as the wall increased in height, the bricklayers were sheltered from the wind, and may not have noticed, if the wind increased in strength. 37 In Mr Baxter's opinion, the wall was built too quickly and too high, given that it contained a number of large holes for doors or windows, over which heavy concrete lintels had to be laid, to support the brickwork above. This view also accorded with that of Mr Carney. In his statement to the Inspector, Mr Baxter said he believed the wall was 16 to 17 courses when it fell. In re-examination, he counted the courses which could be seen in photographs taken by the Inspector shortly after the wall fell. In the corner where he was working, where bricks had fallen out of the wall, there were about 18 courses. In the corner at the other end of the wall, where bricks had not fallen, there were 22. Mr Baxter's evidence was that the wall was being laid course by course, by the bricklayers working together. 38 On his evidence, Mr Baxter had concerns about the stability of the wall, as it was being built. His evidence was that he was not told how high the wall was to be built, before the work began. He was building the corner of the wall, which provided some support for the wall as it was constructed. As the day progressed, he was told to build the wall higher and began having concerns as to its height, but he did not raise them with Mr Moussalli, or with anyone else. In cross examination, Mr Baxter explained why he had that concern. On his evidence, the wall was raised to an unusual height. He described having not completed building the wall, but laying bricks, an arm's length above his head. 39 In his evidence in chief, Mr Baxter said that if he had been in charge, he would have built the wall only to lintel height, before building the internal wall. This would have enabled the cavity wall to be tied and would have allowed the external bricks to dry a little, before the lintels were put in place. In his opinion, that would have improved the stability of the wall. That evidence was consistent with advice which Infinity later received from its engineers, Ashby Doble and with the view Mr Carney expressed. 40 In cross examination, Mr Baxter agreed, however, that it was not normal practise to build the two walls comprising a cavity wall at the same time, or to brace the external wall, while the internal wall was being built. That evidence has to be understood, however, in a context where the wall was being constructed in sections. 41 The first lower section of this wall had been built with both walls comprising the cavity wall having been erected and tied together, about two days earlier. The work being undertaken on the day of the collapse, was to build the second section, up to finish level. On Mr Baxter's evidence, he would have built the upper part of the wall in two sections, not one, so as to improve the stability of the wall, as it was being built. On his explanation, because of the length and height of the wall being quickly constructed by up to six bricklayers, with the necessity to use heavy lintels to support the upper bricks, the mortar was too wet to ensure the wall's stability, given the height to which it was then taken. The lintels had the tendency to push down on the wet wall, exacerbating instability, to which the wind could have contributed, resulting in the collapse. Had the wall been raised only to lintel height, both cavity walls could have been built with wall ties to that height and the mortar would then have had a chance to dry somewhat, before the lintels were put in place and the wall was taken higher. 42 The evidence was that there were two lintels in place, each some 3.2 metres long. On the evidence, it would have taken two or three men to lift the lintels into place, given their weight. 43 Mr Kamaledine was also working on the wall and sustained cuts and bruises to both legs and a bloody nose, when the wall collapsed. He had some 10 years' experience in bricklaying and labouring, but was not a qualified tradesman. He had his back to the wall when it fell and unlike Mr Baxter and Mr Carney, could not explain why the collapse had occurred. In his statement to the Inspector, he said that 14 to 16 courses had been laid, when the wall collapsed. He was taken to the photograph showing the corner where Mr Baxter was working and counted some 18 courses there. On his evidence, normally brickwork would only be built to eyelevel. That was because the bricks are laid against a line, which is moved up as each course is built, to ensure that the brickwork is laid straight. It is necessary for the bricklayers to be able to see the line, to lay the bricks straight. He agreed that for him, 17 to 18 courses would be at his eye level. 44 Photographs to which Mr Kamaledine was not taken, showed that the number of courses laid in the opposite corner, which had not fallen, was 22 courses of bricks. It follows that those bricks must have been laid above eye height, as was Mr Baxter's evidence, also increasing the risk that the wall was not laid straight. It follows that this too, might have contributed to the collapse of the wall. 45 The double brick wall built two days previously had been connected by wall ties. The single wall that was being constructed on 12 February was not tied or braced, when it collapsed. On Mr Kamaledine's evidence, bracing was only undertaken when it was windy and the day of the collapse was not a windy day. Like Mr Taric, he thought the approach adopted to the building of the wall was a normal one. On his evidence the height of the wall was known to the bricklayers. The height was usually marked and it was the corner man, one of whom on this day was Mr Baxter, who usually told the other bricklayers when the required height was reached. It was Mr Baxter's evidence, of course, that the height to which the bricklayers were working that day had not been advised to them. Rather, they were instructed to continue raising the wall, as the morning progressed. 46 Mr Moussalli himself, gave no evidence as to what his instructions were that day. There was no reason to doubt Mr Baxter's evidence. In many respects, it was supported by the evidence of other witnesses. 47 When the wall fell, Mr Kamaledine understood that they were only about one course away from completing the wall. It was intended that they would then break for lunch and that in the afternoon, they would return to lay the inside wall. The wall was not complete when it fell. 48 Mr Huber also fell from the wall, braking his patella. On his evidence, the wall fell because it was raised too quickly and the bricklayers were not conscious of the wind. His evidence was that about 18 to 21 courses had been laid. 49 Mr McLennan was a senior site supervisor employed by Infinity. He had been asked if he would take over as supervisor of this site, a short time before the collapse of the wall. On his evidence, he visited the site twice before the collapse, for half an hour to an hour and started working at the site on 16 February. On his evidence, when he visited the site on the second occasion, he had concerns both about the quality of some of the brickwork which had been laid and the approach being adopted on site to safety. In his view, brickwork was being laid too quickly. He saw heavy lintels put onto walls which were too green - that is not set enough to support their weight. He spoke to Mr Moussalli about the need to prop the lintels, to support their weight. He explained that without such support, the lintels put pressure on the walls, causing them to move out of a straight line, giving rise to a risk of collapse. Mr Moussalli did not dispute this evidence. 50 Mr Richardson's evidence was that he never saw Mr McLennan on the site. The only occasion when Mr McLennan called in, he did not leave his car, only dropping some supplies. Mr Richardson was, however, on leave for two weeks before 9 February. On that basis, it is plainly possible that Mr McLennan's evidence and that of Mr Richardson were not inconsistent. 51 What Mr McLennan said he observed and discussed with Mr Moussalli was plainly a serious safety issue. On his evidence, Mr McLennan also raised his concerns about those safety issues with a director of Infinity, Mr Theo Orfanos. Mr Orfanos did not have responsibility for this site. It was the responsibility of Mr Alan Yazbek, another director. On Mr McLennan's evidence, Mr Orfanos told him to speak to Mr Alan Yazbek about the matter, because he did not have time to deal with it. Mr McLennan could not remember whether or not he tried to contact Mr Alan Yazbek, but he did not speak to him, or to anyone else who Infinity had at the site, with responsibility for safety, or even Infinity's safety officer, Mr Carney. Mr McLennan did not return to the site before the wall collapsed on 12 February. Mr Orfanos denied that Mr McLennan had raised this matter with him at all.

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57 In his oral evidence, Mr Turner explained that normally a brick in a standard wall took the load of the bricks directly above it. When an opening was placed in a wall and a lintel above it, the lintel took the weight of all of the bricks above and passed that weight to the small area where the lintel sat on the bricks at either end. The result was that the bricks at each end bore the weight of half of the bricks supported by the lintel, which could be five or six times the weight supported by the bricks there, if there was no opening. This resulted in a significant concentrated load, which could be alleviated by propping the lintels, until the mortar had gained strength. 58 The initial set of a wall was about four hours, depending on the mix of the mortar. Mr Turner said 'until you get that strength gain, it's almost like the bricks are just stacked with wet sand between them. It's not that bad but it's not much stronger. So the mortar doesn't add significant strength to the wall until later on, so the higher you build it and the more low you put on the weak mortar at the lower level, the more it becomes a problem especially in load concentration areas like under the lintels.' 59 Mr Turner also described various methods of bracing, which in his opinion could have been used, and about which he was cross examined. It is unnecessary to set out that evidence. It was consistent with Mr Turner's views. There was no suggestion on any witnesses' evidence, that if had been thought necessary to brace this wall, because, for example, the wind was sufficiently high, this wall could not have been braced, even though if it was only a single skin wall. Furthermore, there was no real dispute that if the cavity wall had been built in two further sections, rather than one, the lower section could have been braced, if necessary, while that section dried. 60 Mr Turner agreed with the proposition put for Infinity, that the wall could have been pushed over, but he thought that difficult for a single person to have done, given the length of the wall. He also agreed that it could have been built out of plumb, causing it to topple. This was what Mr Baxter and Mr Kamaledine's evidence suggested had occurred. Mr Turner had, seen walls being constructed and agreed that the method of construction used for this wall was not unusual, but in his opinion, the height to which the wall was built, was unusual. 61 Mr Turner was also cross examined by Mr Moussalli in this way:

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Q 59. How does the company ensure that the legal obligations under Section 8 (2) of the Occupational Health and Safety Act 2000 are complied with? A 59. We rely on the competence and experience of the subcontractors undertaking the works. We rely on the SWMS provided by the SWMS and the company safety Manual. 66 This evidence suggested an approach to safety which was at odds with Infinity fulfilling its obligations under the Act. A head contractor may not delegate its safety obligations under the Act to a subcontractor. 67 Mr Alan Yazbek gave evidence about Infinity's operations and approach to its obligations under the Act, the projects it undertook, as well as to its work on this site. It employed about 45-50 employees, including a Safety Officer. Infinity did not itself perform construction work, it managed projects, engaging speciality subcontractors to perform construction work. Infinity had a well developed paper safety system, the operation of which was also explained, as was the training which Infinity provided to its staff and its safety record. Mr Alan Yazbek explained why this site did not have a safety committee, which was required under its own safety system. In cross examination, he explained that the safety manual had to be understood as imposing requirements 'as appropriate' for a particular site and that the suggestion that there should have been a safety committee at this site in the manual, was a typo, as were various other parts of the document relating to the Randwick site. Mr Alan Yazbek also explained his responsibilities as a director of Infinity and as project director for particular sites, including this one. 68 Mr Alan Yazbek's evidence was that he himself attended the site regularly and considered safety issues while there. On his evidence, Mr McLennan had never raised any safety concerns with him about the Randwick site. Nor had Mr Orfanos told him that Mr McLennan had raised such concerns, even though he spoke to Mr Orfanos every day. He also explained that every Infinity employee had the responsibility to maintain safety and had even been given authority to stop work, if a safety hazard was identified. 69 Mr Alan Yazbek explained how M&H came to be engaged and the prior investigations he had directed Mr Faulkner to conduct into its work. He also explained its obligations under the contract entered with Infinity. He also described how site plans and drawings were prepared, as well as his understanding of applicable Australian Standards. In cross examination, Mr Alan Yazbek explained that he did not necessarily expect that M&H's safe work method statement would comply with the applicable Standards, but expected that the work M&H undertook would comply. Mr Alan Yazbek agreed that the M&H document did not identify wall stability as a risk, but explained that they had followed a WorkCover guideline. He also agreed that in answers he had given in his interview with the Inspector, he had said that Infinity relied on the competence and experience of its subcontractors and that he had not referred in his answers to any reliance on its own supervisors watching their work. He explained, however, that his answers were not exhaustive. He also denied having realised since giving those answers, that such reliance showed that Infinity had not met its obligations under the Act. 70 When asked how Infinity's supervisors had ensured the stability of the wall which collapsed, Mr Alan Yazbek said:

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The parties' cases 76 The prosecutor's case was that all offences had been proven and that no defences had been established by any of the defendants. In each case there could be no doubt that the elements of the offence had been established. As to Infinity, that the risk of the wall collapsing arose from the conduct of its undertaking, had been established on the evidence. The risk was an obvious one, identified in the applicable Australian Standards. The particulars of each of the offences had also been established on the evidence, each defendants' failures having been proven to the requisite degree. 77 The case of Infinity and Mr Alan Yazbek, was that the prosecutor had failed to establish a causal nexus between the defendants' acts or omissions and the risk to safety in question (see State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 121.) 78 As to the particulars of the charge, it was submitted that the safe work method statement provided by M&H was adequate, a second version having been produced, as Infinity required, in compliance with the risk assessment tool devised by the WorkCover Authority. Even though the safe work method statement did not deal with the issue of wall collapse, the evidence showed that M&H and the bricklayers were aware of the need to brace walls and the risk which might be associated with that. Two days prior, a wall had been braced because the wall was shaky. On the day of the collapse the need for bracing was not identified, because it was not a windy day. There was no evidence that there was any shaking on this day. No finding as to the wind on the day was available beyond reasonable doubt, on the evidence. 79 The question of the wind was also submitted to be relevant to the issue of foreseeability. The evidence as to wind was analysed. It was submitted that it may have been that there was a gust of wind which was inordinate and that created a situation whereby the wall collapsed, but consideration also had to be given to the fact it was thought by those on site, that there was not sufficient wind to require bracing. 80 It was argued that there were other possible causes for the collapse, including that the wall was out of plumb, or that it was bumped, or pulled down. The cause could not be established beyond reasonable doubt. Being built out of plumb could cause the wall to fall, but that was not a lateral force which required bracing. If wind had been perceived, bracing was possible, as was in the knowledge of the supervisor on site, Mr Richardson. 81 It was also submitted that Infinity had a system in place for supervision and monitoring. Mr Richardson was on site and had last visited the wall at 9 am, before it collapsed at 10.30 am. Infinity staff had authority to stop work if a safety issue had been noticed. Mr Richardson did not notice anything out of order with the way the wall was being constructed. M&H was required to have a supervisor on site and Mr Moussalli was there. The wall collapsed before the site safety walk scheduled that morning. 82 The evidence showed Infinity's safety system and the plans and diagrams provided to M&H in relation to construction of the wall, which raised the applicable Australian Standard, including in relation to wall height. The wall was taken in excess of that height. On the evidence, Mr Baxter was aware that the wall was too high, but drew no attention to this. M&H was required to supervise this work and should have complied with this requirement. Infinity was not itself performing the construction work. While it was accepted that Infinity could not delegate its responsibilities under the Act, it had investigated M&H's background and inspected its work and so was entitled to rely on the supervision provided by M&H on the day. 83 It was regrettable that while Infinity's supervisor was absent for a short period, that the wall was taken too high, but, it was submitted, that did not lead to the conclusion that its monitoring of the work was inadequate. 84 As to the Australian Standards, it was submitted that they were not prescriptive. 85 As to Mr Alan Yazbek, it was submitted no offence that had been established, as had a defence. The evidence demonstrated his familiarity with the obligations which the Act imposed; his due diligence as an active director in relation to his own responsibilities and the safety system which Infinity had in place, which was submitted to be adequate to manage safety risks. Those risks were adequately supervised and the safety system complied with, including in relation to this particular project. Infinity employed staff with safety responsibilities including a full-time safety officer. There was adequate training of suitably qualified staff, as well as an operating safety reporting system and site safety visits and inductions. Industry standards and practices were complied with and there was a quick and appropriate response to the incident. 86 The case of Mr Moussalli, an unrepresented litigant, was put in a brief oral submission, which may conveniently be quoted in its entirety:

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Normally when my bricklayers have problems with the wall, if the wall is moving or shaking, they normally come tell me straight away. I put a stop to it. I put a brace. If they didn't make issues I don't know, if there is a gust of wind normally if it's too windy, we either stop work or we go home. If it's rain, we go home. Even if it's raining a day prior and the walls are wet, we still stop work because we know the bricks are wet. That will create a weakness of the wall and I really we have done walls before that. Free standing walls, and we braced them because they were free standing. They were moving a bit so we braced them both sides, but when we take up double cavity walls, we just take up the outside skin, then we break it up on the inside. That's how I have been doing it for the past 20 years. I wasn't trying to use a different method and it wasn't a mistake. It was an accident. If it was a mistake, I would have blamed myself for it, but it just happened. If I was up there I would have told you exactly what had happened. I don't know if somebody kicked it, pushed it. I had about six bricklayers on there and I mean Mr Baxter said you know, he knew the wall shaking. If he knew as a qualified tradesman, he should have called me. He should have said it's too high. It's going up too quick. He didn't make any issues so I don't know what to say. That's all I can say. I don't want to make a long story of it but that's what happened. 87 In reply, it was argued for the prosecutor that no defence had been established by any defendant. The focus on foreseeability was misplaced, because the cause of the collapse did not require identification, that involved an incorrect focus on the accident. The test was whether the risk in question was foreseeable. That had been clearly established; the risk that a freestanding wall of these dimensions would collapse had been proven to the requisite standard. (See Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (2000) 102 IR 57 at [56].) 88 It was also argued that the causal connection between Infinity and the risk had not been broken by the presence of M&H and its workers, who knew about the risk and how to brace the wall to prevent a collapse, but did not do so. Reliance was not available to be placed on the supervisor of M&H, in the way argued (see WorkCover Authority (NSW) v Arbor Products International (Aust) Pty Ltd (2001) 105 IR 81 at 99 and Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at [15].) Infinity could not so delegate its responsibility under the Act. 89 As to Mr Alan Yazbek, it was submitted that the statutory defence required it to be shown that he had exercised 'all due diligence', a conclusion not available on the evidence. (See WorkCover Authority (NSW) v Daly Smith Corporation Pty Ltd & Anor [2004] NSWIRComm 349.) The evidence showed the inadequacies in the approach he had adopted. Infinity's paper system was not adhered to and those with responsibilities under that system did not attend to them, but relied on others, who also did not attend to ensure safety. The explanation of departures from the system, as typographical errors and that the system was not 'prescriptive', as the manual indicated, also showed that the necessary due diligence was not established. Training was inadequate, as was the approach adopted to ensuring safety obligations were met. Mr Yazbek's evidence as to reliance on subcontractors to meet these obligations, put this conclusion beyond doubt. The evidence of steps taken after the accident also put beyond any doubt that Infinity could have taken such steps to ensure safety, beforehand. Consideration 90 On the evidence there can be no doubt that the wall collapsed because it was unstable. There were numerous factors contributing to its instability, including the speed with which it was built; the height to which it was taken; the green state of the walls, when the heavy lintels were placed on the brickwork and the work continued; and the failure to either prop the lintels or to brace the walls. The risk of collapse of an unstable brick wall was an obvious and known safety risk, which is sought to be addressed by the applicable Australian Safety Standards. 91 The evidence showed that it is usual industry practice to build the two walls which comprise a cavity wall separately, with the external wall being built first to a certain height and then the internal wall. A wall may be built to its intended height, in a number of sections, with each section being allowed to dry and set, before the next section is constructed. This method of construction seeks to ensure wall stability. 92 On this job, the overhand method of construction was used. This involved the external wall being laid first, with wall ties being put in place, as the wall of the first section was raised. The internal wall was then constructed, the walls being tied together, as the internal wall was built. It was when the second section of this wall was being constructed, that the wall collapsed. It is not normal practise to brace such an external wall, while the internal wall is built. Bracing is, however, put in place if there is a concern about the possibility of collapse, because of instability of the wall, or prevailing wind conditions, for example. 93 There was wind present on the day of the incident, which was not as strong as the day before, but which reached its peak that day, at about the time the wall collapsed. Infinity's site diary noted that day that it was 'very windy at times.' On the day there was no concern amongst those present, however, before the wall collapsed, that the wind was strong enough to require the external wall being built to be braced. It was standing entirely unsupported; none of the workers suggested a need for any bracing and it was not thought necessary by Mr Moussalli, nor any of the Infinity personnel on site. 94 The evidence showed that a cavity wall is built in sections, in order to ensure the stability of the wall, as it is being raised. On the evidence, the approach adopted here, of building the wall in only two sections, rather than three, also contributed to the instability which resulted in collapse. 95 This was a wall approximately 16 metres in length, containing three large openings for glass sliding doors and windows. Before 12 February, the wall was built to scaffold height and left to dry for about two days. The external single brick wall which collapsed on 12 February was then constructed to an unusual height. The wall was about 3.4 metres high in total when it collapsed, considerably exceeding the height limit imposed by the applicable Australian Standard of 2.7 metres. 96 The wall was raised quickly, up to six bricklayers working on the scaffold from about 7 am. Shortly before the wall fell at about 10.30 am, bricks had to be laid with some bricklayers extending their arms over their heads, the wall still having not reached its final height. This gave rise to another risk, that the wall was built out of plumb, which may also have contributed to its instability. 97 The wall was plainly raised too quickly. On the evidence, given the rate of construction, at the time it collapsed, the mortar must have been exceedingly weak and may not yet have set. The more quickly a wall is raised, the less time there is for the mortar to dry. Wall stability increases, as mortar dries. This is why the Australian Standard requires that:

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101 In all of those circumstances, the safety obligations imposed by the Act required attention to be paid to the question of whether the external wall, being constructed quickly, without bracing being used and to a height beyond the applicable Standard, would be stable and not at risk of collapse, when it was raised to 3.4 metres. The lintels installed on this green wall, further heightened the necessity of paying attention to the stability of the wall, as it was being constructed. While the evidence of some of the witnesses suggested that what was done on the day accorded with industry practice, it does not appear to me to have accorded either with that practice, commonsense, or the requirements of the Australian Standard. The method adopted not only took the wall too high, it did not ensure that the wall was sufficiently dry, to support the weight of the lintels, nor could it ensure that the wall was erected straight, given that bricks had to be laid above eye level. 102 The requirements of the Australian Standard were expressly referred to in the contract between Infinity and M&H, as well as in the site plan to which the building was being constructed, to which, on Mr Moussalli's statement to the Inspector, he paid no attention. The Standard does not dictate precisely how bricks are to be laid, or how walls are to be built, but it does require attention to be paid to the question of wall stability. On the evidence, insufficient attention was paid to this critical consideration, on the day of the collapse. 103 The contract between Infinity and M&H not only required that the requirements of the Standard be observed, but also that steel lintels be propped. On the evidence, the need for propping lintels was plainly not removed, when it was decided to use concrete, rather than steel lintels on this wall. The contract did not specify who was to provide the propping materials, or to perform the work of installing the props. Mr Faulkner explained that props were available on site and had been used on other walls and that an employee of Infinity was available to do the work. There was no doubt that the three 3.2 metre lintels in this wall were not propped, before the wall collapsed. Undoubtedly, both M&H and Infinity had obligations under the Act to ensure safety; which included ensuring that necessary propping of lintels was undertaken. Consistently with its obligations under the Act, Infinity could not leave the question of safe wall construction, including propping, to M&H and Mr Moussalli alone. Its safety obligations required that it too, pay attention to how this wall was raised and supported. 104 Mr Baxter's evidence was that if he had been in charge on 12 February, he would not have constructed the external wall as high as it was raised, before building the internal wall, given the increased stability which would have resulted from the cavity walls being tied and the mortar having time to dry. He would have built the cavity wall in two more sections, not one, the first only to lintel height. Mr Baxter had 30 years' experience as a bricklayer. It was he who raised the necessity for the bracing of another wall the previous day, a suggestion which Mr Moussalli adopted. Mr Baxter did not raise any concerns the next day, as the height of the wall increased, for reasons which he explained. It would, undoubtedly, have been better, had he done so. Nevertheless, M&H was not entitled to depend on its bricklayers alerting Mr Moussalli to such safety risks. They were its responsibility under the Act. 105 On all the evidence, there can be no doubt that building the wall in two sections, rather than three and propping the lintels, as the parties' contract contemplated, would have increased the stability of the wall, so as to reduce the risk of collapse. This was particularly so because there was no lateral support, at the top of the wall. Internal cross walls which would have provided some lateral support also had yet to be constructed. 106 Mr McLennan's evidence was to similar effect to that of Mr Baxter. He would not have raised the outer skin of this wall beyond lintel height, before constructing the inner wall and would not have placed heavy lintels on green brickwork, without propping the lintels. Mr Carney expressed a similar view, in his interview with the Inspector. Mr Alan Yazbek gave similar evidence, which also accorded with the views expressed by Mr Turner. 107 This was also confirmed by advice received by Infinity after the accident. Infinity engaged its engineers, Ashby Doble, to inspect what had occurred and to advise it as to steps which should be taken, in future. They attended the site even before the WorkCover Authority Inspector arrived. The advice provided was:

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108 Placing heavy lintels on a green wall, had the tendency to push the wall out of vertical line, making it less stable and more liable to collapse, if bumped or hit by a gust of wind. Continuing with brick work to a height which involved bricklayers laying bricks above their eye level, also gave rise to the risk that the part of the wall above the lintel, was not laid straight, because the bricklayers could not properly see the line to which they were laying. This, too, had the potential to adversely affect the wall's stability. These were amongst the problems which the Ashby Doble advice addressed. 109 These various issues plainly constituted hazards, or risks, so far as laying this wall was concerned. Infinity's occupational health and safety manual and its contract with M&H required that M&H have both a safety plan and a safe work method statement, for the work it was engaged to undertake. M&H provided a safe work method statement which was given to Mr Carney to assess. Mr Carney rejected the statement and directed M&H to provide a document prepared by reference to a WorkCover publication. Mr Carney explained that he informed M&H that a safe work method statement consistent with that document, but also identifying the categories of various risks, would be an acceptable form of work method statement, so far as Infinity was concerned. 110 Neither the WorkCover document utilised, nor the final document M&H produced, dealt with any risks associated with wall collapse. 111 Despite the Australian Standards, the express contractual requirement that lintels be propped and Mr Carney's background as a bricklayer, the risk assessment document which M&H produced and Infinity accepted also did not identify risks such as those associated with lintels, or the need to prop them; bracing of a wall in any circumstances; the levels to which single walls could safely be raised without being braced; the weight which green brickwork could safely carry before the mortar dried; or the risks associated with walls being constructed too quickly, or too high. These were all risks which the work method statement could have addressed. Given the evidence of the various bricklayers working on site, who could see no problem with how this wall was raised and the evidence of Mr Moussalli, Mr Faulkner and Mr Richardson, safety on this site would undoubtedly have been improved if any of these matters had been addressed in the M&H safe work method statement, by drawing attention to the risks associated with wall collapse. 112 Infinity's occupational health and safety manual also envisaged that Infinity would have a site specific safety plan, which M&H was contractually obliged to adhere to. The manual referred to a proforma plan. The evidence suggested that no such plan existed. 113 On site, Infinity had two foremen and a safety officer. They each had responsibility for safety issues, as did the Company Safety officer, Mr Carney, and the project manager, Mr Faulkner. Before the wall collapsed on 12 February, none of those with such responsibility, including the site supervisor, Mr Richardson, identified any risk associated with the approach being adopted by M&H to the construction of the wall - either in relation to the height the wall was being raised, the speed with which it was being built, the placing of heavy lintels onto green brickwork, or the failure to prop the lintels once installed. 114 Mr Richardson's evidence was that he had no concerns with the approach of M&H to safety or to its work. The evidence showed that there had been an earlier problem raised in connection with the safety of M&H's bracing of scaffold being used. M&H had been instructed to double brace its scaffolds. The photographs of the collapsed wall showed that this scaffold was also only single braced. While the evidence did not suggest that the state of the scaffold contributed to the collapse of the wall, it did throw some light upon the approach which those present on site with responsibility for ensuring safety had adopted, even in relation to identified safety risks. On Mr Carney's evidence, he had drawn the problem with the scaffold to the attention of M&H. This had led to M&H employees being re-inducted in Infinity's safety requirements on 9 February. What they were inducted in was not documented, although on Mr Carney's evidence, he conducted the re-induction, which included the M&H risk assessment document. Despite this, neither M&H, nor Infinity appear to have ensured that the problem which led to the re-induction did not recur. It was not a problem recognised by Mr Richardson on 12 February, when he inspected the work being undertaken on the scaffold. The scaffold was again single braced. Later that day WorkCover issued an improvement notice about the missing braces. 115 On the evidence, Mr Richardson inspected the wall being constructed on 12 February four or five times before he left to attend a site safety walk at 9 am. No-one from Infinity inspected the wall again before its collapse. Mr Richardson did not have a background as a bricklayer. He saw no problems with the work being undertaken on the wall. Even after the accident he had no idea as to why the wall collapsed, unlike Mr Carney and Mr Alan Yazbek. 116 Mr Richardson's approach appears to have been consistent with the evidence that Infinity had a well documented paper safety system, which was, however, departed from in practice in significant ways. The evidence showed that while the paper system may have ensured safety had it been properly adhered to, the way in which it operated did not. I have already mentioned the absence of a site specific safety plan. Mr Faulkner explained how in practice safety was assured through various documents and systems which Infinity developed, an approach which Mr Alan Yazbek, Mr Richardson and Mr Carney confirmed. Nevertheless, given a scheme which contractually obliged M&H to comply with Infinity's site specific plan, its absence led to an obvious gap in the safety arrangements in place on site. As did the other departures from that system. 117 The Company Safety Manual also imposed various safety obligations upon the project manager, in this case Mr Faulkner. On his evidence he did not attend to some of those responsibilities, but delegated them to Mr Carney, the Company Safety Officer, who also did not attend to them. The Manual also described the responsibilities of the site safety officer, as generally falling on the site foreman or sub-foreman. On this site, the responsibility was given to a 4th year apprentice carpenter. The Manual also required a site safety committee to be established. This was also not adhered to. 118 The scheme also required the provision of safe work method statements by contractors. The document provided by M&H did not identify obvious risks associated with bricklaying generally, with raising cavity walls, or in connection with lintels, which it was thought necessary to refer to specifically in the contract. They were obvious omissions, given the work M&H was engaged to perform at this site, as well as the express contractual requirement that all lintels in this building be propped. 119 The evidence was that this was the second document M&H had provided. The first was a work method statement assessed to have been inadequate by Mr Carney. He referred M&H to a document produced by the WorkCover Authority, 'An Identification Tool for Bricklaying Hazard Profile 2001', to assist in the preparation of work method statements. Thus a generic risk identification document was reproduced, as Infinity required, to produce a safe work method statement for this site. That statement did not pay attention to what was actually required to ensure the safety of the particular work to be undertaken on this site by M&H as the bricklaying subcontractor. 120 This approach to the work method statement helps explain how the risk inherent in the way in which this wall was being built on 12 February came to be overlooked. Mr Richardson, Infinity's supervisor that day was not a bricklayer. He had only given a cursory consideration to the safe work method statement, when M&H first began work on site. This approach was consistent with that adopted by Infinity. In the answers given repeatedly to questions asked of him by the Inspector, Mr Yazbek said that Infinity:

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We don't assess the method of bricklaying. We review the identification of the potential 1 and 2 risks associated to the local work environment and assess the effects that may be imposed on the other workers in that proximity. We rely on subcontractors to have the experience and knowledge to undertake their works in a competent and complaint manner. New subcontractors are referenced to determine if they have the competence and experience to undertake the works that they are required to do by the company. With particular reference to M & H Bricklaying Services P/L I instructed Glenn Faulkner to undertake reference checks provided by M & H Bricklaying Services P/L. The project undertaken by M & H that were inspected were far more complex and of significantly larger magnitude than the works being requested for the job at Randwick. 121 The problem this approach produced was all too apparent. Undoubtedly, such contractors' work needed to be assessed before they were appointed by Infinity. Thereafter, the safety of the work they undertook, had still to be ensured by Infinity. The risks associated with wall construction were not identified in the M&H document and so was not a matter drawn to the attention of M&H workers, or to Infinity staff on site. On M&H's approach, walls were braced if conditions became windy, or if it was noticed that a wall was shaky, but Mr Moussalli depended on the bricklayers drawing such things to his attention. Despite the height to which the wall was being taken, wall stability was not a matter he kept under review that day. He had left the scaffold to attend to other matters. Infinity had no-one present to supervise the work after 9 am. On its approach, Infinity required M&H to attend to bracing. Timber, acroprops and an apprentice carpenter were available on site for that purpose. On Mr Richardson's evidence, such topics were not discussed by him with M&H, and even though he inspected the wall being constructed on the morning of 12 February, he could see nothing wrong with the method of construction being adopted. He plainly cannot have noticed the speed with which the wall was being built, or that the lintels had not been propped. He also cannot have known the height to which it was intended to take the wall, beyond the height specified in the plan and the Australian Standard. 122 On his evidence Mr Richardson only saw three bricklayers building the wall. Perhaps three more joined them after he left to attend the site safety walk. The wall was some 16 metres long and in Mr Carney's view, up to four or five bricklayers could have safely erected the wall. Mr Baxter's opinion and that of Mr Turner was that the wall was being raised too quickly. While Mr Richardson and other Infinity staff had authority to deal with any safety issues which were identified and could have stopped the work if necessary, Mr Richardson identified no problems before he left. What height the wall had reached when Mr Richardson inspected it, was not clear. No one else from Infinity observed the work thereafter. 123 On his evidence, Mr Richardson never gave any thought to any risks associated with the rate at which the wall was being built or the height to which it was being taken, even though the Australian Standard, which M&H was expressly required to be adhered to, required that attention be paid to this. Nor did he give thought to what was being done with the lintels. 124 There can be no doubt on all of the evidence, that the defendants failed to ensure safety at this site and that the necessary causal connection between the risk to safety and what Infinity did and failed to do, was thereby established. The Act imposes safety obligations widely. They do not just rest on subcontractors at worksites such as this. The legislation adopts a layered approach, seeking to ensure that if one person or entity upon whom these obligations are imposed fails to meet them, then the safety of those working on the site will, nevertheless, still be assured. There can be no doubt that in this instance, all those upon whom these obligations fell, failed to meet them. 125 It is against the background of these conclusions, that I turn to the individual charges.

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The charge against Infinity 126 It was not in issue that Infinity was an employer; that persons not in its employ were exposed to risks to their health and safety on 12 February and that the risk arose from its undertaking. Those concessions were properly made on the evidence. The exposure to the risk of a wall being constructed collapsing, plainly also occurred at Infinity's place of work. 127 Wall collapses at building sites come all too frequently before the Court in prosecutions under the Act. They have resulted in the injury of many workers and the death of others. They are usually not the product of deliberate action, but rather an unforseen conjunction of events, which could have been avoided, had the necessary thought been given to the risks in question beforehand. There can be no doubt on the evidence that a risk of wall collapse is an obvious and foreseeable one, which entities such as Infinity and M&H, must attend to at building sites such as this, if the safety obligations imposed upon them by the Act, are to be met. An unsupported, unstable wall will collapse if sufficient force is applied to it. The cause of a particular collapse need not be established in proceedings such as this. It is the risk of such a wall collapsing, which must be dealt with, if safety is to be ensured, and offences are not to be committed. 128 Particular a. of the charge concerned the failure 'to ensure that the safe work method devised by M&H Bricklaying for the masonry construction of the building was adequate'. I am satisfied that this aspect of the charge was made out to the requisite standard. The deficient document provided by M&H was, in fact, one which Infinity required M&H to produce. It did not deal at all with wall stability or the risk of wall collapse. Had those matters been dealt with M&H, the workers it engaged and Infinity's employees may well have paid proper attention to this risk. 129 Particular b. of the charge concerned the failure 'to ensure that the masonry wall had adequate lateral support, or adequate bracing or was otherwise adequately supported to ensure that it was not at risk of collapse.' I am also satisfied that this aspect of the charge was made out to the requisite standard. The wall had no lateral support, bracing or other support, such as propping for the lintels, which would have reduced the risk of this wall collapsing. Even if normally a single skin of a cavity wall is not braced, given the unusual height to which this wall was taken; the manner and rate of its construction; the three heavy lintels placed onto the green wall, with the wall then continuing to be raised above, it was obvious that some support or bracing should have been used to ensure its stability. If the wind was thought by those present to have been sufficiently high, or if it had been noticed that the wall was shaking, the wall would have been braced. There can be no doubt on that evidence, that such bracing was possible, if proper attention had been paid to the risk of this wall collapsing. The wall could also have been supported, with the use of props for the lintels. 130 Particular c. of the charge concerned the failure 'to monitor adequately the work of the construction of the masonry wall being undertaken by M&H Bricklaying'. I am also satisfied that this aspect of the charge was made out to the requisite standard. While Infinity argued that it could not always supervise the bricklaying supervisor Mr Moussalli, and that there had been adequate supervision on the day, when Mr Richardson had supervised construction up until 9 am when he left to attend the site walk, I am unable to accept the argument, on the evidence. The supervision provided by Infinity failed to ensure that this wall was not constructed in such a way that it exceeded the height prescribed by the Australian Standard, in circumstances where it was at risk of collapse, not only from its height, but from the excessive speed with which it was raised and because of the absence of support which might have prevented a collapse. Infinity could not rely on M&H to meet its obligations under the Act in relation to these matters. On the evidence neither Mr Richardson or anyone else from Infinity attended to Infinity's obligations that day. 131 Particular d. of the charge concerned the failure ' to ensure that the masonry wall was constructed in accordance with Australian Standard 3700 - 2001 Masonry Structures'. On the evidence there can be no doubt that this particular was also established, to the requisite standard 132 Particular e. of the charge concerned the failure 'to provide adequate information, instruction and training to M&H Bricklaying and the injured workers in relation to the risk of the wall collapsing during construction'. Again, I am satisfied that this aspect of the charge was made out. Apart from the evidence of the initial induction which introduced M&H workers to the site and the deficient M&H work method statement, the evidence of information, instruction and training provided by Infinity showed that it was in truth of a cursory kind, consistent with the reliance placed on M&H and its workers. Had real thought been given to the risk of a wall such as this collapsing, the deficiency in the M&H work method statement should have been uncovered and attended to, in the training Infinity provided. Indeed, that risk was not identified, even though M&H workers were re-inducted, after the problems identified with scaffolding. Infinity proceeded on the basis of assumptions which it had made about M&H and its understanding and capacity to safely undertake required brick work. On the evidence, those assumptions were ill founded. 133 Particular f. of the charge concerned the failure 'to inform and instruct M&H Bricklaying and the injured workers in relation to the engineer's specifications for the construction activities of the building on the site.' I am not satisfied that this particular of the charge was established to the requisite degree. The prosecution relied on Mr Faulkner's evidence. There was evidence that he had discussed the engineer's specifications with Mr Moussalli. Mr Faulkner could not recollect whether or not he had discussed some aspects of the specifications, while he could recollect whether he had discussed others. Mr Moussalli gave no evidence at the hearing. The Inspector's interview did not deal with this matter. Mr Moussalli told the Inspector that he paid no attention to documents such as site plans. That evidence cannot, however, make out this aspect of the charge. I am not satisfied that the evidence, so standing, is not sufficient to make out this aspect of the charge, to the requisite degree. 134 I finally deal with Infinity's argument that no causal connection had been established between it and the risk here in question. That submission may not be accepted on the evidence. It is unnecessary to establish precisely what caused this wall to collapse. That the wall was at risk of collapse, cannot be doubted on the evidence. The risk materialised. There were steps which Infinity could have taken, which would have precluded that occurring. It did not take such steps. It follows that the necessary causal connection between what Infinity did and failed to do, was thereby established. 135 As was recently discussed again, by a Full Bench of the Court in St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39 at [56]:

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As to the relevance of risk, the identification of the risk or risks to health and safety will necessarily be undertaken in determining whether a person has committed an offence under the Act. As has been stated many times by this Court, the general duties created by the Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: Haynes v CI & D Manufacturing (1995) 60 IR 149 at 158-159; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 at 452 - 454; Morrison v Powercoal Pty Limited and Another (2004) 137 IR 253 at 271 - 272. 136 Undoubtedly, Infinity relied upon the expertise of M&H. The evidence well demonstrated that M&H did not pay proper attention to its safety obligations. While Infinity could not have known this beforehand, the Act did not permit it to delegate its safety obligations in relation to the bricklaying work which M&H undertook. While Infinity's documentary safety system recognised this, the practical operation of the system did not as the evidence of Mr Carney, Mr Faulkner and Mr Richardson revealed. Mr Alan Yazbek's answers to the Inspector, where he repeatedly said 'We rely on the competence and experience of the subcontractors undertaking the works. We rely on the SWMS provided by the SWMS and the company safety Manual', put the inadequacy of Infinity's approach in practice beyond question. The approach of the Infinity employees on site to its safety obligations was consistent with Infinity's attitude - reliance on its subcontractors. Infinity had an obligation itself to ensure safety. This it failed to meet on the approach adopted by those who had responsibility for the operation of Infinity's safety system, in practice on site. The deficiencies in the approach adopted by Infinity established the necessary causal connection between Infinity and the risk of this wall collapsing, which so regrettable here materialised. Infinity plainly had the capacity to ensure that M&H attended to its obvious failures on the day that the risk materialised. This it failed to do.

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The charge against M&H Bricklaying Services Pty Ltd 139 For similar reasons to those I have already explained in relation to Infinity, I am also satisfied that it was established that M&H contravened its obligations under s 8(2) of the Act. It is convenient to explain this conclusion by reference to the particulars of the charges laid against it. 140 Particular a. of the charge concerned the failure 'to undertake an adequate risk assessment in relation to the risk of the masonry wall collapsing during construction'. I am satisfied that this aspect of the charge was made out. It was regrettable that the risk assessment and the safe work method statement did not identify wall stability as a safety risk which M&H needed to address at this site. The construction documents drew attention to the Australian Safety Standard, which dealt with wall construction and wall height. So did the contract itself. It also dealt with the need to prop lintels. None of those matters were addressed in M&H's safety document. 141 The risk of an unsupported, single brick wall, standing in excess of 3.4 metres high collapsing, is an obvious one, which should have been recognised and addressed in the safe work method statement. Had that occurred, this collapse may have been avoided, because Infinity, Mr Moussalli and the workers on the site would have had that risk at the forefront of their minds, when the work was undertaken. The evidence of various of the bricklayers, that they thought nothing wrong with the approach adopted to the construction of the wall and that they could not think of any reason why the collapse occurred, believing that industry practice had been followed, underlined why risk assessment documents need to draw attention to what seems beforehand, to be obvious safety risks. 142 Particular b. of the charge concerned the failure 'to ensure that the masonry wall had adequate lateral support or adequate bracing or was otherwise adequately supported to ensure that it was not at risk of collapse.' I am also satisfied that this aspect of the charge was made out. While it was sought to be argued that it was not practical to brace this single brick wall, the evidence clearly showed that the lintels could have been supported. Furthermore, even in his submissions Mr Moussalli said that if it had been drawn to his attention that the wall was too high, or had become shaky, then he would have braced the wall. It must, accordingly, be concluded that support and bracing of the wall was possible and should have been given proper attention on the day, given the height and manner in which this wall was built, if safety was to be ensured. 143 Particular c. of the charge concerned the failure 'to apply and monitor an adequate safe work method in relation to the construction of the masonry wall, including the rate of construction and the risk of this wall collapsing during construction'. Again, I am satisfied that this aspect of the charge was made out. There was no evidence from which it could be concluded that any thought or attention was given to the risk of this wall collapsing, given the way in which it was built on 12 February, including in relation to the rate of construction, or the height to which it was taken, giving rise to the risk that it was built out of plumb. On the evidence no one from M&H gave consideration to such matters. Not even in Mr Moussalli's submissions, was it suggested that attention had been given to such matters. 144 Particular d. of the charge concerned the failure 'to ensure that the masonry wall was constructed in accordance with Australian Standard 3700 - 2001 Masonry Structures'. Again, I am also satisfied that this aspect of the charge was made out. The evidence showed that the wall was not constructed in a manner which the applicable Standard required. 145 Particular e. of the charge concerned the failure 'to provide adequate information, instruction and training to the workers in relation to the risk of the wall collapsing during construction.' I am also satisfied that this aspect of the charge was made out. There was no evidence that M&H provided its workers with any training in this respect. The evidence of various of the bricklayers, which I have outlined, showed that they had not received any information, instruction or training in relation to the risk of a wall collapsing during construction and that they had no real appreciation of what gave rise to such a risk, even after the wall had collapsed.

At a glance

Court

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Before

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Judgment (166 paragraphs)

Parties

Cases Cited (9)

Cited By (1)