Inspector Childs v Area Concrete Pumping Pty Ltd and others

Industrial Relations Commission (NSW)|2013-12-17|Before: Backman J, Mr J

P B Serena (Third Defendant) Representation: Mr M Cahill of counsel (Prosecutor) Mr J K Kirk of senior counsel with Mr D W M Chin of counsel (First and Second Defendants) Mr B C A Bradley (Third Defendant) WorkCover Authority of New South Wales (Prosecutor) John F Morrissey & Company (First and Second Defendants) Mackenzie & Vardanega (Third Defendant) File Number(s): IRC 1450, 1452 and 1454 of 2008

Judgment 1Area Concrete Pumping Pty Ltd (ACP) is charged under s 8(2) of the Occupational Health and Safety Act 2000 (the Act) in relation to an incident which occurred on 22 October 2002 at a construction site in Lake Cargelligo. Also charged in relation to the incident are Christopher Anthony Woods and Paul Bertolo Serena, in their capacity as directors of ACP. At the site a four megalitre water reservoir was under construction. On the day of the incident the defendant sent its employee, Ralph Storr, to the site for the purpose of driving and operating a concrete pump truck. Accompanying Mr Storr was Michael Abel, employed by P & B Serena Pty Ltd, and instructed by that company to act as a linesman. The day before, on 21 October 2002, Mr Storr had taken a booking from BGA Projects Pty Ltd (BGA) to pump concrete at the site. BGA was the principal contractor and controller of the site. Its director, Anton Beytell, had asked Mr Storr to supply a linesman to assist in the placement of the concrete. According to the affidavit in support of the charge against ACP, the following sequence of events occurred on 22 October 2002: Upon their arrival at the site, Mr Storr and Mr Abel climbed the access scaffold and inspected the formwork deck on which the concrete roof was to be formed. Subsequently, Anton Beytell arrived at the site and joined Mr Storr and Mr Abel on the formwork deck at the top of the reservoir. After Mr Beytell and Mr Storr had discussed how Mr Beytell proposed to undertake the concrete pour, Mr Storr and Mr Abel descended the access scaffold and prepared the concrete pump. Mr Beytell was in charge of the site and gave directions regarding the manner in which the concrete was to be laid, assigned tasks prior to and during the course of the concrete pour. After preparatory work had been completed and the concrete trucks started arriving at the site, Mr Storr commenced pumping concrete to the top of the reservoir where it was placed on the formwork deck on which the concrete roof was to be formed. Mr Storr was located on the top catwalk of the jump form, controlling the pumping of the concrete with a remote control for the pump truck. Initially, Anton Beytell was on the hose whilst the concrete for the central column was pumped. Then, Michael Abel was the linesman directing the placement of the concrete for the laying of the concrete on the formwork deck. After about an hour and a half, Anton Beytell asked Michael Abel if he knew how to screed concrete and then Mr Beytell instructed Mr Abel to takeover screeding the concrete. ... During the concrete pour of the roof slab, the falsework failed and the whole formwork structure collapsed. Upon the collapse of the formwork structure, the working deck and all persons working on it fell into the reservoir. At the time of the collapse, approximately half of the surface area had been poured on the western section of the form face. Mr Leavy estimated that the concrete which was expected to be placed amounted to about 154 tonnes at a thickness of 250 mms so that the weight of the concrete that had been placed at the time of the incident was about 77 tonnes. At the time of the collapse: a) Mr Beytell was standing on the formwork deck directing the pour; b) Mr Storr was located on the catwalk attached to the jump form and from that position Mr Storr was operating the concrete pump that was pumping concrete onto formwork to form the roof of the premises; c) Mr Abel was screeding concrete on the formwork deck in accordance with Mr Beytell's instructions; d) Craig McLeod was on the formwork deck operating the vibrator; e) Oagile Malothane was on the formwork deck shovelling the concrete; and f) Scott Wood was on the formwork deck, acting as the linesman on the concrete pump line, directing placement of the concrete. As a consequence of the collapse of the formwork deck, Mr Beytell and Mr McLeod received fatal injuries. Mr Wood, Mr Abel and Mr Malothane received serious injuries. 2The three defendants move the Court by way of Notices of Motion for Orders seeking leave to withdraw pleas of guilty entered by them on 1 February 2010 to the charges. In the alternative, the defendants move the Court for Orders that: (i)the Court rejects or otherwise does not accept the pleas; and or (ii) the Court directs that not guilty pleas be entered to the charges. 3The grounds and reasons set out in the Notices of Motion are identical. They allege: 1. The Defendant could not in law be guilty of the offence alleged in the charge: (a) on the facts and matters alleged by the prosecutor in: (i) the affidavit in support of the Application for Order filed on 1 September 2008, and/or (ii) the particulars of the offence alleged in the charge as sought to be amended by the Prosecutor's notice of motion filed on 25 June 2010, or at all; and (b) because the persons alleged to have been exposed to their health and safety were not so exposed while they were at the place of work of Area Concrete Pumping Pty Limited (ACP). 2. At the time he entered the plea the Defendant did not understand or appreciate the charge, or lacked full understanding or appreciation of the charge, in that: (a) pursuant to the particulars of the offence alleged in the charge as sought to be amended by the prosecutor's notice of motion filed on 25 June 2010, the prosecutor had not previously alleged, but now alleges, inter alia, that the acts or omissions constituting the offence included failure to make inquiries of the principal contractor; (b) such alleged failures would assist the Defendant in defending the charge, or would be otherwise consistent with a defence to the charge on the grounds that the persons alleged to have been exposed to risks to their health and safety were so exposed while they were at the principal contractor's place of work and not while they were at the place of work of ACP; and (c) the Defendant was not aware of the matters in 2(a) and 2(b) above at the time he entered the plea. 4The proceedings have a lengthy history which has been summarised in the written submissions filed on behalf of ACP and Mr Woods. For convenience, and by way of some necessary background, the submissions are extracted in full: The prosecutor initially brought each of the charges by filing Applications for Orders and an Affidavit in Support of the Applications for Orders on 1 September 2008 (the Supporting Affidavit). Orders were made by Staff J on 2 September 2008 compelling the Defendants to appear before the Court. The original particulars of the charges under s 8(2) are set out at pages 47 - 49 and 107 - 109 of Exhibit JFM1 (the Original Particulars). No charges under the Act were brought against BGA or anyone associated with BGA. On 23 December 2008 ACP requested further and better particulars of the charges against it under s 8(1) and s 8(2) of the Act. The prosecutor replied to that request by letter dated 23 December 2008: see pages 147 - 152 of Exhibit JFM1. On 25 March 2009: (a) ACP entered a plea of guilty to the charge under s 8(1) of the Act in matter IRC 1449 of 2008; (b) ACP entered a plea of not guilty to the charge under s 8(2) of the Act in matter IRC 1450 of 2008; and (c) Mr Christopher Anthony Woods entered pleas of not guilty to both of the charges under s 8(1) and s 8(2) of the Act in matters IRC, 1451 and 1452 of 2008. The defended matters were listed for hearing on 8 February 2010. On 27 November 2009 the Court delivered judgment in Inspector Childs (WorkCover Authority of New South Wales) v State of New South Wales (Department of Services Technology and Administration [2009] NSWIRComm 202, in which the DWPS was found guilty of a breach of s 10(1) of the Act and fined the sum of $275,000. On 1 February 2010 the Defendants entered pleas of guilty to the charges in matters IRC 1450, 1451 and 1452 of 2008. On 3 February 2010 the High Court of Australia delivered judgment in Kirk. The hearing date of 8 February 2010 was subsequently vacated. On 25 June 2010, in reliance upon Kirk, the prosecutor filed notices of motion in each matter seeking leave to substantially amend the particulars of each charge (the Prosecutor's Motions). By late August 2010, also in light of Kirk, the Defendants filed notices of motion seeking, inter alia, declarations that (1) the orders made by Staff J on 2 September 2008 compelling the Defendants to appear before the Court was invalid, null or void, and (2) that the Court did not have jurisdiction to hear the prosecutions. The hearing of the prosecutor's and the defendants' motions were delayed by consent pending the decision in John Holland Pty Ltd v Industrial Court of New South Wales (2010) 202 IR 82. On 29 March 2011 Haylen J delivered judgment in Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 in which the Defendants' motions were dismissed. The Court did not rule on the Prosecutor's Motions, considering that further discussion between the parties as to the appropriate form of amended particulars was desirable. On 17 August 2011 the Full Bench of the Industrial Court refused the Defendants' leave to appeal from the decision of Haylen J. The Defendants then applied to the NSW Court of Appeal in its supervisory jurisdiction. The Court of Appeal delivered judgment denying the Defendants' applications in Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208. On 3 August 2012 the Defendants filed an application for special leave to appeal to the High Court of Australia. This application was dismissed by the High Court on 14 December 2012. The Amended Particulars By correspondence dated 28 March 2013 and 2 April 2013, the prosecutor supplied revised amended particulars to the changes under s 8(1) which are to be the subject of the Prosecutor's Motions. The prosecutor indicated that corresponding amendments would be made to the amended particulars to the charges under s 8(2). On 1 May 2013 the Defendants informed the prosecutor that they would consent to the Prosecutor's Motions in accordance with the revised amended particulars as set out in the prosecutor's letters dated 28 March 2013 and 2 April 2013. On 22 May 2013, the Defendants received from the Prosecutor the revised amended particulars in relation to the charge against ACP under s 8(2). The amended particulars in relation to the charge against Mr Woods under s 8(2) was provided by the Prosecutor on 5 June 2012 (sic). 5The amended charges, the subject of the present applications, were filed and served on 26 June 2013. Each amended charge includes several pages of particulars. Broadly characterised, they allege the following failures to ensure safety: (a) a failure to inquire of the principal contractor, BGA, whether the access tower and the formwork deck were constructed safety (the failure to inquire); (b) a failure to obtain a copy of, or otherwise see for itself - or to require or train or instruct Mr Storr to obtain a copy of, or otherwise see for himself - certification by a qualified engineer that the formwork deck was safe (the failure to inspect); (d) a failure to ensure that the formwork deck was monitored for signs of failure and to ensure a method of communication between persons monitoring the formwork deck and Mr Storr (the failure to monitor); and (e) a failure to provide Mr Storr with a written work method statement (the failure to provide the written statement). 6Relevantly, there are two differences described as "significant" by the defendants between the amended charges and the original particulars. These are: (a) the amended particulars allege, for the first time, the failure to inquire; and (b) the amended particulars abandon the allegation contained in the Original Particulars that Mr Beytell was among the persons who were placed at risk of injury while he was at ACP's place of work. 7The amended charges allege that the defendants failed to ensure (by their acts and omissions) that Messrs McLeod, Abel, Wood and Malothane were not exposed to risks to their health and safety arising from the conduct of ACP's undertaking while at ACP's place of work.

Whether administration of justice in favour of applications being granted 8It is important to note at the outset that the grounds and reasons relied upon by the defendants in their respective Notices of Motion do not purport to extend to the allegation concerning Mr Abel's exposure to a risk to his health and safety, nor to the allegation that Mr Abel was exposed to a risk which arose from the conduct of ACP's undertaking while at its place of work. In other words, the defendants' admissions of liability are limited to Mr Abel's exposure to risk. Having made this concession, however, the defendants argue that the administration of justice favours the application being granted. This particular submission proceeds upon the basis that in the event the applications are not granted, the disputed facts in relation to the allegation of exposure to risk of Messrs McLeod, Wood and Malothane will need to be resolved by the sentencing judge, resulting in no savings of time and resources and giving rise to further delay. Granting the applications is said to present the quickest or most expedient way, in that it will end further disputation about procedural matters. 9I have some difficulty with these contentions. First, it is by no means uncommon in sentence proceedings that some facts will be in dispute. Where this occurs they are resolved in the usual way. Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 605, for example, referred to the principles relevant to a plea of guilty and the relevance of any additional facts sought to be tendered by the prosecutor on sentence which go beyond the facts contained in the plea: Where an accused person has pleaded guilty, he or she is thereby taken to have admitted to guilt of the offence as charged "and nothing more": see R v Riley [1896] 1 QB 309. In this State, that principle has been extended to an acceptance that the plea is to be taken as an admission of the "essential legal ingredients of the offence". Any dispute as to matters beyond such "essential ingredients" admitted by the plea, must be resolved by theapplication of ordinary legal principles appropriate to a criminal trial. There is not in this State a special statutory provision governing the reception of matters relevant to sentence, as there is in Queensland (see s 650 of the Criminal Code (Qld) and R v Clayton [1989] 2 Qd R 439 at 441-442) and in Tasmania (see s 386 of the Criminal Code (Tas)). In this State, disputed facts must be established by accusatorial process; proved by sworn evidenceand any doubt about them must be resolved in favour of the prisoner: see R v O'Neill [1979] 2 NSWLR 582 at 590; R v Traiconi (1990) 49 A Crim R 417 at 418; Thompson v The Queen [1973] Tas SR 78 at 91. In New South Wales, the standard established in R v O'Neill is admittedly a stringent one. It is, in some respects, more stringent than that in England or in Canada (see R v Gardiner [1982] 2 SCR 368 or in Victoria (see R v Halden (1983) 9 A Crim R 30 at 34) or in Queensland (see R v Cattell (1990) 49 A Crim R 412). However, it is long established and repeatedly applied in this State. And in my view it is correct in principle. To go beyond the facts necessarily contained in the plea requires that any additional facts be admitted expressly or proved by admissible evidence: see R v Scanlan (1986) 21 A Crim R 428 at 432. This requirement must be observed because it is of the highest importance and "despite whatever inconvenience may be caused": see Bray CJ in Law v Deed [1970] SASR 374 at 377. The rule applies as much to a case where the accused has pleaded guilty as to one where it is necessary for the sentencing judge to derive the conclusions of fact from a jury's verdict of guilty following contested trial: see R v Mordecai (1985) 18 A Crim R 149. 10Secondly, I do not accept that summary defended hearings, where all matters are in contest, could involve less savings in time and resources than sentence hearings where a large proportion of factual matters are in dispute.

General Principles 11A plea of guilty is a plea to the essential legal elements of a charge. Moffitt A.C.J., in the well-known passage in R v O'Neill (1979) 2 NSWLR 582 at 588, identified three fundamental propositions relevant to a plea of guilty: I think three elemental matters can be stated. First a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Second, beyond that, any facts relied on by the Crown and, in particular, any that aggravate the offence must be established by the Crown by some acceptable procedure. Third, any dispute as to matters beyond the essential ingredients of the offence admitted by the plea must be resolved by ordinary legal principles, including resolving relevant doubt in favour of the accused. 12The parties were in agreement that the correct test to be applied to a withdrawal of a plea application is as expressed by Lee J in R v Sagiv (1986) 22 A Crim R 73 at 80 - 81: The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. It is clear that in the case of mistake or other circumstances affecting the integrity of the plea as an admission of guilt the court should readily grant leave. But if the plea has been entered in full knowledge of all the facts and intentionally as a plea to the charge which is made, the court is plainly entitled to exercise its discretion against a withdrawal of the plea. The law regards a plea of guilty made by a person in possession of all the facts and intending to plead guilty as an admission of all the legal ingredients of the offence (O'Neill [1979] 2 NSWLR 582; ; 1 A Crim R 59) and as the most cogent admission of guilt that can be made, for the court is prepared to act upon it and proceed to conviction or final disposal of the proceedings. 13Simpson J in R v Marchando (2000) 110 A Crim R 337 summarised the principles relevant to the Court's discretion in deciding whether to grant leave to a defendant to withdraw a plea of guilty: The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: Griffiths (1977) 137 CLR 293 at 335; ; Chow v DPP (1992) 28 NSWLR 593 at 599; ; 63 A Crim R 316 at 319-320 . Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable: Sagiv (1986) 22 A Crim R 73 . Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: Chiron [1980] 1 NSWLR 218 at 235 . The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: Davies (1993) 19 MVR 481 . 14In R v Liberti (1991) 55 A Crim R 120, Kirby P referred to the "principle of restraint" guiding the Court when considering whether to grant leave to a defendant to withdraw a plea of guilty (at 121 - 122): This Court has power to set aside a conviction recorded following a plea of guilty: see Forde [1923] 2 KB 400 at 403; Gower v Ross [1959] SASR 278; Stewart [1960] VR 106; Foley (1963) 80 WN (NSW) 726. From these and other cases it is clear that a court will entertain an appeal against such a conviction, notwithstanding a guilty plea, if it appears: (a) that the appellant did not appreciate the nature of the charges or did not intend to admit that he was guilty of them; or (b) that the appellant, upon the admitted facts, could not in law have been convicted of the offence charged: see esp Caruso (1988) 49 SASR 465 at 489; 37 A Crim R 1 at 26. For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.

No offence at law: "place of work" 15The defendants submitted that they should be permitted to withdraw their pleas of guilty because they cannot be guilty of the offences alleged on the facts and the matters alleged by the prosecutor in the supporting affidavits and the amended particulars. There is, according to the defendants, an "issuable question of guilt" and, "a real question to be tried": Davies (unreported, Court of Criminal Appeal, NSW, No. 60418 of 1992, 16 December 1993 at 537 - 588), applied in R v Mark Anthony Cooney [2004] NSWCCA 255 at [27] - [28]. 16In Cooney the appellant pleaded guilty to two offences under s 25A(1) (supply prohibited drug for financial reward) and s 25(1) (supply prohibited drug) of the Drug Misuse and Trafficking Act 1985. Following his conviction and sentence, the appellant lodged an application for leave to appeal and appeal against the severity of the sentences. Before the application was heard, the Court of Criminal Appeal handed down R v Jackson [2004] NSWCCA 110. Mr Jackson was a co-offender of the appellant. In Jackson, Sully J (with whom Wood CJ and Hislop J agreed) found that the reference in s 25A to "financial and material reward" should be understood as referring to a financial and material reward to the person who is shown to have carried out the three or more supplies as defined in the section. Relying on the finding, the appellant in Cooney sought to go behind his plea and appeal against his conviction on the ground that had the state of the law as determined in Jackson been known to him and his advisors at the time he entered his plea to the offence under s 25A(1), he would have taken a different course. Buddin J (with whom Spigelman CJ and Hidden J agreed) allowed his appeal against conviction on the basis (at [28]): In the present case, it is submitted that the plea of guilty was entered by the appellant upon a particular understanding of the legal significance of the case against him, including of course the admissions which he had made in his ERISP. The uncontested evidence before the Court establishes that he would have pleaded not guilty had he known of what is said to be their true legal significance. Accordingly I accept the submission that his plea of guilty could not be said to be "really attributable to a genuine consciousness of guilt" because he may well have, upon his version of events, an answer to the charge. In those circumstances, it cannot be said that there is not "an issuable question of guilt" nor "a real question to be tried". 17In the present case, the defendants' submission that they should be permitted to withdraw their pleas of guilty proceeds upon the contention that the persons alleged to have been exposed to risks (with the exception of Mr Abel) were not so exposed while they were at ACP's "place of work". As the prosecutor points out, however, the defendants, each represented by experienced counsel and each in possession of all the material in the prosecution brief dealing with the role played by ACP at the site on the day of the incident, entered their pleas of guilty on 1 February 2010 acknowledging that for the purpose of the prosecutions before the Court, the site was ACP's "place of work" (and, that the subject risk or risks arose from the conduct of ACP's undertaking). In contrast to the material before the Court of Criminal Appeal in Cooney, no new material on these issues has been forthcoming or identified to the Court, except for some reliance placed upon the amendments which, the defendants contend, explicitly recognise the control over, and expertise in the safe construction of the access tower and the formwork held by BGA, and, abandon the allegation that Mr Beytell was exposed to risk at ACP's place of work. I intend to return to these matters later in these reasons. 18Returning to the issue of "place of work", the defendants rely on a number of authorities of this jurisdiction in support of their primary contention that the persons alleged to have been exposed to risks were not so exposed while at ACP's "place of work". It was not in dispute that "place of work" was an essential legal element of the charges under s 8(2). 19The question of whether a person or persons are exposed to risk at the employer's "place of work" is a question of fact: WorkCover Authority of NSW (Inspector Keenan) v Technical and Further Education Commission (1999) 92 IR 251 at 261. Walton J found in WorkCover Authority of NSW v Hitchcock (2004) 135 IR 377 (at [307]), that the issue is not, in a conceptual sense, where the place of work begins or ends but whether the place in question was in fact the employee's place of work at the time of the incident. 20The defendants also rely on the following propositions extracted from cases of this jurisdiction which have considered in some detail the expression "place of work" as it appears in s 8(2) of the Act, and in the predecessor provision, s 16(1) of the Occupational Health and Safety Act 1983 (the 1983 Act): An employer's place of work has been described as "areas that are affected by or are in such proximity to what the defendant was contractually obliged to perform that they are properly to be considered the defendant's 'place of work'": WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284 at [64] (Walton J), cited in Tsougranis v WorkCover Authority (NSW) (Inspector Carmody) (No 2) (2006) 154 IR 58 at [44]. Whether a contractor would have considered themselves, in the ordinary and natural sense of the words, to be "at the [employer's] place of work" has also been regarded as a relevant consideration: Tsougranis (No. 2) at [56]. However, an employer's undertaking and its place of work, for the purposes of s 8(2), are not necessarily coextensive. An employer may carry out its undertaking at a place that is not its place of work: WorkCover Authority of New South Wales v Hitchcock at [310]. As recognized in Hitchcock at [308], the meaning of an employer's place of work is informed by the objects of the Act, which is relevantly stated to be (s 5(1)(b)): to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work. The critical consideration in determining an employer's "place of work" for the purpose of s 8(2) is, having regard to the objects of the Act, the performance of work in furtherance of the employer's undertaking and the effect such performance may have on others: see the analysis in Hitchcock at [305] - [307]. 21According to the defendants, the defining feature of an employer's place of work for the purpose of s 8(2) is the nexus between the place, the performance of work at that place in furtherance of the employer's undertaking, and, the risk to the safety of others arising from such performance of work. Relying on this analysis, the defendants contend that a place of work with minimal connection to the employer and which had at the time of the exposure to risk a wholly independent operation in furtherance of another employer's undertaking is not the employer's place of work. 22The defendants contend that the construction site, the subject of these proceedings, had a minimal connection to ACP, and, at the time of exposure to risk, had a wholly independent operation in furtherance of BGA's undertaking, such that it was not ACP's "place of work" for the purpose of s 8(2). The following material, extracted from the supporting affidavit and the amended particulars, is relied upon to demonstrate this: (a) The Department of Public Works and Services (DPWS) was responsible for the management of the construction of the reservoir at the site [7]. (b) DPWS engaged BGA to construct the reservoir under a contract that appointed BGA as the principal contractor and controller of the site [13] - [14]. (c) Mr Beytell was a qualified civil engineer and sole office holder of BGA [15] - [16]. (d) BGA was expressly and contractually bound to perform the construction work in accordance with relevant safety standards [17]. (e) DPWS appointed a superintendent to administer the contract with BGA, including ensuring BGA's compliance with its safety obligations under the contract [25]. (f) The formwork deck and the access tower constructed by BGA suffered from a litany of defects and inadequacies that resulted in their collapse during the concrete pour [76] - [107]. (g) The formwork deck and access tower were so defective despite several site inspections conducted by a representative of the DPWS superintendent [108] - [128]. (h) The role of ACP was limited to the supply of a concrete pump truck and a driver/concrete pump operator (Mr Storr) [46]. (i) The construction of the reservoir at the site had commenced some months before 22 October 2002 - the first site meeting was held on 20 May 2002 and all excavation work for the reservoir base and all the pipework had been completed by 22 July 2002 [31]. Prior to 22 October 2002, ACP and Mr Storr had been engaged by BGC to attend and pour concrete at the site on only two occasions, on 20 and 25 September 2002 [59]. (j) Mr Beytell was in charge of the site and gave directions regarding the manner which the concrete was to be laid by Mr Storr, and Mr Beytell assigned tasks to Mr Storr during the course of the concrete pour [68]. (k) The Amended Particulars allege failures against ACP in relation to the risk to safety of non-employees arising solely from the collapse of the access tower and the formwork: see particulars 1 and 2. The construction of the defective access tower and formwork was exclusively in furtherance of the BGA's undertaking. Thus the relevant risk arose from the performance of work by ACP in the furtherance of its undertaking. (l) The Amended Particulars alleges the failure to inquire, which is consistent with the proposition that the risk arose from the performance of work at that place in furtherance of the BGA's undertaking at BGA's - and not ACP's - place of work, namely the construction of the reservoir including the erection of the access tower and the formwork deck at the site. (m) The Amended Particulars do not allege that Mr Beytell was exposed to risk to his safety while he was at ACP's place of work, which is consistent with the proposition that Mr Beytell was so exposed while he was at BGA's place of work. 23The material relied upon insofar as it seeks to focus on the liability of other entities, in particular BGA, is, in my view, misplaced. Construction sites commonly have workers employed or engaged by any number of different entities at the same time or at different times working on the same or on different projects, or aspects of the construction. The fact that one entity may be liable for the safety of workers because a risk arose in the conduct of that entity's undertaking while at its place of work, does not relieve other entities who, or which, may also be found to be liable under s 8(2) of the Act: see WorkCover Authority of New South Wales v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [65]). The point was well made by Boland J, President, in Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW) Fire Brigades) [2006] NSWIRComm 356. In that decision, Boland J convicted the defendant under ss 15(1) and 16(1) of the 1983 Act following a summary defended hearing. The facts, in brief, concerned an explosion in Bin D at a factory owned and operated by Caines Pty Limited (Caines). The Telarah Fire Brigade and a Hazmat Unit were called to the factory in response to a report of spontaneous combustion of cotton seed meal stored inside Bin D. As a result of the explosion three employees of Caines suffered fatal burn injuries and the Captain in charge of the Telarah Fire Brigade received burn injuries to his face and hands. 24In the course of reasons, Boland J referred to a submission advanced on behalf of the defendant which was expressed in the following way (at [155]): It beggars belief that the NSW Fire Brigades could be criticised, let alone prosecuted, for the charge that it failed to provide a safe work method in fighting and/or extinguishing a suspected fire in a seed meal storage bin including but not limited to the cottonseed meal stored in bin D at the subject premises in circumstances of such an disorganised and dysfunctional plant that ignored occupational health and safety requirements and responsibilities even when directed to do so by its insurer. The subject premises were a disaster waiting to happen. To allege that the NSW Fire Brigades somehow failed in its responsibilities under s.15(1), said to be a failure to provide a safe work system, in these circumstances cannot be entertained. Indeed the evidence establishes that the NSW Fire Brigades had such a system. Additionally, the strategy of augering out the material, as determined by the NSW Fire Brigades, had worked. The theories of Mr Pearson... can be put to one side when reference is had to the evidence pertaining to the Caines' site. 25In rejecting the submission, Boland J said (at [156]): There are a number of things to be said in response to this submission: (1) That an employer may operate a disorganised and dysfunctional plant from an occupational health and safety viewpoint could not, by itself, be regarded as the basis for relieving the defendant from providing a safe work method for use in the fighting of and/or extinguishing a suspected fire. (2) The poor state of the plant, the absence of any emergency plan and the absence of training of Caines' personnel should have served to highlight the need for an adequate risk assessment before embarking on a course of action to deal with the contents of bin D.(3) The use of the auger to empty bin D may have proceeded without incident but that seemed to be more luck than good safety management. In any event, the important consideration in so far as the auger is concerned is the risks created by its use and these included those risks described earlier in relation to the failure to provide a safe system of work.(4) The evidence establishes the defendant did not provide and maintain a relevant safe system of work. 26At this stage of the proceedings this Court is not called upon to decide issues of liability beyond reasonable doubt. However, the material forming part of the prosecution brief (annexed to the affidavit of Geoffrey Diggins, which was tendered in these proceedings) reveals a number of visible defects in the scaffold access tower including gaps around the edges, the absence of bracing, hand rails and toe rails, gaps in planking and the absence of proper foundations. These defects were apparent at the time Mr Storr and Mr Abel arrived at the site on the day of the incident. The prosecution relies on these visible defects in support of its case that ACP could have enquired of Mr Beytell (but did not) in relation to matters relevant to the construction of the access tower, including matters governed by relevant regulations and codes and/or by requiring an inspection to be undertaken by a representative of BGA, before work commenced, to ensure the defects were addressed. 27According to the prosecution, ACP's undertaking at the site on the day of the incident was the placement and pumping of concrete onto the formwork deck which was defective, as was the falsework (the scaffolding), which, by reason of the defects, gave rise to the risks alleged in the charge. This characterisation of ACP's undertaking at least is open on the material which has been placed before me. 28"Place of work" is defined in the Act in s 4 as, "premises where persons work". A number of authorities have given the expression a broad construction. Fisher CJ in Clarke v M C Meinhardt and Partners Pty Ltd (Industrial Court of NSW, Nos 1212 and 1213 of 1990, 30 June 1992, unreported), held that a public footpath and roadway onto which the facade of a building collapsed were within the defendant's "place of work" because they constituted areas which may be affected by work being done. In Hitchcock, Walton J found that the defendant's articulated lorry was a place of work. 29For reasons which follow, the authorities relied upon by the defendants for the submission that the construction site was not ACP's place of work are all capable of being distinguished. 30Keenan v TAFE concerned the conduct of Mr Jones, a student enrolled at the Job Train Landscape course at the Ballina campus of TAFE. As part of that course, Mr Jones undertook work experience at Ballina High School which included operating a tractor to mow a playing field. Mr Jones lost control of the tractor, causing serious injuries to the school groundsman who was assisting him. The Full Bench upheld a decision of the trial judge that the high school where Mr Jones performed work experience was not TAFE's place of work. However, as the prosecution in these proceedings points out, TAFE had no employee, or sub-contractor, or agent present at the premises which was occupied by a school. TAFE placed Mr Jones into a work experience position at the school to participate in activities under the supervision of the school's groundsman in circumstances where TAFE played no role in relation to the activities which the student was permitted to undertake. 31In Hitchcock the defendant's employee, Mr Haynes, was driving the articulated lorry when it collided with another lorry driven by Neville Walker on the Pacific Highway outside of Grafton. In considering a charge brought under s 16(1) of the 1983 Act, Walton J found that the defendant had failed to ensure that Mr Walker (who was fatally injured) was not exposed to risks arising from the conduct of its undertaking (the carriage or transportation of freight) while Mr Walker was at its place of work. His Honour's reasons emphasised, among other matters, the prominence of the objects, and purpose, of the 1983 Act in the context of the case. The following findings made by his Honour serve to demonstrate this (at [314] - [318]): While acknowledging that this aspect of these proceedings is not without difficulty, I have come to the view that this case should be distinguished from WorkCover Authority (NSW) (Inspector Keenan) v TAFE on the facts, and properly falls within the example given by the Full Bench in that case of an employer's place of work which is remote from its "principal" place of operation. There is a world of difference between a place of work which is owned and maintained by the employer in question and dedicated to the undertaking of that employer - indeed, which is integral to that employer's operations and revenue and could be said to have no other purpose - and a place of work with minimal connection to the employer and which has (and continued to have at the time of the exposure to risk) a wholly independent operation in furtherance of another employer's undertaking: in WorkCover Authority (NSW) (Inspector Keenan) v TAFE, the operation of a high school. I have already found that it is incontrovertible that lorries (and any area which may be affected by the work undertaken in them) are places of work: no other conclusion could be supported in the light of the Act's definitions and decided cases such as WorkCover Authority (NSW) (Inspector Clarke) v W L Meinhardt. If one considers the purposes of the Act in the context of this case, it becomes clear that those purposes would be subverted by a finding that the lorry was not the Company's place of work. The Company's undertaking encompassed transport of goods by lorries, and little, if anything, else. The defendant accepted that the relevant work being performed at the time of the accident arose from the conduct of the Company's undertaking for the purposes of s 16 of the Act, a concession which was plainly correct. Further, the performance of almost all of its work took place in or around the lorries, wherever they may be: from transporting goods from A to B and loading or unloading goods to the logistical aspects (drivers were directed to their next job remotely, while they were far from the depot, in their lorries). In a very real sense the Company depended upon work being carried out in the lorries: drivers would work for days at a time without visiting the depot and almost all of their work was performed elsewhere, in their lorries. Of course, it is the performance of work which may give rise to risks to members of the public (particularly where the performance of work involves driving on public highways in what may amount to a dangerous manner) and it is precisely those risks the Act seeks to counter. The matter argued before the Court was whether the lorry (and every area which may be affected by the work being performed in it) was the Company's place of work: despite suggestions in oral submissions by the defendant that such a finding would include the highway in its entirety, this was not argued, nor seriously contended, and does not follow from the application of the principles discussed above. To find in this case that the lorry was not the Company's place of work would be to defeat the purposes of the Act in relation to members of the road haulage industry which operated their business in a manner similar to the Company despite the obvious risks to members of the public which arise from the undertakings of haulage companies at "places of work" entirely dedicated to their undertakings. I do not accept that a decision which would defeat a stated purpose of the Act in relation to the very activities of such a significant industry, which not only pose the greatest risks to members of the public but also constitute the raison d'être of the industry, should be made on the basis of an assertion that the lorry was not the Company's place of work despite its overwhelming connection to both the Company and the Company's undertaking. Moreover, I consider that a finding in this case that Mr Haynes's lorry was the Company's place of work is more limited in factual scope and principle than the accepted obiter of Maidment J in WorkCover Authority (NSW) (Inspector Paine) v Boral Johns Perry Industries Pty Ltd t/as Boral Elevators in relation to lift maintenance workers. 32In Tsougranis (No. 2) the appellant (the defendant below), a structural engineer, was engaged by the owner of premises to provide structural engineering advice, directions and drawings for use by persons engaged by the owner for the conduct of certain works involving renovation to the existing structure and the addition of a new structure at the premises. During the course of reasons, Wright J (President) and Staff J made the following observations (at [44]): We would observe that the appellant had no employees present at the site. Nor was the particular site at the relevant time within the description in WorkCover Authority (NSW) v Schrader (2002) 112 IR 284 at [64] (that is, the place of work was to be considered as including "areas that are affected by or in such proximity to what the defendant was contractually obliged to perform that they are properly considered to be the defendant's place of work"). The fact or existence of a plan that the appellant had prepared in relation to any particular location does not necessarily mean that the relevant location is his place of work. Such a construction is contrary to the ordinary reading of s 16(1). 33The charge under s 16(1) of the 1983 Act concerned a free-standing double brick wall in the rear northern boundary of the premises which was defective in a number of respects. On 3 September 1998, a builder sustained fatal injuries and a second builder sustained injuries when the wall toppled and fell on them. The Full Bench concluded that the premises were not the appellant's "place of work" at the time the risk arose. The reasons underpinning the conclusions of the Full Bench are set out at [55] - [58] extracted below: As the authorities demonstrate, what is properly considered an "employer's place of work" for the purposes of the OH&S Act is a matter of fact determined by the circumstances of each case. In our view, the mere fact that engineering plans were prepared by the appellant and those plans have ramifications for what work was to be done on the site, does not necessarily make the site the engineer's place of work. It would seem to us to be highly unlikely that any builder or contractor or Mr Zaronias would have considered themselves, in the ordinary and natural sense of the words, to be "at the appellant's place of work" between 1 and 3 September 1998. Even if the appellant had a contractual obligation to continue providing advice to Mr Agapiou or the builders as at 1 to 3 September 1998, that does not result in the premises being the appellant's place of work at the relevant times, nor does the fact that the builders had access to the engineering plans at the time of the accident result in the premises being the appellant's place of work at the relevant times. The only remaining contractual obligations that the appellant had as at 3 September 1998 was to carry out an inspection of the work before the builders undertook the concrete pour. It is conceivable that the site may have become, or again become, the appellant's place of work at the time of the inspection. That, however, was not the case at the time relevant to the charge laid against the appellant. The facts here are thus distinguishable from the facts in WorkCover Authority (NSW) (Inspector Farrell) v Morrison. In that case, the pool being constructed was held to be the defendant's place of work because the defendant had not completed his contract as there remained work to be done prior to the "handing over" of the completed pool. That is to be contrasted with the facts in this case which are more complex but nevertheless make plain that the appellant had completed all that was required of him until the time of the inspection prior to the concrete pour. It was not reasonably open on the evidence to make the finding of fact that the site was the appellant's place of work on 3 September 1998. 34None of the cases extracted above and relied upon by the defendants hold that an employee (or other employer representative) present at a particular premise and performing work in accordance with the employer's undertaking is not at the employer's "place of work" for the purpose of s 8(2) of the Act or the predecessor provision, s 16(1) of the 1983 Act. The facts in Keenan v TAFE and Tsougranis (No. 2) disclose that no employee or employer representative was present at the subject premises at the time persons were exposed to a risk to their safety. The facts in Hitchcock involved an employee at the "premises" (the articulated lorry) which prompted the finding that the lorry was the employee's "place of work". In contrast, the facts before this Court disclose that ACP had an employee (Mr Storr) on site actively involved, on behalf of ACP, in the placing and pumping of concrete. This particular activity fell within ACP's undertaking which I have earlier described as the placement and pumping of concrete (using the concrete pump truck) onto the formwork deck with the falsework supporting the load which Mr Storr was placing on it. Moreover, the material available indicates that the formwork deck and the falsework were defective, and visibly so, which gave rise to the risks to which the workers, namely Messrs Abel, Beytell, Wood and Malothane, were exposed on the day of the incident. 35The defendants also relied upon the abandonment in the amended particulars of an allegation that Mr Beytell was exposed to a risk to his safety while he was at ACP's place of work, which is said to be consistent with a contention that Mr Beytell was not so exposed while at ACP's "place of work". Instead, he was at BGA's "place of work". This submission cannot be accepted for two reasons. First, as the prosecutor submitted, the amendment constitutes an amendment to the particulars only. Secondly, the amended charges allege that the duty owed by ACP was owed to persons in the employ of BGA. Mr Wood, for example, was employed by BGA to assist in pouring the concrete at the premises on the day of the incident (Exhibit A, Tab 13).

Lack of understanding and appreciation of the charges 36The defendants correctly contend that a plea of guilty may be withdrawn on the grounds that a defendant did not appreciate the nature of the charges to which a plea, or pleas, of guilty were entered: R v Ferrer-Esis (1991) 55 A Crim R 231 at 232 - 233. 37Under this ground, the defendants submit that at the time they entered their pleas of guilty they could not have been aware, and were not aware, that the charges under s 8(2) contained the allegation comprising the failure to inquire. This new allegation is said to significantly alter the nature of the charges in that the amended particulars for the first time: (a) explicitly recognise the control over and expertise in the safe construction of the access tower and the formwork used by BGA; (b) abandon the allegation that the principal of BGA, Mr Beytell, was exposed to risk while at ACP's place of work; and, (c) criticise ACP for failing to make inquiries with the party that held risk control and expertise as to whether the tower and formwork were safe, as distinct from ACP itself taking some direct steps to ensure the safe construction of those items. 38According to the defendants, this new characterisation of the offences would plainly have been relevant to their decision whether to enter pleas of guilty to the charges. This is because the explicit recognition of BGA's relevant control and expertise and the omission of the allegation with regard to Mr Beytell are consistent with, and would positively assist, the argument that the construction site was not relevantly ACP's "place of work". Furthermore, the defendants contend that it would be a miscarriage of justice to refuse leave to withdraw the pleas of guilty. 39To some extent the findings I have already made, in particular in relation to the issue of "place of work", are relevant to a number of the contentions relied upon under this ground. I have already indicated my view that based on the material before me, it is open to find that the subject premises was ACP's place of work with regard to Messrs McLeod, Wood and Malothane. The abandonment of the particular, which alleges that Mr Beytell was exposed to a risk while at ACP's place of work, I have dealt with. My findings apply with equal force to the contentions relied upon under this ground. 40Given that the defendants adhere to the correctness of entering pleas of guilty to the charges confined to the allegation concerning Mr Abel, it must follow that they comprehended, by entering their pleas, that they were admitting all of the legal elements of the offences, in particular that: (a) the incident site was ACP's place of work; (b) the pumping of concrete was ACP's undertaking; and (c) the risk outlined in the charges arose out of ACP's undertaking. 41At the time the pleas of guilty were entered on behalf of the defendants on 1 February 2010, they were each represented by experienced counsel and in possession of material in the prosecution brief which deals with the role played by ACP at the site on the day of the incident. According to the prosecution, no new evidence has been served by the prosecutor and no new material has been produced by any of the defendants which could be regarded reasonably as having placed a different complexion upon all of the material each of the defendants had in their possession when the subject changes of plea were entered. This particular issue was the subject of comment by Hunt CJ at el in R v Boag (1994) 73 A Crim R 35 at 39 where his Honour said: There has been no new material produced by the applicant since his plea which could reasonably be said to have placed a different complexion upon all of that material which he did have at the time of his plea. All that has happened is that different counsel has given the applicant more favourable advice as to a jury's likely reaction to that material than he was given by his counsel at the time of his plea. It is, however, clear that the applicant made a deliberate and fully informed choice to plead guilty at that time because he recognised that he was in fact guilty of inflicting these injuries with the required specific intention. Subsequent advice has led him to change his mind as to the inevitability that he would be found guilty, but I am not satisfied that it has altered his recognition of his own guilt. A plea is a formal act admitting such guilt. Once that admission has been made (and there are no circumstances indicating that the plea was not really attributable to a genuine consciousness of guilt), tactical advice that - despite his formal admission of guilt - the Crown case may possibly not succeed if the jury takes a particular view of the evidence does not, in my view, lead to a miscarriage of justice if he is held to that plea. 42The Court also agrees with the prosecution's submissions that the making of inquiries of BGA in relation to the sufficiency of scaffolding at the site (see particular 4(i) of amended charge, No. IRC 1450 of 2008) was always contemplated by the charges in that the prosecutor has always alleged that one of the steps which ACP could have taken in relation to controlling or eliminating the risk of formwork collapse was to seek a copy of, and to sight, a formwork engineer's certificate issued in accordance with cl 233 of the Occupational Health and Safety Regulations 2001 (repealed) (as a means of requiring verification: see particular 5(b) of amended charge No. IRC 1450 of 2008).

Whether inconsistent verdicts 43In oral submissions, the defendants raised an additional ground which was expressed in the following way: Fourthly, there is a real prospect that if the pleas are not permitted to be withdrawn, any verdict will not make sense and undermine confidence potentially in the administration of justice given that, A, Mr Beytell is no longer pursued for reasons which are difficult to understand in a way consistent with the rest of the prosecution's case, B, it is entirely possible and your Honour must assume it is possible that no liability will be found in relation to the other non-employees, Messrs McLeod, Wood and Malothane, C, such a result would on the base of the record be inconsistent with a conviction in relation to Mr Abel or at least might be. That would be contrary to the interests of justice. D, that would render the sentencing task practically impossible. 44The defendants have always accepted liability with regard to the events concerning Mr Abel. By accepting liability, the defendants concede that their pleas of guilty were properly made and that the subject premises was ACP's place of work. The defendants no doubt intended at the time the pleas were entered to dispute the facts with regard to the other three workers alleged to have been exposed to risks. Given this state of affairs they must be taken to have recognised and accepted a legitimate distinction on the facts between the construction site being ACP's place of work with regard to Mr Abel but not ACP's place of work with regard to the other three workers said to be exposed to risks to their safety. If the defendants continue to contest the issue utilising the same arguments relied upon in the present applications I see no impediment to a court finding that the subject premises may not be ACP's place of work with regard to the three other workers alleged to have been exposed to risks while finding that it was ACP's place of work with regard to the events concerning Mr Abel. The submission, which appeared to be put on a qualified basis, was not further developed by the defendants and accordingly I am unable to give it further consideration. 45For the foregoing reasons, I have not been persuaded that the orders sought by the defendants in their Notices of Motion should be granted. Accordingly, both applications are dismissed.

Orders 46The Court makes the following orders and directions:

The Notices of Motion filed on 7 June 2013 by the defendants in Nos. IRC 1450 and 1452 of 2008 and on 17 June 2013 in No. IRC 1454 of 2008 are dismissed.
Costs of the Notices of Motion are reserved.

Amendments 23 December 2013 - edited "unreasonable" to read "reasonable" Amended paragraphs: 26 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 January 2014

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (19)