Inspector Ching v Bros Bins Systems Pty LtdInspector Ching v Exo Pty Ltd t/as Tibby Rose Auto

PROSECUTOR Mr R Reitano of counsel Solicitor: Ms R Parmegiani WorkCover Authority of New South Wales

FIRST DEFENDANT Mr J P Phillips SC LEGAL REPRESENTATIVES: Solcitor: Mr J J Castrission Castrission & Co

SECOND DEFENDANT Mr P Kintominos of counsel Solicitor: Mr M Burns McClellands Solicitors

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 2 August 2004

Matter No IRC 5012 of 2001 INSPECTOR BARNABAS CHING v BROS BINS SYSTEMS PTY LTD Prosecution under s 17(1)(b) of the Occupational Health and Safety Act 1983

Matter No IRC 5013 of 2001 INSPECTOR BARNABAS CHING v EXO PTY LTD T/AS TIBBY ROSE AUTO Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

1 In these proceedings the court has heard concurrently charges brought by Inspector Barnabas Ching of the WorkCover Authority of New South Wales against two defendants. They are Exo Pty Ltd t/as Tibby Rose Auto ("Exo") and Bros Bins Systems Pty Ltd ("Bros Bins"). Evidence given during the course of the proceedings has been evidence against both defendants save for one limited exception which, for present purposes, is not relevant, The charges against each defendant are brought under the provisions of the Occupational Health and Safety Act 1983 ("the Act"). I should state at the outset that I am satisfied on the basis of the evidence that the prosecutor was authorised to institute these proceedings.

2 The proceedings against both defendants arise out of unfortunate circumstances involving the death of an employee of Exo. A truck, operated by Bros Bins, used for the removal of industrial rubbish by means of a bin mechanism, was taken to premises operated by Exo as an auto-electrician business to fix a problem with faulty taillights and traffic indicators. In order to repair the problem it was necessary to raise a hydraulically operated jib fixed to the back of the vehicle so that the auto-electrician, Mr Matthew Whitehouse, could get access. The hydraulically operated jib was raised by the driver of the vehicle, Mr David Wood, who then left the vehicle temporarily. The jib was locked in place by use of hooks which were operated pneumatically. Whilst he was working on the rear of the vehicle the pneumatic hooks disengaged and the jib collapsed onto Mr Whitehouse, killing him.

3 The charge and particulars brought against Exo are in the following terms: I, Barnabas Ching, of the WorkCover Authority of New South Wales. Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales and Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under Section 48 of the said Act to institute proceedings in the within matter allege that EXO PTY LTD T/AS TIBBY ROSE AUTO, [ACN NO: 083 964 256] a corporation whose registered office is situated at 591 Gardeners Road, Mascot ("the defendant"), on 22 November 1999, at premises situated at 591 Gardeners Road, Mascot in the State of New South Wales, being an employer

FAILED TO ensure the health, safety and welfare at work of all its employees, in particular Matthew Whitehouse and Darryn Targett, whilst undertaking vehicle service and/or repair work contrary to s 15(1) of the Occupational Health and Safety Act 1983.

The particulars of the charge are: (a) The defendant, at all material times, employed a number of personnel, including Matthew Whitehouse and Darryn Targett. (b) The defendant, at all material times, was in the business of Auto Electrical Repairs. (c) The defendant, at all material times, operated out of premises at 591 Gardeners Road, Mascot in the State of New South Wales. (d) At all material times Bros Bins Systems Pty Ltd engaged in the services of the defendant to carry out repair work on plant, to wit a 1977 Nissan Diesel Hydraulic pneumatic rear loading hook lift truck registration "WUBISH" (the said truck). (e) The defendant, at all material times, failed to adequately train, supervise and instruct employees carrying out servicing and/or repair work on the said vehicle. (f) The defendant, at all material times, failed to provide and maintain safe systems of work for employees carrying out servicing and/or repair work on the said vehicle. (g) The defendant, at all material times, failed to ensure that the plant, to wit the said vehicle hoist truck, was safe and without risk to employees carrying out servicing and/or repair work on the said truck. (h) As a result of the said failures, Matthew Whitehouse and Darryn Targett were placed at risk of injury.

4 The charge and particulars brought against Bros Bins are in the following terms: I, Barnabus Ching, of the WorkCover Authority of New South Wales. Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales and Inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and empowered under Section 48 of the said Act to institute proceedings in the within matter allege that BROS BINS SYSTEMS PTY LTD [ACN NO. 000 633 081] a corporation whose registered office is situated at 189 King Street, Mascot ("the defendant"), being a person who, on 22 November 1999, at 591 Gardeners Road, Mascot in the State of New South Wales, had, to any extent, control of plant, to wit a 1977 Nissan Diesel Hydraulic and pneumatic rear loading hook lift truck, registration "WUBISH", which plant had been provided for the use or operation of persons at work, not being employees of the defendant

FAILED TO ensure the said plant was safe and without risk to health, contrary to s 17(1)(b) of the Occupational Health and Safety Act 1983.

The particulars of the charge are: (a) The defendant, at all material times, was the owner of a 1977 Nissan Diesel Hydraulic and pneumatic rear loading hook lift truck, registration "WUBISH". (b) The defendant, at all material times, was in the business of supplying and removing industrial hook lift bins. (c) The defendant, at all material times, engaged the services of Exo Pty Ltd t/as Tibby Rose Auto, to carry out repair work on the said truck. (d) The defendant, at all material times, (i) Failing to provide a safety prop or other mechanism to prevent the tilt tipping mid section of the said plant from descending whilst service/repair work was being carried out underneath it. (ii) Failing to correctly identify all levers and switches inside and outside plant as to their functions. (iii) Failing to install a safety lock, shroud or other safety mechanism on the hooks engagement/disengagement lever, incorrectly labelled "hoist/raise/hold/lower" lever of the plant. (e) The defendant, at all material times, failed to ensure persons repairing or servicing the plant were adequately supervised and instructed on the safe operating procedures of the said plant. (f) The defendant, at all material times, failed to adequately inform persons working on the repair or maintenance of the said plant of the lever control functions of the said plant. (g) As a result of the said failures, Matthew Whitehouse and Darryn Targett were placed at risk of injury.

5 Before discussing the evidence it is useful to focus attention on the essence of the allegations levelled against each of the defendants by the prosecutor. As against Exo the prosecutor alleged that that defendant did not have in place systems which would enable it and its employees to recognise the danger of working on a vehicle of this kind, and that its employees had not been trained or instructed to recognise those dangers and to take remedial action to remove the dangers. The prosecutor alleged that the defendant did not have available to it any means to prop up or support the hydraulic jib to prevent it falling if the pneumatically operated hooks failed.

6 As against Bros Bins it was alleged that the vehicle itself should have been fitted with a safety prop or other mechanism to support the jib whilst it was raised, that a safety lock or other safety mechanism should have been installed so as to preclude a lever which operated the pneumatically driven hooks from being inadvertently moved so as to disengage it and that the lever and other levers and switches inside the cabin of the vehicle were not adequately labelled, to make anyone working within the cabin aware of the consequences of touching or moving any such piece of equipment. In addition, it was alleged that this defendant failed to ensure that anyone working on the vehicle and within the cabin was told about the dangers associated with the movement of the lever which controlled the pneumatically operated hooks, and that persons working on the vehicle were not adequately told about the danger created by the fact that the jib might suddenly fall if the locking mechanism created by the pneumatically driven hooks ceased to operate and the jib was otherwise unsupported.

7 At the time that this incident occurred the Bros Bins vehicle was being driven by David Wood. Present in the Exo premises were the deceased auto electrician Matthew Whitehouse, two other auto electricians Darryn Targett and Robert Vrbanc, and a director of the company, Mr Clifford Boulton.

8 The vehicle concerned was owned by Bros Bins Pty Ltd, but operated at all times by the defendant company. Mr Josh Turnbull was a director of both the defendant company and Bros Bins Pty Ltd.

9 The vehicle itself was a 1977 Nissan Diesel truck. According to evidence given by Inspector Barbosa of the WorkCover Authority of New South Wales, mounted on the chassis of the truck: "there was a mechanism used to lift and dump waste bins, comprising of a hook attached to the end of a mast/jib of steel and a rear-lifter/swivel balance. This mechanism was activated by a double-acting hydraulic ram allowing the mechanism to perform the rising, lowering and dumping operation of the waste bins. The rear lifter/swivel balance comprising of a massive piece of steel and two hooks, one to each end, which were to be connected to the pins attached to the main mast/jib. Inside the truck's cabin, next to the steering wheel column, was a mechanism known as the PTO switch (power take off switch) with two levers subsequently connected to the hydraulic valve/switch system." It is not necessary that I describe in any further detail the mechanism for raising and lowering the hoist mechanism through the hydraulic system. However, it is necessary to describe in a little detail the pneumatically driven hook system and the means by which the hooks are engaged and disengaged. The mast or jib comprised two sections. Whilst the evidence in the proceedings seems to have attached different names to the components, I shall endeavour to use language which is, hopefully, reflective of what I perceived to be that commonly used in the course of the evidence given in the proceedings. The portion of the mast or jib closest to the rear of the truck was attached to the chassis by rollers which enabled it to be raised and lowered. This was called the mid-section and it could be attached to the section of the mast which was near the cabin of the truck by means of hooks which attached to that extended section over a stub. The hooks were operated by a pneumatic ram which in turn was controlled by a lever in the cabin. When not attached to the extended section of the mast or jib, the mid-section would lie horizontally along the chassis of the truck. Hydraulic rams would then allow the further section of the jib to be raised and lowered from a position attached to the mid-section. This mechanism allowed industrial bins to be placed upon and removed from the truck. When the bins needed to be emptied, the mid-section of the jib was attached to the further section by means of the hooks to which I have referred. These hooks kept both sections in place and, accordingly, the whole of the mechanism could be raised from the pivot-point of the rollers at the rear of the chassis away from the cabin. This created an extended jib or mast, and allowed for a much greater carry so that the bin could be emptied.

10 I should add for completeness that a video of the operation of the mechanism of the vehicle including both sections of the jib was arranged by Constable Grant Henville of the engineering investigation section of New South Wales Police. That video became evidence in the proceedings. Constable Henville is a qualified automotive mechanic and has other qualifications concerning automotive engineering. Constable Henville also gave evidence in the proceedings.

11 Mr Wood gave evidence. He had worked for the defendant, Bros Bins, for about 11 years. He was told by Mr Turnbull to take the vehicle to the workshop operated by Exo, and arrived there at about 5:30pm on 22 November 1999. He saw Mr Whitehouse who checked the fuse box inside the cabin and removed some switches from near the steering wheel. Mr Whitehouse was assisted from time to time by Mr Targett. It became necessary for Mr Whitehouse to repair some wiring near the differential. In order to get access to that wiring it was decided that the hydraulic system would be lifted up. Because the part of the vehicle on which Mr Whitehouse was to work was underneath the mid-section, it was necessary for Mr Wood to apply the pneumatically operated hooks which he did and he then lifted the whole of the jib section, both parts of which were attached by the hooks by using the hydraulic ram. This left the jib section, the mid part of which was above the area where Mr Whitehouse had to carry out work, suspended in the air, held in place by the hydraulic rams and also the pneumatically operated hooks. After doing this Mr Wood left the cabin of the vehicle. He observed Mr Targett on the mudguard. He then went to the back of the vehicle and saw that Mr Whitehouse and Mr Targett had a steel bar about an inch thick by about a metre long which they tried to prop between the chassis and the mid-section of the jib, presumably as a safety measure. However, because they were trying to prop metal against metal it slipped. Mr Wood said that he was asked by them whether he had any "four-by-two" timber. When he said that he did not have any, Mr Wood told Mr Whitehouse that the hooks were connected, the jib could not come down while the hooks were connected and therefore "it should be OK to work on".

12 There was some inconsistency in the evidence with respect to the availability of timber which could be used to prop up the jib. Mr Vrbanc said that there were some large blocks of timber which were used for "securing things" and "for hammering things on". He also said that there were some pieces of four-by-two timber lying around which were "always in the workshop" and that they were of varying lengths. However Mr Targett said that there were no pieces of four-by-two timber but that there was "wood around the workshop".

13 It is clear from the evidence that whilst Mr Whitehouse was working at the rear of the vehicle underneath the raised jib Mr Targett had accessed the cabin. He replaced the fuse box but, on his own evidence, was adamant that he did not touch any control. He said that he performed all of this work from the passenger's seat in the cabin and was well away from the lever which operated the pneumatic hooks.

14 Mr Wood went to the counter to get a drink. When he returned to the vehicle he heard a loud hiss indicating the escape of air and realised that the pneumatic hooks had been released from the extended portion of the jib and that, therefore, there was nothing holding the mid-section of the jib up. He yelled out to Mr Whitehouse to get out from the vehicle but then the mid portion of the jib fell down, crushing Mr Whitehouse to death.

15 Mr Wood immediately went to the vehicle to see whether he could raise the jib and release Mr Whitehouse, not knowing at that stage that he was already dead. As he was getting into the cabin Mr Targett was getting out of the cabin and he accused Mr Targett of releasing the hooks by touching the lever which controlled them. Mr Targett denied this.

16 The vehicle was examined extensively by Constable Henville following the incident and, as I have said, Constable Henville gave evidence. There was also admitted into evidence a switch mechanism similar to that which was within the vehicle at the time that this incident occurred about which extensive evidence was given by a number of witnesses. There was also evidence given about the operation of the lever which activated the pneumatically controlled ram and in turn operated the hooks which locked or unlocked the mid-section of the jib to the extended section.

17 It was the evidence of Constable Henville that the midsection of the jib may have remained in place up to 20 minutes after the hooks were removed. However, given the evidence of Mr Wood it seems clear that the jib collapsed almost immediately after the hooks were removed. This is because he heard the loud hiss of air which was indicative of the removal of the hooks by the activation of the pneumatically driven ram.

18 I am satisfied from the evidence of Constable Henville that the only means by which the hooks could have been removed was the activation of the lever which controlled the pneumatic rams. That lever is spring-loaded and has three positions. In order to attach the hooks by using the pneumatic rams, the lever is put into the upper position. It can only be placed in that position if a protective sheath is raised by placing two fingers around it and raising the sheath against pressure applied by the thumb. Once in this raised position, the lever will remain there unless pushed downwards. It does not take a lot of pressure to push the lever downwards and there is not much travel. There is no need to raise the sheath in order to lower the lever from the upper-most position. However, once it is lowered it then stops in the next position down and cannot be moved from that position without the sheath being raised.

19 There was a great deal of controversy concerning the effect of lowering this lever from the uppermost position to the next position down. It was the clear evidence of Constable Henville that once the lever had reached this intermediate position, this would result in the hooks becoming disengaged. Constable Henville was cross-examined vigorously on this aspect of his evidence but he remained adamant.

20 Mr Wood said that the lever was in this intermediate position when he saw it immediately after the accident. Mr Wood was cross-examined about the effect of moving the lever to this intermediate position. Although he said that this would not be sufficient to release the hooks he also said that he did not know about that intermediate position because he always pulled the lever down to the very lower position when deliberately unlocking the hooks. This evidence was repeated several times during the course of the cross-examination. Accordingly, there are inconsistencies which I do not attribute in any way to any attempt by Mr Wood to conceal the truth. The inconsistencies result, in my opinion, more from confusion created by cross-examination and the obvious pressure which Mr Wood displayed whilst giving evidence. Ultimately Mr Wood was unable to explain why the hooks had disengaged with the lever in the intermediate position if that position did not activate the pneumatically driven rams.

21 Mr Turnbull gave evidence that in his opinion it was necessary to push the lever down past beyond the mid-point towards the lowest point in order to deactivate the hooks and that this would involve raising the sheath in the manner which I have already described. However, Mr Turnbull said that he did not examine the control mechanism after the accident and his evidence does not indicate when was the last occasion that he himself had used the lever before the incident.

22 Evidence was also given on behalf of Bros Bins by Mr Falanga who has expertise in this type of equipment. However, whilst he was able to describe the way in which the equipment normally operated, he had never used the lever in the vehicle and had never tested it.

23 In all the circumstances I prefer the evidence of Constable Henville. This was to the effect, as I have said, that the lever could easily be moved from the top position to the mid-position without the sheath being raised and this released the hooks. In my opinion this constitutes a situation where there was no protection against the deliberate or unintended release of the pneumatically driven hooks which was the only mechanism in place to stop the mid-section of the jib from collapsing onto Mr Whitehouse.

24 On the basis of the evidence given in the proceedings I am unable to conclude whether the pneumatic lever which ultimately controlled and caused the removal of the hooks was activated by Mr Targett either intentionally or unintentionally. It is clear from the evidence that he was the only person in the vicinity of the cabin at the time that this occurred. Mr Vrbanc was working nearby, Mr Boulton was in the office, Mr Wood was near the vehicle and Mr Whitehouse was working on the rear section of the vehicle. However there is one further piece of evidence which needs to be taken into account in this regard and that is that immediately after the incident Mr Wood observed that some electrical switches which were attached to part of the dashboard of the vehicle which had been removed were hanging down close to the lever which operated the pneumatics. It seems from the evidence that this bank of switches may have been removed by Mr Whitehouse and certainly Mr Targett was adamant that he did not do so and that he had not touched them. Mr Wood thought that the switches had been hanging in the same position before he had operated the mechanism of the vehicle to place the hooks into position and lift the jib using the hydraulic rams. It is possible, therefore, that in some way this bank of switches which was hanging in proximity to the lever came into contact with it and pushed it to the mid-point. In these circumstances it is inappropriate to make any positive finding that Mr Targett in some way activated the lever.

25 There are a number of other factual matters which need to be dealt with in terms of the specific allegations made against each of the defendants.

26 In terms of the vehicle itself, the evidence was to the effect that none of the levers involved and, in particular, the lever which operated the pneumatic system for engaging and disengaging the hooks was labelled. Appropriate labels were attached by Bros Bins after the incident.

27 In the same vein, Bros Bins installed a safety prop which was attached to the truck after the incident.

28 Mr Wood gave evidence that he had received no training from Bros Bins as to any procedures where persons were required to carry out work under the raised section of the jib. Mr Wood conceded that he did not inform anyone at Exo that the jib would fall if the hooks were disengaged, nor did he warn anyone at Exo that they should not touch or otherwise interfere with any of the controls of the vehicle whilst the jib was raised and Mr Whitehouse was working underneath it.

29 With respect to the general procedures and safety systems operating within Exo, the evidence is to the effect that the auto electricians, all of whom were experienced, were given no specific instructions as to the manner in which they should carry out their work. In a technical sense, whilst all of the employees answered to Mr Boulton, Mr Whitehouse was the senior employee and Mr Boulton regarded him as being the "foreman" and supervisor of the other employees. Indeed, Mr Boulton in evidence took the view that there was no necessity, and indeed a certain futility, in him endeavouring to supervise Mr Whitehouse who had much more expertise than Mr Boulton.

30 Although there is some evidence to the effect that Mr Boulton was concerned about safety and enforced safety matters given under cross-examination by Mr Targett and Mr Vrbanc, both those witnesses gave evidence that they had neither been instructed nor trained in the use of props or other safety devices when working under raised equipment. On the other hand, they regarded this as common sense, as did Mr Boulton in his evidence.

31 The Occupational Health and Safety legislation creates obligations on employers and others which are absolute in their terms. This applies in the circumstances of these proceedings to sections 15(1) and 17(1)(b) of the Act. There is an extensive body of case law developed in this Court and its predecessors which explains the nature and extent of these obligations. It is not necessary that I refer to these authorities in general terms, but I do wish to make some observations which relate specifically to the defendants in these proceedings.

32 In complying with their obligations under the Act the defendants are required to be vigilant and to exercise foresight in all aspects of the work environment. This requires a structured, systematic approach to safety in everything which is touched by the operations of the defendants. It is not enough to endeavour to comply with these obligations on an ad hoc basis looking at particular matters from time to time. It is not enough merely to employ competent and skilled employees, because they can sometimes become complacent, careless or inattentive, especially while working under pressure. Also, the employment of competent and skilled employees does not necessarily mean that a structured and systematic approach to occupational health and safety matters has been created. Employers are required to actively assess and take account of all risks which might foreseeably arise. Systems need to be created to deal with these risks and, to the extent possible, eliminate them. Employees need to be instructed and trained to apply those systems. The employer needs to assess from time to time whether those systems are working and whether employees are following them. This involves supervision.

33 On the basis of the evidence given in these proceedings I am satisfied that neither Exo nor Bros Bins had undertaken any structured or systematic approach in the creation of a system of work and in the recognition and appraisal of risks associated with the circumstances in which, on 22 November 1999, rectification work was carried out on the truck in question at the premises of Exo. Whilst common sense might have dictated that a prop either be installed on the vehicle or utilised by Exo, there was certainly no evidence of any structured approach to the provision of a prop at the Exo premises. At best, there were materials which were lying around and which were used on an "as needs" basis in order to prop up equipment. It was the evidence of Mr Boulton that, to his knowledge, Exo had never worked on a vehicle of this kind previously. That fact of itself alone required that someone assess what needed to be done to ensure that the work should be carried out safely. Even if it could be said that it might have been sufficient to have relied on the fact that the jib was locked into place by the pneumatically driven hooks, it would nevertheless have been necessary to ascertain the circumstances in which the hooks might become disengaged. This would have required both ensuring that neither Mr Targett nor anyone else approached the cabin whilst Mr Whitehouse was working underneath the raised jib and that the state of the cabin was such that no item of equipment in it could have accidentally come into contact with the lever. Furthermore, there needed to be an assessment of what would happen if the lever moved from its uppermost position to the next position down and as to whether this would have the effect of disengaging the hooks. All of this presupposes that it would have been safe for Mr Whitehouse to have worked under the jib without some form of prop mechanism being used as a secondary safety matter. Of course, in the circumstances of these proceedings, the use of a secondary supporting mechanism was crucial. As I have said, there was no evidence of any systematic instruction or training given by Exo to any of their employees whether orally, in writing or a combination of both. Neither was there any evidence of any supervision of any ad hoc understanding or arrangement directed to minimising risks to health and safety at the workplace.

34 In the same way, there is no evidence that Mr Wood was either trained or instructed concerning any procedures where other persons might be called upon to carry out work on the truck, especially in circumstances where danger was created when the jib was raised. He was not told of the necessity to warn others who might be carrying out the work on the truck in those circumstances and to take steps to ensure that any danger was minimised. Nor is there any evidence that Bros Bins had considered whether a prop should be constructed and installed on the truck itself. There is evidence in the proceedings that other vehicles have such props installed, and indeed, the truck in question now has a prop consequent upon an improvement notice issued by a WorkCover inspector after the incident.

35 These are the practical ways in which the defendants have failed to comply with their obligations.

36 The defendant Exo raised two particular matters by way of defence. Firstly it sought to rely on the provisions of s 53 of the Act which provides a defence to proceedings brought under the Act and which is in the following terms: Section 53 It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

37 The comments, findings and observations which I have already made are sufficient to dispose of any argument concerning the application of a defence under s 53. There can be no suggestion that it was not reasonably practical to create a system involving the requirement to use a prop and involving an assessment to be undertaken of the risks associated with working under a raised jib. In the same way there can be no suggestion that Exo had no control over what occurred and that it was impracticable to make provision against this tragic occurrence. It is sufficient to state what could have been done to render the application of s 53 as being inappropriate.

38 Exo also submitted that the incident was the result of a casual act of negligence of a skilled employee, Mr Whitehouse, and involved no breach by the defendant of its obligations under the Act. Such a submission is only valid if the prosecutor is unable to prove that there is any causal connection between the acts or omissions of the defendant and the risk created to the health and safety of affected persons. This is referred to as a "causal nexus" between the conduct of the defendant and the risk to safety which is the basis of the charge. I have already pointed out that this defendant had failed to set up a process in a systematic and organised fashion to identify the risk of working under a raised jib, and that this defendant had failed to organise in a systematic way training, instruction and supervision of its employees. It had also failed in a systematic and organised way to ensure that there was a prop available to remove the risk. This conduct, which includes a failure to act, on the part of Exo, was a direct cause of the risk to the safety of Mr Whitehouse which was created by the events which occurred. There is therefore a causal connection between the conduct of this defendant and the risk to safety referred to in the charge. A casual act of negligence will only be relevant in circumstances where an employer has put in place a structured and organised system to identify and deal with risks to health and safety including the instruction, training and supervision of employees and that the only reason for the particular risk to safety was a casual act of negligence on the part of an employee who had otherwise been properly instructed, trained and supervised which could not reasonably have been anticipated by the employer. This is not the case here.

39 If authority for these basic principles is necessary, I refer to a decision of the Full Bench of the Industrial Commission of New South Wales in Court Session in State Rail Authority of NSW v Dawson (1990) 37 IR 110. At pp 120-1 the Full Bench observed: "Although s 15 (l) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus he established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Limited ((1998) unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety'.".

40 Whilst the Full Bench in those proceedings noted the necessity for the prosecution to demonstrate a causal nexus between the breach and the detriment occasioned to the employee, the Full Bench dealt in its judgment specifically with two alternative hypotheses. The first was whether a failure to properly supervise in the circumstances of those proceedings was relevantly a failure of the employer for the purpose of s 15 of the Act. The second was whether the failure by the foreman in the allocation of work and in supervision of the employee was in effect a casual omission for which the employer was not relevantly to be held responsible. At p 125, the Full Bench observed: "Whilst we have found there was a failure to relevantly supervise Mr McFadyen, that failure was the failure of the foreman. On balance, and viewing the evidence as a whole, we are unable to be satisfied beyond a reasonable doubt that the failure was also that of the appellant. There was no suggestion in the case that the appellant had not laid down a safe system of work, only that it had not supervised Mr McFadyen so as to ensure his safety. But the facts are clear in that there was ample supervision available through the foreman and at least two other qualified linesmen; it was a matter of their proper deployment according to the work then in hand. That deployment, particularly on a remote site, must be a matter for the senior supervisor present. There was in fact a failure by the foreman to adhere to the procedure or system of work laid down in clear terms by the appellant. The appellant, in our view, cannot be held liable under s 15 in such a situation, once it be found qualified supervisors have been provided by it. Our conclusion on the facts is that it is equally consistent for the accident to have occurred by reason of a casual omission by the foreman in the allocation of work to Mr McFadyen and in the supervision of him in the performance of that work. The appellant, in our view, having laid down a safe system of work, has not done or omitted to do anything causally connected with this tragic accident. What occurred was beyond the employer's control."

41 As I have previously observed, there were factors present in the circumstances of these proceedings which demonstrated an inadequate approach to the evaluation and assessment of risks associated with the particular work being performed by Mr Whitehouse and in the failure to take remedial steps to remove the risk of injury. Accordingly, the submission with respect to lack of causal nexus and the assertion that the incident was solely the cause of a casual act of negligence on the part of Mr Whitehouse cannot be sustained.

42 Mr Phillips also sought to draw analogies by reference to common law concepts of negligence. In simplistic terms the elements of a claim for common law damages based on negligence, particularly in the area of employers' duties to employees involves an assessment as to whether there was a risk of injury which was reasonably foreseeable and whether there were means reasonably available to the employer to avoid that risk of injury. Exo sought to rely on this approach in determining the outcome of these proceedings, emphasising that the manner in which the work was to be undertaken was at all times under the immediate control of Mr Whitehouse. However, this approach is impermissible because it is not consistent with the obligations imposed on employers by s 15(1) of the Act. That obligation is of an absolute nature because the employer is compelled to ensure that there are no risks to health and safety. If authority be required for such an obvious proposition, I refer to the joint judgment of Wright J, President, and Walton J, Vice-President, in Drake v WorkCover (NSW) (1999) 90 IR 432 at 452. Accordingly, I reject this submission.

43 A specific matter was raised by way of defence on behalf of Bros Bins. It was based upon the particulars of the charge which I have previously set out. One of the particulars was that the defendant was the owner of the truck. Evidence given by Mr Turnbull was to the effect that the truck was owned by a company Bros Bins Pty Ltd and not the defendant, Bros Bins Systems Pty Ltd. It was submitted that as one of the particulars contained in the charge has not been made out the prosecution should fail. This submission misconceives the nature of the proceedings and what it is that the prosecutor needs to establish in order to secure a finding that the offence charged has been proved. All that is necessary is for the prosecutor to prove to the requisite extent each and every ingredient of the charge. The charge has previously been set out. It is based on the fact that the defendant had "to any extent, control of plant" namely the truck as described. It is the element of control which is necessary to be made out by the prosecutor, not ownership. Once the element of control has been proven beyond reasonable doubt, then provided that the remaining ingredients of the offence are likewise established, a finding of breach may be made.

44 Having regard to the evidentiary material to which I have referred and the evidence given generally in the proceedings I make the following findings with respect to each of the defendants, having been satisfied as to each and every matter that I can do so beyond any reasonable doubt: As to Exo Pty Ltd I find that on 22 November 1999: 1. That on that day there was employed by it Matthew Whitehouse, Darryn Targett and Robert Vrbanc. 2. That at that date the defendant carried on the business of auto electrical repairs from premises at 591 Gardeners Road Mascot. 3. That on that date the defendant was engaged to carry out certain work on a 1977 Nissan Diesel Hydraulic pneumatic rear-loading hook lift truck whose registration was "WBISH", such truck being provided to it by the defendant, Bros Bins. 4. That the defendant failed to have in place a system requiring its employees to ensure that the raised jib of the truck was properly secured so as to allow the servicing work to be carried out safely. 5. That the defendant failed to ensure that a safety prop or some other means of support was provided and used to enable the upraised jib to be secured in the event that the pneumatic hooks should fail or otherwise cease to have effect. 6. That the defendant failed to ensure that the cabin was secured in a safe manner so as to avoid the pneumatic lever being moved either accidentally or intentionally by any person or by any object coming into contact with it. 7. That the defendant failed to put in place a system providing for the instruction, training and supervision of employees in and about the safe practice of supporting a raised item of equipment while an employee was working under it. 8. That as a result of these matters, Matthew Whitehouse was placed at risk of injury and suffered fatal injuries that day. 9. That the defendant thereby failed to ensure the health, safety and welfare at work of its employee, Matthew Whitehouse, contrary to s 15(1) of the Act.

As against the defendant Bros Bins I find that on 22 November 1999: 1. That the truck previously described constituted plant provided for the use or operation of persons at work, not being employees of the defendant, namely that the defendant required that employees of Exo and in particular Matthew Whitehouse carry out work on the vehicle, so providing the vehicle for his use at work. That vehicle was plant for the purpose of s 17(1)(b) of the Act. See Inspector Ching v Bros Bins Systems Pty Ltd (2003) NSWIRComm 3086, a decision of the Full Bench of this Court. 2. That the defendant had control over the truck whilst at the premises of Exo in that its employee retained control over and manipulated the hydraulically raised jib system and the pneumatically controlled hook system. 3. That the defendant failed to provide a safety prop or other mechanism to prevent the tilt-tipping mid-section of the truck from falling whilst work was being carried out underneath it. 4. That the defendant failed to ensure that the lever which operated the pneumatic hook system could not be disengaged or otherwise moved in circumstances where, to do so, would cause the raised jib to fall. 5. That the defendant failed to install a safety lock or some other mechanism to ensure that the lever which operated the pneumatic system could not be moved inadvertently or otherwise accidentally. 6. That the defendant failed to instruct and train its employee David Wood to ensure that any person not an employee of the defendant who entered the cabin of the truck whilst work was being performed on it was warned not to touch or otherwise cause the lever of the pneumatic system to move. 7. That the defendant failed to warn its employee David Wood that he should in turn ensure that the contents of the cabin on the truck were such that they could not cause the lever of the pneumatic system to move so as to disengage the hooks. 8. That the defendant thereby failed to ensure that the truck was safe and without risk to health contrary to s 17(1)(b) of the Act.

45 It follows that each of the defendants is found guilty of the charges brought against them. The proceedings are stood over so that they may be listed for a hearing concerning penalty. I grant liberty to apply to have them so re-listed which may be exercised by any party making application to my Associate.

46 ORDERS I make the following orders: 1. Each of the defendants is found guilty of the charge brought against them.

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