[31] The Act thus demarcates the activities of designing a structure, manufacturing materials to be used for its erection, importing or supplying any materials used "for the purposes of the structure" and undertaking the erection of the structure ...
[32] Moreover, there is a difference in the scope of these statutory duties. The duty of a designer extends to "the persons who are required to erect" the structure so that they may do it "safe from injury and risks to health". The duty of a manufacturer extends to "the persons who are required to erect the structure" so that they are "in using, handling or otherwise dealing with the materials, safe from injury and risks to health". The duty of an importer or supplier of materials extends to "any person who must use, handle or otherwise deal with the materials", while the duty of the person undertaking the erection is to ensure so far as is reasonably practicable "that the structure is safe during the course of its erection and subsequent use " (emphasis added).
[33] The range of duties laid out in s 24(2a) ... on the basis of tasks undertaken is in contrast to the allocation of duties in the adjacent subsections. These remain in a form substantially unchanged from the original text of the Act. Section 24(1) imposes duties upon a person "who designs, manufactures, imports or supplies any plant" to which that sub-section applies, while s 24(2) imposes duties upon a person who "erects, installs or modifies any plant" to which that sub-section refers. Section 24(3) imposes duties upon a person "who manufactures, imports or supplies any substance for use at a workplace". The subsections serve to highlight the more precise division of duties in s 24(2a) and hence to elucidate the reach of that subsection.
[34] Subsection (2a) divides and allocates in paras (a)-(d) duties between those who design a structure, those who manufacture any materials to be used for its "purposes", those who import or supply any materials to be used for its "purposes" and those who undertake its erection. The difference in the content of the duties and their different scope of operation suggests that the duty imposed upon designers is intended to be limited to matters of design. To deal with examples raised during argument, it would not be incumbent on a designer to guard against a supplier of material or an erector incorporating substandard or inferior materials when constructing the design. The supplier or erector or both would be in breach of their own duty under the relevant paragraphs of s 24(2a). The express imposition of liability upon those parties for such acts suggests there is not to be implied in para (a) of s 24(2a) an imposition upon the designer in respect of the same matters.
[35] The same would follow in respect of the erection of a structure outside or otherwise not in accordance with its design. The imposition by para (d) of liability upon the person undertaking the erection of the structure suggests that the designer is not required by para (a) to anticipate errors or departures from design by the person undertaking the erection and to take steps to guard against it by modifying the design. The result of accepting submissions for the appellants would be to enlarge the scope of para (a) to cover the matters already dealt with in paras (b), (c) or (d). This would tend to distort the scheme of the Act and undermine its careful allocation of liabilities among the parties jointly responsible for the erection of a structure. It would also expose designers to criminal liability for a penalty of up to $50,000 in respect of matters not expressly mentioned in the statute. The court should be slow to interpret a law in a fashion which would impose criminal liability by a process of implication.
[36] This conclusion is fortified by the text of para (a) itself. This requires "the person who designs the structure" to "ensure so far as is reasonably practicable that the structure is designed" so that those erecting it are "safe from injury and risks to health". It is not a duty to ensure that those erecting the structure are safe from injury and risks to health. This would approximate some form of non-delegable duty of care in respect of all aspects of the erection of a structure. More particularly, any feature or structure included in a design might not be, or be only incompletely, complied with during the course of a structure being built according to it. A builder might depart from a designed overlap of 1 mm by building the structure 2 mm wider than designed, or depart from a designed overlap of 2 mm by an error of 4 mm, or from a designed overlap of 3 mm by an error of 6 mm, and so on. In the statutory text, no means is provided to differentiate between those departures required to be anticipated by a designer and those which are not. Nor are cases construing the words of other statutes helpful. To attempt to build a superstructure sufficiently finely-tuned to be capable of distinguishing between such examples would build too much upon the words of the paragraph. The text of para (a) cannot bear the added weight that would be necessary to allow the distinctions contended for by counsel for the appellants.
[37] The ordinary and natural meaning of the terms in para (a) of s 24(2a) is that they apply to a structure being built in accordance with the design. Thus, if, as designed, parts of a structure are incapable of bearing weight that the structure is intended to bear, or if, as designed, it is possible for parts of the structure to fall or break, or if the design is incapable of being built safely having regard to features of the location in which it is being built, then the design will be inadequate and the designer will have breached s 24(2a). The appellants stressed the presence of the term "must ensure". However, the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.
13 The prosecutor relied on para [37] of the joint judgment to submit that, as a designer, the duty of the defendant in the present matter applied to matters which were within its power to check, such as whether the gates would be capable of manual use, the type of motor to be used and the speeds at which the gates could travel under these modes of operation. The defendant submitted that the legislature could not have intended that, by s 11(1)(a) of the Act, the duty imposed on a designer of plant would be 'limitless'. The purpose of that section was limited to imposing a duty on a designer's design of the plant rather than suggesting that a designer had an unlimited responsibility for the safety of the plant, independently of the design. The application of s 11(1)(a) was limited by that purpose so that the duty that was imposed should be understood to be limited to the matters of the designer's design. For this submission, the defendants also relied upon para [34] of the joint judgment in Slivak. It was further submitted that the section would only be contravened if there was a connection between the designer's design of the plant on the one hand and a failure to ensure the safety of the plant on the other. The failure must lay in the designer's design if the designer is to be liable for contravening the section. That construction was said to be consistent with the language of clauses 86, 87 and 88 of the Regulation. The charge drawn by the prosecutor alleged a failure to include in the design any or any adequate devices to prevent the western leaf of the western gate falling during manual operation and it was therefore critical to identify with precision, what the defendant was required to design because that design defined the limits of the duty imposed on the defendant by s 11(1)(a).
14 While there are many observations that assist in a proper construction of the provisions of s 11 of the New South Wales Act, the structure of the South Australian Act is sufficiently different to distinguish aspects of the approach in Slivak. The South Australian provision is structured so that a number of the duties that are found in the Regulation in New South Wales are specified as part of the statute. More significantly, the structure of the New South Wales Act is such that it suggests an inter-connection between the designers, the manufacturers and the suppliers of plant. Under s 11(1) the designers, the manufacturers and suppliers of plant are to ensure that the plant is safe and without risk to health when properly used and they are to provide, or arrange for the provision of adequate information about the plant or substance, to a person to whom it is supplied to ensure its safe use. Even under the carefully drawn South Australian provisions, a designer was to undertake, for example, enquiries to ascertain the purpose of the structure and was to ensure that part of the designed structure would not "fall or break". Under s 11 it would be within the power (rather than outside the power of the designer) to make enquiries as to the type of motor to be used to operate the gates after being informed that they are to be motorised and whether there is a manual override function in relation to the motorised mechanism. It is not to be assumed, for example, that merely because a gate is intended to be motorised in its operation rather than being manually operated that the a motorised gate will never have to be manually operated. A motor without a manual override might satisfy the designer that the use of the gate is such that, if for some reason the motor failed, manual operation would not be possible. Proper enquires would need to be made regarding the operation of such a motor. After making the simple enquiry about how the gates were to be moved and finding that a manual override motor would or could be used, the designer, to comply with s 11(1), would either need to advise the client that a stop would be required to prevent the gate from drawing beyond the portal and falling with risk to safety, or, alternatively, specify a stop in the design either as part of the design or to be supplied as a proprietary line.
15 There is an important difference in the structure of the South Australian provision and the terms of s 11. Putting aside the difference in the absolute obligation imposed by s 11, s 24 of the South Australian Act is in similar terms to s 11(1)(a) where s 11 talks about "when properly used". The South Australian Act also adds "when subjected to reasonably foreseeable forms of misuse". The nature of the obligations for those who design, manufacture and import or supply are then set out in sub-section 2(a) of s 24 of the South Australian Act but in the New South Wales legislative scheme more expansive detailed provisions are set out, not in s 11 but in the Occupational Health and Safety Regulation 2001. As the High Court pointed out, under the South Australian Act, the duty of a designer extended to persons who were required to erect the structure so that they could do it safe from injury and risk to health. The duty of manufacturers extended to persons who were required to erect a structure so that they were, in using, handling and otherwise dealing with the materials, safe from injury and risk to health. The duty of an importer or supplier extended to any person who must use, handle or otherwise deal with the materials. It was in this context that the High Court said that the Act demarcated the activities of designing a structure, manufacturing materials to be used for its erection, importing or supplying any materials used for the purpose of the structure and undertaking erection of the structure.
16 The Occupational Health and Safety Regulation 2001 imposes particular obligations on the designer in relation to, amongst other things, the "use" of the plant at a place of work. Thus, under cl 86, the designer is to identify any foreseeable hazard that may arise from the design of the plant that has the potential to harm the health and safety of a person during the use of the plant at a place of work. Under cl 87, a designer of plant must assess the risk of harm to the health or safety of a person arising from any hazard identified in accordance with the Division and is then to identify the design requirements and any other actions necessary to eliminate and control the risk. Under cl 89, the designer must design plant so that risks associated with the use of the plant are eliminated or are controlled. The same may be said in relation to cl 96 which requires the designer to provide information and cl 97 that requires the designer to obtain information.
17 It can be seen, therefore, that the obligations imposed on a designer by a combination of s 11 and Pt 5.2 of the Occupational Health and Safety Regulation appear to go beyond the duties and obligations imposed by the South Australian provision. Nevertheless, in Slivak, the High Court stated that it was within the power of the designer to perform certain tasks in ensuring safety such as ascertaining the use of the structure, what loads it would experience when being built and the nature of the location in which it was to be erected - the designer would not be required to take into account factors outside the power of the designer to control, supervise or manage such procedures to be adopted during construction. It is unnecessary for the purposes of the present case to establish the outer limits of the operation of s 11 but it may be said that the limited duties of the designer under the South Australian Act would also apply under s 11.
DELIBERATION
18 In relation to the formalities of the charge, firstly, the Court is satisfied that in designing the structural elements of the gate, the defendant was designing "plant" for use by people at work. The defendant had structural engineering contractual obligations in relation to the concrete batching plant generally and was aware of the nature of the work to be performed at the site and how the proposed gates were to be part of the overall operation of the concrete batching plant, a place where people would work. The gate, or the structural elements of the gate with which the defendant was concerned, falls within the definition of "plant" found in s 4 of the Act. The Court accepts the prosecutor's submission that the term "plant" is not to be narrowly construed (see Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, CT 1044 and 1047 of 1993, 9 September 1994 - Peterson J) and the Full Bench in Inspector Ching v Bros Bins System Pty Ltd (2003) IR 62 at [40].
19 The evidence supports a finding that the defendant was involved in the engineering design of plant, namely, the gates. The essence of its work at and in relation to the site and in relation to the gate plant was structural engineering design - a description accepted by the defendant. The Court also accepts the submissions of the prosecutor in relation to this element of the offence. In addition, it is accepted that, by operation of s 11(2)(b) and (c) by their extended nature, those sections cover the design work performed by the defendant. The evidence further supports a finding that the gate plant was designed in the course of trade, business or other undertakings by the defendant. It should be noted that, in relation to these formal requirements, the defendant raised no issue - the focus of its case was upon the nature of the work performed by a structural engineer and the work actually required of the defendantby the project manager, Hannas. Nevertheless, the Court is required to be satisfied that these formal elements of the offence have been established. For the reasons already outlined, the Court is satisfied that these elements of the offence have been established.
20 The focus of the case was the allegation found in particular (14), namely, that the defendant failed to include in the design any, or any adequate device to prevent the western leaf of the west gate falling during manual operations. In summary, firstly, the prosecutor's case was that there was an admitted failure to include any device such as stops to prevent the gates from being manually pulled beyond the supporting portals. Mr Hadley, who had been primarily responsible for the design work of the gate on behalf of the defendant, accepted that they did not make any provision for any backup system in the case of electrical or mechanical failure. The reason for this approach was that he did not believe that the gates would be manually operated - his understanding was that the operation of the gates would be controlled by motor. Further, the design of adequate devices to prevent the gates from falling was not part of the brief expressly given to the defendant. Against these propositions the prosecutor submitted, by reference to at least two sources, that the defendant was required to go further and was to consider the use to be made of the gates and the way in which they would operate and any hazard likely to arise from such operation and to conduct a risk assessment of the proposed operation of the gate. These obligations were said to flow from the operation of the Occupational Health and Safety Regulation demonstrating that the designer was obliged to identify hazards, assess risks and control risks, irrespective of any express instructions: particular reference was made to cl 86, 87 and 89 of the Regulation. In addition, reliance was placed on the expert evidence of Mr Colin Simpson (a professional engineer with qualifications as a mechanical engineer) and Mr Garg (a qualified professional engineer).
21 Mr Simpson's evidence was to the effect that the defendant should have undertaken a risk analysis, including what he described as a "what if?" analysis as part of the overall design process. Speaking as a professional engineer, Mr Simpson's evidence was that such an analysis should be undertaken by any professional engineer regardless of any sub-speciality in which they practised, including structural engineers. Mr Simpson's evidence was to the effect that reliance could not be solely placed upon electronic or electrically operated systems for the gates and that an alternative system also had to be available. If the defendant had followed the most basic of design principles by importing a basic risk analysis for the design, then that analysis would readily have identified that the electrical operation of the gates would, from time-to-time, fail and thus necessitate manual operation of the gates. The defendant should have been aware of the risk associated with manual operation of the gates and included travel limiting devices in the design.
22 Mr Garg was a WorkCover Inspector when he prepared an engineering report in relation to this incident. Mr Garg held a tertiary qualification in mechanical engineering, holding a degree of Bachelor of Engineering (Mechanical) and later attaining a Masters Degree in Engineering from Sydney University. Part of his studies involved structural engineering but he did not specialise in that field. After graduating Mr Garg said he practiced as a professional engineer. He was ultimately admitted as a member of the Institute of Engineers qualifying for membership by way of being a professional engineer. Somewhat curiously, although not called as an expert witness by the prosecutor, the defendant qualified Mr Garg as an expert witness in the field of mechanical engineering and was permitted to ask a number of questions based upon Mr Garg's expertise. Mr Garg was asked by the prosecutor what would be his expectations of a structural design engineer in putting forward designs for this form of gate, whether it was motorised or manually operated. Mr Garg referred to comments he had made in his report and stated that he would expect "something on the ground also to stop the wheels and another one on top of the gates also, where they are hitting the stationary portals in this case".
The Court accepts the evidence of these two witnesses: that evidence highlights the omissions of the defendant in ensuring the safety of its gate plant design.
23 The prosecutor pointed out that, while the design took place before it was known the exact motor to be used to power the gates, this in no way prevented the design of stops to cater for manual operation. Mr Hadley did have a document in his brief showing that MDI motors allowed manual operation and in May 2002, before the defendant had completed the design, MDI was given the contract to provide the motor. The prosecutor submitted that it would have been a simple matter for the defendant to make enquiries about the motor or even motor options from MDI. Evidence from MDI's installation manager, Mr Dark, was that those motors always allowed manual release. It was significant that Mr Hadley stated in his evidence that the design of the stops, which took place after the fatal accident, was conducted on the assumption of the speed at which the gates would operate manually rather than the motor speed because manual operation was faster than automatic operation. Therefore, it was submitted, that on this evidence the exact motor was irrelevant to the design of stops that were to be designed to act as a safety device during manual operation. The duty of the defendant, as a designer, was to check whether the gates were capable of manual use, the type of motor to be used and the travel speeds of the gates in these modes of operation and how to ensure the gates could be safely used in all modes of operation, including manual operation. The Court accepts this submission.
24 In summary the case for the defendant was that, on a proper understanding of the role of a structural engineer and the brief received from Hannas, attention had to be focused on the purpose for which the defendant's design was required and that purpose was limited to ensuring the "structural integrity of the gates under load" and that was all. It was accepted that the defendant's design did not stipulate stops but the task and hence the defendant's duty under s 11(1)(a) did not require it to do so. In this respect, the defendant relied on evidence from Mr Hadley that the work involved in structural engineering consisted of the engineering of the structural elements "in structures". The problems that structural engineers set out to solve included the "need to determine the forces that are inside the structural element in order to engineer those elements". The task of a structural engineer was to calculate the external loads on the structure, follow the load path through the structure down in the ground and engineer all the structural elements. That task was undertaken without regard to the motor.
25 Mr Hadley described the structural elements of the gate in other sections of his evidence as including the gate frames, the portals, the holding down bolts and the concrete foundations. Reference in the design plans prepared by the defendant to rails and wheels were specifically requested to be included in the drawings by Mr Twomey acting for Hannas. That was the only reason why those matters were included in the design plans and so, it was submitted, in any event, those items were to be supplied by others. Mr Hadley's evidence was that, for the purpose of designing the structural elements of the gate, he did not turn his mind to the manner of the operation of the gates because the structural engineering task that he was performing was "independent of the operation of the gates". Mr Hadley clarified that, by referring to "the operation of the gate", he was referring to the fact that it could be operated by a motor or "any other means". Mr Hadley stated his task as the structural engineer was to find the load path of the external load through the structure into the ground and that task "can be performed without knowing the operation of the gate". The load path travelled through the structure of the elements that did not relate to the operation of the gates.
26 Those explanations given by Mr Hadley in his evidence have to be considered in the context of other evidence that demonstrated:
(a) the defendant, via Mr Hadley, was informed by Mr Twomey that the gate would be operated by an electric motor, albeit, one provided and installed by someone other than the defendant.
(b) Mr Hadley and Mr Twomey had conducted an on-site inspection of other sliding gates and had noted the make of the motor used to operate those gates. Mr Hadley had also made enquiries as to who supplied such motors and had spoken to a supplier of automatic gates.
(c) Mr Hadley had a document in his brief showing that MDI Motors allowed manual operation. Mr Dark from MDI gave evidence that such motors always allowed manual release.
These matters strongly suggest a wider role for structural engineers than the defendant's case would allow.
27 The evidence shows that, at least within the period covered by the particulars of the alleged offence ( and in fact, earlier), the defendant was aware that the requirements of the Local Council regarding the broad dimensions of the gate and fence and that the gates controlled mainly vehicular access to and egress from a concrete batching plant that was under construction. The defendant knew the weights of the gates in their proposed design and knew that those gates would run on wheels within tracks to be laid by others. The defendant knew the gate would be operated by an electric/electronic motor and had information available as to the mode of operation of at least one brand of such a motor. Mr Hadley had inspected gates and motors at other premises.
28 Having regard to these matters, could the defendant ignore the use to be made of the gates and its method of operation and simply rely upon its perceived limited role as the structural engineering designer of the structural elements of the gates, leaving it to others to consider how the gate may be safely operated? The answer to that question does not necessarily lie in the boundaries of what may be considered the technical professional duties of a structural engineer or by any professional practice in that regard (if indeed there is such a practice). The answer to this question, at least, lies in the obligations imposed upon the defendant as a designer of the gate or a core component of the gate (namely, its structural elements) by the Occupational Health and Safety Regulation.
29 Earlier in this judgment reference was made to a number of clauses of Pt 5.2 of the Regulation dealing with design, manufacture and registration of plant. Clause 84 indicates that the Division applies to the design of plant for use at work and included alterations to plant designs. Pursuant to cl 86, a designer of plant must identify any foreseeable hazard that may arise from the design of the plant that has the potential to harm the health or safety of any person during the "use" of the plant at a place of work. In relation to the operation of cl 86, s 11(2)(c) makes it clear that the duties under s 11 extend to the design of components or any plant for use by people at work. To the extent that it may be said that the structural engineering elements of the gate were not the whole gate, those structural elements were a significant component of these gates and indeed, were a core component of the gate plant. The other components were primarily directed to the metal sheeting covering the steel framework of the gate and other components essential for the operation of the gates such as wheels, rails and other running gear, including the motor.
30 Under cl 86, as a designer of plant, the defendant could not close its mind to the use of the gate. In much the same way as contemplated in Slivak, it was within the power of the defendant as designer to ascertain the use of the structure but under this clause, the defendant designer then had to identify any foreseeable hazard arising from the design of the plant that had the potential to harm the health or safety of any person during the use of the plant. This provision would then require the defendant to satisfy itself as to the motorised operation of the plant and whether it was capable of permanently locking or stopping the gate plant so that each leaf could not pass beyond the supporting portal and thereby become unsupported and likely to fall, causing serious injury to any person in the vicinity. In the present case, it was a simple step for the designer of the gate plant to enquire of Mr Twomey and/or Hannas as to which brand of motor would be chosen to operate the gates - an investigation of that motor could reveal whether or not it permitted manual operation of the gate. The evidence shows that much of this information was already in the hands of Mr Hadley. Despite the allegedly limited role of the structural engineer designing the gate, nevertheless, Mr Hadley conducted an on-site inspection with Mr Twomey of a similar set of gates and made a note of the motor used to operate the gates.
31 It is no answer for the defendant to say that it was informed that only a motor would operate the gates when common experience (and the evidence) is that motors and electricity supply to motors from time-to-time, fail. Quite apart from this possibility any motor (and the evidence is that all MDI motors were capable of manual operation) that had a de-clutching mechanism permitting manual operation meant that the designer had to be alert to the possibility that by inadvertence, carelessness or deliberate act the motor might be disconnected and the gates manually operated. These were "foreseeable hazards" and the simple remedial step to guard against the leaves of the gates being manually operated and pulled beyond the support of the portals was to install stop devices. It was within the professional structural engineering capacity of the defendant to design such stops so that they would be effective and as it turned out, that is precisely what the defendant did after the event in relation to these gates. In addition, it should be observed at this point, to the extent that it was part of the defendant's case that it was made aware the gates would be motorised for operation, that information did not exclude the possibility that, from time-to-time, they may be manually operated, although for the vast majority of time they would be electrically/electronically operated.
32 The defendant's obligation as the designer of the core component of the gate was extended by cl 87, requiring the designer of the plant to assess the risk of harm to health or safety of any person arising from any hazard identified in accordance with the Division. In particular, the designer of plant had to evaluate the likelihood of an injury occurring and the likely severity of any injury that may occur and identify the design requirements and any other actions necessary to eliminate or control the risk. The obligation under this clause is, in effect, picked up by Mr Simpson when he referred to the obligation of professional engineers to undertake a "what if?" assessment in relation to plant and the use of that plant. In the circumstances of the present case, the defendant, as designer of the core component of the gate plant, had to undertake a risk assessment if its investigations indicated the possibility, from time-to-time, of manual operation of the gates. Clearly, the gates needed support to prevent them from falling: the defendant regarded it as part of its professional practice as structural engineers to design the portals to support the leaves of the gate while they moved back and forth. It was a short step further to consider what support was available for the gates should they be inadvertently, carelessly or deliberately manually operated. A risk assessment conducted in those circumstances again would yield the simple solution of installing stop points to prevent the gates from being drawn beyond the support of their portal. Considering the size of the gates any such risk assessment would readily come to the conclusion that, if the leaves did travel beyond the support of the portal (the hazard), they were likely to fall and anybody in the vicinity of the fall area (such as a person manually operating the gate) would be likely to suffer serious, if not fatal, injuries (the risk).
33 Clause 89 (1) of the Regulation imposes a duty upon a designer of plant to design that plant so that risks associated with the use of the plant are eliminated and if not reasonably practicable to eliminate those risks, to ensure those risks are controlled. In designing these gates and the portals to support them, the designer also had to consider what support would be present for the gates if, from time-to-time, the motor or power supply failed or for any other reason, manual operation was possible. Once manual operation of the gates was possible because of the range of movements permitted by the motor, then the designer had to give consideration to how the gates were to be supported or how to prevent them from travelling beyond the support of their portals. Any such risk had to be eliminated or, if not able to be eliminated, had to be controlled.
34 Clause 95 of the Regulation requires a designer of plant to specify systems of work if they are necessary for the safe use of the plant. Under this clause it was open to the designer to specify that a motor was to be used that did not allow for manual operation or, if a motor was chosen that allowed for manual operation, then to specify a system of work that would allow for the safe operation of the gates. Such a system of work may specify the minimum number of people necessary to hold the gate when manually operated but in such an event, the most effective means of ensuring continued support for the gate was the simple installation of stops preventing the leaves passing beyond the support of the portals. It is likely that, had the defendant given consideration to cl 95 of the Regulation, it would not have ventured into the area of laying down a safe system of work for the operation of the gates by specifying the minimum number of persons required to support the gate during manual operation but rather, having considered the terms of cl 95, would revert to including an instruction with the drawings that if manual operation was to be allowed, then stops would have to be included for the gate leaves.
35 If the defendant had formed the view that it did not wish to include stops in the design in the event that the plant was manually used then under cl 96 of the Regulation as the designer of the plant, the defendant was obliged to provide other persons who had responsibilities under the regulation with all available information about the plant that was necessary to enable those persons to fulfil those responsibilities with respect to identifying hazards, assessing risks arising from these hazards and eliminating or controlling those risks and the provision of information. In these circumstances, the defendant as designer may need to obtain from Mr Twomey and/or Hannas the identity of the manufacturer of the other component parts of the gate, including its fabrication or the supplier of any material or gear for the operation of the gate so that the defendant could inform them that if manual operation was possible then steps needed to be taken, including the provision of stops, to prevent the leaves extending beyond the support of the portal. The defendant may also have satisfied its obligation under this clause by placing a note to the same effect on its design plans that were issued for construction
36 The terms of cl 97 are also important to the operation of cl 86, 87 and possibly 89 as they deal with the designer of plant obtaining such available information as is necessary to enable the designer to fulfil its responsibilities under the regulation in respect of identifying hazards, assessing risks arising from those hazards, eliminating or controlling those risks and providing information. The content of these obligations has already been dealt with.
37 There is no evidence, however, to support a finding that the defendant considered any of the matters referred to in the Regulation - indeed, it was asserted on its behalf that, by reference to the nature of the task performed by structural engineers, it was no part of their function to give consideration to the actual operation of the gate and/or its use. In taking that approach the defendant failed to act in accordance with the obligations imposed upon it as a designer by the various provisions of the Regulation that have been identified. These clauses of the Regulation identify the many ways in which the obligation in s 11(1) of the Act can be met. To the extent that s 11(2)(c) extends the duty under s 11(1) to the design of components for any plant for use by people at work, cl 7(2) of the Regulation provides that ss 11(2) and (3) of the Act apply to the duties under the Regulation of designers of plant for use by people at work. The defendant also failed to take the steps referred to in the evidence of Mr Simpson and Mr Garg. In these various ways the defendant is in breach of s 11(1) as particularised by the prosecutor.
38 It is appropriate to deal here with two related matters:
(a) in Inspector Carmody v Tsougranis (No 2) (2003) 123 IR 419 at para [183], the Court (as presently constituted) drew attention to the fact that what may be acceptable professional or business practice may not always be sufficient to establish compliance with the duties and obligations imposed by the Act. Evidence in that case suggested that what might have been previously acceptable in a professional sense had been altered by the absolute nature of offences created by the Act;
(b) in a similar vein, the Full Bench in Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 in paras [91] - [93] dealt with industry practice and what legitimate use could be made of it in mitigating the penalty flowing from a breach that, nevertheless, arose from conduct in accord with the practice. The Full Bench emphatically rejected the submission that a general principle existed that conduct in accordance with industry practice would normally act as a mitigating factor in sentencing a defendant. The Full Bench also rejected the proposition that such a general principle should be established;
(c) in light of the Court's analysis of s 11 and the operation of the Regulation in Pt 5.2 as well as the expert evidence received, the usual industrial practice or professional practice of structural engineers relied upon by the defendants is not available to avoid the regulatory obligations of a designer and otherwise does not meet the requirements of prudent design practice and the need to ensure the safety of people at work where that design is in use.
39 It is also instructive to consider the judgment in Arbor Products in determining this case. On the approach dictated by the Full Bench in Arbor Products, the design of the core components of the gate had to be safe (in the sense that safety was assured) for the operation of the gate by the time the defendant had issued the plans for construction. Mr Hadley's evidence was that he had not turned his mind to what use the gate would be put; he knew it would be operated by motor but even then his task was to be undertaken without regard to the motor. On these bare facts and applying Arbor Products, the design was unsafe because of the possibility, not considered or addressed by the defendant, that the gate leaves could be manually moved beyond the support of the portal and could fall. The mere fact that it was contemplated that the gate would be motorised did not, without more, eliminate the real possibility that the gate would also be manually operated and could fall when manually operated. Applying Arbor Products leads to the conclusion that the defendant was guilty of a breach of s 11(1) of the Act. The defendant's submission that the design, as designed, is the focus of the obligations is unsupportable in that narrow and technical sense. This approach is circuitous and leads to the result that a design, unsafe in its operation, would avoid a breach of s 11(1),for example, because others, such as running gear suppliers, should address the operation of the gate. That approach is contrary to the Full Bench decision in Arbor Products. In submitting that the failure must be in the design of the designer in order to contravene s 11(1) of the Act, the defendant then says that it becomes critical to identify what the defendant is required to design. The defendant then says that the design is limited by what structural engineers usually do and that is to consider problems of the structural integrity of the gate under load. That proposition asks the wrong question but in any event, the real answer to that question is that the defendant was required to design the core components of a gate and could not ensure the safety of that design without addressing the use to be made of the gate and how it would operate.
40 During the course of the hearing, it became convenient to conditionally admit certain evidence and to determine its admissibility at the end of the case. The written submissions for the defendant addressed the conditionally admitted parts of the evidence of Mr Manns, Mr Proctor, Mr Hanna and Mr Gando. In those submissions the defendant submitted that the evidence objected to was irrelevant as it was concerned only with the operation of the gates once the Mascot plant was in use. That evidence dealt with procedure for opening and closing the gates, both electronically and manually, once they were in use and the extent to which those gates did not operate automatically and had to be moved manually and dealt with the maintenance of the gate. It was pointed out that one of the defendant's primary answers to the charge was that, in designing the "gate plant", it was not concerned "at all with the manner of operation of the gate". Having regard to the provisions of s 11(1) and Pt 5.2 of the Occupational Health and Safety Regulation 2001, that submission is untenable. It was then submitted that if somehow or other it could be said that the defendant's task concerned the manner of operation of the gates, there was nothing linking this irrelevant evidence to the defendant. This submission was made in the context that the defendant played no part in specifying, selecting or installing the operating equipment for the gates as part of its design work and had never been informed after the plant was operational that the mechanical aspects of the gate were deficient or that, from time-to-time, the gates were being manually operated. All of these matters are to be dealt within the context of the operation of the various identified clauses of the Regulation: these objections, on the basis of relevance, are therefore rejected. In many respects this evidence goes to matters that the parties appear to have accepted in any event, namely, that while the gates were primarily to be operated by electric/electronic motor, the motor was able to be disengaged allowing the gates to be manually operated. This evidence also supports a finding that there were electric machines for the operation of these gates that permitted manual operation and that from time-to-time, this machinery or its source of power failed and therefore there had to be other measures to ensure that, during manual operation, the gates did not pass beyond the portal supports and cause a risk to safety by falling.
41 During the hearing the defendant objected to the Court receiving into evidence two reports prepared by Mr Colin Simpson, a mechanical engineer. Objection was raised that the reports did not come within the provisions of s 79 of the Evidence Act 1995 or alternatively, were not relevant and further should be rejected pursuant to the provisions of s 137 of Evidence Act. The defendant noted that, in allowing this evidence, the Court had indicated that the weight to be attached to that evidence would need to be assessed at the completion of his oral evidence. However, at the conclusion of the witnesses' evidence, no further objection was raised but it was now submitted that the evidence should be rejected or alternatively, be accorded little weight. The Court sees no reason to depart from the ruling already given in relation to the admissibility of this evidence.
42 The defendant's principal argument, repeated in its written submissions, was that, because Mr Simpson was not a structural engineer but a mechanical engineer, he could not give evidence as to the scope of duties and responsibilities of a structural engineer. The duties, responsibilities and functions of a structural engineer were central to the defendant's case, namely, that the structural engineer was concerned only with the structural elements of this gate plant and nothing else.
43 In the conventional way, Mr Simpson was provided with a number of assumptions upon which he was asked to express an opinion having regard to his specialised field of knowledge which included the work of a professional engineer, engineering design and risk assessment approaches in the field of engineering. In terms, Mr Simpson was not asked by the prosecutor to give an opinion on what a structural engineer would or should do in its structural design of the gates. He was asked to express an opinion based upon his specialist training in mechanical engineering and his studies, training and experience in the design, construction, installation and use of metal bi-sliding gates. He was asked whether there were systems available to prevent a gate leaf from falling during manual operation and whether they should have been part of the "design" of the western gate. In his report and answers, Mr Simpson stated that the notes on the relevant drawings identified that the gate was to be co-ordinated with the manufacturer of the gate motor and rollers prior to fabrication and that fabrication should not commence until all approvals had been obtained. As a professional engineer reading those drawings, the gates were to be "power operated" but nothing in the drawings provided for the power operation of the gates. Those details were to be provided by the manufacturer prior to fabrication. Mr Simpson did not give his opinion based solely on his specialist knowledge as a mechanical engineer but spoke of his knowledge of the work of professional engineers generally and in particular, in relation to his specialised field of study in aspects of design and risk assessment in the engineering field. It is to be remembered that Mr Hadley was described as a "chartered professional engineer" as well as being a "structural engineer". It was in this context that Mr Simpson expressed the view that, in effect, in providing the drawings to Hannas the defendant had to undertake a "what if?" assessment having regard to the fact that the motor and the nature of the motor to be used to operate the gate had not been identified on the plans and were to be externally provided. That "what if?" analysis had to take into account the possibility that the operation of machines or electricity supply could be interrupted and the gates would have to be manually operated. If that occurred there was nothing to stop the leaves of the gate travelling beyond the support of the portal and the simplest and most straightforward solution was to specify in the plans a requirement to install suitable stops. Mr Simpson's "what if?" analysis is, in effect, another name for a risk analysis, something that the clauses of the Regulation contemplated should take place in the design of plant for use at work.
44 The further recital of the defendant's objections to Mr Simpson's evidence as set out in the written submissions does not persuade the Court to reject Mr Simpson's evidence or to accord it little or no weight. Having regard to the obligations imposed by clauses of the Regulation, Mr Simpson's evidence provides a practical overview of the way in which those obligations would be addressed in the design of this gate plant. In many respects, the defendant's objection to this evidence is a further example of its misconception about the limited role of a structural engineer and the very limited matters that such an engineer should consider in the design of gate plant that is the subject of these proceedings.
45 The defendant raised other issues as to why the charge should be dismissed. One such issue was related to the charge period and that the defendant's design of the gate plant concluded in late June 2002. The end of the charge period is the date on which the defendant issued revision E of its miscellaneous steelwork drawing. The defendant points out that the charge period ended well before the final design of the gates was settled. The final design of the gates, it was submitted, was probably not settled until, at the earliest, early August 2002 when Mr Twomey approved the fabrication drawings and probably extended until the first stop was designed and installed in November 2002. Although it was contemplated by the notes in the design drawings supplied by the defendant that it would have a continuing role after supplying Revision E, the defendant ceased to be given any ongoing part in the structural design of the gates or any other aspect of the design of the gates. This was Mr Twomey's decision acting for Hannas. It was submitted that, as a result, the defendant was not given the opportunity to complete the task of the design for which it had been engaged.
46 It was submitted that, as a matter of logic, a person who designs plant cannot be said to have failed to ensure the plant is safe for use within the meaning of s 11(1)(a) until the last opportunity for it to do so had passed. In this case, when the charge period had expired, the defendant expected to have an opportunity to complete its work and had no reason to suspect that it would not be given that opportunity.
47 This submission represents an interesting departure from the defendant's previous position. Throughout its written submissions and in the running of the case, the defendant emphasised that it was not responsible for the whole gate but only the core structural elements as components of the whole gate, including the running gear. The present submission seems to accept some ongoing role and a role in the design of the whole of the gate and being denied that opportunity. The defendant, nevertheless, strongly argued that stops were never part of its task and it was not required to bear them in mind in its design. It follows that the defendant would never have considered stops before fabrication unless asked to by Hannas and/or Mr Twomey.
48 The prosecutor's submissions in reply on this aspect argue that it mattered not that the charge period ended before the final design of the gates was settled as designs by their very nature may be preliminary. The prosecutor referred to dictionary definitions of "design" to include the preparation of preliminary sketch plans. It was submitted that, to the extent the defendant's design was preliminary in the sense that other work had to follow, it nevertheless set the parameters for all the work that followed. Mr Simpson's evidence was that the design and drawings had been created for the purpose of the eventual fabrication and erection of the gates and the basic design drawings represented what was eventually made. Indeed, the scope of works given to Sunstate and MDI required those contractors to follow the drawings which were those issued by the defendant. Significantly, the prosecutor pointed out that the defendant's final drawing carried the notation "issued for construction". Mr Hadley's evidence was that notation meant that the drawings "were appropriate for construction of the project". This was consistent with Mr Simpson's evidence that, except for the detail, the notation displayed an intention that the design was complete.
49 The Court accepts the force of the submissions made by the prosecutor in relation to this aspect of the case and rejects the defendant's submission that, on this basis, the charge be dismissed.
50 The defendant then proffered another reason why the charge should be dismissed noting that the risk on which the prosecutor relied was the risk of the western gate falling on a person or employee whenever the gate was manually used because a substantial travel limiting device was not installed. The defendant suggests that risk did not exist until the period when the gates were in use up to and including the accident in mid-October 2003. During that period the actual risk was that the gates would fall because the stop that had been installed immediately before the gates were commissioned for use was inadequate. The defendant had absolutely no part in the design of that stop and there was no suggestion that the defendant's design had any causal connection with the inadequacy of that stop. Accordingly, there was no connection between the risk that actually existed up to and on 14 October 2003 and the defendant's design.
51 It was common ground that the defendant did not include a stop in its design and strenuously asserted the appropriateness of not doing so having regard to what it submitted was its limited role as the structural engineer. The charge under s 11 centres upon its design and the omission of such a travel limiting stop. The risk to health and safety followed from adopting this design in the fabrication and installation of the gates. In relation to the designer's duty it mattered not that someone else designed and installed an inadequate stop after the defendant's plans were issued for construction. That event merely gave rise to the possibility of a breach by another entity. In addition, the prosecutor points out that the inadequate stop that had been installed was a consequence of the omission in the defendant's design and its failure to specify an appropriate travel limiting device such as a stop. If such a device had been included in the design prepared by the defendant, then the occasion for the installation of an inadequate travel limiting device by others would not have arisen. It was submitted that this failure was a substantial or significant cause and/or materially contributed to the risk of injury to persons at work. On either approach, this further submission for the defendant does not establish a case why the charge should be dismissed. The defendant's argument in relation to this matter also ignores the different period particularised in the charge and the nature of the charge particularised.
52 The arguments for the defendant are then repeated in relation to the s 28 defences and thereby face the same fundamental difficulties. Under s 28(a) a defence is provided if a defendant proves that it was not reasonably practicable for it to comply with the provision. There was no evidence that it was not reasonably practicable for the defendant to insert in its drawings a provision for stops and the design of stops is accepted by the defendant as part of the work of a structural engineer. As discussed in Slivak, it was open to the defendant to make enquiries about the use of the gate and how it would operate, including the motor to be used in the gate opening operation. It was open to the defendant to seek information about the motor to be used and whether there could be manual operation of the gate. No evidence was adduced as to why the requirements of s 11(1) and/or clauses of the Regulation were such that it was not reasonably practicable for the defendant to comply with those provisions. The s 28(a) defence is not established.
53 Section 28(b) requires the defendant to prove that the commission of the offence was due to causes over which it had no control and against the happening of which it was impracticable for the person to make provision. There was no such evidence. The same comments made in relation to s 28(a) might be made in relation to the s 28(b) defence. The s 28(b) defence is not established.
54 Having regard to the foregoing discussion, the defendant is found guilty of a breach of s 11(1) of the Act as particularised in the present proceedings and in particular, by its failure to include in the design of the gate plant any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. The parties are to confer as to a suitable date for the Court to receive evidence and hear submissions in relation to penalty. The parties are to contact my Associate in order to set a date for the sentence hearing.