22 The solicitors for the defendants sought the following further and better particulars to the amended application for order by letter dated 6 August 2008:
We would be grateful if you could please provide further and better particulars in relation to the proposed amended charges in accordance with the following:
1 Inspector Dennis Howard v Connell Wagner Pty Ltd - Proposed amended charge pursuant to section 8(1) of the Occupational Health and Safety Act 2000
1.1 At particular l, this particular presently seeks to define an area by reference to a lineal position and a sub-area of the area in question. Please confirm:
(a) The section of MVT1 East, as used throughout this charge refers to the area of the by pass ventilation tunnel -- mainline lying between chainage 1100 and chainage 1231.
(b) Reference the site of the rockfall refers to the area between chainage 3225 and chainage 1231, in approximate terms.
1.2 At particular 2, when was there a risk of injury to persons present? Who were the persons said to have been present and subject to risk? Where was each such person at the time when the risk of injury occurred?
1.3 At particular 3(f), please identify the employees of the defendant referred to, indicating in respect of each employee when it said that the responsibility identified was present.
1.4 In respect of particular 3(f), during what period do you say the 'design work' phase occurred?
1.5 At particular 4(a), the unstated assumption in the sub-particular is that there was an obligation on the defendant to ensure that another party installed support type 2 from chainage 1100 metres. Please advise from what is the obligation said to arise? Please confirm that the other party in question was BHBB. To what chainage after 1100 meters is it said that the failure extended?
1.6 At particular 4(b), there is an assumption herein that the roof support was not adequate. Upon what facts is it said that the roof support was not adequate, and if not the whole section (see request paragraph I) over what chainage?
1.7 At particular 4(b), who were the employees you say the defendant permitted to work in the MVT1 east from chainage 1225.7 to the site of the rock fall? Please identify the date or dates relevant to each and the location at which they are each said to have been permitted to work.
1.8 At particular 4(c), the unstated assumption herein is that the defendant had an obligation to ensure that observations of geological conditions and observations of the roof support system being employed were to be passed on to either or both of Mr Bleuler or a member of the design team. Please identify from where that obligation is said to arise. By whom and when is it said that the defendant failed to meet this obligation, in respect of each occasion relied upon?
1.9 At particular 4(d), the unstated assumptions herein are that there was an obligation on the defendant to record the matters described, and that the as installed roof support was inadequate. Please identify the source of the obligation upon the defendant, stating when and by whom on the part of the defendant the failures occurred. In respect of the inadequacy asserted, please indicate each occasion in which the roof support is said to have been inadequate. Please confirm that the inadequacy relied upon is that described in this sub-particular.
1.10 At particular 4(d), do you allege that the defendant failed to record that the roof support was inadequate as part of the 'on the site visit reports' or the 'working action list' or both?
1.11 At particular 4(e), the unstated assumption in this sub-particular is that the defendant had an obligation to indicate to the constructors that certain type one roof support was inadequate, that the roof support was in truth inadequate and posed a risk of roof collapse or rockfall. Please advise the source of the obligation on the defendant to indicate these matters to the constructors. In respect of the inadequacy please state when and where each inadequacy relied upon occurred. Please state the persons said to have been at risk of roof collapse or rockfall, when that risk existed, and where in respect of each occasion the risk arose.
1.12 At particular 4(e), how do you say the defendant had an obligation or responsibility or ability to indicate to the constructors that the type 1 roof support which had been installed from chainage 1100 in lieu of the type 2 roof support as indicated on the IFC drawings was inadequate and posed a risk of roof collapse or rockfall?
1.13 At particular 4(f), the unstated assumptions in this sub-particular is that the defendant had an obligation to provide a specific and dedicated construction sequence indicating maximum allowable excavation advances. Please identify the source of the unstated obligation indicating when that obligation arose.
1.14 At particular 4(g), the unstated assumption in this particular is that the defendant had an obligation to recognise and/or to react to warning signals. Please identify the source of this obligation, and when it arose. In what sense is it said that the defendant failed to recognise the warning signals asserted? In what manner and by whom within the defendant, is it said that there was a failure to adequately react to those warning signals?
1.15 At particular 4(g), please indicate, with reference to chainage, the points between which you allege:
(a) each bedding plane defect in the roof existed; and
(b) the irregular shale breccia existed?
1.16 At particular 4(h), the unstated assumption in this particular is that there was an obligation on the defendant to ensure the existence of an adequate system of communication in relation to the two nominated matters. What is the source of the alleged obligation, and when did it arise? Is it said that there was a system of communication which was not adequate? If yes, in what respects is it said that the system was not adequate?
1.17 At particular 4, do you allege that the multiple and fatal injuries were caused by the defendant's acts and omissions? What is the risk to which this sub-particular refers? Is it alleged that that risk existed on any date other than 29 July 2004? If yes, when did the risk exist, to whom, and where, on each occasion relied upon?
2 Inspector Dennis Howard v Connell Wagner Pty Ltd - Proposed amended charge pursuant to section 8(2) of the Occupational Health and Safety Act 2000
2.1 At particular 1, what are the risks to the health and safety of the employees nominated in this charge said to have arisen from the defendant's undertaking.
2.2 At particular 2, in what manner is it said that those risks arose in consequence of the defendant's undertaking.
2.3 At particular 3, please describe the defendant's undertaking.
2.4 At particular 4, please identify the facts and circumstances from which it will be said that the bypass main vent tunnel one east was relevantly the defendant's place of work.
5 As to the further particulars, we make the same request as is made above in respect of the identical further particulars set out in respect of the proposed charge under section 8(l).
3 Inspector Dennis Howard v CW-DC Pty Limited - Proposed amended charge pursuant to section 10(1) of the Occupational Health and Safety Act 2000
3.1 At particular 1, please confirm the area of the tunnel said to have been controlled by the defendant by reference to chainage references. In particular, is it said that the defendant controlled the tunnel between chainage 1225 and 1231?
3.2 At particular 2, please identify the facts and circumstances from which it will be alleged that the defendant company controlled the premises.
3.3 At particular 3, please identify the business or undertaking of the defendant to which this charge relates.
3.4 At particular 1, this particular presently seeks to define an area by reference to a lineal position and a sub-area of the area in question. Please confirm:
(a) The section of MVT1 East, as used throughout this charge refers to the area of the by pass ventilation tunnel - mainline lying between chainage 1100 and chainage 1231.
(b) Reference the site of the rockfall refers to the area between chainage 1225 and chainage 1231, in approximate terms.
3.5 At particular 2, what is the actual risk of injury said to have been present? Please identify each person said to have been at actual risk state when such person or persons was so exposed, and identify the precise section of the tunnel in which such persons were so exposed.
3.6 At particular 3(e), is this particular intended to assert that CW staff were required to work under the direction of CW-DC? If yes, please identify the CW staff in question, and the source of the obligation to work under the direction of CW-DC.
3.7 In respect of particular 3(j}, during what period did the design phase of work occur?
3.8 At particular 3(p), what is the meaning of the phrase had a role focused on managing and co-ordinating a response etc?
3.9 Particular 4 asserts the defendant has control of premises. Is that control said to be total control or partial control, and if the latter, to what extent is it said to have had control. Are any facts and circumstances other than those set out in paragraphs 4(a) - 4(h) relied upon in support of the proposition that the defendant had control?
3.10 At particular 4(a), to whom is it said that the defendant provided the Final Design Report?
3.11 At particular 4(a), do you say that CW-DC were responsible for the design of MVT1 East? If, yes what is the basis of that assertion?
3.12 At particular 4(c), from what facts or circumstances is it said that the defendant could withdraw the provision of services by its geologists? What unsafe conditions in the premises could enliven that asserted entitlement? Please identify all facts and circumstances from which the conclusion that work would have ceased as follows arises.... Please identify each occasion, either by time or position that the defendant could have withdrawn the provision of services by its geologists, indicating in each case the facts or circumstances that would have enlivened the asserted entitlement.
3.13 At particular 4(d), please identify the entitlement by which the defendant could withdraw provision of services by its engineers. Please identify the project leader to whom reference is made. If it is alleged that unsafe conditions were actually present in the premises sufficient to entitle the defendant to withdraw provision of services, please identify each occasion in which those unsafe conditions are said to have existed, where they were located, and the precise facts and circumstances relied upon to support the concept that those conditions were unsafe.
3.14 At particular 4(d), what are the facts and circumstances to be relied upon to support the conclusion that the constructor would have ceased construction work? When and where is it said that that cessation would have occurred?
3.15 At particular 4(d), what do you mean by 'temporary and permanent works'?
3.16 At particular 4(e), by what means is it said the defendant represented that it would execute its construction stage services responsibility by implementing the CCS Workplan? Is any matter relied upon in this regard other than that contained in this sub-particular, and that contained in 4(f)?
3.17 At particulars 4(e) and 4(f), could you please define 'construction stage services responsibilities'?
3.18 At particular 4(f), we have assumed the quote is from the CSS Workplan. If not, can you please provide particulars in accordance with the above as to the nature of the response?
3.19 At particular 4(g), what is meant by de facto entitlement?
3.20 At particular 4(g), please explain what you rely upon to establish that this practice or de facto entitlement existed? If your answer includes previous site reports, actions lists or other documentation, please provide details of specific Site Visit Reports or Action Lists or other documentation on which you rely.
3.21 At particular 4(g), please indicate, with reference to chainage, the points between which you allege:
(a) each bedding plane defect in the roof existed; and
(b) the irregular shale breccia existed?
3.22 At particular 4(h), please identify the precise facts and circumstances said to evidence the proposition the defendant ...caused to be stopped unsafe tunnel work .? Please identify that which it is said was accepted by the constructor . Please identify all facts and circumstances said to evidence acceptance by the constructor. What are the facts and circumstances from which the conclusion on an ongoing basis was able to do so ? is to be drawn? Please confirm that this phrase is intended to mean that the defendant might have caused to be stopped other unsafe tunnel work.
3.23 At particular 5(a), please identify the facts and circumstances relied upon to establish the defendant's capacity to ensure that there was installed ...support type 2.
3.24 At particular 5(b), who are the employees of the defendant said to have been permitted to work in the tunnel? In what manner is it said that the roof support being installed was not adequate roof support? Please identify when it is said that each such identified employee was working under inadequate roof support. Identify by time and location each instance relied upon.
3.25 At particular 5(c), please identify the source of the obligation the defendant is said to have failed to ensure. Please identify by reference to dates or chainages the failure to convey observations, identifying each instance relied upon by reference to time and location. Please identify each occasion that is relied upon, making reference to dates and chainages. Is the complaint in this sub-particular of inadequacy of as installed roof support or failure to comply with design, or both? Is the phrase...the working action list the as installed roof support... intended to read the working action list that the as installed roof support?
3.26 At particular 5(c)(ii), who do you say formed the design team?
3.27 At particular 5(d), do you allege that the defendant failed to record that the roof support was inadequate as part of the 'on the site visit reports' or the 'working action list' or both?
3.28 At particular 5(d), is 'working action list' the same as 'inspection action list', referred to in particular 4(g)? Is this the document which is exhibit 13 of the Coronial proceedings?
3.29 At particular 5(e), please identify the source of the obligation upon the defendant to indicate to the constructors that type 1 roof support had been installed in lieu of type 2 support. In respect of each failure to be relied upon, please indicate by reference to date and chainage the manner in which it is said the defendant failed to indicate to the constructors etc. In respect of each instance relied upon, is it said that the failure in question was to advise that the support was inadequate, or that it posed a risk of roof collapse or rock fall, or both.
3.30 At particular 5(f), please identify the source of the obligation implicit in this allegation. Is it said that there was a specific and dedicated construction sequence that lacked indication as to maximum allowable excavation advance, or that there was no specific and dedicated construction sequence, or both? If it is conceded that a construction sequence relevant to the MVTl East existed, please identify the source of an obligation to provide a specific and dedicated construction sequence.
3.31 At particular 5(g), is it said that the defendant failed to recognise etc or to adequately react to warning signals, or both? If it said that the defendant failed to recognise?, please identify all facts and circumstances relied upon in support of that conclusion. If it is said that the defendant failed to adequately react, please identify that which it is said that the defendant did and the respects in which its actions are said to be inadequate.
3.32 At particular 5(g), please indicate, with reference to chainage, the points between which you allege the irregular shale breccia existed?
3.33 At particular 5(h), please identify the source of the implicit obligation on the defendant to ensure that there was an adequate system of communication. Please identify by reference to dates and chainages each occasion on which it is said that that failure occurred. Is it said that there was no system of communication, that the system in place was inadequate or both. If it is said that the system was inadequate, please identify the deficiencies said to have been present in respect of each occasion relied upon.
3.34 At particular 6, what is the risk to which this sub-particular refers? Is it said that that risk existed other between chainages 1225 and 1231 ? If yes, please identify the precise location at which the risk was said to exist elsewhere.
3.35 At particular 6, do you allege that the multiple and fatal injuries were caused by the defendant's acts or omissions?
4 s 8(2) - CW-DC
4.1 At particular 4, what do you mean by a dual or joint employer?
4.2 At particular 4, how do you say an 'employment relationship' rose between the defendant and employees of CW?
23 The prosecutor's response was in the following terms:
We refer to your correspondence dated 6 August 2008.
Without prejudice to matters set out in our correspondence dated 23 April 2008 we have again answered your request using the same numbered paragraphs used in your letter simply to avoid any further delay and unnecessary cost in having this matter brought to trial.
Inspector Dennls Howard v Connell Wagner Pty Ltd - proposed amended charge pursuant to section 8(1) of the Occupational Health & Safety Act 2000
1.1 (a) yes as referred to in paragraph 23 of affidavit in support.
(b) yes as referred to in paragraph 52 of affidavit in support and it is accepted that the approximate chainage may be 1225 to 1231.
1.2 This is a matter of evidence as to when the defendants' employees were working within the section of MTV1 East. Persons were at risk whenever they were present in the tunnel within the charge period and between chainage 1100 to 1131.
1.3 See particular 3(c) the responsibility identifies the design work from the commencement of the contract with BHBB and continued up to and beyond the completion of the tunnel.
1.4 This is a matter for evidence, please refer for example to paragraph 21 and 22 of the affidavit in support. It is anticipated that the evidence will establish that the design work was continuing during the charge period
1.5 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. The physical installation of the support should have been undertaken by the contractor or a person acting on its behalf. As to the chainage, from 1140 up to and including the site of the rock fall.
1.6 This is a matter for evidence, see for example, the summary of Mr Greg Kotze's report at paragraph 63 and 67 of the affidavit in support. The prosecutor relies upon the admissions allegedly made by the defendant, the terms of which are known to the defendant and it legal advisors see for example paragraphs 64-66 of the affidavit in support. See Regina v Michael Saunders.
1.7 This is a matter of evidence as to when the defendant's employees were working within the section of MTV1 East. The employees of the defendant were present at various times for example, carrying out mapping during the charge period. Those times are known to the defendant and not to the prosecutor.
1.8 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. It is not for the prosecution to nominate which of the defendants personnel ought to have fulfilled its obligation on behalf of the defendant. In any event, the other matters raised in your question might be raised for consideration by the defendant under s28 of the Act. It is not for the Court (or here the prosecutor) to specify how the defendant's statutory duty could be fulfilled. See WorkCover Authority of NSW (lnspector Penfold) v Fernz Construction Materials Ltd (1999) 91 1R 119 at 131 -132, Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 1R 432 at 451, WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257 and Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at 72 [61]. The relevant period is the period of the charge.
1.9 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. Particular 4(d) speaks for itself,
1.10 Yes as reflected by the use of the words "and/or" in particular 4(d)
1.11 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000 which arose throughout the charge period. As to person said to be at risk of roof collapse or rock fall, any employee working in that area during the charge period.
1.12 This is not a proper request for particulars, this is a matter of evidence. Contractors should not defer from the issued for construction drawings without express consent by the design team. This is reflected in the contractual documents and specifications. Deviation from the construction drawings by the designers creates a risk to health and safety of itself. The defendant's own paper system provided the ability to indicate to the Constructor.
1.13 The source is the obligation which arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. It was also a consequence of the defendants undertaking design duties in the relevant section of the tunnel. See for example paragraphs 33 and 35,119-121 of the affidavit in support and the CW-DC CCT Tunnel and Shaft Excavation and Primary Support Specification Clause 2.1.
1.14 The obligation arises under a general duty of section 8(1) Occupational Health & Safety Act 2000. Also arose as a matter of contractual obligation. It is alleged the defendant failed to recognise the warning signs. It failed to appreciate their significance in terms of the stability and integrity of the rock surfaces and failed to report upon the consequences. It failed to bring those observations to the attention of the design team and to compared against the design assumptions. Further it failed to consider whether those observations required re-assessment of roof support as applied. The failure was the failure of the defendant. It is not for the prosecutor to identify particular individuals who were responsible for the failure to recognise the warning signals. As to the balance of the request, the particulars speak for itself.
1.15 This is described in detail in the report of Mr Greg Kotze and in evidence before the Coroner, the transcript of which you have.
1.16 The obligation arises under a general duty of section 8(1) Occupational Health & Safety Act 2000 and arose as a consequence of the obligations of the defendant. The system of communication was inadequate, in that it did not ensure communication of the matters referred to in particular 4(h) of the application for order.
1.17 Yes, it is alleged fatal and multiple injuries were caused by the defendant's acts and omissions. The risk was risk of tunnel roof failure and rock fall or bath. The risk existed throughout the charge period and after chainage 1100. The risk extended to all persons during that period after chainage 1100 on each occasion, the precise particulars of which are unknown to the prosecutor.
Inspector Dennis Howard v Connell Wagner Pty Ltd - proposed amended charge pursuant to section 8(2) of the Occupational Health & Safety Act 2000.
2.1 The risk of injury of tunnel roof failure or rock fall or both. The risk is particularised in particular 2 of application for order.
2.2 The risk arose because of the defendants unsafe system of work and work environment as particularised in particular 4 of application for order.
2.3 The defendant's undertaking is particularised in particular 3 of application for order.
2.4 We refer you to particular 3 of the application for order
2.5 We repeat the replies provided for the request to particulars to the proposed charge in section 8(1).
Inspector Dennis Howard v CW-DC Pty Ltd - proposed amended charge pursuant to section 10(l) of the Occupational Health & Safety Act 2000.
3.1 We do not understand your reference to particular 1 in relation to your question, however in response to the question posed. Yes.
3.2 We do not understand your reference to particular 2 in relation to your question, however in response to the question posed please see particular 4 of the particulars of application for order.
3.3 Refer to particular 3(a)-(m) of application for order. This particular speaks for itself.
3.4 We do not understand your reference to particular 1 in relation to your question, however in response to the questions posed
(a) yes as referred to in paragraph 23 of affidavit in support;
(b) yes as referred to in paragraph 52 of affidavit in support and it is accepted that the approximate chainage may be 1225 to 1231.
3.5 This is a matter of evidence as to when the defendants' employees were working within the section of MN1 East. Persons were at risk whenever they were present in the tunnel within the charge period and between chainage 100 to 1131. For example as referred to in paragraph 69 of the affidavit in support.
3.6 We refer you to the Labour Hire agreement. The document speaks for itself.
3.7 This is a matter for evidence please refer, for example, to paragraph 21 and 22 of the affidavit in support. It is anticipated that the evidence will establish that the design work was continuing during the charge period.
3.8 Particular 3(p) speaks for itself.
3.9 The extent of defendant control is that particularised in paragraphs 4 and 5 of the application for order.
3.10 Document speaks for itself in that it provides details of all persons to whom it was provided.
3.11 Yes. The basis of that assertion is a matter for evidence, but see particular 3(a) to 3(s).
3.12 The obligation arises under the general duty under the Occupational Health & Safety Act 2000. See particulars 4(c)(i) & (ii) through to (h). At all times after chainage 1100 the risk to health and safety is as particularised in charge. Pursuant to Occupational Health & Safety Act 2000 the defendant ought to have prevented any of its employees or contractors from entering the tunnel whilst there was present, a risk to health and safety, including the risk from tunnel roof failure or rock fall. There was an implicit agreement between the designer and constructors not to expose persons to risk to health and safety. At any time after chainage 1100 the risk to health and safety is as particularised in the charge and at any time after chainage 1100 the defendant could have withdrawn, if agreed, the provision for services of its geologists. Circumstances include a risk of tunnel roof failure or rock fall or both As to the balance of the request see particulars 4 (a) to 4 (h) of the application far order.
3.13 Engineers/ Project leader are those nominated and described in your construction Stage Services, for example Tim Rheinberger, Dave Carson and Hans Bleuler. The defendants' obligations pursuant to Occupational Health & Safety Act 2000 ought to have prevented it allowing from any of its employees or contractors to enter the tunnel whilst there was present, a risk to health and safety, including the risk from tunnel roof failure or rock fall. There was an implicit agreement between the designer and constructors not to expose persons to risk to health and safety. At any time after chainage 1100 the risk to health and safety is as particularised in charge and at any time after chainage 1100 the defendant could have withdrawn the services if agreed, of the engineers or project leader.
3.14 Particular 4(d) speak for itself.
3.15 As described by the design lots prepared by your client. We refer to you Design Lot D-T0052, for example see paragraphs 46 to 48 of the affidavit in support.
3.16 We refer you to the Construction Stage Services work plan and particulars 4(e) to (h).
3.17 The responsibilities are those as described in the Construction Stage Services work plan.
3.18 Yes. The quote contained within this particular is a quotation from your Construction Stage Services work plan, at paragraph 3.3.
3.19 An inferred obligation arising out of the contractual relationship and the relationship in practice between defendant and constructors.
3.20 Particular 4(g) speaks for itself. We refer you to the site visit reports and action lists, a copy of which you have.
3.21 We assume you are referring to particular 5(g) rather than 4(g). This is described in detail in the report of Mr Greg Katze and in evidence before the Coroner, the transcript of which you have.
3.22 We refer you to paragraph 80 and 82 of the affidavit in support.
3.23 It is not for the prosecutor to identify a system that ought to be in place.
3.24 See particular 3(c), the responsibility identifies the design work from the commencement of the contract with BHBB and continued up to and beyond the completion of the tunnel. This is a matter for evidence, see for example, the summary of Mr Greg Kotze's report at paragraph 63 and 67 of the affidavit in support. The prosecutor relies upon the admissions allegedly made by the defendant, the terms of which are known to the defendant and its legal advisors: see for example paragraphs 6466 of the affidavit in support. See Regina v Michael Saunders.
3.25 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. It is not for the prosecution to nominate which of the defendants personnel ought to have fulfilled its obligation on behalf of the defendant. In any event, the other matters raised in your question might be raised for consideration by the defendant under s 28 of the Occupational Health & Safety Act 2000. It is not for the Court (or here the prosecutor) to specify how the defendant's statutory duty could be fulfilled. See Work Cover Authority of NSW (lnspector Penfold) v Femz Construction Materials Ltd (1999) 91 IR 119 at 131 -132, Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 451, WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257 and Genner Constructions Pty Limited v WorkCover Authority of New South Wales (lnspector Guillarte) (2001) 110 IR 57 at 72 [61]. The relevant period is the period of the charge.
3.26 The persons who formed part of the design team are well known to the defendant, for example those persons nominated in the Construction Stage Services work plan.
3.27 Yes, particular 5(d) speaks for itself and as reflected by the use of the words "and/or" in particular 6(d).
3.28 Yes, working action list is the same as inspection action list.
3.29 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. Particular 5(e) speaks for itself.
3.30 The source is the obligation which arises under the general duty under section 10(1) Occupational Health & Safety Act 2000. It was also a consequence of the defendants' undertaking design duties in the relevant section of the tunnel. See for example paragraphs 33 and 35 of the affidavit in support.
3.31 Particular 5(g) speaks for itself and as reflected by the use of the words and/or" in particular 5(g).
3.32 This is described in detail in the report of Mr Greg Kotze and in evidence before the Coroner, the transcript of which you have.
3:33 The obligation arises under a general duty of section 10(1) Occupational Health & Safety Act 2000 and arose as a consequence of the obligations of the defendant. The system of communication was inadequate in that it did not ensure communication of the matters referred to in particular 4(h) of the application for order.
3.34 Yes, it is alleged fatal and multiple injuries caused by the defendant's acts and omissions. The risk was risk of tunnel roof failure and rock fall or both. The risk existed throughout the charge period and after chainage 1100. The risk extended to all persons during that period after chainage 1100 on each occasion, the precise particulars of which are unknown to the prosecutor.
3.35 We refer to our response at 3.34
Inspector Dennis Howard v CW-DC Pty Ltd - proposed amended charge pursuant to section 8(2) of the Occupational Health & Safety Act 2000
4.1 The words dual and joint employment speak for themselves. In particular, we allege for the purpose of the Occupational Health & Safety Act 2000 given the actual relationship between CW-DC Pty Ltd and Connell Wagner Pty Ltd, each could be described as an employer subject to the labour hire agreement and in particular 3(a)-(e) and the terms of the labour hire agreement itself.
4.2 We refer to our response at 4.1.
24 The defendants forwarded a further request for particulars on 18 September 2008 which was in the following terms:
We refer to your letter of 13 August 2008 and to prior correspondence relating to particulars of the above charges.
Whilst we appreciate your endeavour to avoid delay and cost, it is our view that the particulars provided do not put the Defendants in a position where they have been properly apprised of the case they are called upon to meet.
To avoid the necessity of formal application to the Court, we should be pleased if you would address the following questions. The questions conform to the paragraph numbering utilised in previous correspondence. For ease of reference we have included all paragraphs including those paragraphs where your answers of 13 August 2008 provide the information requested.
1. Connell Wagner Pty Ltd - s.8 (1).
1.1(a) Particular 1. You have confirmed that the phase 'the section of the MVT1 East' - used throughout the charges identifies that area of the bypass ventilation tunnel between chainage1100 and chainage 1231.
1.1(b) You have confirmed that the phrase 'the site of the rock fall' refers to the area between chainage 1225 and chainage 1231, in approximate terms.
1.2 Particular 2. This particular includes the phrase 'a risk of injury to persons present'. We sought the identities of the persons referred to, and where each is said to have been at the time the risk of injury occurred. Given the daily change in the length of and conditions within the tunnel, we are entitled to have a response to those questions. Your response 'This is a matter of evidence' and 'persons were at risk whenever present in the tunnel' does not answer our questions. Accordingly, we now repeat those questions.
1.3 Particular 3(f). We sought identification of the Connell Wagner employees referred to in this particular, and sought to ascertain when it is said the responsibility identified in that sub-paragraph was present. Your response does not identify the relevant employees, nor when it is said that each was present. We repeat our questions.
1.4 Particular 3(f). In respect of the same particular, we enquired what period is envisaged by the phrase 'design work phase'. Your response refers us to the Affidavit in Support and the charge period, two different periods. We repeat our questions.
1.5 Particular 4(a). You have identified the source of the unstated assumption in this sub-particular to be section 8(1) of the Occupational Health & Safety Act (2000) (OHS Act), but have not stated the factual basis upon which it is said that the section is enlivened by Connell Wagner. We are entitled to be told this. Your response goes on to assert that 'the physical installation of the support should have been undertaken by the contractor...' Please confirm that the contractor referred to is BHBB and the phase 'should have been' refers to BHBB's contractual obligations.
1.6 Particular 4(b). We sought to determine the factual assertions upon which you rely in the assertion 'the roof support was not adequate', and to identify those areas of the tunnel where that situation is said to have existed. Your response 'This is a matter for evidence' is not sufficient to apprise the Defendant of the charge in this respect. Your reference to parts of Mr Kotze's report leads to identification of the area in consideration to be chainage 1170 to 1231, and the that the facts relied on are (i), that that chainage was supported by type 1 rock bolting and (ii) the collapse between 1225 and 1231. It is not for the Defendant to spell out for itself what the Prosecution intends; however, if these are the allegations, please confirm. If additional facts are to be relied upon in support of this particular, please advise us what they are.
1.7 Particular 4(b). We sought identification of the CW employees said to have been permitted to work in the area of 'the site of the rock fall'. All evidence of which we are aware negatives the presence of any CW employees at that site. Your response that "This is a matter of evidence", and referring our client to its own records is not an adequate response. We repeat the question.
1.8 Particular 4(c). We sought to ascertain the factual basis underlying the unstated assumption in this particular that CW had an obligation to ensure geological condition observations and observations of roof support system were passed on to other people. You have responded that the obligation in question arises under s.8(1j) of the OHS Act, but you have not identified the factual basis asserted that enlivens the operation of that section. Please do so.
1.9 Particular 4(d). We sought to ascertain the factual matters said to enliven an obligation on Connell Wagner Pty Ltd to record the matters described including that the as - installed roof support was inadequate. To this request you have responded that the source of the obligation is s.8(1) of the OHS Act. Please advise the facts said to enliven the operation of this section.
1.10 Particular 4(d). You have advised that you allege that the Defendant failed to record that roof support was inadequate both in the site visit reports and in the working action list.
1.11 Particular 4(e). You assert that an obligation was imposed on CW by s 8(1) of the OHS Act. Please state the facts said to enliven that subsection in relation to Connell Wagner Pty Ltd. You do not respond to our question as to the manner in which the roof support is said to have been inadequate, the particular locations and the relevant dates. Nor do you identify the persons in respect of whom it is said the risk existed, that time at which the risk is said to have existed and the relevant portion(s) of the tunnel. We repeat those questions.
1.12 Particular 4(e). We sought to establish the source of the obligation said to exist in respect of CW. Your response is far from clear. Please conirm that the word 'Contractors' and the word 'Constructor' each refers to BHBB. Should the phrase 'Contractors should not defer from...' read 'Contractors should not depart from' (or 'not deviate from')? Where is the 'express consent' provision to be found in the contractual documents and specifications? The assertion that 'every deviation from construction drawings by the designers' appears to foreshadow an assertion that the designs deviated from the construction drawings. If this is the intent, please identify the deviation this is said to have occurred. The same sentence asserts that every deviation from construction drawings of itself creates a risk to health and safety. In our view, a departure involving additional support contradicts that general assertion. The last sentence of this response appears incomplete. Is the 'deviation from the construction drawings' said to be a departure from the level or levels of support set out in the 'Anticipated Support Type' section of the construction drawings?
1.13 Particular 4(f). We sought identification of the source of obligation to provide a 'specific and dedicated construction sequence'. You identified s.8(l) of the OHS Act, and an unspecified contract. Please advise the facts said to enliven the operation of s.8(1) as they relate to Connell Wagner. Please identify the contract to which you refer and the relevant provision or provisions.
1.14 Particular 4(g). We sought to ascertain the factual basis of the unstated assumption that the Defendant had an obligation to recognise and/or to react to warning signals, and we sought to ascertain what is meant by 'The Defendant failed to recognise the warning signals'. You responded that the obligation arises under s.8(1 ) of the OHS Act. Please advise the basis on which it is said that the statutory obligation arose in respect of Connell Wagner. As to our request for elaboration of the assertion 'failed to recognise the warning signals' you respond 'The Defendant failed to recognise the warnings signs'. Please identify 'the warning signals/signs'. To our question of the significance said to exist, you respond 'it failed to appreciate their significance in terms of the stability and integrity of the rock surfaces and failed to report upon the consequences'. Please advise what is the 'significance'? How is it to be said that s 8 required the Defendant to report? Please identify the facts said to enliven the operation of the sub-section.
Is the phrase in your response 'and to compared against the design assumptions' intended to be read as and 'to compare those observations against the design assumptions? When is it said the obligation arose? Your response 'The Defendant failed to recognise the warning sign' is a statement of opinion or conclusion. Please tell us the facts that you assert support that opinion or conclusion. Your assertion 'The Defendant failed to appreciate their significance' is in the same position, and additionally, raises the further question, what significance? Your response 'it failed to report upon the consequences' raises a number of questions;
(i) Failed to report to whom?
(ii) What was the source of its obligation to report?
(iii) What are the 'consequences' referred to?
The ensuing sentence 'It failed to bring those observations to attention of the design team and to compared against the design assumptions' raises the following questions:
(i) What are the ' observations ?
(ii) is it intended to assert that CW failed to compare 'those observations' against observations in the design assumptions?
The next sentence 'It failed to consider whether those observations required re-assessment of roof support as applied' raises the following questions:
(i) Is the phrase 'support as applied' intended to be read as ' roof support as installed '?
(ii) is it asserted that 'those observations' actually required reassessment or merely that consideration needed to be given to that possibility? The balance of your answer does not respond to our question, which was 'in what manner ... is it said that there was a failure to adequately react to those warning signals'. Please respond to that question and the additional matters raised by your present answer.
1.15 Particular 4(g). We sought identification of the chainage points where bedding plane defects and irregular shale breccia in the roof are said to exist. Your response that it is in Mr Kotze's report and in a transcript of evidence is not a proper response to those questions, which we repeat.
1.16 Particular 4(h). We sought to identify the source of the obligation said to exist 'that there was an adequate system of communication between CW and BHBB', and in what respects it is to be said that any such system was not adequate. You responded that 'the obligation arises under a general duty under s 8(1)... and arose as a consequence of the obligation of the Defendant'. Your answer does not indicate the factual matters said to enliven such a duty on the part of Connell Wagner, by reason of s.8(1) of the OHS Act. Please provide those factual matters. As to the assertion 'and arose as a consequence of the obligations... ' your answer has become fully circular. If some additional source of obligation is relied upon, please tell us what it is. We take your response on the question of inadequacy to indicate that you rely on an asserted absence of advice from Connell Wagner to BHBB of the matters set out in (i) and (ii) of the first paragraph 4 of the Amended Application for Order. Please confirm this.
1.17 Particular 4 (the second Particular 4). Please identify the acts and omissions of Connell Wagner said to have caused the injuries to Mr. Shores. We assume there is no assertion of a tunnel roof failure between chainage 1100 and 1225; please advise if this is not correct. You assert that the risk of roof failure and/or rock fall 'extended to all persons' during the charge period and 'after chainage 1100'. Are we to read that as an assertion that all persons who entered the tunnel beyond chainage 1100 during the charge period were at risk? If yes, we repeat our request for identification of the persons said to have been at risk, the date they were at risk and the particular area of the tunnel they were at during the relevant time. As to your assertion the precise particulars... are unknown to the Prosecutor' we invite you to consider the obligations of a Prosecutor in such circumstances. 2. Connell Wager Pty Ltd - s8(2). 2.1 Particular 1. The 'risk' you advise, is a risk of injury of tunnel roof failure or rack fall or both. We assume that the only tunnel roof failure of rock fall alleged to have occurred is that between I225-1231 on 29 July 2004. Please advise us if that is not correct. 2.2 You advise that the particularised risk is said to have arisen from the Defendant's unsafe system of work and its unsafe work environment, as particularised in particular 4 of the Application for Order. 2.3 You advise that the Defendant's 'undertaking' is as particularised in particular 3 of the Application for Order. 2.4 You advise that the facts and circumstances from which it will be said that MVT1 was 'the Defendant's place of work' are those set out in particular 3(a)-(m) of the Application for Order. 2.5 You advise that the responses to further requests for particulars are as provided in connection with the charge under s.8(1) of the OHS Act. 3. CW-DC Pty Ltd - s. 10 (1) 3.1 and 3.2 The charge. You have confirmed that the allegation includes that CW-DC controlled the tunnel, including between chainage 1225 and 1231. Please advise the facts from which it will be said that it must be concluded that CW-DC 'controlled the tunnel'? 3.3 You have advised that to establish business or undertaking' you will rely upon the assertions contained in particulars 3(a)-(m) of the Application for Order.
3.4 You have advised that the term 'the section MVT1 East' identifies ch. 1100 -1231 and 'the site of the rock fall' refers to chainage 1225 -1231.
3.5 We sought identification of each person said to have been at 'actual risk' and the time and place of the alleged exposure. Your response that persons were at risk whenever they were present in the tunnel between chainage 100-1131 (scil. 1100-1131) is an insufficient response. We do not understand there to be any allegation of an actual rock fall other than between 1225 and 1231 on 29 July 2004. Given that the tunnel was lengthening each day, that conditions change daily and that no employee of either Defendant was present when the site of the rock fall was exposed, we will submit that we are entitled to be told the precise position within the tunnel that any person was exposed to risk, and the date on which that exposure is said to have occurred. We repeat the questions contained in this paragraph.
3.6 Particular 3(e). We sought confirmation that you assert that CW staff were required to work under the direction of CW-DC, and if yes, identification of the CW staff in question, and the source of the obligation. You respond by referring us to the Labour Hire Agreement. Whilst we are entitled to require you to identify the precise provision upon which you rely, we are content to re-visit the Labour Hire Agreement ourselves, drawing from your response that no other source of obligation is alleged. You do not however respond to our request for identification of the CW staff in question, and we repeat that question.
3.7 Particular 3(j). You advise that your allegation is that the design phase 'was continuing during the charge period', which we shall take to mean until 29 July 2004, unless advised to the contrary.
3.8 Particular 3(p). We sought elaboration of the phrase had a role...'. We are entitled to know what that imprecise phrase is intended to convey, and accordingly repeat the question. 3.9 Particular 4. You have identified the factual basis for the assertion that 'The Defendant had control of premises, as those matters asserted in paragraphs 4 and 5 of the Application for Order. You have not responded to our question as to whether your allegation is that the control is total or partial, and if the latter, to what extent. Please provide an answer to that latter question. 3.10 Particular 4(a). You advise that the Defendant is said to have provided the final design report to those persons identified in that respect therein. 3.11 Particular 4(c). You advise that the conclusion that the Defendant could withdraw its geologists' services is to be drawn from the assertions in particular 3 (a)-(s) in the Amended Charge. You do not address the further questions as to what 'unsafe conditions' could enliven that asserted entitlement, nor have you responded to our request for identification of the facts and circumstances to be relied upon to support the conclusion 'work would have ceased'. We are having difficulty understanding particular 4(c); and reference back to that particular has not assisted our understanding. Your reference to an implicit agreement raises additional questions. From what facts or circumstances is an agreement between the designer and constructors to he implied? What are the terms of that implied agreement? The entitlement to withdraw the services of its geologists is said to depend upon agreement. Is that agreement between the designer and constructors? The sentence "circumstances include a risk of tunnel roof failure or rack fall or both" do not assist our understanding. If the allegation is that CW-DC is liable for the injuries occasioned to BHBB employees and the putting at risk of other BHBB employees whilst they were working between chainage 1225 and 1231, we are entitled to know the precise basis upon which it is said that that liability arises. Clearly you propose to assert that the named employees were at unspecified times and unspecified places at risk whilst within MVTI between chainage 1140 and 1225, in addition to chainage 1225 to 1231. The common factual ground that no employee of either Defendant saw the tunnel after the face progressed beyond chainage 1225, and the fact that there was no rock fall between 1100 and 1225 demonstrates our entitlement to seek precise particulars in respect of each of the two chainage intervals. Certainly that will be our submission should we need to approach the Court. 3.13 Particular 4(d). This particular asserts an entitlement on the part of the Defendant to withdraw services 'due to unsafe conditions'. We enquired where that entitlement was said to be sourced. Your response that 'the particular speaks for itself 'provides no assistance. Please identify the facts and circumstances from which the implicit agreement between the designer and the constructors is to be drawn and identify its terms. From what facts or circumstances is it said that some agreement existed between the designer and constructors that the Defendant could withdraw the services of engineers or project leader if the constructor agreed? Is it said that the constructor did agree? If yes, by whom on behalf of which party, how and when? 3.14 Particular 4(d), We enquired what facts would be relied on to support the proposition that the constructor would have ceased work' and we asked when and where that cessation would have taken place. Your response referred us back to particular 4(d), from which no assistance is to be derived on those questions. Please respond to those questions.
3.15 Particular 4(d). You advise that 'temporary and permanent work' are those so described in design lot D-T0052.
3.16,3.17 and 3.18
Particulars 5(e) and 4(f). You have advised that the representation referred to in each of these sub-paragraphs is drawn from the CSS Work Plan and the factual circumstances asserted in 4 (e) and 4(f), 'that construction stage services responsibilities' refers to those described in the CSS Work Plan, and you confirm the quote in particular 4(f) is from the CSS Work Plan.
3.19 Particular 4(g). You advise that ' de facto entitlement' means an obligation inferred from the contractual relationship and the relationship in practice between the Defendant and BHBB.
3.22 Particular 4(h). We enquired as to the facts and circumstances from which three propositions were said to be drawn. In response you referred us to paragraphs 80 and 82 of the Affidavit in Support, which paragraphs, even if admissible, would not enlighten the Defendant on the questions raised. We repeat those questions.
3.23 Particular 5(a). We enquired how the Defendant was in a position to require a third party to act in a particular way. Your response that `it is not for the Prosecutor to identify a system that ought to be in place' does not respond to the question, which we repeat.
3.24 Particular 5(b). This particular repeats the imprecise proposition that unidentified employees worked at unidentified times in unspecified areas of the tunnel, before going on to assert the general proposition that 'adequate roof support was not being installed'. Your response does not address any aspect of this matter and appears to address propositions not here raised. Please note that should you continue to decline to address this area of enquiry we propose to approach the Court.
3.25 Particular 5(c). We enquired as to the source of the obligation said to rest on the Defendant, identification of the failures said to have taken place, and an indication of the nature of the inadequacies said to exist. Your response provides no information on any of those matters beyond asserting that the obligation arises under s.8(1). Please advise the facts or circumstances that enliven the statutory obligation, and re-visit the other questions raised, which questions we repeat.
3.26 Particular 5(c)-(ii). You assert that certain matters were not passed on to 'the design team'. We asked for identification of those persons you assert to be within the design team. Your response that this is known to the Defendant is not to the point. Please identify those whom you contend constituted the design team. If you wish to nominate those named in the CSS Work Plan, as you suggest, please say so.
3.27 Particular 5(d). You confirm that this particular covers two separate possibilities, or both.
3.28 Particular 5(d). You confirm that 'working action list' is the same as 'Inspection action list'.
3.29 Particular 5(e). We requested identification of the source of the obligation to do that which you allege the Defendant failed to do, and sought detail of the failures pleaded. You purport to identify the source of the obligation as s.8(1) of the OHS Act. Please advise the facts or circumstances that enliven the operation of s.8(i) in the manner for which you contend. Please re-visit our further requests for particulars, to which you have made no response.
3.30 Particular 5(f). In respect of this particular, we sought identification of the source of the obligation to do that which it is said the Defendant failed to do. To that request you respond that the obligation arises under s.10(1) of the OHS Act. Please identify the facts and circumstances that enliven the statutory duty in respect of the Defendant on which you rely. Insofar as you rely also upon 'a consequence of the Defendants' undertaking design duties', please indicate in respect of each Defendant the facts and circumstances from which that consequence is said to flow. How is it said that CW-DC undertook design duties? Our further queries are directed to the question of whether you assert there to be a specific and dedicated construction sequence said to omit some matter, or whether you assert there to be no such construction sequence at all. You have not responded to those questions, which we repeat.
3.31 and 3.21
Particular 5(g). In 3.31 we sought clarification as to which of two alternatives, or whether both, was intended. Your response makes it clear that you wish to pursue both possibilities, relying on either one or both. You do not respond to our two further questions, one each of which is addressed to each alternative. Please respond to those questions. As to the enquiry in 3.21, we sought identification of the location of alleged bedding plane defects and irregular shale breccia. You responded by referring us to Mr. Kotze's report and the transcript of evidence before the Coroner. It is not for the Defendant to seek out what the Prosecutor has in mind; we would be grateful if you could provide a response to the question.
Paragraph 3.32 repeats the question at 3.21 (b), and may be ignored.
3.33 Particular 5(h). We sought identification of the obligation to do that which the pleading asserts the defendant failed to do, and identification of the instances of alleged failure to be asserted. To that question you responded that the obligation arises under s.10(1). Please identify the facts and circumstances said to enliven that statutory duty on the part of the Defendant. You have advised that the failures alleged are those in 5 (h),
3.34 Particular 6. You have identified the risk referred to as risk of tunnel roof failure and rock fall throughout the tunnel between chainages 1100 and 1231. We have previously referred to the differing circumstances relevant to chainage 1225 to 1231 and chainage 1100 to 1225. On the assumption that it is common ground that no rock fall occurred between 1100 and 1125, and that no employee of the Defendants saw chainage 1225 to 1231 between the time it was opened up and the time it fell, we require to be told the precise details earlier sought in respect of 1100-1225, and the precise acts and omissions said to be relevant to the Defendant's liability in respect of 1225 to 1234, 1235.
4. CW-DC Pty Ltd s 8 (2)
4.1 and 4.2
Particular 4. We cannot follow your response, which appears to assert that CW-DC had employees; a proposition that you have been informed in writing by us is erroneous. Your response implies that other persons may be legally co-employed by the Defendant CW-DC. Please advise whether this is the intent of these particulars, and if yes, the persons said to be so employed, and the facts replied upon to demonstrate creation of the employment relationship suggested.
Please be aware that it is our view that there is multiplicity present in the charges, and on receipt of your further response, we will re-visit that question.
We await your response.