DELIBERATION
12 Senior counsel for the defendant reminded the Court, correctly, that the decision taken in rejecting the "no case" application involved the Court in an entirely different exercise: in the "no case" application the Court was bound to take the prosecutor's evidence at its highest but in this part of the case, the prosecutor was required to prove the elements of the offence beyond reasonable doubt. It was accepted that the Court had already correctly identified the essential elements of the offence, namely :
(a) the defendant was an employer at the relevant time (20 October 2004);
(b) that employees of the employer were exposed to risk to their health
and safety;
(c) that the employees were at work;
(d) that there was a causal nexus between the defendant's breach and the risk to employees' safety. The relevant employees were Mr Leisemann, Mr Burgess and Mr Galante.
13 Accepting that the task in which the Court is now involved concentrates attention on the elements of the offence and that they are to be established beyond reasonable doubt, nevertheless, the defendant's case heavily concentrated upon the circumstances surrounding the accident and the fact that Mr Leisemann had acted beyond the limits of his permitted authority, especially by performing electrical work or exposing himself to electrically live points in the air conditioning unit. In the "no case" judgment, the Court had emphasised the difficulty with concentrating on an accident rather than 0dealing with the risk to safety alleged by the prosecutor.
14 In light of the approach of the defendant, it is appropriate to refer to some well established and understood principles governing prosecutions brought under Occupational Health and Safety legislation. The provisions of s 8(1) of the Act require an employer to "ensure" the health, safety and welfare at work of all the employees of the employer. In Haynes v C I & D Manufacturing Pty Ltd and anor (1995) 60 IR 149 the Full Industrial Court noted that the general duties or obligations cast on employers under provisions such as these were both preventive and remedial in nature. The equivalent of s 8(1) and (2) were said to be both concerned with failures to ensure the health and safety of persons at workplaces in terms of "risks" and thus the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehended the commission of an offence where the relevant detriment to safety was only a risk and where the circumstances were such that the employer's acts or omissions had created a situation of potential danger to the health and safety of persons in the workplace. In WorkCover Authority of New South Wales (Inspector Egan) v Adco Controls Pty Ltd (1998) 82 IR 80 at 85, Hill J stated.
This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be pro-active and not a reactive one: employers should be on the offensive to search for, detect and eliminate, so far as reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.
15 In the Department of Mineral Resources of New South Wales (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27, Walton J, Vice-President stated:
The system of effective risk management required by the Act is not met merely by responsive actions to a risk which has been demonstrated to exist. There must be a system of searching for and identifying all possible risks and instituting safety measures to guard against those risks: WorkCover Authority of New South Wales (Inspector Kelsey) v University of Sydney (unreported, 2 April 1997 per Hill J).
16 Indeed, Chapter 2 of the Occupational Health and Safety Regulation specifically deals with risk management and amongst other things, requires an employer to consult with employees to enable them to contribute to the making of decisions affecting their health, safety and welfare at work. This Chapter requires an employer to take reasonable care to identify any foreseeable hazard that may arise from the conduct of the employer's undertaking that has the potential to harm the health or safety of employees ,and also requires an employer to assess the risk of harm to the health or safety of employees arising from any hazard identified in accordance with the Chapter. Employers are then to eliminate or control any reasonably foreseeable risk to health and safety of its employees.
17 In Rech v F M Hire Pty Ltd and anor (1998) 83 IR 293 Hungerford J, in the context of the operation of s 15(1) and s 16 (1) of the Occupational Health and Safety Act 1983, gave detailed consideration to the nature of the duty imposed and the tasks to be undertaken in determining whether there was a failure to meet the statutory obligations imposed upon the employer to ensure the health and safety of employees at his place of work. His Honour stated (at 316-317):
In a consideration of this mater, I have been quite troubled as to whether essential elements of the s 15(1) charge have or have not been established against F M Hire to the necessary degree. That arises having in mind the circumstances as disclosed by the evidence, not the least of which being that there was no witness to the events which occurred leading to the accident on 21 December 1993, in the context of the positions and responsibilities of the respective principal actors in the matter being the Sydney Market Authority, Nomel, F M Hire and, one might add, Mr R E Hall. I therefore think it both apt and timely to repeat comments I made in Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50, albeit in relation to s 16(1) of the Occupational Health and Safety Act but not relevantly dissimilar to s 15(1) here, regarding the proper approach as to the nature of the duty to ensure safety and whether an employer had failed to satisfy that duty, as follows:
I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long entitle states, has the purpose to 'secure the health, safety and welfare of persons at work'; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 -General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: 'Accident prevention is unquestionably one of the modern responsibilities of an employer.' The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309: 'In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer'.
It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179:
The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable.
Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22:
In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit.
Nevertheless, care must be taken, it seems to me, in determining the commission of an offence under s 16(1) not to so liberally interpret the duty cast as would exceed the permissible limits. The former Industrial Commission in Court Session (McMahon DP, Hill and Hungerford JJ) put it this way in Dawson (1990) 37 IR 110 at 120-121:
Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt that, the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J in McMartin v The Broken Hill Proprietary Company Ltd (unreported, NSW Ind Rels Comm, 1988) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety'.
Their Honours then cited (at 123-124) with approval the following passage from the judgement of Fisher P in Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 at 210:
In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt.
18 Bearing in mind these principles, it is necessary to then consider the submissions made on behalf of the defendant. The defendant initially pointed out that the charge related to the occurrences of a single day, 20 October 2004, at the club premises in Macquarie Street Sydney. The charge alleged a breach of s 8(1) of the Act in that the defendant, being an employer, failed to ensure the health safety and welfare at work of all its employees and in particular, Jeffrey Leisemann. After particularising the failures the charge alleged that, as a result of that failure, Jeffrey Leisemann was placed at risk to his health and safety and was fatally injured. The defendant submitted that, pleaded in this way, significant difficulties were placed in the prosecutor's path in establishing, to the criminal standard, the offence as particularised. The evidence was that Mr Leisemann frequently worked alone and it was not known, and there was no evidence, precisely what work he was undertaking on the day of the accident. It was unknown to what extent Mr Leisemann conducted a risk management assessment of the work that he was to perform: to the extent that he undertook work involving the exposure of live electrical points within the air conditioning unit, that was work he was told not to perform because it was recognised that he did not have qualifications as an electrician and that there was another member of staff, Mr Burgess, who did have such qualifications. While the particulars appeared to focus upon the accident and the fact that Mr Leisemann was placed at risk as a result of alleged failures, to the extent that the particulars also referred to Mr Burgess and Mr Galante, there was no evidence that on the day either of those employees were carrying out work on air conditioning units and in particular, the task of adjusting the thermostat on air conditioning units. It therefore followed that, even if there was some failure on the part of the defendant, such a failure could not have had any effect on the health safety and welfare at work of those two employees.
19 It can be accepted that, in criminal proceedings alleging a breach of the Occupational Health and Safety Act, the particulars of the breach assume considerable significance. Having regard to the breadth of the duty imposed on employers by s 8(1) of the Act to "ensure" the health and safety of its employees at work and the general objectives of the statutory regime, the particulars need to be considered in a practical manner. In this case, the prosecutor has alleged that all of the defendant's employees were at risk as particularised but the evidence makes it clear that the only employees that could fall into that category were the members of the maintenance staff, namely Mr Leisemann, Mr Burgess and Mr Galante. The allegation therefore is that, in the manner particularised, the defendant failed to ensure the health and safety at work of these three members of its maintenance staff. The later reference to Mr Leisemann would otherwise be redundant except the prosecutor further alleges that, as a result of the identified failures, not only was Mr Leisemann placed at risk to his health and safety but also he was "fatally injured". That particularisation therefore focuses on the fatal injuries and distinguishes Mr Leiesmann from the other two employees. Pleaded in this way, although not elegant, the prosecutor draws attention to the fact of the serious nature of the alleged risk. As has already been observed, the Act does not require an injury or accident in order for there to be a risk against which the employer failed to ensure the safety of its employees. In this case, as often happens, an incident on a particular day draws attention to the way in which a defendant has work performed and where there is an injury, especially a serious or fatal injury, at least that fact is evidence informing a consideration of the seriousness of the breach.
20 The fact that there is no evidence that, on this day, Mr Burgess and Mr Galante were performing the task of adjusting air conditioners does not lead to the conclusion that the charge as particularised cannot be made out by the prosecutor. This is not a case, such as was dealt by Hungerford J in Rech v F M Hire Pty Ltd, where his Honour was able to conclude on the evidence that the employee was not at work at the time that he drove the forklift and may not have even worked that day because of the nature of his employment arrangement. In any event, the deceased employee was driving the forklift well before the normal hours of work and was apparently in the course of moving stolen goods for his own purposes. The real issue therefore was whether the deceased employee was "at work" for the purposes of the operation of the Act. In this case, on the evidence, there is no issue that all three employees of the maintenance department were at work on the day. There was evidence that Mr Nelson had asked Mr Leisemann to adjust the thermostats because of the change of season and, as head of the department, it was within his authority to direct the other members of the maintenance department to also perform that task or to assist him in that task. It was a task that they had all performed. In the ordinary course of their work therefore, in a real and practical sense, they could be called upon to perform this work including on 20 October 2004. If called upon to do this work or undertaking it on their own account in the course of performing routine maintenance, they were therefore at risk if the particulars of the charge are otherwise made out.
21 Before dealing with the details of each particular, it is appropriate to note that the evidence has been substantially summarised in the first decision (Inspector Sibilant v Royal Automobile Club of Australia Incorporating Imperial Service Club Pty Ltd [2008] NSWIRComm 87). The evidence for the defendant is dealt with in paragraphs [3] to [9] of this judgment. It is not proposed to repeat those summaries of the evidence.
22 In summary, the defendant's submissions were:
(a) the prosecutor had failed to define with the necessary precision what a risk assessment would have entailed in the circumstances, and did not particularise what was an "adequate" risk assessment and therefore there was no evidence as to these two issues;
(b) the inadequate risk assessment was said to be in relation to work on air conditioning units, particularly the task of adjusting thermostats on the air conditioning units. The work of adjusting thermostats, however, did not bring the worker near the energised parts and therefore a risk assessment of the tasks would have led to the conclusion that there was no risk. By inference, such an assessment would have been made by Mr Burgess, the qualified electrician, with Mr Galante and Mr Leisemann routinely performing the task. There was no need to carry out a broader risk assessment to cover something entirely unrelated to the task of adjusting the thermostat because that was not part of the task; there was no need for a risk assessment in relation to work that employees were not called upon to perform;
(c) the prosecutor had failed to identify who should carry out the risk assessment. However, Mr Leisemann was the maintenance manager and had been instructed at the time of his engagement that he was to undertake a risk assessment prior to doing work and he was also the chairman of the occupational health and safety committee. He had attended an occupational health and safety course. It was sheer speculation to assert that Mr Leisemann had not carried out a risk assessment before performing any work on the air conditioning unit. Similarly it was speculation to assert that, if he carried out a risk assessment, it was inadequate;
(d) the presence of electrically insulated tools and a device to identify the presence of electric current in the room was evidence that Mr Leisemann had assessed that a risk of electrocution existed and that he would be protected by using these tools. The training he had undertaken showed that, having identified the risk, the employer was to take appropriate steps to eliminate or control the risk and as manager that task had been delegated to Mr Leisemann;
(e) Apparently, Mr Leisemann was intent on doing work which involved a risk of coming into contact with live electric points and was intent on performing work beyond the mere turning of a knob which was all that was involved in adjusting the air conditioner. Even if there had been a risk assessment, it is evident that Mr Leisemann would have carried on with the work in any event. There was no evidence that an increased risk to his safety was caused by any failure of the employer to carry out a risk assessment;
(f) if it was assumed that a careless or inquisitive employee also needed to be warned as part of the risk assessment, it was difficult to understand how such a warning would have made any difference in these circumstances. Here, Mr Leisemann knew he was working "live", took some precautions to protect himself with what he regarded as appropriate tools and nonetheless proceeded. Even if there was such a warning as part of a risk assessment, it was unlikely that he would have taken any notice of it. More importantly, it was not open to conclude that, because Mr Leisemann put himself in a position which was obviously dangerous, either he had not carried out a risk assessment or that the risk assessment he had carried out was inadequate;
(g) the simple task was to adjust the temperature by turning a knob - a risk assessment would not have been extended to instructing an employee that, in such circumstances, they were not to remove a secured cover from another part of the air conditioner that did not need to be touched and which did not involve an employee going near in performing the authorised task;
(h) the task of adjusting the thermostat or the changing of filters did not put any employee at risk of exposure to energised points or contacts;
(i) Mr Leisemann had been instructed by Mr Nelson upon his engagement that he was not to do any electrical work because he was not a qualified electrician. The inference drawn from the available evidence was that Mr Leisemann accepted the instruction and it formed a term or condition of his employment. The only member of staff who performed electrical work was Mr Burgess, a qualified electrician. Mr Leisemann's diary notes referring to some electrical work were inadequate to establish that he was performing electrical work - they were just as consistent with the performance of supervising the work being performed by Mr Burgess or an electrical contractor. If Mr Leisemann was, contrary to instructions, carrying out electrical work and therefore increased the risk to his safety it was his own breach of employment instructions that raised the risk and it was not caused by any failure of his employer;
(j) while the maintenance team were not instructed as to what was meant by "electrical work", the evidence was that Mr Galante did not do anything concerned with electrical work. Mr Burgess said that, as far he was concerned, the other staff did not touch electrical work. In those circumstances, any failure to instruct employees as to what was meant by electrical work did not increase the risk to health and safety of the maintenance team. From the tools he was using and despite instructions to the contrary, Mr Leisemann was doing something he certainly understood to be electrical work. In addition there was no evidence of the maintenance team doing other work on the air conditioning, apart from adjusting the thermostat and removing the filter of drip trays. There was no evidence that there was any need to remove the cover of the valve for any reason, including obtaining space to perform other work. Adjusting the thermostat required nothing more than turning the knob on the controller. There was no evidence that the work of changing the filters or adjusting the thermostat may have required removing the condenser;
(k) if an appropriate risk assessment included a warning against removing the cover or moving the cover of the valve whilst performing work in the unit and/or isolating the power before commencing any work, there was no evidence that the absence of such a risk assessment increased the risk to health and safety of the employees. Neither Mr Galante nor Mr Burgess did any work which put them at risk while performing work on the air conditioner and so the existence of a risk assessment with the warning referred to above would have made no difference to the risk to their health and safety. In relation to Mr Leisemann, such a warning would have made no difference to his conduct and the evidence was to the contrary. Therefore, the failure to provide such an assessment would not have increased the risk to Mr Leisemann's health or safety;
(l) there was no evidence that changing the filters or adjusting the thermostat gave rise to a risk of coming into contact with energised points and therefore, there was no warrant for a risk assessment or procedure that required isolation of a power supply before carrying out that work. The evidence of Mr Nelson was to the effect that only Mr Burgess, as a licensed person, was to perform any electrical work and that the other two members of the maintenance team were not to perform such electrical work. Adjusting the thermostat in an air conditioning unit involved nothing more than opening the door and turning a knob. Removing the filter did not require exposing a person to any energised part of the unit. There was no need for a warning against doing something that was not required to be done as part of the task;
(m) as no electrical work was being performed by Mr Leisemann and Mr Galante, there was no need to isolate the power;
(n) if there was a failure as alleged, then the cause was one over which the defendant had no control and against the happening of which it was impracticable for the defendant to make any provision. Mr Leisemann was the manager and the only way to ensure his safety was by being supervised by another person;
(o) it was not possible to establish what work Mr Leisemann was performing but he was not adjusting the thermostat or changing the filters. There was no evidence why he removed a cover and exposed himself to risk of electrocution. There was no evidence that the cover was not secured before he removed it. The only conclusion available was that Mr Leisemann was doing something that was completely unnecessary if what he was trying to do was either adjust the thermostat or change the filter. By his own conduct he completely and unnecessarily created a danger;
(p) there was no evidence that Mr Nelson was aware that Mr Leisemann had a Voltfinger in his possession or that he was using it on the day in question, and there was no evidence of whether he used it on the day. While a perusal of Mr Leisemann's work diary and the contents of the minutes of the safety committee may have resulted in an investigation of the work actually performed by Mr Leisemann, the employer's duty could not be properly extended in such a way. In any event, Mr Leisemann was engaged as a manager and had been told that he could not perform electrical work. There was a proper budget for maintenance and no suggestion that it was inadequate. Mr Leismann was instructed to use contractors, including for air conditioning work, and he was aware that his maintenance staff included a licensed electrician. Under those circumstances it is not necessary for an employer to discharge its duty of diligence to check for what, under the circumstances, would have been serious and wilful misconduct on Mr Leisemann's part. The work diary was not required by the employer and Mr Nelson was unaware of it. He could hardly be criticised for failing to require the production of the diary to assess what risks might flow from the work being performed by Mr Leisemann and to check that Mr Leisemann was not performing electrical work;
(q) in relation to the second particular alleging a failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units, it was submitted that it was not known what task Mr Leisemann was attempting to undertake and if he was attempting to carry out electrical work on the unit, he was not suitably trained or qualified. It could not be assumed, in the absence of evidence, that Mr Leisemann was carrying out electrical work and if he was attempting to adjust the thermostat or clean the filters, those tasks were not electrical work. It was speculation what Mr Leisemann was in fact doing, but it was not part of his duties to perform electrical work. He may have been attempting to satisfy his own curiosity as to the operation of the air conditioner or may have developed his own theory about its workings, or he may have decided that what he was attempting would adjust the temperature or he may have had something else altogether in mind. It could never be known what Mr Leisemann was doing and it was sheer speculation to attempt such a determination;
(r) given that Mr Leisemann was the maintenance manager in a small organisation in whom a large degree of trust had been placed enabling him to work largely unsupervised, if there was a relevant failure by the defendant it was due to causes over which the defendant had no control and against the happening of which it was impracticable for the defendant to make provisions. Mr Leisemann apparently chose not to avail himself of the services of the employed licensed electrician within the maintenance team, nor of the air conditioning contractor. His training and his ordinary experience would have alerted him to the dangers of electrocution and he must have known that he was working "live" because of the tools he had with him at the time, yet he persisted in doing whatever it was he had in mind;
(s) in relation to the alleged failure to adequately inspect or ensure that an adequate inspection was undertaken of electrical circuits and that the defendant's employees were not exposed to the risks arising from live electrical circuits, it was submitted that Mr Leisemann was electrocuted because he exposed himself to the live circuit by removing a cover and that inspection of the electrical circuit would not have exposed a risk. It was unknown whether Mr Leisemann knew how to isolate the air conditioner upon which he was working, nor was it known whether it would have made any difference if he had that knowledge. This particular did not go to a failure to inspect the air conditioning system to establish what was involved in the task, including a need for entering the unit, changing the filters and adjusting the thermostat and whether removal of any of the items in the unit might expose the maintenance staff to risks including risks of electrocution;
(t) in relation to the failure to ensure that the electrical supply to the air conditioning units was isolated before any work was performed on them the defendant submitted that, had Mr Leisemann merely adjusted the thermostat or changed the filter, there would have been no need for him to isolate the air conditioning unit so that the failure to isolate the air conditioning unit did not give rise to any increased risk of injury to Mr Leisemann provided he confined himself to his work. There was no evidence of the state of Mr Leisemann's knowledge as to how to isolate the air conditioning unit, and there was no requirement to inform him that the air conditioning unit should be isolated because he was never required to do any work which would have exposed him to a risk of injury from the unit not being isolated. While a securing screw was missing from the cover of the motorised valve, wire was present similar to that which had been used to secure the cover on another air conditioning unit in the room. There was no evidence that the cover was being removed from time to time. The evidence merely established that the cover had been secured by wire and there was no evidence that the method of securing by wire was any more or less secure than the original method of securing the cover with a screw;
(u) in relation to the particular alleging a failure to ensure that electrical testing equipment was suitable and in working order when being used, the defendant took this to be a reference to the Voltfinger but noted that the defendant was not aware that Mr Leisemann had such a piece of equipment in his possession and that there was no evidence as to its ownership such that it could not be inferred that the Voltfinger was in fact owned by the defendant. On the evidence, the defendant was not aware of the existence of the equipment and it could hardly be criticised for failing to ensure that it was suitable and in working order. Further, there was no evidence that Mr Leisemann used the Voltfinger so it could not be inferred that any defect in the Voltfinger placed at risk his health and safety. The defendant did provide electrical test equipment and a multi meter that was suitable for testing whether a circuit was "live" and the defendant also provided an electrical test box for testing electrical equipment. That equipment was available to be used by people who were authorised to use it, namely Mr Burgess the licensed electrician, and there was no evidence that it was used by people who were not qualified to use that equipment;
(v) in relation to the failure to provide adequate information, instruction, training and supervision it was submitted that the evidence did not identify in what respect these matters were inadequate, nor did the evidence demonstrate how any of these inadequacies caused the risk asserted. There was no causal link between any identified failure in regard to the provision of information, instruction, training and supervision and Mr Leisemann's death. Mr Leisemann died as a consequence of doing work other than that which he was instructed to do in circumstances where he was instructed not to do electrical work. It was unclear what information, instruction, training or supervision would have been adequate in the circumstances and it was difficult to see how, as manager, Mr Leisemann could be subjected to further supervision. He had been sent for appropriate training and was instructed on what he could not do, namely, electrical work. He was aware that he was taking a risk of exposing himself to a live electrical circuit given his use of the voltmeter and the insulated screwdriver. He was also aware, apparently, that he was dealing with live circuitry and so it was difficult to understand how the provision of more information made any difference to the risks. Mr Leisemann was not placed at risk as a result of any of the asserted failures of the defendant but as a consequence of his own actions.
23 Before dealing with these submissions pressed on behalf of the defendant, it is convenient to note that, not only the summary of evidence contained within the first judgment is adhered to for the purposes of deciding whether an offence has been committed by the defendant, but that also the findings of fact made in that first judgment are also adhered to except as follows: the Court had before it a number of minutes from meetings of the occupational health and safety committee and department heads. From that material, the prosecutor suggested that, at the very least, the defendant should have been placed on notice that Mr Leisemann may have been or was performing electrical work when he was not qualified to do so and should have investigated the situation. Those numerous entries are summarised in the first judgment and are not repeated here. On further consideration, those minutes are an insufficient basis for concluding that, either Mr Leisemann was routinely performing electrical work or that the entries were of such a nature that they should have put the defendant on proper notice that Mr Leisemann was performing electrical work. Mr Leisemann's work diary falls into a different category because it was not a document required by the defendant to be maintained by Mr Leisemann and its existence was unknown to the Chief Executive Officer, Mr Nelson. It is not appropriate that such a document be used as a foundation to impose some obligation on the employer in order to establish what work is being performed and the method of work being adopted. As with the minutes of the safety committee and the departmental heads, the entries themselves form an insufficient basis to establish that Mr Leisemann was performing electrical work or to put the defendant on notice that he may have been performing electrical work. There is, however, other evidence touching upon these matters.
24 In its case and without objection, the defendant tendered a position description for the maintenance manager dated 23 February 1998. There was no evidence as to why it was prepared in 1998 or if it was prepared in 1998. As has already been observed, that document was not signed by the employer or the employee and there was no indication that it had been accepted, some years later, by Mr Leisemann. It is to be recalled that Mr Leisemann had been employed in a similar position in the club between 1992 and 1996 and had resumed employment in December 2002. While the February 1998 document may be indicative of the type of work performed by Mr Leisemann as was the content of the job advertisement to which Mr Leisemann replied, the document alone does not establish that Mr Leisemann knew and understood that these were his duties. The position description was relied upon by the defendant as demonstrating that Mr Leisemann was not a hands-on operator but was essentially involved in supervision and was not required to perform electrical work. The job description, as might be expected in dealing with a small workforce in the maintenance department of a city club, contained a miscellany of duties but also broadly described the functions as following the club's procedures in relation to occupational health and safety and to perform any other reasonable duty requested by management. Two further things should be noted. The job advertisement referred to the performance of electrical work. Mr Nelson's evidence was that the maintenance staff were to perform "light electrical work" and there was evidence before the Coroner that Mr Leisemann frequently worked on his own in performing maintenance tasks, rather than doing no more than supervising others.
25 After the evidence had closed and judgment reserved, a further issue arose where the Court sought the assistance of the parties. Before the Court were a series of photographs of the air conditioning unit on which Mr Leisemann was working when he was electrocuted. During the presentation of the case attention was drawn to a piece of equipment protruding from the unit. That piece of equipment was of a rectangular shape with a metal shaft extending out from and located near one end of the equipment. A red coloured plate carrying the letter H was immediately above the metal shaft. A pipe was attached to the end opposite to where the protruding shaft was located and there appeared to be much smaller diameter coiled copper piping attached to it. During the hearing it appeared that this piece of equipment was referred to as the thermostat to be adjusted. Apparently, the metal shaft was meant to hold a knob so that turning the knob could increase or decrease the temperature in the room. While reference was made to these photographs during the hearing, no mention was made of the description appearing at the foot of each photograph. Those descriptions stated that the rectangular piece of equipment with the metal shaft was "... part of the room air condition unit that was protruding from the air conditioning unit". Two photographs that focused on that piece of equipment carried that description. A number of photographs showing a close-up of what had been described during the hearing as a "motorised valve" carried a description stating that the picture depicted "the thermostat" or "the exposed thermostat". There were five such photographs.
26 The parties helpfully conferred about this issue raised by the Court and then identified the photographs that depicted a motorised valve without a cover, the covered motorised valve and the pictures depicting the thermostat control with its metal shaft but having do dial or knob. The Court was then referred to Mr Burgess' evidence given at the Coronial Inquest. The Court expresses its appreciation for the further assistance given by the parties in relation to these issues.
27 It is necessary to return to the evidence concerning the operation of the air conditioning unit and the thermostat. In the proceedings before the Coroner, Mr Burgess was asked if he had ever adjusted the settings on an air conditioning unit while operating the thermostat or anything of that nature. Mr Burgess replied that, in the individual rooms, there was a thermostat control and the setting would be opened, closed or adjusted so that hot or cold water would flow through the condenser unit. He had performed this work in individual rooms. He described the task as opening the door and turning the knob on the thermostat control. The rectangular thermostat was usually screwed into part of the unit and "... you just turn it on and you'd (sic) in here with the other hand there is a motorised valve, moving". Mr Burgess accepted that turning it one way would open the flow of water and the other way would decrease the flow of water but he would not take the thermostat out of the air conditioning unit and would leave it inside. In his view there was no need to take the thermostat out of the air conditioning unit. Mr Burgess noted that in the photographs the cover had been removed from the motorised valve but he had no idea what work was being performed, except that perhaps a check was being carried out to see if the motorised valve was running but that could be ascertained by listening to it with the cover on.
28 The other evidence relevant to this matter was given by Mr Rayner, the senior electrical installation inspector employed by Energy Australia. Mr Rayner's evidence in this regard appears in paragraphs [45] to [47] of the first judgment. In those paragraphs, Mr Rayner explained that he understood that the adjustment to the air conditioning unit was made through the thermostat and that the thermostat was electrically connected to the motorised valve and that the two parts worked in conjunction with one another. He regarded this operation as involving electrical work. Mr Rayner explained that the cover over the motorised valve was there as a protection against the live components and that the cover did not need to be removed to perform other work within the enclosed area containing the air conditioning unit. Mr Rayner further expressed the view that the adjustment of the thermostat involved electrical work and he had reached that view because he assumed that Mr Leisemann was working on the thermostat depicted in the photographs. While Mr Rayner did not purport to be an expert in air conditioning, this evidence is properly confined to the electrical connections of the thermostat and the motorised valve.
29 It was earlier commented upon that the defendant's submissions concentrated upon the accident and Mr Leisemann's electrocution although that approach had been criticised in the "no case" judgment. The cases cited in that judgment and in this judgment make it abundantly clear that, even if the offence is particularised as occurring on a nominated day, the focus of s 8(1) of the Act is upon the employer's duty to ensure, relevantly in this case, the health and safety at work of all the employees of the employer. In order to discharge this duty, the employer is to take steps to prevent risks to employees while they are at work as well as acting to remedy any risk that may be found to exist in the workplace. The defendant's focus on why Mr Leisemann died and consequently who was responsible for his death, misunderstands the operation of the Act and the particulars of the offence alleged. The analysis of the alleged offences as set out in the "no case" judgment is adhered to for the purposes of this judgment, except where otherwise stated.
30 Again it will be seen that, on this aspect of the case, the defendant made particular mention of the fact that Mr Leisemann had been directed not to perform "electrical work". Although involving some repetition, the Court adopts paragraph [67] of the "no case" judgment, namely:
Another feature of the defendant's submission was its concentration on giving directions to Mr Leisemann not to perform "electrical work". It is to be observed, however, that not all of the particulars of the alleged breach proceed on the basis that employees working on air conditioning units are engaged in "electrical work": some of the particulars, such as particular (b) combines tasks involving electrical work with tasks including work on electrical air conditioning units and thus may not be electrical tasks. In this respect, two lines of authority in this jurisdiction are relevant: WorkCover Authority (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85, Hill J stated:
This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach be a pro-active and not re-active one; employers should be on the offensive to search for, detect and eliminate, so far as it is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.