Inspector John Sibilant v Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000

Industrial Relations Commission (NSW)|2008-07-01|Before: Haylen J, Mr P

CITATION: Inspector John Sibilant v Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd. Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 [2008] NSWIRComm 87

PROSECUTOR: Inspector John Sibilant

DEFENDANT: Royal Automobile Club of Australia PARTIES: Incorporating Imperial Services Club Ltd

Occupational Health and Safety Act 2000 s 8(1), s 107 (3) - workplace accident - employee fatally injured - building and maintenance manager- duties included electrical related work - not qualified or trained to perform such work - work on air conditioning units - electrocution - "no case" submission at close of prosecution case - maintenance team had "very little" electrical test equipment - occupier not able to change temperature - control of temperature required access to the thermostat control inside the unit - no written electrical work policy - failure to carry out and implement an adequate risk assessment for work on air conditioning units - failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units - failure to adequately inspect, or ensure that an adequate inspection was undertaken of the electrical circuits - failure to ensure that the electrical supply to air conditioning units was isolated before any work was performed on them - failure to ensure that electrical test equipment was suitable and in working order when being used - failure to provide adequate information, instruction, training and supervision - no information provided to employees about what electrical work they should be doing and should not be doing - need for an appropriate risk assessment - maintenance staff not qualified but electricians worked inside the air conditioning units - defendant's duty to be diligent in relation to workplace safety - maintenance staff not instructed or trained in isolating the air conditioning system - no written safety rules - prima facie case established - "no case to answer" submission rejected. CATCHWORDS: Occupational Health and Safety Act 2000 s 8(1) - no case to answer application - principles applicable - prima facie case established.

LEGISLATION CITED: Occupational Health and Safety Act 2000 s 8(1) Occupational Health and Safety Regulation 2001, Clauses 9-15, Clause 41, Clause 64

Inspector Haynes v C I& D Manufacturing Pty Ltd and anor (1995) 60 IR 149 at 158 R & R (1989) 18 NSWLR 74 R v Serratore (1999) 48 NSWLR 101 CASES CITED: Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15] Wentworth v Rogers [1984] 2 NSWLR 422 at 429 WorkCover Authority (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 WorkCover Authority of New South Wales (Inspector Taylor) v Fletcher International Exports Pty Ltd (2001) 108 IR 40

HEARING DATES: 9 April 2008, 10 April 2008

PROSECUTOR: Mr R Reitano of counsel SOLICITORS: Legal Group WorkCover Authority of NSW LEGAL REPRESENTATIVES:

DEFENDANT: Mr P Menzies QC and Mr S Benson of counsel SOLICITORS: Ellison Tillyard Callanan

INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 28 April 2008

Matter No IRC 1887 of 2007 INSPECTOR JOHN SIBILANT V ROYAL AUTOMOBILE CLUB OF AUSTRALIA INCORPORATING IMPERIAL SERVICES CLUB LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 87

1 Inspector Sibilant of the WorkCover Authority of New South Wales has commenced proceedings against the Royal Automobile Club of Australia (incorporating the Imperial Services Club Ltd) ("The Club") claiming a breach of s 8(1) of the Occupational Health and Safety Act 2000. The proceedings were commenced following a Coronial Inquest where the Coroner's findings and recommendations were published on the 20 December 2006. Inspector Sibilant commenced these proceedings in reliance upon the provisions of s 107 (3) of the Occupational Health and Safety Act 2000.

2 The breaches of the Occupational Health and Safety Act 2000 alleged by Inspector Sibilant arose from a workplace accident in which an employee of the defendant, a Mr Jeffrey Leisemann, was fatally injured. It was alleged that Mr Leisemann had been employed by the defendant as its building and maintenance manager at the club premises at 89 Macquarie Street Sydney. He had been employed in this role from December 2002 but had previously been employed in the same or similar position from September 1992 to April 1996. It was alleged that Mr Leisemann was not supervised whilst at work and that the broad nature of his duties sometimes included electrical related work. He was, however, not qualified or trained to perform such work and the defendant had engaged D. J. Staniforth ("Staniforth") to perform electrical work in relation to particular aspects of the defendants air-conditioning system. Mr Leisemann supervised two other employees: Mr Burgess, who was a qualified electrician, and Mr Galante, who was a general handyman. It was alleged that all the employees had separate duties and areas of responsibility and did not work together.

3 In the early afternoon of 20 October 2004, Mr Leisemann had attended suite 601 on level 6 of the Club premises. At approximately 2.00 pm that afternoon Mr Burgess entered suite 601 and found Mr Leisemann lying on the floor unconscious. Attempts were made to revive Mr Leisemann and by approximately 2.20 pm ambulance personnel arrived and transported him to hospital. Mr Leisemann was pronounced dead at the hospital.

4 At the time Mr Leisemann was found in suite 601 the sliding door to one of the air conditioning units in the room was open. The cover of the motorised valve adjacent to the air conditioning unit within the bulkhead had been removed. The energised contacts at the top of the mechanism were exposed. The thermostat control had been removed from its position inside the bulkhead to a position outside the bulkhead. A torch was found, still shining, inside the air conditioning unit. When Mr Leisemann was found he was not touching anything in the air conditioning unit but tools were found on the floor. The tools found in the room included a hammer, a pair of pliers, a 300mm adjustable shifter, a 10 inch adjustable shifter, a red Phillips head screwdriver, a red flathead screwdriver and a CABAC "Voltfinger".

5 An autopsy report from the Department of Forensic Medicine, Glebe, expressed the opinion that the cause of Mr Leisemann's death was electrocution. At autopsy, electrical burns were noted on the right hand and a number of very minor injuries were noted on the lower extremities. Apart from a degree of moderate liver enlargement, Mr Leisemann did not appear to be suffering from any significant medical conditions prior to his death. 6 The defendant pleaded not guilty to this charge as particularised. At the hearing the parties were able to agree on a substantial number of facts. Those matters were reduced to writing and the Agreed Statement of Facts appears as an annexure to this judgement. As a result of further discussion between the parties two large volumes of documents were tendered. Those documents included: a factual inspection report prepared by Inspector Sibilant; witness statements (including statements from the other two members of the maintenance team employed by the defendant, Mr Burgess and Mr Galante and from Mr Nelson, the CEO/Secretary Manager of the defendant); colour photographs of the scene; certain specifications for the air conditioning unit; minutes of the Occupational Health and Safety Committee meetings between May 2004 and September 2004; a report of Mr Rayner, senior electrical installation inspector, Energy Australia; a report prepared by Mr David Fraser of TestSafe; the transcript of the inquest; photocopy of Mr Leisemann's work diary for 2004; the letter of appointment regarding Mr Leisemann and a position description for the position of maintenance manager; correspondence with Staniforth; and, an autopsy report. Brief oral evidence was given by Inspector Sibilant as to the basis upon which he had issued three improvement notices to the defendant as a result of his investigation of this accident and copies of those improvement notices were also tendered. At the close of the prosecution case senior counsel for the defendant submitted that there was no case to answer. The prosecution evidence was subjected to considerable analysis and this judgement deals with the "no case" submission.

7 Mr Harold Burgess provided a statement to Inspector Sibilant in late November 2004. He was employed at the Club by the defendant as a handyman/maintenance man. He was qualified as an electrician/electrical supervisor but performed a variety of functions for the Club, from changing tap washers to cleaning. Mr Burgess had found Mr Leisemann in suite 601 at about 2.15pm on the day of the accident, 20 October 2004. After the ambulance had attended, Mr Nelson, the CEO and Secretary/Manager of the defendant, asked him to isolate the power and call an electrician. Mr Burgess went to the rooftop where the electrical switchboard was located and from which the air conditioning system was controlled. He switched off what he thought was the circuit breakers for the air conditioning. He later learnt that he had not isolated the power to the air conditioning when an isolating switch for the air conditioning system was located by a representative from Energy Australia. 8 In relation to the equipment found in the room Mr Burgess said that the tools and equipment for maintenance employees was owned by the club and he thought that the maintenance manager was responsible for the maintenance of that equipment. The Voltfinger found in suite 601 he thought was owned by Mr Leisemann. He said the maintenance team had "very little" electrical test equipment and he in fact did not know who owned the test stick or whether the club had purchased it. If there were faulty tools or equipment the maintenance team would raise those matters and they would be replaced.

9 The air conditioning units in the rooms would be isolated depending on the work that was to be performed upon them. It was possible to clean the filters whilst the air conditioner was running but if anybody was working on the electrical controls the power to the unit would be isolated. Isolation was affected by switching off the circuit breakers to the air conditioning system in the roof switchboard. Prior to the accident Mr Burgess was not aware of the location of that circuit breaker. On the day of the accident Mr Leisemann was responsible for isolating the power to the room air conditioning unit and Mr Burgess made that statement on the basis that as an electrician it was the person working on the unit that was responsible for isolating the power to the unit. He had never seen anything in writing as to the defendants policy on working "live" but stated that working live was avoided at all times. In the position in which he was employed he did some minor electrical work but always avoided working on live power. He was not aware of a risk assessment undertaken for the task of performing maintenance on the air conditioning units prior to this accident. 10 It was the decision of the maintenance manager as to what work would be undertaken on room air conditioning units and the maintenance team only cleaned the filters. If any other work was required then the air conditioning maintenance company would be called in for quotes or assessment. Mr Burgess was not aware of the risk management process undertaken by the defendant prior to commencing maintenance or scheduled work. 11 In August of 2006, Mr Burgess gave evidence in the Coroners Inquest. He described his work as handyman/maintenance worker as including minor electrical work, assisting in maintaining the Club, replacing tap washers, replacing faulty power points, light globes and fluorescent lights and cleaning (including the cleaning of filters of air conditioning units). He said he was not involved in bigger electrical work other than fixing power points and that the electrical work occupied about 30 per cent of his time. He said that he had not received any instructions regarding electrical work and what he could do or could not do. The previous maintenance manager had air conditioning experience and he had said before working on anything it was to be switched off. Mr Burgess had always followed that instruction. Even though that maintenance manager had air conditioning experience, outside contractors were brought in to do air conditioning work. Sometimes if it was a small unit he would look at it and tell the contractors what was wrong with it but he would not perform the work because he had a high workload and little time to do so.

12 Mr Burgess did not know what Mr Leisemann was looking for in the air conditioning unit on the day he was electrocuted. He had seen Mr Leisemann looking at other air conditioning units but on those occasions he had seen the air conditioner contractor present and they were both looking inside the unit. He had seen this but did not know what they were doing. This had occurred approximately six to nine months before the accident. Mr Burgess said that the only regular work being performed on the air conditioners was cleaning the filters and that was work performed by Mr Burgess or Mr Galante and would be done about every four months. Their were 40 to 50 air conditioners that were part of the air conditioning system but they were part of a system and were not individually operating units in each room. In order to clean the filters it was not necessary to turn off the air conditioner and that was not done. Occasionally other parts of the air conditioning unit had to be dismantled where the filter was taken out from the bottom or to one side of the unit. If the filter was taken out through the bottom of the unit the drip tray and condenser would have to be removed from the unit and that involved removing the skirting board, otherwise it was simply removing the clips from the side of the filter. Nothing else was required to be moved.

13 In relation to electrical work Mr Burgess mainly did power points and minor electrical work but he was never asked to work on bigger or major pieces of electrical equipment. If something broke down, which was only occasionally and rare, he may have replaced a belt on the air conditioning unit if he had seen that it was broken. He would switch the unit off to replace the belt. When asked if he ever adjusted the settings on an air conditioning unit Mr Burgess said the only other system upstairs had controllers that would control the temperature in a particular zone. There would be one reasonably sized controller for controlling the humidity in a zone such as the east and the north and the south. In relation to adjustment in the individual rooms, the units had a thermostat control. That could be adjusted according to the setting. Mr Burgess had adjusted the thermostat setting in an individual room but he did not do it regularly. He would perform this adjustment by opening "the door" and turning the thermostat control knob. When the door was opened the thermostat was generally screwed into part of the support and there was a motorised valve and it was turned one way to open the flow of water and another way to decrease the amount of water. The thermostat control did not have to be moved but would be left inside the unit.

14 From photographs of the scene Mr Burgess was asked his opinion of what work was being done and he noted that there was a portable temperature gauge that gave a reading of the room temperature. The thermostat was out of the unit and the top was missing from the motorised valve. Mr Burgess said that he had no idea what was intended but there may have been an intention to check the motorised valve, although it could be heard if that valve was working without removing the cover. These motorised units were old but seemed to be quite efficient. Mr Burgess understood that there were contacts inside for power and the function of the valve was to open and close a mechanical valve that was underneath. The valve let either hot water or cold water into the condenser unit; if it was not working the temperature could not be controlled. The only function of the valve was to regulate the water flow and that would impact on the temperature.

15 It was Mr Burgess's understanding that a company called D J Staniforth was responsible for maintaining and servicing the air conditioning units and they were engaged on maintenance duties. That company would make sure everything was running, would correct temperatures, perform maintenance work, clean filters and perform general maintenance work on the chiller unit to keep the water cold. Mr Burgess had seen Mr Leisemann with a person from Staniforth looking inside a unit but he was unaware of any representative of Staniforth being present on the day of the accident.

16 In relation to receiving instructions about electrical work that he could do or could not do Mr Burgess said that nobody gave him any instructions to that effect and that it was left up to him. Although he was employed as a maintenance handyman he only did what he thought was reasonable. As far as he was aware the other staff would definitely not touch electrical work. If there was a breakdown or an electrical problem of a weekend there was a list of contractors to be contacted and to be called in but most of the time the other maintenance staff would come to Mr Burgess and ask him to have a look at any electrical difficulties. When matters were to be referred to an electrical contractor that would be done through the maintenance manager and Mr Burgess was not much involved in that function. He would not often approach the maintenance manager to ask for a contractor to be brought in and could not recall referring to any particular electrical work that needed to be dealt with by a contractor. Generally that was decided by the maintenance manager, Mr Leisemann. If something had broken down or stopped and it was out of the range of work that Mr Burgess had limited himself to he would refer it to the maintenance manager to bring in a contractor.

17 There was a small voltmeter at the club premises, that Mr Burgess referred to as a multi meter, used to test whether a wire was electrically alive. He had used it "very occasionally" but "hardly at all" and he thought it was the property of the club having been bought by one of the previous maintenance managers. Mr Burgess owned and used two volt sticks in his work and there was also a company voltmeter at work that he used "very rarely". He was not aware of any system where the multi meter was checked to make sure it was operating properly. Mr Burgess clarified that there were different air conditioning systems in the building. The systems on floors five and six were different to the systems on floor three and that was different again to the air conditioning system on floor four. The air conditioning zones that he had referred to operated on floors five and six and were divided into north, south and east zones. There were guest rooms on floors five and six and function and reading rooms on floors three and four.

18 In relation to the instruction given by the former maintenance manager to switch off electrical equipment when they were being worked upon, Mr Burgess said that had been the only instruction he had received about not working live at the club and that there was no written policy he had seen on that subject. It was his practice to avoid working live at all times and that reflected what had been said by the previous maintenance manager and did not reflect any other instruction received from the Club. 19 In relation to the air conditioning unit in suite 601, the occupier was not able to change the temperature - to control the temperature required access to the thermostat control inside the unit. To have the temperature changed a request would have to be made to the office and then someone from maintenance would come to the office and check the temperature. Mr Burgess would go to floor seven and change the controls and if the temperature was too high or too low he would alter the reading for that zone. The thermostat control inside the panel was set and Mr Burgess would not touch them but would go to the roof to make any adjustment. It was possible with the change of seasons for the settings inside the units to be changed and that type of seasonal change was undertaken by Mr Burgess and Mr Galante. He was not aware of Mr Leisemann doing that work although he may have done it but Mr Burgess could not say one way or the other. Although involving some difficulty, Mr Burgess thought it may be possible to manipulate the motorised valve to change the flow of water and it was something that he had never tried to do. He had not worked on a motorised valve such as used in these units or anywhere else he had been employed. He could not say if Mr Leisemann was trying to perform this task with the pliers on the day. It was something that he would not do.

20 Mr Burgess had given evidence that about thirty per cent of his work was performing electrical tasks but he had never been asked or instructed to undertake a risk assessment of the work to be performed, although he did it himself. He had not been given any training by the defendant about how to undertake a risk assessment up until the accident involving Mr Leisemann.

21 Mr Robert Galante had been employed by the defendant as a handy man and provided Inspector Sibilant with a statement in November 2004. He had attended the room in which Mr Leisemann had been electrocuted. Although he said that the Club owned the tools and equipment used by maintenance employees he was not sure who owned the yellow volt finger found in the room. Since the accident he had been instructed not to go anywhere near electrical installations and notices had been displayed in the workshop room enforcing that policy. He did not know what Mr Leisemann was doing on the day of the accident in suite 601. The air conditioner units were adjusted "upstairs". Mr Galante said that he was not an electrician but that he had learned that the air conditioning units could be adjusted from upstairs at the meter box for the whole of the floor and that in each room there were individual controls. He did not know if room air conditioning units were isolated prior to work commencing on them and he did not know how to isolate room air conditioning units. He was unaware of the location of the isolation circuit breaker for the air conditioning unit. 22 Mr Galante thought it was Mr Leisemanns' responsibility to isolate room air conditioning units before work was to commence upon them. Mr Leisemann used to work alone, and was a bit of "a loner" who liked to work on his own thing". He had no idea if a risk assessment was undertaken on the task of performing maintenance work on room air conditioning units. He was aware that Mr Burgess was a licensed electrician and Mr Leisemann would have him perform many minor electrical works that were needed but if there were anything larger than a power point, they would discuss it and then call an electrician. Mr Galante was unaware of the defendant's policy on working live and he did not work on anything electrical and that was how he ensured that he was not working live on electrical items. Mr Galante was a qualified shipwright and had a working knowledge of woodwork, varnishing, painting and minor furniture repairs - he was involved in general carpentry. 23 In evidence before the Coroner, Mr Galante said that contractors would be called in for big carpentry jobs and for electrical work - there were contractors for the air conditioning, being Staniforth. Staniforth attended the premises quite often but Mr Galante said that he only performed filter changes on the air conditioning units. That involved opening up the cupboards and undoing two screws holding the drip-tray and then undoing the clips holding the filter. That task would be performed every four or five months. The filters were cleaned and then re-installed. Mr Galante had been shown how to do that task by Mr Leisemann. Cleaning of the filters was shared as a task and Mr Burgess did it sometimes. Mr Galante had turned the thermostat inside the air conditioning unit to hot or cold and would do that between summer and winter when the seasons changed. Apart from that he would never touch the thermostat. He performed no work in relation to the motorised valve. He had seen Mr Leisemann carrying the Voltfinger in his top pocket and he thought it belonged to Mr Leisemann. He did not think he had seen Mr Leisemann use the Voltfinger. Although he had seen Mr Burgess perform electrical work, he did not recall ever seeing Mr Leisemann perform electrical work. 24 Mr Galante said that Mr Burgess believed if he could not handle the job or it was too big then the contractors would be brought in. Mr Galante thought that if there was something dangerous to do with electrical work he would speak to Mr Burgess because he did not do electrical work. Mr Galante did not know what work Mr Leisemann was performing in the room on the day of the accident. Some of the defendant's tools had a sticker on them indicating they were owned by the Club. On occasions, Mr Galante had noticed Mr Leisemann walking around with the Voltfinger in his shirt pocket but he did not pay much attention to when that occurred. 25 Mr Richard Nelson was employed by the defendant as Chief Executive Officer and Secretary/Manager of the Club and provided a statement to Inspector Sibilant in December 2004. He had observed the Voltfinger in suite 601 on the day of the accident and had originally believed that it belonged to Mr Leisemann because he had been told so by Mr Burgess: he had since changed his view and now believed it belonged to the defendant. The tools used by maintenance employees were provided by the Club but he was aware that Mr Leisemann had some of his own equipment, although it was a small amount. As maintenance manager, Mr Leisemann was responsible for the maintenance of the tools and equipment used by the maintenance employees and that included the Voltfinger. To ensure maintenance personnel were using tools and equipment that were safe and in good working order, the staff were able to raise any issues with Mr Leisemann who was instructed to maintain the tools. In addition, Mr Leisemann had a charge account and had authority to purchase tools and equipment for the maintenance department and for the Club. 26 After the accident, maintenance staff were again instructed that they were not to touch any electrical items within the Club. Staniforth was the air conditioning contractor for the Club. The defendant's maintenance staff had been instructed not to work on air conditioning units except to clean the filters. Any electrical work was to be completed by Staniforth as the air conditioning contractor. This approach was taken because the defendant did not have the expertise in their staff to undertake these duties and so expert contractors were organised. Mr Nelson had subsequently found out that the air conditioning unit could be isolated from the roof but that was not an area in which he was involved. 27 Mr Leisemann had been instructed to undertake a risk assessment prior to any work being commenced. In relation to room air conditioning units, Staniforth were to be called to complete any electrical work. Mr Nelson was not sure why Mr Leisemann was working alone at the time of the accident but he was the manager of the maintenance department and was responsible for maintenance decisions. It was probably Mr Leisemann who decided whether to work alone or not. He had been instructed not to do any electrical work and to assess all maintenance tasks prior to commencing those tasks. It was his responsibility after that assessment to see if there was in-house expertise or whether a contractor was required. 28 Mr Leisemann had completed an accredited occupational health and safety training course dealing with risk assessment. He was the Chairperson of the Occupational Health and Safety Committee. Mr Nelson said that the Occupational Health and Safety Committee was involved in the risk assessment process concerning maintenance and scheduled work. If a risk was brought to the attention of the Occupational Health and Safety Committee it was discussed as to what appropriate action was to be undertaken and that could involved advising the relevant department or referring the matter to himself as the Chief Executive Officer. He and Mr Leisemann usually discussed any issue that could not be resolved by the Safety Committee and they would come to a decision on how to best handle the risk and that may have involved referring the matter to the Board. Everyone was involved in the process of what maintenance work was to be undertaken within the premises. Staff could refer any maintenance requirements to their department head or to the maintenance department and Mr Leisemann was then responsible for organising a contractor if required. Approval of the maintenance or scheduled work to be undertaken was provided by Mr Leisemann and Mr Nelson and usually verbal approval was granted. 29 The defendant's policy in undertaking electrical work was that the staff were instructed not to complete any electrical work and that an electrical contractor was to be engaged. This instruction had been given on numerous occasions to the staff and prior to the accident involving Mr Leisemann. The defendant's policy on working live was that the staff should not be working on anything electrical and that a contractor was to be engaged. The staff were instructed not to do any electrical work and that ensured that the maintenance staff did not undertake any live work. The maintenance staff were only required to clean the air conditioning filters and any additional work involved engaging the electrical contractor. That was how maintenance work was normally undertaken on air conditioning units. 30 In evidence before the Coroner's Inquest, Mr Nelson said that, before the accident, he had not seen the Voltfinger. At the time of the accident, he was not sure who owned the Voltfinger but he thought it might belong to the Club but he was still not sure. Mr Leisemann provided some of his own tools. In relation to contractors, electricians had been called into perform maintenance work for the defendant. Mr Nelson and Mr Leisemann would discuss matters: for example, there was an occasion when poker machines needed to be moved from one floor to another and because that involved large amounts of wiring and installing new plugs, an external contractor was engaged. Mr Leisemann could organise contractors depending on what work was to be performed. If it was a minor task he could arrange for that to be done by a contractor but if it was a significant task with a large price tag, then it would be discussed between Mr Leisemann and Mr Nelson. Anything over $500 to $1,0000 would involve Mr Leisemann speaking to Mr Nelson. Mr Leisemann would do a lot of the maintenance throughout the Club and he would also organise contractors. He was instructed not to do any electrical work and was aware of that instruction and the defendant had Mr Burgess as the on-staff electrician who could do minor electrical work but anything of significance required a contractor to be engaged. 31 Mr Nelson could not recall when it was that he spoke to Mr Leisemann about not doing electrical work but it was on more than one occasion: they spoke once or twice per week and Mr Nelson could not put a specific date upon this discussion. If any electrical work was being discussed, Mr Nelson would ask what was involved and would either say that somebody needed to be called in to do it or he would expect Mr Burgess to do minor things but nothing of any significance in relation to electrical work. Apart from these discussions, Mr Nelson could not recall a particular instance when he gave Mr Leisemann an instruction not to do perform electrical work. When asked what made Mr Nelson think that he had given such an instruction he said that when he employed Mr Leisemann he went through his curriculum vitae and he was not licensed to do any electrical work. Although he liked to try to assist because he had a great deal of affection for the Club, Mr Leisemann was aware of what he could and could not tackle and he was not to tackle any electrical work because Mr Burgess was employed to do that minor work and external contractors were to perform larger tasks. When pressed about when Mr Nelson actually gave him this instruction he stated that it was at the time that Mr Leisemann was employed. 32 Mr Nelson was aware that maintenance staff would adjust the temperature and clean the air conditioning filters in particular suites. The Club had a heritage listing and the air conditioning was mostly original. The only thing that could be done with the air conditioning in the lead up to summer was to adjust the temperature and to clean the filters and anything else had to be performed by Staniforth. The adjustment of the temperature and the cleaning of the filters had been discussed between Mr Leisemann and Mr Nelson, usually in the lead up to summer. Mr Nelson would ask him to make sure that task was performed if it had not been raised already by Mr Leisemann. There were weekly chats where these matters were discussed. 33 At the time that Mr Nelson gave the instruction that the thermostat controls were to be changed from summer to winter or for the change in seasons he said that the thermostats were on the walls and it was just a matter of sliding the knob and cleaning the filters and was a relatively easy job. That was the belief he had after speaking with Mr Leisemann. Mr Nelson believed that the thermostat and the temperature gauge control was all one unit and the maintenance staff had to simply adjust the temperature up or down. Mr Nelson was shown some photographs and stated that, at the time of the accident, he believed that there was a control on the wall that was being adjusted by Mr Leisemann. At the time he was under the impression that it could be changed by a guest in the room but the thermostat in the photographs were not accessible to the guests. Since seeing those photographs, Mr Nelson had revised his opinion and he now understood that to adjust the temperature "You'd have to take the panel off the wall to get inside" to perform that task. He understood there would not be a thermostat control within the panel and one on the wall. He believed there would be a temperature control on the outside, in the room, to adjust the temperature but he was not aware of the placement of the thermostat until after this accident. Mr Nelson thought there was such a control on the wall but there was no such control at the time of the accident. 34 On the morning of the accident, Mr Nelson had spoken to Mr Leisemann at a department heads' meeting in the morning. He could not recall if Mr Leisemann discussed what work he was to perform that day and did not know why he was in suite 601 at the time of the accident. 35 Mr Nelson was asked if he recalled telling a person from Energy Australia that Mr Leisemann had been going around the building on that day, adjusting the air conditioner in each room ready for the oncoming summer. He said he did not specifically remember making that comment but if he did say that, it would be a reference to adjusting the temperature controls for the rooms and that went back to whether there was a control in the room or in the unit. After the event he discovered there was no wall-mounted control in room 601. Mr Nelson did not specifically remember making that comment but confirmed that he understood that the adjustment of the temperature was being performed on wall units. He did not understand that such an adjustment involved going into the unit until after the accident. 36 There were weekly and fortnightly meetings with heads of departments and within the maintenance department: Mr Leisemann held formal meetings with his staff but Mr Nelson did not attend those meetings. Mr Nelson did not understand the term "toolbox meetings" and was unaware of a meeting of employees held early in the morning when the topic of safety was discussed. He said there were some policies and procedures on occupational health and safety and there were also some job descriptions. Not all of them were documented and some of them would be "that they would just know some of the things that had to be done". There were not many written procedures, only job descriptions. There was no written electrical work policy but the maintenance staff were not to do anything other than light electrical work but that was not a written electrical policy. He was not aware of a register or a collection of risk assessments that had been undertaken or a hazard register. Mr Nelson was not aware until after the accident that Mr Leisemann had maintained a diary where he recorded the work to be done in the maintenance department. Although not a member of the Safety Committee he received copies of the minutes. In relation to the entry in the minutes "JL replacing electrical points" , Mr Nelson assumed that Mr Leisemann was organising a contractor to perform the work. Mr Nelson assumed a later entry in the Safety Committee minutes, "Electrical points being replaced on ongoing basis", was a reference to a tagging process and was unaware of who was doing that work. 37 Apart from the instruction to Mr Leisemann not to do electrical work, when Mr Nelson was asked if there were any other instructions given to Mr Leisemann concerning occupational health and safety he replied that Mr Leisemann had been sent to an occupational health and safety course and he was very passionate about the Club and the workplace as a whole. It was something that he was very involved in and the defendant had sent him to the course so that he would have a better understanding. As to instructions, he was told that he was to ensure that there was a safe workplace to be provided for his staff and that he was partly responsible for all of the safety in the workplace throughout the whole Club. Any repairs or maintenance that needed to be done were his responsibility such as thread bare carpet that needed replacing. Those instructions were given when Mr Nelson interviewed Mr Leisemann. This occurred prior to Mr Leisemann returning to work at the Club and that instruction was given as part of the interview and was not given in writing. From time to time Mr Nelson gave verbal instructions to the staff about occupational health and safety. He would do the rounds of the Club and if he saw anything that required attention he would speak to the staff or raise it with the department head to make sure it was attended to. These instructions were not in writing. It could be brought up later at a department head meeting. 38 In relation to the policy that the staff were not to complete any electrical work, Mr Nelson said that he gave that instruction to Mr Leisemann but he could not recall giving it to anybody else. When asked again to clarify when he gave that instruction to Mr Leisemann, he said he should clarify that statement and say that "it was expected that Harold (Burgess) could do minor electrical work like changing the face on a power point or something, but anything other than that was to go to a contractor. Jeff was aware of that, both at the interview and subsequently I'm sure". Mr Nelson again stated that he could not recall a specific date other than at the interview when that instruction was given to Mr Leisemann: and was not given on any other occasion. He also clarified that when he had earlier stated that the staff were instructed not to perform electrical work, he actually meant that Mr Leisemann was instructed not to perform electrical work and that he expected Mr Leisemann to pass it on to the rest of his team. When asked if he saw any evidence that Mr Leisemann had passed that instruction on to his team, Mr Nelson stated that Staniforth had been engaged to do electrical work and when they appeared he took that as being confirmation that somebody was engaged to do the electrical work. 39 Attention was returned to Mr Nelson's statement when he was asked whether the room air conditioning units were isolated prior to work commencing on them and had replied that the defendant's maintenance staff were instructed not to work on the air conditioning units except to clean the filter and that any electrical work was completed by Staniforth as the air conditioning contractor. Mr Nelson said he gave that instruction to Mr Leisemann but he could not remember a specific date on which that instruction was given. He had an expectation that Mr Leisemann would tell his staff about that instruction. 40 In relation to Mr Nelson's statement that Mr Leisemann had been instructed to undertake a risk assessment prior to any work commencing and that in relation to air conditioning Staniforth were to be called to complete any electrical work, Mr Nelson stated that he had instructed Mr Leisemann to undertake a risk assessment prior to commencing any work. This had occurred at the interview and as part of the interview process he had asked Mr Leisemann how he would go about doing certain jobs and Mr Leisemann had given some examples of what he would do and that was to assess the situation before he started any work and make sure he had the necessary tools. The defendant had also sent him to an occupational health and safety course which assisted him in identifying these matters. In relation to instructions to this effect, Mr Nelson could not remember another occasion on which that instruction had been given. He had not asked Mr Leisemann to undertake any written risk assessments of any tasks that he was performing. 41 Mr John Rayner was a senior electrical installation inspector with Energy Australia. In March 2005, he provided an incident report to the WorkCover Authority to be included in the WorkCover documents provided to the Coroner. Mr Rayner attended at the defendant's premises and inspected suite 601 where the accident occurred. He noted that the access door to the air conditioning air coil unit and the motorised valve had been removed from the bulkhead and that the cover of the motorised valve had been removed, exposing energised contacts on top of the unit. The thermostat control with thermostat stem and bulb were hanging out of the opening. Mr Rayner noted that to work on any part of this equipment required kneeling or crouching in front of the bulkhead opening. An electronic thermometer was near the thermostat control and to the right of where Mr Leisemann was found. To the left of that position there was a flat blade and a "Phillips head" screwdriver on the floor. Inside the bulkhead opening, leaning against the air conditioner fan coil unit, was a rechargeable torch. Behind the motorised valve a pair of electrician's pliers was located. He had been advised that a voltage indicator stick was found in the room near Mr Leisemann but had been moved to the bedside table by one of the persons who provided resuscitation. 42 Mr Rayner's report then contained the following passages: The Club manager, Richard Nelson, stated that Mr Leisemann had been going around the building adjusting the air conditioners in each room ready for the on-coming summer. He said that Mr Leisemann had done this before, making adjustments to suit the seasons. ... Although the screwdrivers and pliers had plastic handles and plastic covering on the shafts, they were not marked as having been tested or certified as insulated tools. The voltage indicator stick was a Cabac Voltfinder Cat. No 17107 50-600VAC. When the voltage indicator stick was tested it was found to be intermittent and sometimes not a true indication. When it was held in the middle of the room and rolled between the fingers, the indicator light would show that there was a voltage present. When it was placed near a known source of supply in one plane it would indicate, yet in a different plane it would not indicate. It is possible that Mr Leisemann in using this voltage indicator was given a false indication as to whether the contacts on the top of the motorised valve were energised. Tests carried out showed that a voltage of 244 volts was present between the contacts on the top of the motorised valve unit and earthed enclosure of the air coil unit. As well as the metal enclosure of the air coil unit, the metal base of the motorised valve unit and metallic piping in this area were all at earth potential. These were reference tested back to the sixth floor distribution board earth bar. It was also found that the retaining screw for the metal cover for the motorised valve unit was missing making removal of the cover easy for any person to lift off exposing the energised contact. An inspection of another valve unit also found the retaining screw missing. At the western end of the building on the same floor was an electrical distribution board from where the supply for the light and power for level six was distributed. Mr Nelson stated that Harrod (sic) Burgess, the club maintenance electrician, had isolated supply at this board when they found Mr Leisemann and before starting resuscitation. On inspection and testing it was found that the power outlets and lights for room 601 were controlled and protected by circuit breakers No 34 and No 3 respectively. It was found that the only circuits for light and power were isolated from this distribution board and the supply to the motorised valve was supplied from another supply point. Despite extensive investigation, and in consultation with Harrod Burgess over a number of visits, and without comprehensive diagrams of the air conditioner wiring systems, it was not possible to determine where the supply for the motorised valve was actually supplied from. It was agreed that the valve and thermostat were considered as a combined unit, but no separate circuit could be located that would isolate supply to this section of the air conditioner unit only. It was found that, when a single circuit breaker labelled as Control N2 on the main air conditioner distribution board located on the roof in the plant room was turned off, the whole air conditioning unit shut down, including the supply to the motorised valve in room 601. If it is found that Mr Jeffrey Leisemann died because of electric shock, I can confirm that a difference in voltage potential of 244 volts existed between the exposed contacts on the top of the air conditioner motorised valve unit and the earthed metal enclosures of the air conditioner coil units and the associated pipe work. If contact was made with these two parts simultaneously, an electric shock would have occurred. 43 In oral evidence before the Coroner, Mr Rayner clarified that the top of the control valve was meant to be energised to operate and had not been isolated. Mr Rayner also observed that the air conditioning system was fairly old and that the labelling on the switchboard was not clear as to what was actually controlled and it took some considerable searching to find the circuit breaker that isolated the particular circuit for this part of the air conditioning system. That circuit breaker in fact turned off the entire air conditioning system. Mr Rayner had been assisted by Mr Burgess but Mr Burgess could not find wiring diagrams for the air conditioning system and had said that it was not normally a plant that he looked after. Outside people were brought in to look after the air conditioning unit when there was major work to be done. 44 The conversation between Mr Nelson and Mr Rayner was the subject of further questioning. Mr Rayner said that Mr Nelson told him that, in the past, Mr Leisemann had changed the setting for the thermostats and had adjusted them between winter and summer periods so that the rooms were not so cold during winter and vice versa. Mr Nelson said that Mr Leisemann had done this before and it was something he did seasonally to adjust the air conditioning. 45 Mr Rayner understood that the adjustment to the air conditioning was made through the thermostat. The thermostat was connected electrically to the motorised valve and the two parts worked in conjunction with one another and he regarded this as involving electrical work. The thermostat control that Mr Rayner was speaking of was shown in photographs as hanging outside the unit and he assumed that it would normally lay inside the unit. The cover for the motorised valve had been removed and was underneath the torch. There was another air conditioning unit in the same room and the cover was on the valve in that unit and was held on with a piece of wire wound over the top of it but there were no screws or anything else to hold it in place. There was a piece of wire around the unit where the cover was taken off but was similar to the wire holding the cover on in the other air conditioning unit. The cover was there as a protection against the live components and the cover did not need to be removed to perform other work within the enclosed area containing the air conditioning unit. 46 When Mr Rayner picked up the volt stick he said that it was already switched on and he then tested because he had been told it had been found next to Mr Leisemann. Mr Rayner had looked around the room and had not found any other area where there were exposed or live wires, including within the unit itself. Mr Rayner could not recall seeing any adjustment gauge within room 601 by which the air conditioning unit could be adjusted, for example, by a guest staying in that room. 47 In cross-examination, attention returned to the conversation that Mr Rayner had with Mr Nelson about Mr Leisemann moving around the Club adjusting the air conditioning in the rooms and Mr Rayner's observation that the adjustment of the thermostat involved electrical work. When pressed again, Mr Rayner said that adjustment work involved electrical work. Mr Rayner had reached that view because he had assumed that Mr Leisemann was working on the thermostat depicted in the photograph. Mr Rayner agreed that he was not able to say whether there was a thermostat sub-base in that room that could regulate the air conditioning and the chill factor but he agreed all that was involved with a sub-base was a simple manual turning of the dial and that did not involve electrical work. 48 In January 2005, TestSafe Australia provided a report for the WorkCover Authority concerning the reliability and operation of the CABAC Voltfinger found at the site of the accident at the defendant's premises. A report had been prepared by Mr David Fraser who was an electrical engineer with some 30 years' experience. In this role with TestSafe Australia he assisted in investigations and provided technical input for WorkCover Inspectors and also performed investigations for the certification of electrical equipment to be used in hazardous areas to make sure it accorded with Australian Standards. In dealing with the inspection and investigation of the operation of the Voltfinger, Mr Fraser's report, in part, stated as follows: 5. Summary The CABAC Voltfinger did not work when delivered, until it was given a hard sharp tap on the table, from which time it worked intermittently. The insertion of a brass shim between the two AAA cells increased the contact pressure and avoided intermittent function. Once working the Voltfinger reacted to the presence of voltage in a predictable manner, giving a flashing light and audible alarm. 6. Note on instrument usage Normal safe practice for using the Voltfinger should be to check its function on known live and non live circuit to establish the instrument's correct function before testing the target circuitry. For non electrically trained staff the training in use of the instrument and checking of the instrument's proper function should be part of their job specific training. 7. Conclusions Without the brass shim that was inserted for testing, the function of the Voltfinger was at best intermittent. In the state it was delivered in it was completely non-functional. It is therefore concluded that at the time of the incident this Voltfinger was an unreliable indication of the presence of electrically live circuitry, in that it was likely at best to be intermittent in function. 49 In oral evidence, Mr Fraser said that he did not know too many people who were electrically trained who would take the reading of a Voltfinger without wanting a second reference by way of a voltmeter or a set of test globes with leads. He said he would be reluctant to rely on such a device. At best, the Voltfinger was an indicator and no licence was required to purchase a Voltfinger - they were readily available through electrical wholesalers. Mr Fraser was of the view that very little information was provided to the consumer when they purchased a Voltfinger. 50 The prosecutor tendered two classes of documents as part of its case: the first was a collection of minutes of the meetings of the Occupational Health and Safety Committee between May and November 2004 and the second being a copy of Mr Leisemann's 2004 work diary.

The minutes of the Occupational Health and Safety Committee showed that in May 2004 (with Mr Leisemann and Mr Burgess present, amongst others) it was recorded that Mr Leisemann had advised that alarm buttons were to be installed to the extended gym area and buttons were to be used to alert reception in case of accidents. In relation to the level five administration area it was noted that air conditioning in the accounts office was to be adjusted for increased warmth. In the July 2004 minutes of the Committee (with Mr Leisemann and Mr Burgess present) it was noted that Mr Leisemann was to investigate the purchase of an appliance to test all electrical equipment and then noted, "J L replacing more electrical points". In the August 2004 meeting (with Mr Leisemann and Mr Burgess present) under the heading "Electrical" it was recorded that an appliance to test electrical equipment had been purchased and then noted, "electrical points being replaced on ongoing basis". Later in the minutes under the heading, "Circuit Breakers", the following note was recorded: J L reported new locks being put on circuit breaker boxes and tags put on circuit breakers.

The September 2004 minutes of the Committee (with Mr Leisemann and Mr Burgess present) dealt with electrical leads and power points and noted: The Committee was reminded when staff were using electrical leads and vacuum cleaning equipment plugs should be switched off before removal. Plugs should never be just pulled out from electrical points. All housekeeping staff to be reminded of this, also particularly part-time employees from job support grou p.

The November 2004 minutes following the death of Mr Leisemann, under the heading "Testing and tagging of electrical appliances" carried the following note: Mr Burgess advised that he was continuing to test and tag all electrical appliances but this was taking time in view of his increased maintenance work. It was agreed that he would allocate first hour of working day to testing and tagging until completion. NB: Kitchen stoves and microwaves in particular to be tested. 51 The prosecutor then referred to a number of entries in Mr Leisemann's 2004 work diary. The entries for 6 January 2004 contained a note about calling into circuit breakers and "order transformer" and later carried a note, C.B.53 (floodlights) now has 10 amp will need to return to 16 amp asap. Later in the day there was a note, Safety isolator transformer: 70-105W 12 volt halogen lamp load. At 12.00 noon there was an entry, thermostat control unit & valve installed in room 614. 52 On 7 January 2004 the following entry was made: Tom Newsound to inspect for emergency lighting repairs. On 19 January 2004 the following entries were made: Called Wormalds re: fault L.7. ladies loo thermal sensor unit failed next day and then following day; Bunnings mascot re outlet valves for Fowler Consort cistern ordered 05/01/-4; L2 dishwasher as well as L4 bar chiller. Call ... tomorrow. On 27 April 2004 the following entry was made: Motor bearings buggered. Removed motor and had Staniforth take it away for repairs. NB: air to South & East rooms, temp very moderate at present. Should be O.K.; On 28 April 2004 the following entry was recorded: Darren rang re electrical motor A.H.U.4 motor has died not repairable. 2nd hand $400 new $490 slightly larger but pulleys & mounting same. On 7 May 2004 the following entry was made: 619, 621, 615, 617 - extra power points located for convenience at above bench height. On 17 May 2004 the following entry was recorded: suggest(?) 240 volt movement sensor (light) to 240v to 24 volt transformer to ½ solenoid valve $24 should set it up for under $100. On 21 June 2004 the following entries were made: Staniforth. Vincent to carry out tube clean contract. Flood lights Macquarie arrived early loaded long stepladder onto van to take to Macquarie St. All flood lights not working replaced all quartz tubes, found PVC conduit in very brittle and poor condition. 3 lamps not working. Unable to repair as conduit wiring etc need replacing as well as lamps. Spoke with Richard N who said to remove overhanging lamp. L8 Discussed alternate ideas to present system on L4 flood lamp. Agreed that a frame attached to every railing carrying overhang light. On 30 July 2004 the following entry appeared: 3 phase for Macquarie St. What amps where in Mac Street 15 amp L2, 20 amp L3, 32 amp L3. On 2 August 2004 the following entries were recorded: 3 phase power to Macquarie St; P U appliance tester TLE. On 3 August 2004 the following entry was made: Television cable for gym and staff room 15 m progress supply cable to staff room and Luke's office where VCR to be kept outlets to several over mirror. On 13 August 2004 the following entry appeared: Condenser for L2 cool room etc. Prev water cooler replaced with air cond $1800.00 + GST. On 18 October 2004 the following entry appeared: Thermostat RHS a/c unit in Rm 604 still needs air on RHS. Want to fit new thermostat to centre a/c rm 601 first. 53 The advertisement for the position held by Mr Leisemann and his letter of appointment were tendered by the prosecutor. The advertisement for the position of building maintenance manager was placed in the Sydney Morning Herald on 18 August 2002 and in part referred to maintaining the Club's high standard. The Club was seeking an experienced and reliable building maintenance manager. The advertisement continued: As the Club is a heritage listed building this is a challenging role. The successful applicant will be responsible for the Maintenance and Garage teams. Painting, carpentry and electrical experiences preferred and current drivers licence essential.

The letter of appointment accepted by Mr Leisemann (dated 11 September 2002) stated as building and maintenance manager, Mr Leisemann would report to the Chief Executive/Secretary Manager. He was to be responsible for the maintenance and upkeep of the Club and supervision and co-ordination of the garage area, supervision of staff in both areas and producing rosters and any other duties as required by Mr Nelson as the Chief Executive Officer/Manager and as per the Award. 54 D J Staniforth and Co supplied their contractual details with the defendant and provided some explanations to the WorkCover Authority. Those documents indicate that in 1989, a maintenance for air conditioning equipment agreement was entered into between Staniforth and the defendant under which, amongst other things, Staniforth were to inspect and clean the filters, replace new filters if necessary, check that routine operation of electrical switch gear was satisfactory and check cold water supply and operation of cold water valves if necessary. In 1996, additional pieces of equipment were added to this agreement. Staniforth also advised the WorkCover Authority that it attended to breakdown work on the equipment and various other equipment on site upon request. Between 1 August 2003 and 19 November 2004 the only individual room air conditioning units that Staniforth had a record of working on were units in the Harbour View Room and on 30 October 2003, Staniforth carried out a strip clean of both units. 55 Mr Michael Hoar was employed by the defendant as the front office manager. In November 2004, Mr Hoar provided Inspector Sibilant with a statement in which he described the process for dealing with complaints or concerns from guests about accommodation or air conditioning. Mr Hoar said that when a guest contacted Reception regarding air conditioning or heating, the complaint was immediately referred to a member of the maintenance team and it was assumed that it would be taken care of immediately. No records were kept of the guests' complaints or concerns about accommodation or air conditioning. A record may have been kept if there was a complaint during the night so that maintenance could be informed early the following morning. 56 On the 22 October 2004, Inspector Sibilant issued three improvement notices to the defendant. In each case the Inspector had formed the opinion that the defendant was contravening s 8 of the Occupational Health and Safety Act 2000 and/or Clause 9 or Clause 64 of the Occupational Health and Safety Regulation. The first notice stated that employees/persons may be exposed to risks from being able to access installation containing live electrical components, room air conditioning units and the measure to be taken was to ensure that only authorised persons have access to room air conditioning units. Attention was drawn to the Code of Practice 2001 Low Voltage Electrical Work and to Clause 41 and Clause 64 of the Occupational Health and Safety Regulations. The second notice specified the reason for issue as being employees/persons may be exposed to the risk of injury/illness from undertaking maintenance work on or in equipment or locations that may be energised. Measures to be taken were the identification of any hazards associated with undertaking maintenance work on or in equipment or location that may be energised and to assess the risks arising from the hazards and eliminate the risk or if not reasonably practical to do so, to control the risks. Attention was drawn to Clauses 9 - 15 inclusive of the Occupational Health and Safety Regulation. The third notice specified the reason for issue as employees/persons may be exposed to the risk of injury/illness from undertaking maintenance work on room air conditioning units. The measures to be taken were that the identification of any hazards associated with undertaking maintenance work on room air conditioning units, assessing the risk arising from the hazards and eliminating the risks or if not reasonably practical to do so, to control the risks. Again, attention was drawn to Clauses 9 - 15 inclusive of the Occupational Health and Safety Regulation. 57 The particulars of the alleged breach of s 8(1) of the Occupational Health and Safety Act were as follows: (a) a failure to carry out and implement an adequate risk assessment for work on air conditioning units, particularly the task of adjusting thermostats on the air conditioning units; (b) a failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units; (c) a failure to adequately inspect, or ensure that an adequate inspection was undertaken of the electrical circuits so that its employees were not exposed to the risk arising from live electrical circuits; (d) a failure to ensure that the electrical supply to air conditioning units was isolated before any work was performed on them; (e) a failure to ensure that electrical test equipment was suitable and in working order when being used; (f) a failure to provide adequate information, instruction, training and supervision. DELIBERATION 58 No issue arose as to the applicable principles when dealing with a "No case to answer" submission in criminal proceedings. These principles flow principally from the judgment of the High Court in May v O'Sullivan (1954-1955) 92 CLR 654. At page 658 the Court stated: When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a "no case to answer" has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. 59 Despite the simplicity of the above passage in May v O'Sullivan, there has been much discussion and debate about what precisely is involved in dealing with such submissions. It has been long accepted, however, that the prosecution needs to make out a "prima facie case". Dealing with what was then s 41(2) of the Justices Act, Glass JA addressed this issue in Wentworth v Rogers [1984] 2 NSWLR 422 at 429: The powers of the magistrate at the close of evidence for the prosecution are not open to doubt: s 41(2). He is required to rule upon the sufficiency of the evidence. Accordingly he must disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution: R v Rothery (1925) 25 SR (NSW) 451 at 461; 42 WN (NSW) 141. It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it. He is required to assume that it is accepted without reservation by a jury: Jayasena v R [1970] AC 618 at 624; ... . Upon that assumption he asks himself whether a jury accepting all the prosecution evidence could lawfully convict the defendant (May v O'Sullivan) (1995) 92 CLR 654 at 658) ie could acting reasonably be satisfied of the defendant's guilt beyond reasonable doubt. Another formulation of the question is whether the evidence adduced by the prosecution is capable of producing satisfaction beyond reasonable doubt in the minds of a reasonable jury. Whether he would be so persuaded by the evidence to that degree or at all is not to the point. If he is of opinion that an inference of guilt may properly be drawn, the evidence is sufficient and a prima facie case has been made out. Accordingly the two limbs of s 41 (2) describe opinions, which are true opposites. The section directs the magistrate to discharge in the event of insufficiency and to proceed further in the event of sufficiency.

In a separate judgment, Samuels JA (at 435-6) stated: However, it seems to me that a prima facie case has been made out if, in the opinion of the magistrate, there is evidence, which, if believed by a jury, is capable of establishing the ingredients of the charge beyond reasonable doubt. 60 In R v Serratore (1999) 48 NSW 101, Dunford J (with James J and Smart AJ agreeing) stated: [127] In determining whether there is a case to answer, the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1995) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 14 A Crim R 12 at 14; Downey v R (1990) 171 CLR 207 at 214-15;.... R v R (1989) 18 NSWLR 74 ... ; and in a case of circumstantial evidence, such as the present, a finding of no case to answer is not open if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be postulated: R v JMR (1991) 39 A Crim R 39 at 44.

Although there may be some debate as to how the task might be differently performed according to whether or not there is a jury present, nevertheless the above cases set out the essential principles that will be applied in the present proceedings. 61 In the present matter, being proceedings under s 8(1) of the Occupational Health and Safety Act, 2000 the essential elements of the offence are: (a) the defendant was an employer at the relevant time; (b) that an employee of the employer was exposed to risk to the health and safety of the employee; (c) that the employee was at work; (d) there is a causal nexus between the defendant's breach and the risk to the employee's safety. 62 In the present proceedings it was agreed that, at all relevant and material times, the defendant was an employer and employed Mr Leisemann as its building and maintenance manager as well as two other maintenance employees, Mr Burgess and Mr Galante. The Agreed Statement of Facts, together with the evidence tendered, demonstrates that the defendant carried on business from the Club premises in Macquarie Street and that its employee, Mr Leisemann, was at that place of work in that capacity on the day of the accident. The issue then is whether there was a failure by the defendant to ensure the health of its employees and whether the employees' health and safety was exposed to risk and that there was a causal connection between the defendant's breach and the risk to the employees' safety. 63 The defendant's position can be summarised in the following way. Mr Leisemann was not an electrician and had been directed by Mr Nelson not to perform electrical work. Mr Burgess was the qualified electrician on the maintenance staff but his work was confined to minor electrical work with larger tasks to be undertaken by contractors. In relation to the air conditioning system there was a maintenance agreement with Staniforth. Whatever Mr Leisemann was doing on the day of the accident it was beyond what he was authorised to do by the defendant and there was no evidence that the defendant was aware that Mr Leisemann was performing work beyond his training and his authority. In relation to work on the air conditioning units, Mr Leisemann was confined to the simple adjustment of a thermostat that changed the temperature in the rooms. The rest was to be carried out by Staniforth. That simple adjustment could be carried out by turning an external nob or by making a change from the roof controls, external from the individual rooms. In relation to the Voltstick the evidence did not reveal whether it was the property of the employer or Mr Leisemann, whether or not it was used by Mr Leisemann and whether the supervisor (the Chief Executive Officer), knew that Mr Leisemann had it. There was no evidence from which an inference could be drawn that Mr Leisemann used the device on this occasion but more importantly, there was no evidence that his employer knew he was using it. All that was known, for reasons that were unclear, is that Mr Leisemann took it upon himself to do some work which was not within his duties which, insofar as it involved electrical work, was work that he was forbidden from performing. On the evidence, it could not be shown, beyond a reasonable doubt, that the tragic accident occurred because of some failure by the defendant but rather it appeared to be the fact that Mr Leisemann was the architect of his own misfortune by taking action in direct defiance of his employer's instruction. 64 The defendant's submissions emphasised that the evidence did not show Mr Leisemann carrying out any electrical work and he was only ever seen with the Voltfinger in his pocket. The entries in Mr Leisemann's work diary were often ambiguous and were capable of a number of meanings. Other entries showed that Mr Leisemann had made arrangements for others to perform work and the fact that some of the entries referred to what might be described as electrical work could not be taken as establishing Mr Leisemann was performing that electrical work himself rather than acting according to the duties of his position as maintenance manager and making arrangements for that work to be done by authorised contractors. There was no direct evidence that Mr Leisemann was doing any work known to his employer, of the kind which he may have been doing on the day he died nor was there evidence of a circumstantial nature that would allow such an inference to be drawn. There was certainly no evidence that the defendant was aware that he was doing anything other than carrying out his supervisory and general maintenance duties. For example, Mr Nelson's evidence before the Coroner was that he had not previously seen the Voltfinger. There was no evidence of Mr Leisemann purchasing the Voltfinger using the credit card supplied by the defendant for purchasing maintenance equipment and tools. 65 In relation to undertaking an appropriate risk assessment, Mr Nelson had instructed him to do so but in relation to his general duties. Mr Leisemann was directed not to perform electrical work and therefore no occasion arose to undertake an appropriate risk assessment in relation to performing electrical work. In relation to training the evidence was that Mr Leisemann had been enrolled in an occupational health and safety course that dealt with risk assessments but ultimately, it was not Mr Leisemann's task to perform any electrical work. In relation to this accident, the photographs showed that the cover had been removed from the air conditioning unit and the thermostat control had been taken out. The cover had been taken off the valve and energised points had been exposed. It was impossible to say why Mr Leisemann had taken this action but plainly he was not changing filters and he was not changing the knob to adjust the air conditioning and on the evidence, it was plainly not within his duties but was something that he was expressly forbidden to do. Here, a major difficulty for the prosector was that it had not been shown that there was a causal connection between the acts or omissions of the defendant and the risk to the safety of the employees. How was the defendant to ensure the safety of its employees when they were acting contrary to specific directions given to them not to do a certain class of work, namely, electrical work? Similarly, in the absence of any evidence that the Voltfinger was actually used it could not be inferred whether its state contributed to the accident or not. 66 It is against that background that consideration is to be given to the six particulars relied upon by the prosecutor. In view of the defendant's concentration on the accident, a number of matters should be dealt with by way of preliminary observation. The prosecution for a breach of s 8(1) of the Occupational Health and Safety Act alleged that on 20 October 2004 at the Club premises the defendant failed to ensure the health, safety and welfare at work of all its employees but in particular Mr Jeffrey Leisemann. After particularising the failures it was alleged that, as a result of those failures, Mr Leisemann was placed at risk to his health and safety and was fatally injured. The Court has consistently approached prosecutions of this nature as alleging a statutory breach and treating a particular accident (where there is such an occurrence) as constituting evidence of the breach and ultimately the seriousness of the breach. In the discussion in Inspector Haynes v C I& D Manufacturing Pty Ltd and anor (1995) 60 IR 149 at 158, the Full Bench said: The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether or not an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of the detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

In the present case the allegation that there was a failure by the defendant to ensure the health, safety and welfare at work of all its employees and in particular Mr Leisemann is indicative of the broader basis of the prosecution. 67 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: In 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. Allied to that well known approach is the statement of the Full Bench in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15]: ... Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. It is against these standards that the evidence is to be judged in the present matter. 68 There were certain aspects of the defendant's submissions to the effect that it was not known what Mr Leisemann was doing in suite 601 on the day of the accident and to the extent that there is a suggestion in that type of submission that it is unknown what happened to Mr Leisemann, it is appropriate to deal with the state of the evidence as it now stands in relation to that matter. The Agreed Statement of Facts accepts that Mr Leisemann was, at various times, engaged in adjusting air conditioning in individual rooms at the Club premises to reflect the change of season and in response to requests from guests. Mr Rayner's evidence was that on the day of the accident he was told by Mr Nelson that Mr Leisemann had been going around the building adjusting the air conditioning units in each room ready for the oncoming summer. In evidence before the Coroner, Mr Nelson did not dispute making that statement although apparently having no clear re-collection of it: he accepted that if that statement was made it was in the context of changing filters and the like rather than performing electrical work. Mr Burgess' evidence was that the only way in which the unit in suite 601 could be adjusted was from within the unit and there was no separate external adjustment device on the wall that anybody might use, including guests, to adjust the temperature. Mr Rayner's evidence, after an examination of the room, was that there were no other exposed energised wires in the room other than those on top of the valve inside the air conditioning unit. In the room with Mr Leisemann were tools, including a separate temperature gauge, screwdrivers and pliers that were consistent with removing the front of the air conditioning unit and undertaking work upon that unit, including working on or around the valve. The autopsy found that Mr Leisemann was electrocuted and had burns to his body but found no other physical condition that was consistent with his death. 69 Having regard to those matters, the present state of the evidence establishes that Mr Leisemann, in performing his functions as maintenance manager, was adjusting air conditioning units on the day of the accident because of seasonal changes and was engaged in this work in suite 601 when he died by electrocution. As the evidence presently stands, Mr Leisemann had available and was using at least some of the tools in the room to perform work on the air conditioning unit and during the course of performing that work came into contact with the energised points on top of the valve inside the air conditioning unit and was electrocuted. 70 The first particular alleges a failure to carry and implement an adequate risk assessment for work on air conditioning units and particularly the task of adjusting thermostats on the air conditioning units. At its highest, the defendant says the evidence shows that Mr Leisemann was directed not to perform electrical work and that in those circumstances there was no occasion to make arrangements for and to ensure employees carried out a relevant and adequate risk assessment for working on the air conditioning units, including the adjustment of the thermostats. The evidence was said to show that all three members of the maintenance staff performed the task of changing filters and adjusting the thermostat. The evidence also showed that the filter could be changed without exposing the workmen to energised power points or contacts. The evidence did not show that adjustment of the thermostat inside the air conditioning unit required the removal of the cover over the valve thus exposing energised contact points. 71 In relation to Mr Nelson's evidence that he had instructed Mr Leisemann not to perform electrical work, he was unable to place when this occurred and when further pressed concluded that instruction was only given during Mr Leisemann's interview in response to the advertisement placed in the Sydney Morning Herald. Mr Nelson's evidence was that it became evident during that interview process that Mr Leisemann did not have qualifications as an electrician and it was in that context that the instruction was given. At that stage, Mr Leisemann had not been employed and in whatever terms the discussion took place it could hardly have constituted an instruction to an employee. In further evidence it became clear that Mr Nelson expected Mr Leisemann to pass this instruction on to other members of the maintenance team although he may not have been, in terms, instructed to do so. This is the only evidence of an "instruction" not to perform electrical work. It is important, at this point, to recognise that the first particular does not refer to risk assessments for "electrical work" but for work on air conditioning units. 72 The evidence demonstrates that at least some of the maintenance staff did perform electrical work and were expected to do so. In the advertisement for the position of maintenance manager, a desirable qualification was "electrical experience". In terms, the advertisement did not ask for electrical qualifications and it appears that the previous maintenance manager had air conditioning experience but the extent of that experience was not spelt out in the evidence. Mr Burgess was a qualified electrician on the maintenance staff and 30 per cent of his time was occupied in performing electrical work. That work was said to involve a fairly low level of electrical work, including replacement of power points and the like. Either the Voltfinger or a similar testing device had been purchased by a prior maintenance manager and it had only one purpose and that was to test for the presence of a live electric current. The contract with Staniforth did not cover the adjustment of thermostats in room air conditioning units and Staniforth had no recent record over a period of 15 months before the accident of being called in to adjust the air conditioning in individual rooms. It was part of the Staniforth contract to change the air conditioning filters yet the changing of the filters and the adjustment of the thermostat was a task undertaken, at least seasonally, by each member of the maintenance team. The effect of Mr Hoar's evidence was that, on a complaint made to reception by a guest, the maintenance department would be informed about air conditioning temperatures with the expectation that the maintenance department would quickly respond to such complaints. 73 Having regard to the fact that to adjust the thermostat and to remove the filter from the air conditioning units required the opening of the unit and the removal of some parts of the air conditioning unit (for example, the drip-tray and the condenser), the current state of the evidence shows that there was no, or no adequate risk assessment in relation to this task to ensure that the maintenance staff did not take action, such as removing the cover on the valve, for any purpose such as would expose them to the danger of coming into contact with energised contact points. Although Mr Nelson (at the interview) instructed Mr Leisemann to undertake a risk assessment prior to commencing work, Mr Burgess was not aware of any risk assessment undertaken in relation to work on the air conditioning units or a risk management process undertaken prior to the commencement of maintenance or scheduled work. He had never been asked or instructed to perform a risk assessment and had been given no training about undertaking a risk assessment before the accident. Mr Galante had no idea of a risk assessment undertaken regarding maintenance work on a room air conditioning unit. 74 Quite apart from the circumstances in which the direction was said to be given to Mr Leisemann that he should not perform electrical work when he commenced his employment in 2002, there is no evidence of Mr Leisemann or the maintenance team being instructed as to what was meant by "electric work": it was apparently not thought to be electrical work to remove the filter and possibly other parts of the air conditioning unit and to adjust the thermostat but there is no evidence of attention being paid to the danger of removing the cover of the valve for any reason (and perhaps not to perform electrical work but to obtain space to perform other work) while attending to an air conditioning unit. 75 Mr Nelson, in his statement to WorkCover, said that he had instructed the maintenance staff not to work on the air conditioning units except to clean the filters, and that Staniforth had been contracted to perform electrical work on those units because of a lack of staff expertise. The Staniforth contract, however, included matters such as changing filters and checking the water supply as well as checking that the routine operation of switchgear was satisfactory. On the other hand, Mr Burgess and Mr Galante were given no safety instructions. Mr Burgess was not told what electrical work he was or was not to perform. All members of the maintenance team ultimately performed work on the air conditioners, changing filters and adjusting the thermostat. That task could involve removing other items such as the drip trays or the condenser. 76 The evidence does not support the restricted view of Mr Nelson that the maintenance crew were instructed not to perform work on the air conditioning units except for changing the filters. Once it became part of the duties of the maintenance team to enter into the air conditioning unit to perform these tasks there needed to be an appropriate risk assessment developed to instruct them what to avoid while engaged in this task: such a risk assessment would include a warning against moving the cover or removing the cover of the valve while performing work in the unit and/or isolating the power before commencing any work. Having regard to the evidence favouring the prosecutor, that evidence is sufficient to establish a prima facie case that a breach of the Occupational Health and Safety Act has occurred in relation to this particular. 77 The second particular alleged the failure to ensure suitably trained and qualified personnel carried out all tasks involving electrical work, including work on air conditioning units. Mr Nelson's evidence was that there was no written electrical work policy and that maintenance staff were not to do anything other than "light electrical work" - that instruction did not appear as part of a written electrical policy. As previously noted, there was no direct instruction given to the other maintenance staff not to perform electrical work as it was expected that Mr Leisemann would pass that instruction on to them although Mr Burgess was qualified as an electrician and would be unlikely to be given such an instruction. Mr Galante was unaware of the defendant's policy for working "live" - when he worked on air conditioning units he undid the drip tray to change the filter and did so every four or five months. He also adjusted the thermostat but did not perform work on the motorised valve. He did not know how to isolate the unit before working on it although he performed no electrical work. There is no evidence of Mr Glante being instructed not to perform electrical work or not to work in a way that put him in danger of coming into contact with energised points or cables, especially when working on air conditioning units. 78 Whether work on the air conditioning units could be properly described as "electrical work" or not, the fact is that the maintenance staff who were not qualified electricians worked inside the air conditioning units and removed certain parts: where this occurred there was a possibility that they could be exposed to energised contact points. The evidence shows there was no delineation made between work (such as the air conditioning work) that could put staff members into contact with live wires and electrical work that was only to be performed by Mr Burgess, by Staniforth or by any other specialist contractor. 79 In relation to this particular, the following matters are of significance: (a) Mr Leisemann was in possession of a Voltfinger on the day of the accident and had previously been seen with it in his shirt pocket by maintenance staff. The purpose of the Voltfinger was to test for the presence of an electrical current; (b) Mr Burgess possessed his own volt stick/Voltfinger for use in his job with the defendant; (c) Mr Nelson stated that maintenance staff were to perform only "light electrical work", with major tasks to be performed by Staniforth or other contractors; (d) Safety Committee records (which were seen by Mr Nelson and discussed with Mr Leisemann as required) noted that JL was "replacing more electrical points " and later noted that electrical points were being "replaced on ongoing basis". Mr Nelson assumed these entries to be a reference to ongoing work to be performed by contractors and/or the "tagging" of equipment - he did not know who was doing the work and there is no evidence of him enquiring about who was performing these tasks; (d) Mr Leisemann's work diary contained an April 2004 entry concerning the removal of an electrical motor and having Stainforth take it away. A later entry records Staniforth's advice that the electrical motor was irreparable. The entry is capable of being understood as Mr Leisemann removing the electrical motor and handing it over to the contractor. In June 2004, an entry speaks of a discussion and the removal of an overhanging lamp. In August 2004, there is an entry referring to 3 phase power to Mac St . In October 2004, an entry speaks of wanting to fit a new thermostat. 80 While Mr Nelson received the Safety Committee minutes, he was unaware of the existence of the work diary. Both documents, however, represented means by which a check or review of Mr Leisemann's work could be conducted and provided a basis for ensuring that he was not engaging in electrical work. The defendant's duty to be diligent in relation to workplace safety, to take account of the foibles of employees and the possibility that they will not obey instructions leaves as a hollow and irrelevant consideration the defendant's submissions that it did not know what Mr Leisemann was doing. The evidence is that it did not know what any of the maintenance staff were doing and took little, if any, steps to be informed on this topic - the defendant was content to rely on assumptions about the work. As it stands, the evidence favourable to the prosecution's case raises a prima facie case that there has been a breach of the Act in relation to this particular. 81 The third particular alleges a failure to adequately inspect or ensure that an adequate inspection was undertaken of the electrical circuits that its employees were not exposed to the risk arising from live electrical circuits. This appears to be an allegation that requires the word "so" to be inserted after the words "electrical circuits". Mr Nelson's evidence was that he regarded the adjustment of the air conditioning units as a simple task of moving a knob on a wall mounted unit - a task that could be undertaken by a lay person and a guest and only became aware after the accident of the nature of the work to be performed on the units. There was, therefore, a failure to inspect the air conditioning system to establish what was involved in the task including the need for entering the units, 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. There was no evidence of an audit of electrical circuitry regarding the air conditioning units and Mr Rayner stated that the circuits were not clearly identified. Limiting this third particular to electrical circuitry concerning the air conditioning unit, as the evidence stands, the defendant could be lawfully convicted in relation to this particular. 82 The fourth particular alleges a failure to ensure that the electrical supply to air conditioning units was isolated before any work was performed on them. The evidence shows that Mr Nelson was not aware of what was involved in adjusting the thermostat in these enclosed units. The nature of that work, as discussed above, left open the possibility that parts of the unit could be removed and there could be a risk of coming into contact with the energised contact points, especially where the securing screw on the cover of the valve had been removed and wire was used to secure the cover in a way that suggested that, from time to time, the cover was being removed, as observed by Mr Rayner. There was no instruction to isolate the units and indeed it was not known to the maintenance staff prior to the accident where the circuit breaker was located that would isolate the air conditioning units. Once this work was to be performed by the maintenance employees, the isolation of the units was to protect them from any risk of electrocution. 83 Mr Burgess said that he would isolate the air conditioning unit depending on the type of work to be performed, for example, if he was working on the electric controls or changing the V belt. He became aware after the accident that the steps he took to isolate the unit and the work he undertook, believing the unit to be isolated, were ineffective and unwittingly he was working "live". He said he had very little test equipment. Importantly, Mr Burgess stated that the motorised valve regulated the water flow and that impacted upon the temperature. The inference is available that, to adjust the temperature in each unit, might also involve working on the motorised unit: that work could require isolation of the power to the unit. Mr Burgess had not been instructed what electrical work to do or not to do. As earlier discussed, the other maintenance staff were in the same position other than being expected to perform "light" electrical work. Indeed, Mr Nelson said that some safety policies were simply known to employees and they knew what had to be done.

As the evidence stands, the defendant could be lawfully convicted in relation to this particular. 84 The fifth particular alleges a failure to ensure that the electrical test equipment was suitable and in working order when being used. Mr Burgess' evidence was that he occasionally used a Voltmeter but he had never checked to ensure that it was working properly. He also owned two volt sticks used in his work. Mr Nelson's evidence was that the maintenance staff performed light electrical work - it would therefore be appropriate that there be a suitable instrument to test whether there was power present in any circuit upon which they were working or near where they were working. A previous maintenance manager had purchased a Voltfinger or similar device and that action is supportive of a conclusion that electrical work of some nature was being performed by the maintenance staff. There was no written electrical policy and no evidence of any directive to the maintenance staff that only electrically qualified maintenance staff were to work on or around areas that were electrically energised. 85 Mr Leisemann was seen to be working with the Voltfinger in his pocket and although there is no evidence of him being observed using the Voltfinger and, having regard to the nature of his position, it is an open inference that he was using the instrument from time to time during the course of his employment to detect the presence of an electric current, especially in circumstances where Mr Nelson's evidence was that maintenance staff performed light electrical work. Mr Leisemann had the Voltfinger in suite 601 on the day of the accident in circumstances where the cover was removed from the motorised valve, exposing energised contact points. The employees, including Mr Leisemann, were known to provide some of their own tools as well as using tools provided by the defendant. The evidence shows that there was no system of checking on the condition of that equipment and in particular there was no checking of the Voltfinger or similar device. The Voltfinger found in suite 601 was found to be defective at least and at worst, was totally inoperable. There is no evidence that it had ever been tested or regularly tested. As the evidence stands, the defendant could be lawfully convicted of a breach of s 8(1) in relation to this particular. 86 The sixth and final particular alleges a failure to provide adequate information, instruction, training and supervision. The evidence discloses that no information was provided to the employees about what electrical work they should be doing and should not be doing but there was a generalised understanding that they would do minor work and light electrical work and that anything larger should be performed by specialist contractors. There was a lack of definition in these general arrangements as to what was covered by the term "electrical work" and the generality of the understanding impeded the ability to provide adequate safety systems addressing the dangers and risks faced in performing maintenance duties for the defendant. In a similar way there was an absence of instruction about these matters and training in relation to what was to be done and how to do it in a safe way, especially when working with the air conditioning units. 87 In relation to supervision, Mr Leisemann was supervising the other two members of the maintenance team but met regularly with Mr Nelson in relation to the work, discussed the work and from time to time Mr Nelson decided whether the work would be performed by members of the maintenance team or by contractors. Mr Leisemann had been sent on an occupational health and safety course but there is no evidence as to how this affected the way in which he performed his work as the maintenance manager or how it affected his level of supervision. To the extent that Mr Nelson may not have had expertise in some of the maintenance areas, he was in a position to engage external consultants to assist in his overall supervision of the maintenance staff. That supervision could have extended to having an external examination of the tools used by the maintenance staff and an assessment of their fitness for the purpose. It could have extended to the compiling of appropriate risk assessments for the tasks regularly performed, the preparation of written work rules and safety procedures and the training of the maintenance staff in these matters. 88 The lack of proper/adequate information, instruction, training and supervision is evident from various pieces of the evidence: (a) the maintenance staff had not been instructed or trained in isolating the air conditioning system; (b) there were no written safety rules, instructions or training in those rules. It was assumed that the staff knew the occupational health and safety policies of the defendant; (c) there was no instruction or information as to what could be done and what could not be done in the workplace by the maintenance staff. What Mr Burgess did was left up to him in circumstances where the maintenance staff worked largely alone. There was no instruction, information, training or supervision to ensure that maintenance staff did not perform electrical or electrically related work without first notifying and discussing the work with Mr Burgess; (d) there was no information, instruction or training provided in relation to undertaking a risk assessment covering the work to be performed and therefore there was no register of risk assessments or a hazards register; (e) there was no information, instruction, training or supervision in relation to the tools to be used, their fitness for the purpose and which members of the staff should or should not be using those tools.

As the evidence stands, the defendant could be lawfully convicted of a breach of the Act in relation to this particular. 89 Having regard to the authorities referred to earlier and the charge as fully particularised, as the evidence stands in relation to the whole of the matter the defendant could be lawfully convicted of the alleged offence. It was not sufficient for the defendant to give an "instruction" during an employment interview - nor could the defendant sit by while this work was known to be performed on the air conditioning units without examining what was involved in that work, performing a risk assessment on the work and ensuring that the performance of air conditioning work did not involve unqualified staff from coming into contact with the energised valve no matter what work (even non-electrical work) was being performed. The defendant then had to promulgate a safe system for air conditioning work performed by maintenance staff and enforce that system. The evidence was that there were no written instructions or electrical instructions and there was no evidence of enforcing a safe system for performing air conditioning work and avoiding the energised valve. 90 In light of all these matters, the prosecution has established a prima facie case against the defendant in relation to the breach as particularised. The defendant's "no case to answer" submission is rejected. The parties are directed to confer on a suitable time for having the matter relisted in order to complete the hearing. The parties should contact my Associate in that regard within 14 days.

At all material times Inspector John Sibilant was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in this matter.
At all material times, the Royal Automobile Club of Australia incorporating Imperial Services Club Limited [ACN 000 016 044] ("the defendant") was an employer having its registered office at 89 Macquarie Street, Sydney 2000 ("the premises").
At all material times the defendant carried on the business of a business and social club providing accommodation, dining and recreational facilities to members and their guests at the premises.
From about December 2002 until 20 October 2004 the defendant employed Jeffrey Leisemann ("Mr Leisemann") as its Building and Maintenance Manager. Mr Leisemann had been previously employed in a similar position from September 1992 to April 1996.
The defendant also employed Mr Harold Burgess as a qualified electrician, Mr Robert Galante as general handyman, Mr Michael Hoar as its Front Office Manager and Mr Richard Nelson as its CEO/ Secretary Manager. Mr Galante, Mr Burgess and Mr Leisemann comprised the maintenance employees employed by the defendant.
At various times the defendant engaged Budstar Pty Ltd trading as D J Staniforth & Co ('Staniforth'). Staniforth was a qualified electrical and air conditioning contractor which was contracted to perform routine maintenance work to the air conditioning equipment at the premises.
The defendant's maintenance employees had separate duties and did not routinely work together. Mr Leisemann was responsible for supervising Mr Burgess and Mr Galante.
The defendant purchased equipment used by Mr Leisemann in the course of his work. The maintenance of equipment was the responsibility of the defendant. Mr Leisemann had a Bunnings Charge Card and was authorised to purchase tools and equipment on behalf of the defendant generally. From time to time Mr Leisemann used the Bunnings charge card to purchase tools and equipment for use in the performance of his work and for the use of other maintenance employees employed by the defendant.
The defendant knew that Mr Leisemann at various times undertook adjustments to the air conditioning units in the individual rooms at the premises to reflect the change of seasons and in response to requests from guests staying at the premises. Mr Leisemann held no electrical qualifications or accreditations at all.
Mr Leisemann kept a diary. From time to time Mr Leisemann went around tthe rooms at the premises adjusting the air conditioners in the rooms to suit the seasons.
The agreement between Staniforth and the defendant did not require Staniforth to undertake the adjustment of thermostats in the room air-conditioning units.
At approximately 1:40 pm on 20 October 2004, Mr Leisemann went to Suite 601 on Level 6 of the premises. At approximately 2:15 pm Mr Burgess entered Suite 601 and found Mr Leisemann lying on the floor. Mr Burgess alerted his colleague, Mr Galante, who called emergency services and notified the front office manager, Mr Michael Hoar. Mr Hoar notified Mr Richard Nelson, CEO/Secretary Manager of the club and both men proceeded separately to Suite 601 where they administered first-aid to Mr Leisemann until the arrival of the paramedics.
Mr Leisemann was then transported to St Vincent's Hospital where he was pronounced dead. Following an autopsy at a later date, the cause of death was determined to be electrocution.
When Mr Leisemann was found, the sliding door to the air conditioning unit in the Suite 601 was open, the cover to the motorised valve had also been removed exposing energised contacts on top of the unit and the thermostat control had been moved from its position inside the bulkhead and was hanging out of the opening. The thermostat control and thermostat stem and bulb were hanging out of the opening.
When Mr Leisemann was found the following tools/equipment were also found in Suite 601: · an electronic thermometer, located on the floor to the right of where Mr Leisemann was found; · a rubber handled hammer with a metal head; · a pair of yellow handled pliers located behind the motorized valve; · a 300 mm adjustable shifter; · a 10" adjustable shifter; · a red "Phillips head" screw driver; · a rechargeable torch located inside the bulkhead opening and leaning against the air conditioner fan coil unit; · a voltage indicator stick (yellow CABAC Voltfinger).
At the time of the incident the power to the air conditioning unit in room 601 had not been isolated.
On 20 October 2004 at about 6.00 pm Inspector John Sibilant attended the premises and took some photographs and made contemporaneous notes in his Inspector's notebook about what he was told and what he saw. Suite 601 remained undisturbed overnight following the departure of Ambulance Service personnel, Energy Australia personnel, police officers and Mr Sibilant on the 20 October 2004.
On 21 October 2001 Inspector Sibilant accompanied by Senior Inspector Peter Bell again attended the premises. Mr Nelson escorted them to Suite 601. Inspector Sibilant measured the room and it was approximately 5.2 metres by 7 metres.
Inspectors Sibilant and Bell took some more photographs and made some more notes while at the premises on that day. Inspector Sibilant prepared a Factual Statement that described what he saw in the room that day.
On 22 October 2004, Inspector Sibilant took into custody the equipment found in the room with Mr Leisemann, as listed at paragraph 15 above, and the chain of custody was preserved at all times after that date.
At a later date, the voltage indicator stick ("the Voltfinger") removed from Suite 601 was taken to TestSafe Australia for testing.
On 21 October 2004, Inspector Sibilant issued a notice to Richard Nelson, under section 89(3) of the Occupational Health and Safety Act 2000 to prevent disturbance of premises to allow investigation.
On 22 October 2004, Inspector Sibilant issued the following additional notices: (a) Improvement Notice Number 7-68347 - to ensure that only authorised people have access to room air conditioning units; (b) Improvement Notice Number 7-68351 - to undertake a risk management approach to all maintenance work where equipment or locations may be energised; and (c) Improvement Notice 7-68352 - undertake a risk management approach associated with all maintenance work on room air conditioning units.
The defendant complied with each of the notices.
The isolation switch for the room air conditioning units are on the main air conditioner distribution board, located on the roof in the plant room. A difference in voltage potential of 244 volts existed between the exposed contacts on the top of the air conditioner motorised valve unit and the earthed metal enclosures of the air conditioner coil units and associated pipe work. The motorised valve unit was energised at all times unless it had been isolated (and it had not been on 20 October 2004 when Mr Leisemann was found lying on the floor in room 601). If contact were made with these two parts (the motorised valve unit and the earthed metal enclosures) simultaneously an electric shock would occur.
The Voltfinger found in Room 601 with Mr Leisemann was tested by Mr David Fraser, an electrical engineer employed by TestSafe Australia. The Voltfinger was an unreliable indicator of the presence of electrically live circuitry in that it was likely at best to be intermittent in function. The use of volt sticks generally alone to ascertain the presence or otherwise of an electrical current is inherently dangerous as by themselves volt sticks are unreliable.
There was an Occupational Health and Safety Committee at the premises. Mr Leisemann was the Chairperson of that Committee. While risks were brought to the attention of the Committee, the decision on how to resolve these issues was made by Mr Leisemann and the CEO (Mr Nelson).
Following the incident the defendant put into place additional measures to deal with risks at the premises and to ensure it complied with the Act. These included instructing maintenance staff that they were not to touch any electrical items in the premises; making staff aware of the Notices issued by WorkCover; informing Staniforth of the fatal incident and the Notices issued by WorkCover and advising the electrical contractors that only persons competent and qualified to perform electrical work could attend the premises and perform that work.

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