Inspector Kenneth John Barnard v Rail Infrastructure Corporation - [2001] NSWIRComm 255 - NSWIRComm 1992 case summary — Zoe

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Inspector Kenneth John Barnard v Rail Infrastructure Corporation

[2001] NSWIRComm 255

Industrial Relations Commission (NSW)|1992-11-09|Before: Haylen J, Peterson J, Fisher CJ, Mr J

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1992-11-09

Before

Haylen J, Peterson J, Fisher CJ, Mr J

Catchwords

Practice and Prodcedure - Occupational Health and Safety Act 1983 - Prosecution's right of reply - practice of Commission in Court Session

Source

Original judgment source is linked above.

Catchwords

Practice and Prodcedure - Occupational Health and Safety Act 1983 - Prosecution's right of reply - practice of Commission in Court Session

Judgment (134 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Inspector Kenneth John Barnard v Rail Infrastructure Corporation [2001] NSWIRComm 255 PROSECUTOR: Inspector Kenneth John Barnard PARTIES : DEFENDANT: Rail Infrastructure Corporation FILE NUMBER: IRC 2671 and IRC 2672 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 15(1) - work involving crossing of live railway lines - work at night - failure to supervise - failure to provide a safe system of work - system operating on basis of "looking out for yourself" - whether "looking out for yourself" is a system of work or a safe system of work - paper systems insufficient to ensure safety - system of supervision confusing and inadequate - breakdown of system warning of approach of train - whether mere fact of provision of training amounts to a safey system of work - relevance of changes made to work system after accident - particulars of charge - whether particulars are essential ingredients of charge - carelessness or inadvertence by employee does not abrogate duty of employer - s 53 defences - mere assertions insufficient - onus on defendant to establish defence - onus not discharged - offences proved

[24]

THE SYSTEM OF WORK AND THE PLACE OF SAFE WORKING UNITS 15 The defendant accepted that the rail system in New South Wales was governed by a set of rules which applied to all parties who work or use the rail infrastructure. The rules are known as Safe Working Units (SWUs). It was also accepted that the relevant SWUs for the work engaged in by the defendant's employees on the night in question were contained in the SWU Series 900. It was said by the defendant that at the time of the accident the SWUs "were owned by the Rail Access Corporation, and were controlled by the State Rail Authority." 16 In her record of interview, Ms Dally, when asked what safe working systems did the Rail Services Authority have in place to advise each member of the track maintenance crew of a train passing through their worksite to ensure that each person was not in danger of being struck by the train, replied that it was the requirement of the other parts of the safe working manual, which belonged to the Rail Access Corporation, which could be the 100 series, parts of 600 series and parts of 900 series. There were also site safety meetings, tool box briefings, site inductions and an overall site safety plan. 17 It was unclear from this evidence and the submission of the defendant whether it was suggested that the safe working system applied to the work of track maintenance which was undertaken on the night in question was under the control of some other legal entity such that the defendant had no control or influence over the system of work and, if so, what flowed from that fact. It was put to Inspector McMartin in cross-examination by the defendant, and he agreed, that to carry out work on the rail network in New South Wales, one had to operate under the SWUs. Since 1996 different corporate entities had been created following the corporate break up of the SRA and Rail Access became the owner of the infrastructure. Ms Dally stated that the safe working manuals (including the 900 series) belonged to the Rail Access Corporation. Employees, such as Mr Mason, were trained in accordance with safe working requirements and that training was performed for the Railway Services Authority through Australian Rail Training, State Rail Authority.

[25]

18 Part of the SWUs 900 series was tendered in the prosecution's case. SWU 900, entitled "General Safety Precautions" contained an introduction in the following terms: [a] This manual sets out the procedures which must be adopted when any type of engineering work is to be carried out on or about railway infrastructure. This work may relate to the repair, maintenance or other grading of railway tracks, rolling stock or associated works or equipment. The introduction also stated that for the purposes of the manual, any procedure shown for an employee would mean a State Rail employee, a private company employee or a contractor. Employees were to perform only the duties shown in the procedures when they had obtained the level of State Rail's certification necessary to carry out the duties: each worksite supervisor and Traffic Officer was to have an up-to-date copy of the manual and the relevant supplement for their particular discipline readily available for the information of employees. In Paragraph [d], entitled "Safety Clearances for engineering work" the following was provided: For the purpose of the procedures in this manual 'work on or about the line' refers to any work situation where employees, contractors, plant, equipment or material are located within, or likely to be within, the following distances: non-electrified areas: 2.5 metres horizontally from the nearest rail or any running line or siding; six metres vertically above rail level; 0.3 metres vertically below rail level. electrified areas: 2.5 metres horizontally from the nearest rail of any running line or siding … where work does not come within, or is not likely to come within, these safety clearances, no protection is necessary and the procedures in this manual DO NOT apply. However, when any work is being performed close to the minimum safety distances, extreme care must be exercised. Sub-paragraph [f] entitled, "Using barriers within the safety clearances" provided: Barriers may be provided within the safety clearances as shown as [d] in this unit to protect work adjacent to or above the lines. The barriers must be of solid construction to prevent any possibility of employees or their equipment coming into contact with passing trains or the overhead wiring. When the barriers have been erected, no protection is necessary and the procedures in this manual DO NOT apply. When a barrier is used to prevent access to the electrical equipment, a "Permit to Work" is NOT required. … Under the heading, "Using fencing or boundary tape to define a work area" in sub-par [g] it was provided: High visibility demarcation fencing or boundary tape may be used to define a work area. Because this fencing or boundary tape cannot prevent persons or equipment coming into contact with trains or the overhead wiring, normal protection must be provided. The level of protection will depend on the type of work being carried out.

[26]

19 SWU 901 dealt with engineering safe working certifications. Under sub-paragraph [a] the types of engineering safe working certifications are set out. The introduction to the definitions for each certificate of competency stated as follows: All employees requiring to carry out work on or about railway infrastructure relating to the repair, maintenance or upgrading of railway tracks, rolling stock or associated works or equipment must be certified as competent to do so. The level of certification required depends on the type of duties to be carried out. Certificates of competency are issued to employees when they satisfy the requirements for qualifications and on-the-job training as shown in the safe working Policy Manual. These certificates are as follows: A Track Safety Awareness Certificate of Competency issued to certify that an employee is permitted to carry out work on or about railway infrastructure relating to the repair, maintenance or upgrading of railway tracks, rolling stock or associated work or equipment … A Worksite Protection Certificate of Competency is issued to certify that an employee can either carry out hand signalling duties or is able to supervise certain types of worksites … An Engineering Safeworking Certificate of Competency is issued to an engineering employee who is certified to the level of Worksite Protection Class 3 or 4 and is certified in the system(s) of safeworking to the level required for the area where the employee is working . Paragraph [b] dealt with issuing certificates of competency and stated: Only the persons authorised in the Safe Working Policy Manual to issue Safe Working Certificates of Competency are permitted to do so. When issuing a Certificate, the authorised issuing officer must delete the certifications which do not apply by ruling a line through them … Where necessary, previously issued Certificates of Competency must be sighted by the authorised issuing officer before this officer destroys them. Sub-paragraph [c] dealt with the Track Safety Awareness Certificate and provided as follows: A Track Safety Awareness Certificate must be issued to all employees who require to carry out work on or about railway infrastructure relating to the repair, maintenance or upgrading of railway tracks, rolling stock or associated works or equipment for a period of five or more consecutive days. (It should be noted that normal days of absence from work such as weekends and sick leave do not affect the count of consecutive working days)

[33]

To keep a safe lookout [c] Employees looking out for themselves: 1. Where possible, look or walk towards approaching trains so that you can see a train approaching. 2. Keep a frequent lookout for trains. 3. When you see a train approaching, move to a safe place. 4. If the driver sounds the locomotive whistle before you are in a safe place, DO NOT give the all clear hand signal until you are in a safe place. 5. When you are in a safe place, face the driver of the approaching train and display an all clear hand signal. 6. If the driver has not sounded the locomotive whistle, continue to display the all clear hand signal until the driver has sounded the locomotive whistle. 7. Remain in a safe place and maintain observation of the train, if possible until the train has passed. 8. If the safe place is within 2.5 metres of the nearest rail, cease all activity and discussion until the train has passed. 9. When the train has passed, check that no more trains are approaching before resuming work. When protection is provided by a handsignaller [b] · when employees working on or about the line cannot safely lookout for themselves, a handsignaller must be provided to act as a lookout; the handsignaller acting as a lookout must warn all employees in the working party when a train is approaching. The warning may be given verbally or by a hooter, a whistle or other approved warning device; · when one handsignaller acting as a lookout cannot safely provide protection owing to the location, weather conditions, difficulty in seeing trains approaching or other reasons the Worksite Supervisor may instruction the lookout to place one detonator on the line and obtain an additional handsignaller to provide an earlier warning; · handsignallers must not leave their position unless authorised by the Worksite Supervisor or unless they have been relieved; · after the Worksite Supervisor has determined the level of protection, it will not be necessary for the Worksite Supervisor to remain continuously at the worksite. 22 SWU 913 carried the heading "General Requirements for Protecting engineering work which requires trains to slow down or stop". Under sub-paragraph [a], headed "General Requirements", the following was provided: · When engineering work is being carried out, and: either all employees in a working party cannot be satisfactorily warned about approaching trains, or approaching trains will need to slow down or stop in order to ensure the safety of people or equipment on or about the line or to allow trains to travel safety over track which has been disturbed during repairs, the worksite must be protected: either by positioning handsignallers or erecting temporary track protection boards. Under sub-paragraph [h,] Employees' Duties at Worksites, the following was stated: · Whenever the worksite supervisor advises that a train is approaching, all employees at a worksite must: Move with any equipment to a safe place and remain in a safe place; · To prevent accidents and misunderstandings, if the safe place is within 2.5 metres of the nearest rail, employees must cease all activity and discussion until the train has passed. · All employees must obtain permission from the worksite supervisor before resuming work.

[41]

32 Mr Curry did not see a flag man or safety person on the night but did notice floodlighting on the work area with "a lot of lighting illuminating the track machines". Mr Curry did not recall being told or given any notice at the beginning of his shift that there would be any track work on the main line. After the train had come around the corner from Port Waratah he could see the fettlers working about 200 metres down the line. He did not get any "all clear" hand signal from anybody when he sounded the whistle and for that reason he kept a good lookout to make sure there was nobody fouling the path of his train amongst those who were working around the track machine. He was watching the track machine intently and anybody around it but did not see anybody as the train passed the maintenance machinery. He could see reasonably clearly down the coal line, bearing in mind it was midnight. He was not necessarily assisted by the floodlighting of the machinery as some of it was shining towards him directed from the Waratah side of the work and towards the track machines, so that probably added to his "blindness" rather than assisting. Mr Curry said that the railway line was not illuminated at the level you would expect of a roadway like a public street - it was dark but, given the limitations, he had as clear a view as anyone does have in the middle of the night. He could see to the degree sufficient to drive a train. He did not have the assistance of daylight. 33 Mr White gave evidence that, as the assistant or observer on the coal train that night, he was sitting on the right hand side of the train and Mr Curry was sitting on the left hand side. The train was a diesel locomotive, roughly 38 trucks long. He remembered Mr Curry blowing the whistle as they proceeded through the worksite and that at the next signal box the train was stopped and they were informed about somebody being hit. He did not see any flagman or safety people giving signals where the fettlers were working but he did see portable floodlighting. It was his recollection that the lighting was to his left but he could not say whether the lighting shone on to the coal line. He was keeping a proper lookout, having seen the fettlers, and was looking for any obstructions on the line. He saw no obstructions on his side of the train. The diesel was not making all that much noise when it was progressing along the coal line.

[66]

62 The system of work was as set out under SWU 910 (a), that when employees are working on or about the line and can safely look out for themselves no other protection is necessary. However, where employees could not look after themselves, protection would be required and the level of that protection must be determined by the worksite supervisor. There was no system that involved supervision of the task that Mr Mason was performing by way of lookouts or otherwise. It was established on the evidence that Mr Mason was required to look out for himself. 63 In relation to the Particular involving the crossing of a running railway line in darkness the prosecution made the following points: (a) the headlights of the train were not on and the marker lights were on in accordance with the regulation at the time; (b) Mr Curry, the train driver, did not see any flagman or safety person; (c) there was floodlighting in the work area on the main lines which illuminated the track machine according to Mr Curry. It was in the middle of the night and the train drivers could see sufficiently to drive the train but the driver did not have the assistance of daylight - the light was as clear as anyone has in the middle of the night; (d) Mr White, the assistant driver of the coal train, saw the work area illuminated but had no recollection of any lights on the right hand side of the train; (e) Mr Mason had to use a torch to put the key in and perform his task at the Z frame although he could not recall the state of the lighting near the Z frame; (f) Mr Mason looked to his left and right but did not see the train coming, the inference being that it was dark or that there was at least a partial deficiency of light; (g) Mr McCullough described the light as quite "adequate" but when asked whether he saw "the train, the light of the train or the train frame" in relation to another train moving through later that night, Mr McCullough was clear that he only saw the two marker lights and the engine lights because they were moving - the inference being that it was dark and there was a deficiency of light, partial or total; (h) Mr Buttenshaw confirmed that the lights were shining on the work site which was the up and down mains and that the purpose of the lighting was to light up the crossover. Thus it was not the purpose to light up the Z frame or the coal lines; (i) Mr Shand said that the light was mainly on the main lines, and the Z crossover. He could not remember how far the light went but said that the light where the incident involving Mr Mason occurred was "half the light at the middle" referring to where the work was being undertaken at the crossover .

[81]

80 In relation to the employees in team 3 they were supervised by Mr Shand who also acted as a lookout to make sure no employees crossed over on to live tracks. While these employees were working on the down main line they were never in a position where they could come within 2.5 metres of a running line. In addition, no member of team 3 had to cross the coal lines to undertake the work. There was no need to place barriers or boundary tape at the Z crossing while work was only being performed on the down main line. The use of barriers was not practicable in all the circumstances. When the machines were to travel to the up line Mr Shand's evidence was that he planned a system of protection of the up main line by using a hand signaller on the down coal line. It was submitted that this meant that no train could travel on the down coal line without the permission of the handsignaller in compliance with SWU 913. In such circumstances, there was sufficient supervision necessary to ensure the safety of the employees working on the tamping machine and the regulator. 81 In relation to Mr Mason's work as Traffic Officer Mr Shand gave evidence that he was of the view that Mr Mason was able to cross the live running lines safety. Mr McCullough's evidence was that the Traffic Officer did not require a supervisor to undertake the work being performed by Mr Mason on the night in question. Mr Mason himself was not concerned by any risk to safety arising from having to cross the running lines; as a qualified and experienced Traffic Officer he was able to cross the running lines in accordance with the relevant SWUs which were in operation at the time and if he was concerned about safety he could have asked Mr Shand to provide some form of protection such as a lookout. He made no such request. His training and experience allowed him to adequately assess the risk. If Mr Mason did require supervision on the night, then he was supervised by Mr Shand, Mr Buttenshaw, Inspector Bernie Parkes and Mr McCullough.

[96]

In R v Shanahan in 1861 the Full Court of the Supreme Court of New South Wales, Stephen CJ., Milford and Wise JJ held that a right of reply in a criminal prosecution was to be afforded to the Crown. It was reported of the Chief Justice that the right or reply 'belonged to the person practically and in fact representing the Crown, not one who but theoretically represented it, as would be the case with counsel for a private prosecutor … there could be no doubt as to the existence of the right in the person actually and practically representing the Crown. However, in R v O'Donoghue Hunt J dealt with the current position; his Honour said at p 404: Where counsel for the accused abuses his anomalous right of last address, it becomes the duty of the trial judge to ensure that the balance is kept between the parties: cf Cleland at 10. The power given by s 405(3) to grant leave to the crown to make a supplementary address after that of counsel for the accused is limited to those cases where counsel for the accused has asserted relevant facts which are not supported by any evidence or by his client's unsworn statement. Such leave cannot be granted to the Crown simply because counsel for the accused has put arguments to the jury which are fallacious, illogical, extravagant, excessive, unwarranted or dishonest: cf Glusheski (1986) 33 A Crim.R 193. The task of pointing out such blemishes used to be left to the Crown Prosecutor who had the last address. Where such arguments have reasonably not been foreseen by the Crown in advance, it is now left to the trial judge to clean up the mess created by counsel for the accused, otherwise the jury may be quite wrongly influenced in its deliberations to the prejudice of the Crown. Each of the 19th Century authorities deal with the right of the Crown to address in reply in jury trials. The judgment in R v O'Donoghue updates the position in the earlier cases by reflecting what is a limitation imposed by s 405(3) of the Crimes Act 1900 on the right of the Crown to further address the jury in reply to excesses by counsel for the defendant. Neither the submissions of Woolworths nor the judgments suggest any reason why I should regard them as applicable in the present case. There is, so far as I am aware, no rule, practice or usage of this Court which either expressly authorises or restricts the Court in hearing a prosecutor in reply. Part 13, Rule 9, Supplementary Practice Before Court, of the Court's Rules, provides that where there are no relevant rules, established practice, procedure, usage or any order, direction or practice note in force: The practice, procedure or usage of the Supreme Court … is, as far as practicable, to regulate the practice, procedure or usage of the Court. Part 34, Rule 6 of the Supreme Court Rules concerns the order of addresses, but in the civil jurisdiction of that Court. Part 75, Criminal Proceedings of those Rules provides that many other parts and rules are applicable to criminal proceedings in the Court but not Part 34, Rule 6. Division 2 of Part 75 applies to proceedings in the Supreme Court under the Supreme Court (Summary Jurisdiction) Act 1967, which binds this Court by virtue of s 298(2) of the Industrial Relations Act 1991. No provision is made in these rules or the Supreme Court (Summary Jurisdiction) Act 1967 for the order of addresses or the matter of a reply. It seems to me to follow necessarily that the matter of a reply is for the Court to determine in the exercise of its discretion. Whilst commonly in my experience in these matters the prosecutor will address first and the defendant second, with no reply sought or given, this does not to my mind amount to a practice or usage. (pp 4 - 7) 97 It may be of some relevance that the Criminal Procedure Act 1986, Pt 4, Criminal Procedure Generally, in Division 2, deals with general trial procedure. Section 97 deals with an opening address to a jury by an accused and s 98 deals with the closing address to a jury by an accused person and in sub section (2) notes that, if in the accused person's closing address, relevant facts are asserted that are not supported by evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion. In its limited circumstances this provision at least contemplates a reply by the prosecution.

[101]

102 There are, however, broader considerations. The SWUs made a number of provisions allowing for a discretion to be exercised in the way safety was to be provided when working near a live line. For instance: barriers "may" be used to protect work or to define a work area; protection may be given by positioning handsignallers or by erecting temporary track protection boards or both. The defendant called no evidence as to how employees were trained to assess various circumstances and to decide upon the most appropriate form of protection - a barrier, tape, a handsignaller or any combination of these methods. SWU 910 simply said, where workers can look after themselves no other protection is necessary. Who was to make this decision and on what basis? What training was given as to how to make such a decision? Under SWU 910 if workers could not look after themselves, then protection was to be determined by the worksite supervisor. Who was this person? No one was clearly identified in the pre-works papers, instructions or briefing as the worksite supervisor for the purposes of SWU 910. In Mr Mason's case, as a Traffic Officer, he was to look after himself. There was no detailed evidence as to the training given as to how he was to look after himself in the various circumstances in which a Traffic Officer is involved. How was a Traffic Officer to decide whether or not he needed protection? What was the training given which equipped such employees to make that judgment? Again, who is the designated worksite supervisor who is to make the decision as to the type of protection to be accorded to a Traffic Officer? At best, there seems to be a skeletal system of safety at work. It did not ensure the safety of workers near a live line. Further, the defendant relies upon the 900 series of SWUs as providing the relevant safe system. Ms Dally's evidence was that where a train was passing through a worksite, the safe working system included "… parts of the safe working manuals … which could be the 100 series, parts of 600 series and parts of 900 series". This confusion as to which rules applied demonstrates in the clearest way how there was an absence of a safe working system and how inadequate were the SWUs. The SWUs however lay at the heart of the defendant's case that there was a safe system of work.

[109]

The appropriate approach to the institution and maintenance of a safe system of work is to be found in a decision of Hilbery J in Barcock v Brighton Corporation [1949] 1 All ER 251 at 255. Addressing the question, essentially the question that has to be addressed in this case, Hilbery J asked: What system of work had the employers provided for doing this work? The employers had seventy sub-stations, and the test was done almost daily. It was, therefore, a matter which called for some system of work devised and decided on by the employers. They had a duty to provide a reasonably safe system of work. The employers contended that they had provided a safe system of work by ordering the workman to read and follow the memorandum on the regulations, but I do not think one devises a system of work by saying to a workman: 'Read the regulations, and do not break them'. In my view, that is not devising a system of work. I think also that in this case no responsible person on behalf of the employers had devised any system for doing this work, and it is the particular work which is in hand for which a reasonably safe system has to be devised and used. If, however, it is contended that the employers had devised a system, then, in my opinion, by a long usage that system had in practice been utterly disregarded, it seems to me to be no use for a master to attempt to say in a court: 'I discharged my common law duty because I put down on paper a safe system and gave it into the workmans' hands, if for years they showed him, by the action of those who were his superiors, that the work was not done in the specified way, need not be done in that way, and could be done in another way which involved danger. Those are the circumstances here. I should have thought that, instead of providing a safe system of work, the employers had, in fact, provided throughout the years an unsafe system of work as a system it was expected should be employed, not withstanding that it involved risk, because, in the view that was expressed by Mr Bousefield, 'If you did not take risks, you would never get anything done. (at pp 227 - 228). I accept that, in that particular case, his Honour was dealing not only with the inadequacy of the paper system but a history, demonstrated on the evidence, of disregard for that system in any event. In my view a system which is skeletel and essentially says: "Look after yourself", is not the provision of a system of work at all and is certainly not the provision of a safe system of work. There was no evidence that gave substance to the training received when "looking out for yourself ".

[110]

110 As long ago as Watson J's judgment in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, it was held that s 15 of the Act imposed a stringent obligation on an employer. That judgment, which has stood the test of time, looked at the legislative intent to be inferred by the use of the words "shall ensure" in s 15(1) of the Act. In the course of this much quoted judgment his Honour stated: What intention is to be inferred from the use of the words "shall ensure" which (leaving aside s 53) are without qualification? In Sweet v Parsley [1970] AC 132 at 163 (a case in which the House of Lords was called upon to consider the question of the absolute nature or otherwise of a statutory offence) Lord Diplock stated as follows : Where penal provisions are of general application to the conduct of ordinary citizens in the course of their everyday life the presumption is that the standards of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject matter of a statute is a regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the Court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who chose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act, without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in order to fulfil the ordinary common law duty of care. But such an inference is not lightly to be drawn, nor is there any room for it unless there is something that the person on whom the obligation is imposed can do directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the obligation (see Lim Chin Aik v The Queen [1963] AC 160, 175) … In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain' (at 469 - 470). Requiring Mr Mason to look out for himself did not ensure his safety at work. Further, the system of work appears to have the elements of a mere paper system so rightly condemned by Fisher CJ in Schultz.

[111]

111 In relation to the question of whether Mr Mason was supervised on the night, the defendant's primary position is that he did not need to be supervised because the system of work, which included the training given to Traffic Officers, meant that he could safely look after himself when crossing live lines. I have already found that this was not the provision of a safe system of work nor was it, indeed, a system at all. In the alternative, the defendant submits that Mr Mason was supervised by Mr Shand, Mr Buttenshaw, Inspector Bernie Parkes and Mr McCullough. As noted earlier, there is no evidence and no submission from the defendant how these various people played a role, in a practical sense, in supervising the work of Mr Mason as Traffic Officer on this night, and especially when he was keying the frame to permit the crossing by the maintenance machines. Indeed, the evidence on supervision is farcically contradictory. Mr Mason thought Mr Shand was his supervisor on the night. Ms Dally (the Occupational Health and Safety and Rehabilitation Risk Manager, Rail Services Australia) stated that Mr Buttenshaw was Mr Mason's supervisor because he would have worked with a Possession Officer and that was Mr Buttenshaw. Mr McCullough, in fact, was in charge, overall, of possession. Mr Buttenshaw did not regard himself as Mr Mason's supervisor and believed that the role he performed meant that nobody was under his chain of command. He thought that Mr Mason was supervised by Mr Shand since he was part of team 3. However, earlier in his evidence Mr Buttenshaw, who conducted the safety briefing for that work on the night of 13 June 1998, recalled how Mr Mason had asked whether he was involved or invited to the briefing because in Mr Buttenshaw's experience Traffic Officers did not consider themselves as part of the resurfacing team. Mr Buttenshaw also gave evidence that Inspector Bernie Parkes was in charge of the resurfacing teams. Mr Shand said that, while Mr Mason was working on his worksite he "guessed" that he was Mr Mason's supervisor but when Mr Mason was putting the key in the Z frame he had no responsibility for Mr Mason's movements. This may reflect Mr Shand's belief that crossing the live lines and working on the Z frames was not part of the work site over which he had control, namely, the cross over on the up and down main lines. Mr Shand thought that Mr Mason was in charge in bringing the team and the machines to the worksite. Mr McCullough stated that as Traffic Officer Mr Mason was to look after himself although other arrangements could be made if he was not satisfied about looking after himself. He also confirmed that part of Mr Mason's duty as Traffic Officer was to look out for the men on the machine. That answer is important for another submission made by the defendant, namely, that Mr Mason was not required to leave the Z frame, and once he put the key in it he could have and should have stood on the platform next to the Z frame which was a safe distance from the live coal lines, and thus avoid being hit by a train. When this proposition was put to Mr Mason he did point out that he could hardly act as lookout for the men on the maintenance machines as he was some 40 feet away from them standing on a platform with the Z frame.

[112]

112 It seems from the provisions of the SWUs and Mr McCullough's evidence that, if Mr Mason was not satisfied with looking after himself, then the worksite supervisor could make appropriate arrangements for his safety. The worksite supervisor could have been Mr Shand (although on the evidence it could be Bernie Parkes, who was not called as a witness, or the others nominated by the defendant). Undoubtedly, if Mr Shand had been asked he would have been able to perform the role of lookout for the very short period of time during which Mr Mason left the position of lookout for the team and crossed the live lines to the frame. Such a task would hardly have seriously impinged upon Mr Shand's duties that night and in one respect fitted in with his duties as being a lookout for the resurfacing team. Tradition, however, appears to have treated the Traffic Officer as not being part of that team. Again there are contradictions: Mr Shand gave evidence that he held a torch for Mr Mason while Mr Mason removed the point clips at the change over because when performing this task a shadow was cast and therefore the torch was needed. This was another task which showed that they could and didwork together but Mr Mason was not regarded as part of team 3. A further contradiction is demonstrated by the provisions of SWU 901[j] and the duties to be performed by a person with a Worksite Protection Class 4 Certificate. Such a person was certified to: "determine the level of protection needed before the work commences; arrange to take possession of a line(s); arrange protection of any worksite." It can be seen from the evidence that these tasks were in fact performed, in some way or another, by a variety of people including Mr McCullough, Mr Buttenshaw and Mr Shand. Mr Mason was to "look after himself" but no guidance is given as to how his authority under the Class 4 Certificate was to be exercised in light of the various provisions of the SWUs, the authority given to a "worksite supervisor" and the roles allocated to or assumed by officers such as Mr McCullough, Mr Buttenshaw and Mr Shand. Then there is the unexplained role of Inspector Parkes who was said to be in charge of all the resurfacing teams operating that night. 113 This evidence demonstrates the utter confusion reigning within the defendant's organisation as to lines of supervision. There appear to be overlapping lines of authority and supervision but certainly no clear understanding in the workforce as to who would exercise supervisory functions in relation to matters of safety and at what times. It speaks volumes of this chaotic method that very experienced railway men such as Mr Shand and Mr Mason, who are in many respects the main players when this maintenance task is being performed, had no real idea of who was to supervise on the night. This unsatisfactory position also raises the question of whom Mr Mason was to approach to authorise a lookout or other protection if he felt that looking out for himself was inappropriate. The defendant's submission in the alternative, that supervision was provided by Mr Shand, Mr Buttenshaw, Inspector Parkes and Mr McCullough, is simply untenable. There was but passing reference to Inspector Parkes as being a person who was "there" but no detailed evidence was called as to his role and duties. It is not surprising that, in light of the state of the evidence, the defendant simply put forward this proposition in the alternative but did not stay to tackle the challenging task of describing how this multi-layered system of supervision operated in practice and operated to provide a safe system of work.

[113]

114 As recorded earlier, the defendant submits that the charge that the failure to provide supervision to ensure that employees crossing the rail of a running line in darkness were not placed at risk of injury elevated the element of "darkness" to an essential element of the offence. There is no dispute that the work commenced after 9.00 pm on the night of 13 June 1998 and that the injury to Mr Mason occurred at approximately 12.15 am of the morning of 14 June. The evidence shows that a bank of floodlights was located on the Upfold Street side of a gantry which spanned the railway lines, being a bank of lights elevated to a height by a telescopic pole holding them which itself was part of a mobile unit. The evidence suggests that these mobile lighting banks were hired for such purposes. The work of team 3 was the maintenance of the down and up main line using the tamping machine and regulator. Shortly before the injury suffered by Mr Mason this work was located at an area known as the "Z" crossing. The defendant submits that the "area" was not dark: rather the evidence established that the Z frame and the areas were lit by the presence of floodlights located some 20 metres from the eastern side of the gantry in Upfold Street, the street lights and house lights in the area and the lights on the tamper and the regulator. Inspector McMartin relied upon employees for his understanding that the portable lighting illuminated the down and up main lines with a certain amount of light on the up and down coal lines as well. Mr McCullough arrived at the scene after the injury to Mr Mason and took over his role as Traffic Officer. He said that the lighting was "okay" and "adequate" and when crossing the line he repeated that the lighting was adequate. When Mr McCullough was performing this task he saw a train coming along the coal line about 200 metres out from where he was standing; he saw the two marker lights and the engine lights "because they're moving". Mr Buttenshaw said he probably turned on the bank of lights for the "worksite" which he identified as being the up and down main lines. He said this involved the cross over which was about 25, 50 probably up to 100 metres long. At the scene of the accident Mr Buttenshaw was able to see Mr Mason lying in the 6 foot. The bank of lights was concentrated at the worksite and whether it lit any other areas was incidental. The light was focussed at the Z crossing and was weakest at the edges but he could not explain where the edges were on that night.

[114]

115 Mr Shand's evidence as to the light that night was uncertain and equivocal. I formed the impression that he felt, for whatever reason, uneasy in giving evidence generally and about the lighting of the worksite in particular. His evidence is difficult to utilise in reaching a firm conclusion about the nature of the light that was provided that night for performing the maintenance work and especially difficult to use to determine the outer limits of that light and whether or not it also illuminated the Z frame where Mr Mason was required to perform his task of keying and pulling the frame. Mr Shand said that when working with the machines he sometimes had to walk out ahead and get out into the dark a bit, walking "on the live bit" looking at the rail, the sleepers etc. On the other side of the machines from the light it was dark and sometimes to look under the machines required a lamp or torch. On examination-in-chief, he could not remember how far the light went over the crossover but the light probably got dark about 50 metres in front of the machine - then faded away. He said there was light for 50 or 60 metres and then it got darker and then you got to the street lights but "it's enough to see, sort of". In cross-examination, he accepted that there was sufficient light for him out of the corner of his eye to see Mr Mason hit by the coal train. It was put to Mr Shand in cross-examination that the tower light not only threw light over the up and down main area but it also lit up the Z frame. Mr Shand agreed with that proposition and also agreed with the proposition put to him that, in crossing the up and down coal as well as the up and down main on that night, to say it was dark was just wrong. He also agreed to the proposition put to him that there was also light being thrown from the houses in Upfold Street. Mr Shand also agreed that, from where he was standing, he could not only see Mr Mason but he could see the Z frame. It was probably "half the light of what the middle was but it was seeable". The middle of the light was both the up and down main but it gradually faded "naturally as you are going away". Mr Shand acknowledged, after being shown photos of the site, that there were in fact three frames, an X Y and Z frame: he then said the light was over the Y and the Z frame but not the X frame. I am not prepared to give significant weight to Mr Shand's simple agreement with propositions put to him in cross-examination by counsel for the defendant relating to such significant matters as the lighting of the workplace or, more particularly, the lighting around the Z frame.

[118]

119 It is significant that Mr Buttenshaw confirmed that the purpose of the lighting was to light up the crossover and inferentially therefore not to light up the Z frame or the coal lines. Having regard to the nature of the work to be performed that night such an arrangement may be understandable. Mr Shand accepted that the light faded away, although he was not able to say where the light was strongest and where it was weakest. It is of interest that Mr White held so firmly to the view that the portable lighting was to his left rather than on his right. Photographs produced in evidence indicate that the bank of lights on the telescopic pole would have been to Mr White's right on the night. It is possible that the lights that attracted Mr White's attention were in fact the lights on top of and around the regulator and the tamping machine. The elevation of the bank of lights on the other side of the tracks may have created an illusion that the lighting was on the left hand side of the tracks rather than being sourced from the right hand side. This, of course, is conjecture but it flows from the firm views expressed by Mr White in his evidence. 120 From this evidence, I conclude that the lighting was focussed and directed at the crossover and that its purpose was, as stated by Mr Buttenshaw, to illuminate the maintenance work. Ordinary experience would suggest that the light illuminated other areas incidentally but I am unable to accept that the lighting used that night illuminated the coal lines and the Z frame to such an extent that Mr Mason was clearly visible and that approaching trains were clearly visible. This conclusion is supported by the fact that both the train driver and his assistant, although progressing with care having come across maintenance workers unexpectedly, saw no obstruction. If the Z frame had been illuminated sufficiently by the overhead lights or the street lights I would have expected either of these witnesses to have said so and they would also have been able to see Mr Mason. In addition, it is to be remembered that Mr Mason had been provided with a fluorescent vest.

[122]

Having regard to the evidence as to their separate responsibilities and duties there is force in the defendant's submission. In essence, the two charges are that the defendant failed to provide supervision and failed to provide or maintain systems of work as were necessary to ensure the health and safety at work of its employees carrying out railway track maintenance. In each case the failure to provide such supervision to ensure that maintenance employees did not come within 2.5 metres, horizontally, of the nearest rail of any running railway line would only apply during the night when the team crossed over to the line running next to the live coal lines. This was work planned to be performed but as a consequence of the injuries received by Mr Mason that work was not performed on the night. Mr Shand planned to perform this work with the use of a handsignaller so that under the SWUs a train could be slowed or stopped on its approach to this part of the worksite. In addition, it would seem to follow that if the regulator was in operation, its "wings" would make it hazardous, at least, for a train on the live coal line nearest the main line to attempt to proceed past the worksite until the "wings" on the regulator were retracted. Further, there would be difficulties with using fences or barriers to separate this maintenance work from the adjoining live lines, although I am not convinced that boundary tape could not have been used as a signal to both a train driver and to the workers engaged on the maintenance tasks that they were at risk. Again, however, the planned use of a handsignaller appears to me to have provided more effective protection. In relation to the crossing of a live running railway line in darkness, there is no evidence that the team members performing maintenance work were required to cross live lines. Even if a resurfacing team member accidentally or inadvertently crossed into a live line it seems to me that the provision of the handsignaller would be both the provision of adequate supervision and the provision of a safe system of work. In view of this evidence and on the above analysis I am not prepared to find that the members of the maintenance team were at risk as alleged in both of the charges under s 15(1) of the Act.

[126]

126 In relation to the third particular, namely, the crossing of a running rail in darkness, I have already concluded that the system of work in use required a Traffic Officer in Mr Mason's position working at night to cross the live running rails in darkness. A safe system of work would have, at least, required a lookout to warn Mr Mason of the approach of any train. Such a lookout, in addition, appears to be necessary because the use of detonators and the sounding of a train whistle alone when this maintenance work is being performed appears to give no adequate advance warning of an approaching train because of the noise generated by the maintenance machines. Nor does the system of advice from the signal box of an approaching train appear to be effective, either because it is not always performed or because the noise is such that the warnings given over the hand held radio are capable of being drowned out by the workplace noise. 127 The defendant spent some little time in seeking to demonstrate that Mr Mason must have been within 25 to 35 metres of the train, given its known speed, when he crossed the line in front of it. Despite his sworn evidence that he looked to his left and to his right before attempting to cross back over to the dead main lines, the defendant submits that, if he had looked, Mr Mason must have seen the train and therefore it was clear that he simply failed to look both ways or in the direction of the train and, being intent on making his radio call to the Islington signal box, simply did not look out for himself contrary to the defendant's system. I am not convinced, even if the propositions put forward by the defendant as to the time required to cross the track and the speed of the train and the distance it would have travelled in that same time be all correct, that it means that Mr Mason did not look in the direction of the train. The evidence is that this work was being performed in the middle of the night, that the train in accordance with regulation did not have its headlight on but only its number light and small marker lights, that the worksite noise level was in excess of 85 decibels and that nobody appeared to hear the train coming, including Mr Shand. It may well be the fact that Mr Mason looked and did not pick up the fact that a train was approaching. It may be, as the defendant suggested, that Mr Mason failed to look in the direction of the train; or that he failed to look because he had received no warning from the signal box over his radio. However, proper supervision and safe systems of work do not presume that all workers are observant and careful. As the prosecution submits, s 15 of the Act imposes a duty not only in relation to the observant and careful employee but also in relation to the inadvertent and careless employee. In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 a Full Bench of the Commission in Court Session said: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. 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 conncections. 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.

Inspector Kenneth John Barnard v Rail Infrastructure Corporation

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