Inspector Maltby v Josef and Sons Pty Ltd

Inspector Maltby v Josef and Sons Pty Ltd - [2003] NSWIRComm 336 - NSWIRComm 2003 case summary — Zoe

[35]

SCHEDULE ONE The particulars of the charge are: 1. The Defendant is a corporation which owned various construction equipment which it hired to or otherwise made available for the use of Josef & Sons Contracting Pty Limited. 2. Pursuant to its undertaking the Defendant made available to Josef & Sons Contracting Pty Limited a 7-8 tonne Daewoo excavator (the Excavator) to perform work on the Kogarah Station Upgrading (KSU). 3. At all material times, the directors of Josef & Sons Contracting Pty Limited and the Defendant were Susan Josef and Robert Josef. 4. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the State Rail Authority of New South Wales to perform construction work on the KSU. 5. On or about 8 November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited to perform work, including the demolition of shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 6. Prior to the demolition of the building, a request was made to AGL Gas Networks Limited (AGL) to disconnect the gas supply to shops 3 and 7. 7. On or about 10 November 1995, John Princi, an employee of AGL, attended and cut and capped the gas supply line to shop 7, Railway Parade, Kogarah. 8. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 9. The gas supply line remained charged. 10. Josef & Sons Contracting Pty Limited was aware of where the gas supply line had been cut and capped. 11. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and it was completed by 4 December 1995. 12. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 13. A stake was used to mark the gas supply line when it became exposed. 14. On 4 December 1995 Josef & Sons Contracting Pty Limited instructed Robert Campbell to operate the Excavator. 15. Robert Josef, a director of the Defendant, was at the KSU on 4 December 1995 and observed Robert Campbell operating the Excavator on the eastern side of the KSU. 16. On 4 December 1995 Robert Campbell used the Excavator on the eastern side of the KSU to create a batter. 17. The Excavator was used to create the batter in the area where the gas supply line was situated. 18. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 19. The Defendant failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line. 20. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ) located at 13 Railway Parade, Kogarah. 21. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 22. At approximately 2pm on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 23. Between 2pm and 4pm on 4 December 1995 the Defendant was advised of the explosion which had occurred. 24. At approximately 4pm on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 25. The gas explosions were of sufficient extent and severity that persons were injured thereby. 26. The existence of a charged gas supply line situated in an area where construction work was designed to occur, was inherently dangerous. 27. The Defendant failed to adequately protect the charged gas supply line on the KSU while the Excavator was being operated. 28. The Defendant failed to adequately identify the charged gas supply line on the KSU while the Excavator was being operated. 29. The Defendant failed to adequately mark the charged gas supply line on the KSU whilst the Excavator was being operated.

[36]

SCHEDULE TWO (a) Whilst we are reluctant to answer your question by the assertion that this is not a proper request for particulars, we do say that the documents (being the charges) when read, demonstrated a breach of s17(1)(a) of the Occupational Health and Safety Act (the Act). (b) As to the factual basis, such control arose pursuant to the terms of the engagement between Josef & Sons Contracting Pty Ltd, and Josef & Sons Pty Ltd whereby Josef & Sons Pty Ltd hired, lent, or otherwise made available to Josef & Sons Contracting Pty Ltd for use on or around the KSU heavy earthmoving equipment. Particulars of said engagement between Josef & Sons Pty Ltd and Josef & Sons Contracting Pty Ltd are within the knowledge of the defendant. As to the legal basis, this is a matter which is arguably, not a question for particulars, but in relation thereto, it is asserted that the factual allegations previously made bring the Defendant within the terms of the Act. So far as the question is asked on an example basis, this is arguably not an appropriate request for particulars, but we assert that the factual basis for the allegation of "control to any extent" has been made out. (c) AGL documents record that on 8 November 1995 a service call was placed for the disconnection of a charged gas supply to 3 and 7 Railway Parade Kogarah. The records do not identify who made that request. (d) (i) John Princi attended on behalf of AGL and present for Abigroup Contractors Pty Ltd was Mr Luis Bustamante. (ii) The Prosecutor is unable to establish whether there was a representative of the Defendant in attendance on or about 10 November 1995, when the gas supply line was cut and capped. However, in order to meet its obligations under the Occupational Health and Safety Act, as a contractor working on the KSU and responsible for the demolition work that was to occur, the Defendant should have made a person available when the disconnection occurred. Such person made available for the on site discussion with persons disconnecting gas lines should have known the extent and nature of the work to be performed on or about the KSU and the demolition and construction aspects of that work, so as to adequately inform the person disconnecting the gas supply line where such disconnection should occur, so as to ensure the health and safety of workers on the KSU and members of the public who were to be around the KSU during the course of the demolition and construction work. (e) No, it is not alleged that there was a second attendance by AGL at the KSU on or about 10 November 1995.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (44 paragraphs)

Parties

Cases Cited (2)

Cited By (1)