Inspector Martin Carmody v Luke Tsougranis

Inspector Martin Carmody v Luke Tsougranis - [2003] NSWIRComm 108 - NSWIRComm 1992 case summary — Zoe

[9]

3 The summons alleged that on 3 September 1998, at a construction site situated at 730 Bourke Street, Redfern, the defendant, being an employer, failed to ensure that persons not in his employment and, in particular, Michael Papaianni, Jim Zaronias, Nicholas Clements, Gaetano Savoca and Carl Hamilton, were not exposed to risk to their health or safety arising from the conduct of his undertaking, namely, the provision of structural engineering advice, directions and drawings for use at the premises by those persons whilst they were at his place of work. The alleged offence was particularised in the following way: 1. The defendant on or about late May or early June 1998 was engaged by George Agapiou, the owner of the premises ("the owner"), to provide structural engineering advice, directions and drawings for use by persons engaged by the owner, for the conduct of certain works involving renovations to the existing structure and the addition of a new structure at the premises. 2. Pursuant to the defendant's engagement with the owner, the defendant provided structural engineering advice, directions and drawings for use by the builders in pursuance of that engagement. 3. At all material times on and prior to 3 September 1998 there was a free-standing double brick wall ("the wall") in the rear northern boundary of the premises which was: (i) not fully bonded into the cross wall at the rear of the front section of the premises to which it abutted; (ii) was not a party wall fully bonded into the cross walls of 728 Bourke Street, Redfern, the adjoining premises. 4. On and prior to 3 September 1998 works were carried out by Michael David Papaianni and Carl Mark Hamilton ("the builders"), and their employee Jim Zaronias at the premises, pursuant to the builders' contract with the owner, in reliance on the structural engineering advice, directions and drawings provided by the defendant. 5. In the provision of such structural details and advice the defendant: (a) had not investigated the depth of the base or structural integrity of the footings of the wall; (b) had not made a detailed assessment of the structural integrity of the wall itself; (c) had not provided any requirements in his design to provide appropriate temporary support for the wall; 6. At all material times on and prior to 3 September 1998 the defendant failed to instruct the owner or the builders to ensure the wall was laterally braced or otherwise supported to ensure it was not at risk of toppling prior to any of the works being conducted. 7. On 3 September 1998 Jim Zaronias sustained fatal injuries and Michael David Papaianni sustained serious injuries when the wall toppled and fell upon them. 4 From the evidence, the following matters were established and in large part were not in contest: (a) Mr Agapiou was the registered proprietor of the Lot upon which the premises, 730 Bourke Street, Redfern, was situated and was also the owner of the adjoining property, 728 Bourke Street; (b) between August 1997 and March 1998, Mr Agapiou consulted a draughtsman, Mr Kourepis, in relation to plans for renovation and additions to the premises at 730 Bourke Street, leading to Mr Kourepis preparing plans and specifications to be submitted to South Sydney Council; (c) Mr Kourepis apparently visited the site for the purpose of preparing plans but no demolition or other work had been commenced by early March 1998; (d) by the end of March 1998, when Mr Kourepis had finalised the plans and specifications, he observed that demolition work had been carried out involving the substantial removal of the previously existing rear section of the premises at 730 Bourke Street; (e) Mr Agapiou had carried out demolition work to the extent that the previously existing rear section of the premises had been removed except for a wall on the rear northern boundary which was 6 metres in length and 6.3 metres high, of double brick construction and rendered on both sides; (f) towards the end of March 1998, Mr Agapiou lodged a building application with the Council seeking consent to carry out the renovation and additions set out in the plans prepared by Mr Kourepis; (g) on 8 May 1998, the Council granted consent to Mr Agapiou's building application but subject to certain conditions contained within Council's approval. On 27 May 1998, Mr Agapiou obtained an owner/builder permit; (h) sometime between April and June 1998, discussions were held between Mr Agapiou, Michael Papaianni and Carl Hamilton concerning their engagement as builders in relation to the plans which Mr Agapiou had submitted to the Council; (i) in late May or early June, Mr Agapiou engaged the defendant, an engineer with Luke Tsougranis and Associates in relation to the structural engineering requirements associated with the building work. Mr Agapiou provided Mr Tsougranis with a copy of the Council approved plans; (j) Mr Tsougranis visited the site and prepared design drawings which included footing details to support a new wall to be erected adjacent and parallel to the rear northern boundary wall, and footings to support a new concrete slab at the rear of the premises; (k) on or about 31 July 1998, Mr Papaianni, Mr Hamilton and a Mr Zaronias met with Mr Tsougranis and discussed aspects of the work to be performed for Mr Agapiou; (l) in early to mid-August 1998, the builders commenced work at the premises. Mr Papaianni and Mr Hamilton arranged for Mr Zaronias to work as a casual labourer at the site; (m) on 3 September 1998, besides Mr Papaianni, Mr Hamilton and Mr Zaronias, there were present at the building site a Mr Clements and Mr Savoca. At approximately 12.45 pm, the rear northern boundary wall fell into the site trapping Mr Papaianni and Mr Zaronias. Mr Papaianni sustained serious injury, but Mr Zaronias died as a result of injuries sustained by the collapse of the wall.

[59]

43 Mr Turner then made some observations about additions to 728 Bourke Street, the adjacent property and additions which had occurred around 1987. That modification included extending part of the rear section of the building to butt up against the collapsed wall and the provision of a roof over the resulting enclosed courtyard. Mr Turner stated that the outer skins of the new brick wall were partially supported by brick ties and nailed into the collapsed wall. The rear structure over the courtyard was also connected to the collapsed wall with screws and expansion anchors. He also observed that the wall which collapsed was not, in his opinion, a "party wall". A party wall was one built as a common structural wall for buildings on either side and was therefore an integral part of both buildings. However, while the collapsed wall was along the boundary, it did not constitute a party wall as there appeared to have been no contact with the structure of 728 Bourke Street prior to the additions referred to earlier. In Mr Turner's opinion, the modifications to No 278 had not permanently weakened the collapsed wall, although during installation of the strip footing the stability of the wall would have been reduced. Once completed, the adjoining walls and courtyard roof provided some additional support to the collapsed wall. Mr Turner then noted that the demolition of the rear section of the building removed horizontal support from the wall, which had previously been provided by the roof and floor structures and the return walls, both external and internal. These supports would have prevented the wall from rotating under the effect of horizontal load. The vertical load on the foundation of the collapsed wall was reduced by the removal of the existing structures and the associated live loads. Mr Taylor then expressed the following view: With the demolition complete, the rotational support for the collapsed wall was removed. From this time on the rotational forces imposed by wind loads were resisted by the rear addition to 728 Bourke Street. This addition was able to provide substantial support against rotation to the north but only minimal support for rotation to the south (into the site). The rotational support to the south was provided by the brick ties that were nailed into the collapsed wall to support the return wall on the No. 728 addition, and the connections for the courtyard roof structure. The brick ties and connections were installed to resist shear loads not the tension loads required to prevent wall rotation. The nailed in connection used on the brick ties provides good, shear strength but minimal tensile strength. The collapsed wall was therefore left in an unstable condition as a result of the demolition.

[82]

66 Mr Taylor accepted that he had assumed an embedment of the wall of 370mm below ground level because he observed the sandstone block footings to be 120mm and 250mm, producing a combined depth of 370mm. Mr Taylor also assumed that the sandstone footing would be below ground level and would not have protruded above ground level. The measurements taken on site suggested that depth of embedment. Because of the wall collapse and the rotation of the footings, it was difficult to take a precise measurement of actual embedment. While Mr Taylor accepted that the footing of the wall might have been greater than 370mm below the original ground level, that was improbable. Although Mr Taylor accepted that the level of embedment could have been as deep as 500mm or 600mm, the analysis in his report operated on 370mm and was based on what he saw after the accident. It was also based on the level of the ground at the commencement of the excavation for the trench. He therefore did not have to consider a higher level of embedment. In cross-examination, he accepted Mr Smee's assumption that normally footings of this nature would be 500mm - that was reasonable to assume. In re-examination, Mr Taylor accepted that, if the footings had been embedded at 500mm below ground level, then some of the bricks on the wall would be below ground level as well as the sandstone footings. However, Mr Taylor did not observe any discolouration of the bricks and he would expect to see such discolouration if the bricks were in fact below ground level. Mr Smee was a structural engineer with long experience who became a consultant to MBK in January 2001. He provided an expert's report on the collapse of the wall at 730 Bourke Street on the instructions of solicitors acting for the defendant. In providing his report, Mr Smee was asked to assume a number of facts including: (a) that Mr Tsougranis provided drawings at the end of July 1998 for those who picked up the drawings to be able to provide a quotation for the work; (b) prior to 3 September 1998, Mr Tsougranis had not been informed that a builder was on site, let alone that excavation had commenced; (c) on 3 September 1998 at 11.00 am, a message was left for Mr Tsougranis, when he was not in, requesting an inspection the following day. At this stage, Mr Tsougranis was not aware work had commenced on site and believed his drawings had not yet been submitted to Council. It is also apparent from his report that Mr Smee was either told or assumed that Mr Tsougranis had no control over the site and had been instructed that Mr Tsougranis had not been to the site since June - July 1998, prior to the accident.

[117]

101 At neither of his two visits did Mr Tsougranis have any knowledge of whether or not there had been works performed on the No 728 side of the property. He had no conversation with Mr Agapiou as to whether there had been works on the No 728 side of the property. Mr Tsougranis confirmed that he had prepared the initial sketches, and that Mr Cassimatis put them into the computer to produce the final plan. The sketches had been prepared prior to 27 July 1998 and the finalised plan was produced between 27 and 31 July 1998, after attending the site for the second time. The plans in the computer processed by Mr Cassimatis were put on disc and taken to Sydney University where they were printed out on tracing paper as a hard copy. When that was done, Mr Tsougranis looked at the printed copy, was satisfied with it and some copies were taken. He gave a copy to the builders on 31 July 1998. 102 When he prepared the structural design, Mr Tsougranis said that he did so making an assumption. He had looked at the architectural plan on which there was a reference to the proposed ground floor plan and that the front verandah level was to be raised to match the existing floor. There were no other notes anywhere on the floor plan to indicate a change in floor levels. He looked at the southern elevation which showed the ground level on the side of the house to be level with the patio at the back of the proposed works which appeared to be level with the backyard. There was a doorway leading out from the laundry through the side passageway with a step down to get to the passageway. He therefore assumed that the previous floor level he saw as a mark or line on the wall was going to be retained. In addition, Mr Tsougranis had not seen any survey pegs on the site, and he would expect to see something of that nature to indicate that there were going to be changes in levels. There was no note on the architectural drawings to suggest that the levels were to be changed at the rear of the property. There was only a note that the level was to be raised at the front of the property. In his two conversations with Mr Agapiou on 2 July 1998 and 27 July 1998, he did not mention anything about levels. From his experience, Mr Tsougranis was not aware of any physical evidence present at the site which he might expect to see to indicate that there was to be a reduction from an original floor level to a lower floor level.

[163]

150 In relation to these matters, the prosecution made the following submissions: (i) the evidence did not support the defendant's contention that the builders sought the plans for tender purposes. It was never put to Mr Agapiou that he was tendering out the work, nor was it suggested to Mr Agapiou that anyone other than Mr Papaianni and Mr Hamilton were to perform the building work. This position was consistent with other evidence that Mr Agapiou engaged people on the basis of word of mouth recommendations or references. The workers were not cross-examined as to starting at a later date nor were they cross-examined to explore specifically the work that they had performed prior to 3 September 1998. The evidence of the builders and Mr Agapiou was that the quote for the building work had been provided to Mr Agapiou prior to the meeting between the builders and the defendant at his offices; (ii) while there was some uncertainty about the provision of the plans to Mr Agapiou, it was submitted that that uncertainty resulted from "recall difficulties" from the lapse of time rather than being due to any real inconsistency. Both Mr Papaianni and Mr Hamilton gave evidence that they had obtained the plans from Mr Agapiou prior to attending the meeting with the defendant; (iii) if it was accepted that the defendant did provide the builders with the plans on 31 July 1998, it was still possible for the builders to have already prepared a sufficiently accurate quote on the basis of the specifications and the architectural plans; (iv) if it was accepted that the engineering plans were provided to the builders for tendering purposes (which the prosecution did not accept), the failure of the defendant to mark the plans for tender only or to indicate in any way that they were not to be used for building purposes results in the point being moot; (v) the reason the defendant would not have marked the plans as suggested above is because, on his own evidence, insofar as the plans contained details concerning footings for the rear extension, including the wall adjacent to the collapsed wall, his clear evidence was that the drawings were in every way complete for that work. The evidence was summarised as follows: (a) the defendant did not consider the stability of the collapsed wall after 27 July 1998 because he formed the view that at that time no or minimal excavation was necessary in relation to the footings to be excavated parallel to the collapsed wall; (b) the defendant did and does not accept that minimal excavation could affect the stability of the wall; (c) the reason the defendant believed that no or minimal excavation would be necessary was because of his assumption as to the final floor level. That assumption was based on an alleged observation of a line running along the collapsed wall (above which was concrete render and below which were bricks) which he assumed represented the previous floor level, which he assumed would be the new floor level; (d) notwithstanding the importance of that assumption, the defendant did not indicate on the plans the assumptions as to the new floor level which would underpin the conclusion regarding excavation. Further, the defendant took no actual measurements in relation to the existing floor levels in the front of the house where the joists, although not the floorboards, were still in place. Nor did he measure the alleged line on the wall, but rather estimated that the line was approximately 300mm to 400mm above ground level, and represented the place where the floor boards had been; (e) the defendant thus assumed that the new floor level was intended to be the same as the previous floor level. He did not discuss the floor level with any person; (f) although five of the witnesses could have given evidence about the wall prior to its collapse, only one, Mr Hamilton, was remotely cross-examined about it. He did not notice any such line. Mr Agapiou, Mr Papaianni, Mr Clements and Mr Savoca were never asked about the line, nor were Mr Taylor or Mr Smee. The photographs of the wall produced in evidence did not disclose such a mark; (g) nor did the defendant identify what further advice would be required from him if excavation were more than minimal or if the floor level was to be anything other than that assumed by him.

[165]

(i) the defendant did not ask to inspect the premises at 728 Bourke Street nor did he in fact inspect the premises at 728 Bourke Street. Accordingly, at the time, he was unaware of the extent to which investigations would be "destructive" as he simply had no actual knowledge of how the extension of No 728 was joined at No 730; (ii) although he claimed to have observed No 728 on many occasions, it was clear from the photograph in Mr Smee's report that the perspective, alleged by the defendant as being all-revealing, in fact revealed nothing of the roof line and its apparent joinder to No 730; (iii) as an inspection would have immediately revealed the extension at No 728 was not built contemporaneously with the collapsed wall, and had the defendant made those enquiries, at the very least, he would have been on notice that the collapsed wall was bonded to 728 Bourke Street only to the extent that the extension in the 1980s had caused it to be so joined. He certainly would not have been able to presume that the extension at 728 Bourke Street was a fully interlocking, simultaneously built extension comparable to the one that had been removed from the rear of No 730. 152 Beyond assuming that the wall was a party wall and bonded to an extension on No 728 in a mirror image type building, it was submitted by the prosecutor that the defendant, in fact, had not turned his mind to the stability of the collapsed wall. The defendant's explanation that, because of the assumed floor level no or minimal excavation would be involved, was not credible. Overall, the defendant's evidence was said to be marred by inconsistencies and self-serving statements unsupported and even contradicted by other evidence. Mr Agapiou's evidence was that the arrangement he had made with the defendant encompassed the defendant performing all the necessary structural engineering work in respect of the site at 730 Bourke Street. Mr Agapiou recalled that the defendant had indicated that the price of $800 included preparation of design, three site inspections and certification of the work for the local Council.

[172]

160 In relation to these matters, the prosecutor noted that none of them would have prevented the defendant from putting a direction on the plan to brace the wall in view of the fact that the defendant was unable to ascertain positively that the wall was otherwise secure. In relation to these defences, the prosecutor made the following submissions: (i) none of Mr Hamilton, Mr Papaianni or Mr Agapiou were of the view that the quote had been provided after 31 July 1998. Indeed, Mr Hamilton's evidence was that the visit to the engineer occurred after work had commenced; (ii) none of Mr Agapiou, Mr Papaianni or Mr Hamilton were cross-examined about the nature of the work performed between the commencement of the work and the date the wall collapsed, notwithstanding that that part of the defendant's case seemed to depend upon the delay in work between 31 July 1998 and the date of the wall collapse; (iii) Mr Papaianni's evidence in respect of the disbursement of the funds from Mr Agapiou was consistent with there having been a number of weeks' work performed prior to the wall collapsing. Overall, the evidence of the witnesses was to be preferred in relation to the question of the defendant's knowledge of the commencement of the work; (iv) there was no evidence that a certification process by Council would have affected the plans as they were produced. In the absence of a direction or description of the plan as a "draft", neither the certification nor the commencement of work affected the issue; (v) more importantly, the defendant's evidence was that, in relation to the footings for the slab in the rear yard, those parts of the plans were completed to finalisation. (vi) to the extent that the defendant provided information concerning the beam size in the front room and the method of conducting the concrete pour in the front part of the house, the information conveyed verbally was sufficient for the builders to perform their work. There was no cross-examination of the builders about conversations with Mr Agapiou concerning the decision as to how to perform the pour in the front of the house. Mr Papaianni's evidence was that the engineering details on the plan and the information provided was all straightforward. It should also be noted that, in relation to the issue of the quotation, the specifications accompanying the architectural plans had been provided to the builders and provided sufficient information; (vii) while it was true that the builders were under a separate obligation to identify the wall as a hazard and to brace the wall, and also that the Council's specifications made reference to bracing structures as required, the evidence was consistent that the engineer's directions are the final source of authority and override the architectural plan and the specification. To that extent, where an issue in respect of bracing a wall arises (as it did in this case), then the failure of the engineer to place a direction on the plans was a relevant failure that was not mitigated by the failures of other players on the question of liability.

[190]

DELIBERATION 180 The offence under s 16(1) of the Act, in essence, alleged that, in the provision of structural details, the defendant had not investigated the depth of the base or structural integrity of the footings of the wall; had not made a detailed assessment of the structural integrity of the wall itself; and had not provided any requirement in his design to provide appropriate temporary support for the wall. As can be seen from the way in which the case was conducted, the defendant has focused substantially upon the accident and has attempted to identify others, including the builders and the owner/builder, Mr Agapiou, as bearing responsibility for the collapse of the wall. Bearing in mind the terms of the charge, this focus by the defendant failed to address the essence of the offence alleged. In WorkCover Authority of New South Wales (Inspector Hannon) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246, at [12] Hungerford J said: I have to say, as will become apparent from my reasoning, that I have found the bulk of the expert evidence, principally that given during cross-examination and which required so much hearing time, was of little assistance in furthering a determination on the subject charges. Effectively, that evidence was directed to the causa causans as the immediate reason for the explosion itself rather than what I see to be the relevant approach here as requiring attention to the causa sine qua non as the mix of existing factors but for which the direct cause could not have become operative and so the explosion would not have occurred. In other words, it seems to me, the bulk of attention focused on the accident per se instead on the identified detriments to safety which were the subject of the two charges. It is true, as Mr Simpkins said, that it is necessary for a causal relationship to be established linking the defendant to the safety detriments in order for the charges to be made out, but, in my view of the expert evidence, it was taken to extreme and unnecessary lengths coming down, it may be said, to an academic review of applied scientific theory.

[191]

181 It was pointed out by Hungerford J that, in State Rail Authority (NSW) v Dawson (1990) 37 IR 110, it was necessary that a causal nexus be shown between a breach and the fact of detriment to safety. The Court went on to remark as follows: Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, without more, does not establish any liability in the employer; and that is so unless some causal nexus is established between the breach of statutory duty and the detriment occasioned to the employee. His Honour then referred to the judgment of the Full Court in Haynes v C.I. & D. Manufacturing Pty Ltd (1994) 60 IR 149, and the discussion of the breadth of liability created by s 15, s 16 and s 17 of the Occupational Health and Safety Act, noting the view expressed that the trial Judge had emphasised too much the accident itself as the relevant detriment to safety. The Full Court stated (at 157): Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose '(t)o secure the health, safety and welfare of persons at work' and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Division 1 of Part 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. Hungerford J went on to state: 16. A Full Bench (Wright J, President and Walton J, Vice-President and with whom Peterson J agreed) of the Court in Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 453 adopted as a correct statement of law and principle in relation to s 15 the reasoning as above stated in McMartin, Dawson and Haynes. In doing so, their Honours added (at 453) 'the observation that an offence under s 15(1) is constituted by the failure to ensure that employees are not exposed to risk, rather than the failure to prevent a particular accident. In referring to Haynes, their Honours directly put the position in the following way (at 452): The general duties created by the OH&S Act are directed at obviating 'risks' to the health, safety and welfare of persons in the workplace … The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 17. To similar effect, in WorkCover Authority (NSW) (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 a person was electrocuted while cleaning kitchen equipment and his Honour said as to the causal nexus with the relevant detriment to safety the subject of the charges (at 439-430): Section 17, like ss 15 and 16, requires that the liability of the employer be established by an examination as to whether there is a causal nexus between the breach of statutory duty and the detriment occasioned to the employer and not, as appears to be at least implicit in the defendant's submissions, by attention being given to the relationship between the conduct of the defendants and the actual accident or hazard that caused the fatality … the break in time between the movement of the grill and the cleaning operations and electrocution does not break the causal nexus in relation to the event. The detriment to safety was occasioned by the failure to ensure that disconnection of power before the cleaning operation commenced or steps necessary to be taken in preparation thereof. 18. Having in mind the defendant's approach in the present case by arguing the lack of a causal connection by reference to the incident affecting Mr Newton, that is the explosion (or fireball), I think it both timely and appropriate to refer to what I see to be the rationale for the approach to the vice to which s 15, and hence s 16, of the Occupational Health and Safety Act is directed. That was done by me in Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50 and I repeat it as follows: I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose 'to secure the health, safety and welfare of persons at work'; the objects of that Act in s 15(1) emphasise the point. And, so, Div 1-General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson Brennan, and Dawson JJ, with whom Gibbs CJ agreed ) observed in McLean v Tedman (1985) 155 CLR 306 at 313: 'Accident prevention is unquestionably one of the modern responsibilities of an employer'. The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309: 'Insofar as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer'. It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179: The commanding principle in the construction of a statute passed to remedy evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. Again, and to similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit.

[201]

191 The builders had commenced work at the beginning of August 1998. Mr Tsougranis said that he had received a call from Mr Agapiou on 27 July 1998 about using a concrete slab in the front of the house and that he had attended the site that afternoon. The telephone call register book recorded such a message being received from Mr Agapiou. The telephone register book also recorded at 11.00 am on 3 September 1998 (the day of the accident) that Mr Hamilton had telephoned, leaving his mobile number with the further notation, "Bourke Street 2.00 pm inspection tomorrow". This entry was in the handwriting of Mr Cassimatis. There was some suggestion in the cross-examination that this call was not taken on 3 September 1998 but may have been taken the day before. The call register book indicates calls taken on 1 September 1998 and an altered entry suggesting that no calls were taken on 2 September 1998 (wrongly carrying the figure "8" indicating the month of August 1998): the alteration seems to be from the number "2" to the number "3". These two entries are in red ink, as a number of the entries are on that page of the book in relation to the date. At least two other dates on that page have been altered. The very next page carries the date "3/9" but is not an entry in red ink. It was Mr Tsougranis' evidence that he had put that date in the book and that it was probably done after the accident. If the previous entry was correct as being 3 September 1998, being an entry on the previous page, that first entry for that day records a telephone conversation which was received at 10.30, whereas on the following page, and allegedly on the same date, the first entry is for a telephone call received at 9.15 am, a second telephone call at 10.20 am and a third telephone call received at 10.35 am. The fourth telephone call received that day was at 11.00 am from Mr Hamilton. The remaining entries in the telephone message register indicated that, as one would expect, the times of calls received are noted in a strict time order. The alterations to the dates in the book and the evidence of Mr Tsougranis that he actually inserted the date "3/9" sometime after the accident creates a doubt as to the accuracy of these dates in the telephone message book.

[209]

199 The next issue is one which I regard as crucial in the determination of the charge against the defendant. As can be seen from the summaries of the evidence and submissions, the defendant's approach was that he was engaged on a very narrow and specific task of designing the footings, a fact which was confirmed by the modest amount of his fee, $800. On this approach, all Mr Tsougranis was required to do was to attend to the design of the footings; in the course of designing the footings he had noted that there was an indication of an existing wall where the previous floorboards had been located; by reference to the architect's drawings there was no indication that this level would be dropped or in any way altered and, indeed, the only notation about levels on the architect's drawings was to raise the level of the floor in the front rooms but there was no relevant notation in relation to the rear area where the footings would be placed. Mr Tsougranis had observed that the mark around the wall was 300mm - 400mm off the ground and that therefore there would be virtually no excavation or minimal excavation required for the footings supporting the slab. Thus, he concluded that there was no need to further consider the stability of the freestanding wall. Mr Tsougranis, based on his knowledge of this vintage of houses in the area, concluded that the wall was likely to be fixed or bonded to the wall next door and at one end bonded to the adjacent wall of the house; and that the footings for the wall of a house of this vintage would be likely to be between 300mm and 400mm into the soil, and possibly further in this case, because he could not see the capping of the foundations. On the basis that the wall had stood for some months, and that there was substantial support from the earth around the footing of the wall and there would be little or minimal excavation around the footing to support the concrete slab, the wall could be assumed to be stable. Therefore, the stability of the wall was not to be doubted. It was submitted on the defendant's behalf that, considering the nature of Mr Tsougranis' brief and its limitations, the terms of his undertaking were restricted and it followed that his obligations under the Act were likewise restricted or confined.

[226]

216 In light of this expert evidence, I am able to make the following findings: (a) any design requiring excavation meant that there was a potential risk of undermining an adjoining structure, in this case, the free standing wall; (b) the wall, once deprived of its surrounding structures, was at risk of being unstable; (c) attendance at the site with the builders when excavation commenced would have shown the soil in which the wall was embedded was very sandy and was unlikely to provide a high degree of support for the wall; (d)) it was appropriate for the defendant to speak to any or all of the owner/builder, the architect or the builders to satisfy himself that there would be no or minimal excavation carried out next to the wall; (e) the defendant could not have been sure of the effectiveness of the steel ties, given the age of the building and the lack of protection against corrosion; (f) it was appropriate for the defendant to inspect the adjoining property and consider the structures at the rear of that property, as it should have raised concerns as to the level of support being provided to the wall; (g) a note in the architectural drawings indicating a change in the floor level at one point of the building should have prompted an inquiry from the defendant as to the desired level of the floor throughout the building, including the rear section. These findings, together with the evidence referred to earlier in this judgment, establish that the wall was at risk of falling and that the defendant failed to ensure against that risk in the ways particularised in the summons. In relation to any disagreement among the three experts, I prefer the evidence of Mr Turner and Mr Taylor, who dealt with different engineering aspects. While I found the evidence of Mr Smee generally helpful, he was asked to make a number of assessments based on assumptions which I have found not made out on the evidence. Mr Smee accepted that, if the assumptions upon which he proceeded were not correct, then it may lead him to vary his conclusions. Nevertheless, Mr Smee's evidence on matters of general engineering principles did not seem to depart from those expressed by Mr Turner and Mr Taylor. This is not a case where I found differences of emphasis to be critical.

[230]

220 It will be recalled that the defendant submitted that his undertaking required him to prepare a structural detail of the footings on the basis of architectural plans which had been provided to him. It was said that those plans instructed the engineer as to the nature of the relevant development. The obligation of the defendant was to prepare a structural detail for a footing which would be apt for that development. There was no indication of a change of level at the rear of the house indicated in the architectural plans. It was submitted that the prosecutor had failed to establish any risk to persons not in the employ of the defendant that arose from the conduct of the defendant's undertaking. The suggestion was that, to the extent that persons were exposed to a risk, that risk arose from the acts of others. Thus, the prosecutor had failed to prove a causative link between the conduct of the defendant's undertaking and the relevant risk. Further, it was submitted that it was not part of the defendant's undertaking to provide warnings of the stability of the party wall, as the defendant's undertaking did not require or contemplate any work which might impact upon that wall. It was said that the defendant was not retained to advise generally on structural engineering matters in respect of the project but rather he was retained, and it was his undertaking, to design the structural footing and to undertake inspections for the purpose of certification. It was said the payment of a fee of $800 was not consistent with the existence of a general retainer to advise in respect of the project. The argument was then developed that, as the design of the structural footing would not impact on the party wall or its stability, the assessment of the party wall and the provision of warnings regarding bracing did not form part of the defendant's undertaking. In a similar way, it was said that it was not part of the defendant's undertaking to investigate the depth of the base of the footing of the party wall as the works directed by the defendant would never have required an excavation which might reveal more than a nominal percentage of that footing.

[233]

223 As to the contractual and other arrangements, Mr Agapiou's evidence was that he told Mr Tsougranis about the nature of the work and indicated that he wanted him to do "all the necessary engineering" - he asked Mr Tsougranis to "organise and do all the engineering certificate or problems or whatever he was required" to do. The task was to attend to the required certificates or "any structural stuff that needs to be done to allow the job to be done". It is also clear from the evidence that the contract or arrangements went beyond designing the footings for the rear concrete slab but also involved a number of other parts of the proposed structure, including the relocation of windows, the installation of steel beams and the placing of a concrete slab at the front of the house in place of the existing timber flooring. It was common ground that these matters were discussed with Mr Tsougranis when the builders came to speak to him. In my view, they reflect the nature and scope of the arrangement between Mr Agapiou and Mr Tsougranis. The builder, Mr Hamilton, had said that during their meeting, Mr Tsougranis said if there were any questions which arose the builders were to contact him. On 27 July 1998, according to Mr Tsougranis' evidence, Mr Agapiou had telephoned him to enquire about using concrete in the front of the house. Mr Tsougranis immediately attended the site to discuss that matter and to finalise his drawings. Perhaps more importantly, it was Mr Tsougranis' evidence that he had turned his mind to the stability of the freestanding wall, and it was based on a number of assumptions that he came to the view that there would be little or no excavation next to the wall, and therefore it was not necessary to advise that the wall be braced or otherwise supported, or to place a note to that effect on the plans. Mr Tsougranis also accepted that he was conscious of the stability of the wall when designing a structural element near or close to that wall. It follows, in my view, that the narrow approach of the defendant to the concept of "undertaking" in s 16 cannot be sustained in this case. Having regard to the breadth of that concept and the evidence, I am satisfied that the risks identified arose from the conduct of Mr Tsougranis' undertaking.

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