Inspector Michael Dall v Brambles Australia Ltd

172 A protocol had been put in place by the defendant to assure it knew how and when the demolition of Boiler 6 was to occur on the work site over which it had control. The prosecution has asserted the defendant was "all over the site" and it turned a "blind eye" to this demolition. There is no evidence to support this proposition. But even if I accept this proposition there is no evidence that they knew on 19 September 2002, the date of the charge, that the demolition was to be conducted nor how it was to be conducted given they were on that date not in the site and were not informed or shown any documents that had been prepared for the work the day before. Mr Wade gave an acceptable reason for not being on the site in the morning of 19 September 2002. The subcontractor had every opportunity to notify the defendant of its act on 19 September 2002.

173 In the circumstance I find the defendant could not have reasonably foreseen the subcontractor would undertake the demolition works on Boiler 6 on the morning of 19 September 2002 without first obtaining a permit from WorkCover; without informing the defendant's officers of the proposed demolition; without giving copies to the defendant, as agreed, to its proposed methodology; and would perform a demolition without any secondary support to the structure and using a methodology without any risk assessment of the task. 174 While a breach of a paper protocol is not sufficient to establish a defence under the Act, I find the defendant acted with all due diligence and was to be assured the protocol would be observed. I find it was not foreseeable that the subcontractor, whether it was under time constraints or through sheer negligence, would act, without a permit from WorkCover, and therefore without an approved work method and without following its agreed procedures, to conduct a major demolition on 19 September 2002. 175 The charge is specifically directed to the defendant's acts on a particular day being 19 September 2002.

Section 28(a) 176 The first limb of s 28(a) is relied upon by the defendant and its effect was considered in WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 where Walton J, Vice-President, stated relevantly to this circumstance: [88] . . .there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s 53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 177 The defendant had recognised some problems with the work methods but the specific danger, collapsing the Boiler 6 with no approved methodology and no review by Mr Moor could not have been foreseeable. There was little cost and no difficulty or trouble for the defendant to ensure it could review a work method. However the ad hoc behaviour of the subcontractor was not predictable. Whether the defendant could succeed on its s 28(a) defence is arguable.

Section 28(b) 178 Section 28(b) of the Act, however, also allows the defendant an opportunity to establish a defence if the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impractical for the defendant to make provision. 179 It has been held in Cleary Bros it is not reasonably practicable to take precautions against a danger which could not have been known to have been in existence, or generally with respect to the happening of an event that is not reasonably foreseeable. (see Walton J, Vice President in Kellogg (No 1)).

180 The circumstances on 19 September 2002 revealed a subcontractor performed a demolition on a structure weighing 300 tonnes and 31 metres in height based on faulty calculations as to the load bearing strength of the structure's columns; by implementing a system without bracing or a secondary support for the demolition of a structure by conducting a demolition without a permit from WorkCover Authority; implementing a work method which did not contain a secondary support for the structure and without a risk assessment and failing to inform with the defendant in order to comply with the protocol. 181 I find it was not reasonably foreseeable the subcontractor would conduct a demolition on 19 September 2002 in such a circumstance. The defendant on 19 September 2002 did not know, nor could it have known, of the risk to safety on premises over which it had control on 19 September 2002. As Hill J said in WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 (at 381), commented in relation to s53 a similar provision to s28 of the Act: . . . If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight. . . . 182 The subcontractor performed on 19 September 2002 the demolition in breach of the Act, its Regulations, in defiance of the Australian Standard 2601 and without complying with an agreed protocol. The procedures the subcontractor adopted led to an unexpected, uncontrolled collapse. 183 I find the defendant on 19 September 2002 had used all due diligence to ensure it would know of the time for, and review the proposed methodology of, the collapse of Boiler 6. The defendant had no knowledge of the acts of the subcontractor despite its due diligence. I find it was not reasonably foreseeable that the subcontractor would conduct the demolition in such a circumstance. It was therefore not practicable for the defendant to make provision against it. I find therefore the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impractical for it to make provision on 19 September 2002. 184 I find the defence under s28(b) is established.

1. In the application of s28 of the Act, I find the defence is established.

2. The charge in Matter No IRC5608 of 2004 is dismissed. 3. The question of costs is reserved.

Comment 185 In an examination of the circumstance surrounding this breach of the Act the procedures adopted by the WorkCover Authority in issuing permits under Clause 331 of the Regulations for demolition has been given rigorous examination. 186 WorkCover, who had attended on the work site before the collapse of the Boiler 6, took for granted a qualified engineer's calculations were accurate. It did not require the calculations to be supplied nor did it check the calculations on which the methodology for a major demolition was based. Those calculations were faulty. 187 WorkCover approved a work method which did not comply with the Regulations under the Act or the relevant Australian Standard. It failed to ensure there was a risk assessment of the proposed work method and failed to ensure the methodology contained a secondary support for the Boiler. There must be a rigorous application of the Regulations for proposed demolition methodologies. The Regulations required evidentiary materials for both a secondary support structure and risk assessment, be submitted to WorkCover.

188 A WorkCover officer revealed there is access to engineering expertise but there was a presumption a qualified registered engineer would not submit a faulty work method. Consideration must be given to the need for an expert within WorkCover to review proposed methodologies and the calculations on which such methodologies are based to ensure accuracy. 189 Any demolition company who proceeds to demolish a structure without a WorkCover Permit should face severe penalty under the Act, be it in the nature of a fine or disqualification. 190 WorkCover must conduct a review of its procedures for the issuing of WorkCover Permits for demolition.

AMENDMENTS HISTORY: 15/09/2006 - Slip rule - Paragraph(s) 158 removed and replacedOrder 1 of 4 removed

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.