Inspector Michael Dall v Brambles Australia Ltd

Industrial Relations Commission (NSW)|2006-07-01|Before: Kavanagh J

The application of "due diligence", however does, not remove the obligation on the defendant to adopt a proactive approach to safety issues which seeks to discover and remedy potential risk to others. It is not a question of whether the defendant did envisage a particular danger, but rather whether it should have ( Kellogg (No 1) . 168 In the set of facts before me the defendant did envisage a particular danger, and put in place a protocol to ensure safe working and thereby ensure a safe premises. Mr Porta, not an employee but a contractor to a subcontractor, on 18 September 2002 made, along with the subcontractor, a determination to induce the collapse the Boiler 6 to in a westerly direction. He faxed a copy of the new proposed methodology to WorkCover at 11.56am on 18 September 2002 which methodology he designed on the same day. It was well known to both Mr Porta and Mr Britton, a director and employee of the subcontractor, that there was an agreement and obligation to inform the defendant of both the methodology, the time and date of the proposed induced collapse. 169 The determination to drop Boiler 6 to the west was taken approximately 24 hours before the collapse occurred. It was within 3-4 hours after the preparation for an induced collapse commenced on 19 September 2002 that Boiler 6 collapsed. The demolition of Boiler 6 was conducted on 19 September 2002 also without a work permit from WorkCover. The conduct of the demolition made the premises unsafe for work.

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.

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

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

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(Demolition of Structures); (B) Construction Safety Act 1995(NSW)

Occupational Health and Safety Act 1983(NSW)

Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 Johnson v Miller (1937) 59 CLR 467 Mclean v Tedman (1984) 155 CLR 311 McMillan Britton v Kell Pty Limited v WorkCover Authority (1999) 89 IR 464 Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103 State Rail Authority of New South Wales v Gregory Thomas Dawson (1990) 37 IR 110 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & Ors Tesco Supermarkets Ltd v Nattrass [1972] AC 153 CASES CITED: Tsougranis v Inspector Carmody (No 2) [2006] NSWIRComm 133 Wilson & Clyde Coal Co Ltd v English (1937) 3 All ER 628 WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of NSW (Inspector Mansell) v Daly Smith Corporation (Australia) Limited & Anor [2004] NSWIRComm 349 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Downie) v Menzies Property Services (2004) 136 IR 449

80 The charge has been framed and particularised with a focus on the unsafe work method conducted on site on 19 September 2002. However I am satisfied the particulars, if proven, could in the circumstance establish there was a causal connection between the asserted breach of statutory duty and asserted risk namely the failure to ensure the premises were safe and without risk to health in the conduct of the uncontrolled collapse of Boiler 6. 81 Section 10 of the Act provides: ( 1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease). 82 Of relevance to this consideration is the effect of ss10(1) and 10(4) of the Act. Section 10(1) of the Act requires persons who have control of premises used as a place of work must ensure that the premises are safe and free from risks to health. Section 10(4)(a) allows that a person who has only limited control of premises nonetheless carries all the obligations imposed on an employer under s10 of the Act (see McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 (at 478 to 481)). 83 The duty cast by s10 is absolute and is subject only to the defences provided by s28 of the Act (WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383; WorkCover Authority of New South Wales v Rowson [1994] NSWIR 76). The duty applies only if the premises are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. 84 The elements of a charge for a breach of s 10(1) of the Act are therefore: (1) that the defendant has control of premises; (2) premises are used by people as a place of work; (3) that the premises were not safe and not free from risks to health; and (4) that there was a causal connection between the breach of statutory duty and the premises being unsafe and a risk to health. 85 Of further relevance are the Regulations which define "the general duties of controllers of premises". Under the definition section in the Regulations: 33 controller of premises means a person who has control of premises used by people as a place of work, including: (a) a person who has only limited control of the premises, . . . The general duties of controller of premises are: 34 Controller of premises to identify hazards (1) A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises. (2) Without limiting the generality of subclause (1), the controller must identify hazards arising from: (a) the layout and condition of the premises, including the presence of a confined space, and (b) the physical working environment, including the potential for: (i) people slipping, tripping or falling, and (ii) objects or structures falling on people, and (c) the presence of material containing asbestos. (3) A controller of premises must ensure that hazards are identified: (a) during any design of the premises, and (b) before the premises are provided for use as a place of work. . . . 35 Controller of premises to assess risks (1) A controller of premises must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division. (2) When assessing those risks, the controller must: (a) evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and (b) review available health and safety information relevant to a particular hazard, and (c) identify the actions necessary to eliminate or control the risk, and (d) identify records that it is necessary to keep to ensure that risks are controlled (including the length of time for which records are to be kept). (3) A risk assessment may relate to more than one place of work or hazard so long as it takes account of the particular circumstances of each place of work or hazard. . . . 36 Controller of premises to eliminate or control risks (1) A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person accessing, using or egressing from the premises. (2) If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk. (3) A controller of premises must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained. . . .

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