5 An Agreed Statement of Facts, in similar terms against both defendants, was tendered which relevantly reads as follows:
3. At all material times Manbead Pty Limited (ACN 068 376 590) was an incorporated company with its registered office located at David Carvona & Associates, Suite 2, 61 Princess Highway, Fairy Meadow in the State of New South Wales.
4. The First Defendant Transfield Pty Limited (ACN 000 854 688) is and was an incorporated company with its registered office located at 30 Alfred Street, Milsons Point, Sydney in the State of New South Wales.
5. At all material times the Second Defendant, Worley Limited (ACN 001 279 812) was an incorporated company with its registered office located at Level 7, 116 Miller Street, North Sydney in the State of New South Wales.
6. At all material times Manbead Pty Limited:-
(a) Contracted with the First and Second Defendants to supply labour at the site.
(b) Employed Mark Pinney, Mart Hurt and Theo Phanis ("the employees") as labourers at the site.
7. At all material times the First Defendant:-
(a) Entered into a joint venture with the Second Defendant.
(b) Pursuant to such joint venture, contracted with BOC Gases Australia Limited to construct a new plan at the site.
(c) Was an employer.
(d) Pursuant to such joint venture, contracted with Interpad Pty Ltd ACN 002 405 932 for the provision to it for the services of Mr Joe Luczycki as supervisor at the site.
8. At all material times the Second Defendant:-
(a) Entered into a joint venture with the First Defendant.
(b) Pursuant to such joint venture, contracted with BOC Gases Australia Limited to construct a new plan at the site.
(c) Was an employer.
(d) Contracted with Interpad Pty Ltd ACN 002 405 932 for the provision to it for the services of Mr Joe Luczycki as supervisor at the site.
9. On 29 July 1999 the employees of Manbead Pty Ltd were engaged by the First and Second Defendants to excavate above and around the 11KV cables at the site so as to expose the cables.
10. Two trenches were excavated by the employees both parallel to each other in the north-south plane within the site to expose the live 11,000 volt power cables following removal of the northern chain wire fence of that switchyard.
11. A jackhammer was used to free the heavy clay soil from within the trenches which covered the power cables. Shovels were used to remove the soil. Protective concrete tiles were below the clay soil immediately above the power cables. There were nine 11 KV power cables in the western side trench. Three cables were laid within a sand/cement mortar mix; one cable centrally located above, two in a triangular position approximately 13 mm separating the cables within the sand/cement mortar mix.
12. A crowbar had been used by the employees to dig the trenches and was left in the western trench on the completion of work. In the eastern trench the power cables were laid in sand whilst in the western trench the power cables were laid in a sand/cement mortar mix.
13. On 30 July 1999, Joe Luczycki signed for the work permit and had supervised the sign on of each of the employees nominated on the permit. The work of exposing power cables from the mortar mix continued on the morning of 30 July 1999. Theo Phanis was working in the eastern trench. Mark Pinney and Mark Hurt were both working in the western trench. Mark Pinney was at the northern end while Mark Hurt was at the southern end of the trench.
14. Verbal instruction was given to the employees by Joe Luczycki to use a hammer and cold chisel to remove the cement and mortar from around the live power cables. A crowbar was left leaning against the eastern side of the western trench where Pinney was working. It had been left in that position on the previous day, 29 July 1999.
15. On 30 July 1999 at approximately 7.30am Mark Pinney caused an impact to one of the three 11,000 volt power cables creating an earth fault when using the crowbar to excavate at the site. Two of those cables were totally disintegrated for a distance of about 150 millimetres. The third cable sustained damage by arcing with a scoop formation of the copper wires of that cable disintegrating and a portion of the outer insulation cover was removed. The impact caused a loud explosion and cloud of smoke. Mark Pinney was in close proximity to the explosion and was assisted from the site to the first aid station by Peter Horrell, a BOC Gases Australia Limited employee.
16. As a result of the accident, Mark Pinney sustained shock and two small burns to each side of his base near the base of his armpits. He was transferred from the first aid station at the site to the Wollongong District Hospital for treatment and monitoring. The safety vest he was wearing caught alight and was discarded at the site.
17. On 30 July 1999 the Prosecutor attended at the site and observed as follows:
(a) At the Reactor Area of the 132KV/11KV switchyard, 132KV overhead transmission cables feeding into an enclosed yard fenced with steel posts and cyclone wire mesh. Secured to that fence were signs with the word DANGER in white on a red background and the words HIGH VOLTAGE in black letters on a white background. On the north eastern corner of that enclosed yard was a gable roofed shed approximately 3 metres square. At the north eastern corner of that fence was a hinged gate manufactured of steel pipe and steel cyclone mesh. That gate was secured in an open position in the north-south plan and parallel with the fence adjacent to the shed. Secured to the upper part of that gate was an Electrical Access Permit No. 1808 on A4 paper enclosed in a clear plastic envelope. Permit 1808 had been issued by BOC personnel. Located to the east of that hinged gate post was another hinged gate post supporting a similar gate which was in an open position facing in the north easterly plane.
(b) On the eastern side of the fenced 132KV infeed yard was a semi-enclosed yard known as the 132KV 11KV switchyard where Transformer and reactors were located. On the western side of the switchyard at the edge of the dividing fence of the 132KV infeed yard there was an excavated trench running parallel with the fence from the normal closed gate position at the northern end running south for 4270 mm where it made a 90 degree turn to the east. The trench was 1200 mm wide x 1000 mm deep.
(c) On the bottom on that trench was a crowbar 30 mm diameter x 1550 mm long with a chisel shaped and 33 mm wide with a heel at the other end 35 mm wide. That crowbar had a smooth steel face on each side of the chisel face being devoid of rust whereas the shaft of that bar was of a rusty appearance. The face of the chisel closest to the ground had a fresh copper mark across the flat. The upper flat face of the chisel portion of that crowbar had a discolouration consistent with the arcing of a copper cable. The crowbar was lying at an angle of about 45 degrees to the lay of the trench. The chisel point of the bar was against the vertical face of a bench on the eastern side of the trench. The heel of that bar was on the western side of the trench. Approximately 15cm west of the chisel point of the bar was a round hole with three 11,000-volt cables, which had been subjected to extreme arcing which had vaporised those cables. The arcing had left a tell tale colouring of bronze appearance of the surrounding cement and sand mortar mix that those three cables had been laid in.
(d) At the corner of the trench where it made a 90-degree turn from north-south to east-west on the north eastern corner was a shovel, 4lb hammer and steel cold chisel.
(e) Lying on the western upper edge of the trench were four orange/red coloured electrical cables. Lying in the southern side of the trench that ran east west were nine new 11,000 volt-cables. At the eastern end of that trench was a sheet of timber particle board used as a traffic way.
(f) At the northern end of the 132KV/11KV switchyard steel posts had been placed which supported a width of two red and one white banded plastic para webbing fencing which was attached to the steel gate post of the 132KV infeed yard.
(g) On the eastern side of the north-south trench where the arcing of the 11,000 volt cables had occurred there was a stack of fourteen concrete tiles. To the east of that stack of concrete tiles there was a second trench also running north-south in that trench was a 2lb bull peined hammer.