Determinative factors at first instance
21The relevant dicta of Marks J is set out in [81] to [89], [91], [93] to [98] and [102] to [105], as follows:
[81] In terms of the factual background, the circumstances which apply to these proceedings are manifestly different from those referred to by Kavanagh J in Brambles Australia . There is no evidence that Pymble No 1 or any persons on its behalf frequented the site regularly, or indeed at all. The only evidence is that the site was attended regularly by representatives of the quantity surveyors who provided reports to the financier. Certainly, there is, on the evidence, nothing to indicate any involvement on the part of Pymble No 1 in connection with any safety matters on site. This lack of involvement was a matter upon which the prosecutor relied, and I shall return to this aspect later in these reasons for judgment.
[82] Furthermore, there is no suggestion that Pymble No 1 undertook any supervision of the building works or that any instructions were given to anyone about site safety and the like. There is no evidence that Pymble No 1 obtained copies of job safety analyses and work method statements and reviewed them. Furthermore, Pymble No 1 had only limited contractual capacity to deal with the building works. This could only occur in the event of a breach, after giving notice of the breach and the conduct of certain interlocutory steps, which I have previously described. These matters extended also to any safety concerns.
[83] I am unable to conclude that there is any basis upon which it could be determined that Pymble No 1 had any ability to give directions to anyone performing building work at the construction site in connection with any matter involving any aspect of the building works. There is no evidence, nor could it be concluded, that Pymble No 1 had the ability to compel the taking of any action or to compel that anyone desist from taking any about safety matters, whether under the contract or otherwise.
[84] Mr Reitano submitted that the requisite control could be implied from a number of circumstances. Firstly, if a representative of Pymble No 1 had attended the site and seen that there were people "working near the edge six metres up in the sky, no-one would bat an eyelid at the suggestion that he would have had a right under the contract to say to the contractor: You are in serious default because you are required to comply with relevant legislation and you are presently, as far as I can tell, in breach of s 10 of the Occupational Health and Safety Act . If you have employees here, you may be in breach of other sections. You might also be in breach of s 8(2) and I require you to correct that under pain of termination of the contract."
[85] I observe that there is no such provision in the contract that would enable Pymble No 1 to direct that work cease instantly, nor is there any obligation on the part of Pymble No 1 to visit the site or to seek access to it.
[86] Secondly, Mr Reitano said that control could have been exercised by Pymble No 1 appointing an architect and the architect giving directions as permitted by the contract.
[87] Thirdly, he asserted that Pymble No 1 could have given reasonable notice under clause F to seek access to the site so as to inspect it, especially in terms of occupational health and safety considerations.
[88] I observe in connection with the second and third points above that whilst Pymble No 1 had the right under the contract to do either of these things, there was no obligation under the contract on its part to do so and apart from the matters raised by the prosecutor, no need for it to do so.
[89] In summary form, it was the prosecutor's submission that Pymble No 1 could not avoid its obligations under the Act by simply "walking away" from any consideration of safety issues by failing to appoint a consultant or architect and by failing to seek access to the site. The fallacy with this submission is that it presupposes, in the first place, an obligation on the part of Pymble No 1 as owner of the site to take some active step in connection with safety matters independently of any contractual obligation (as opposed to entitlement) to do so. There is no such obligation.
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[91] The submissions made by Mr Reitano were made on behalf of the prosecutor, an inspector of the WorkCover Authority of New South Wales, and must be seen as representing the view of that Authority. This is a view that is inconsistent with the decision in Rowson and dismissal by Cullen J of the charge in those proceedings. I repeat that the Full Bench in McMillan Britton approved of the decision in Rowson . It seems to be the position of the WorkCover Authority of New South Wales that ownership of a building site per se will create an obligation under s 10 of the Act to ensure that the building works are conducted in a way that ensures that the premises are safe and without risks to health. This will be the case without any regard at all to the contractual provisions that apply to the carrying out of that work. If this position were correct, then every owner of every building site is liable to prosecution for a breach of s 10 of the Act if building work is carried out by anyone other than the owner in circumstances which render the building site unsafe and which create a risk to the health and safety of any person who is working in or about it including the means of access to or exit from the building site.
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[93] If this is the case, then each owner of premises upon which building work is being conducted will be compelled to make a value judgment about how often and in what circumstances and in what manner the owner should enquire about the safety of the premises having regard for the state of the building works and about any risks to health and safety posed to any persons performing work in and about the construction site. Perhaps such practices already exist in connection with very large construction sites, but one must query whether such practices exist in connection with any building site other than one that is very large. I make these comments so that there may be some awareness in the investment community about the position taken by the WorkCover Authority of New South Wales as reflected in its submissions in these proceedings, submissions that are consistent with those put in previous proceedings taken by way of prosecution for breach under the Act.
[94] I reject the submissions made on behalf of the WorkCover Authority of New South Wales that every owner of premises upon which building works are being conducted has "the capacity to control everything that occurred on the premises ..." and that this equates with "control" for the purpose of s 10 of the Act. Such a submission at face value without any reference to any underlying factual situation is plainly inconsistent with the judgment of the Full Bench in McMillan Britton , which in turn endorsed the approach of Cullen J in Rowson . Ownership of premises upon which building works are being constructed does not, without more, create at law an ability to direct or command the way in which the building works are to be performed. It does not create at law the ability to compel corrective action to secure safety on the site. It does not constitute control for the purpose of s 10(1) of the Act.
[95] As I have indicated, Mr Reitano submitted that Mr Molinara, or any other representative of Pymble No 1, could have arranged for someone to attend the site to see whether there was anything that was unsafe. Mr Molinara, on the evidence, resided in South Australia. This mattered not, according to Mr Reitano, because Pymble No 1 had the ability to retain persons on its behalf to inspect the site to ensure that it was safe. But this begs the question of how often such inspections should be undertaken. Furthermore, it would be necessary for either the owner or a representative of the owner to possess the necessary technical skills, expertise and qualifications to be able to assess and comprehend whether or not anything that was happening on the construction site created a risk to the health and safety of persons working on or about it. If one extrapolated this assertion, made on behalf of the WorkCover Authority of New South Wales, to its logical conclusion, it would be necessary for the owner or a representative of premises on which construction works were being undertaken to retain such persons with relevant expertise attaching to every facet of the building works being undertaken including every trade performing that work. It would require, in effect, constant and comprehensive supervision of the work being undertaken by the principal contractor and all subcontractors to ensure that the premises were safe and without risks to health as required by s 10.
[96] In R v Chargot Limited (t/a Contract Services) and ors [2008] UKHL 73, Lord Hope of Craighead, delivering the principal speech in the House of Lords, speaking admittedly about a provision of a different kind in the equivalent English legislation, said:
The first point to be made is that when the legislation refers to risks it is not contemplating risks that are trivial or fanciful. It is not its purpose to impose burdens on employers that are wholly unreasonable. Its aim is to spell out the basic duty of the employer to create a safe working environment. This is intended to bring about practical benefits, bearing in mind that this is an all-embracing responsibility extending to all workpeople and all working circumstances: Robens report, para 130. The framework which the statute creates is intended to be a constructive one, not excessively burdensome. (At [27])
[97] As was made clear by Lord Hope of Craighead, the legislation is intended to be applied in a practical sense so as to reflect everyday life. The imposition of an obligation under s 10(1) on the owner of premises in circumstances where building work is being conducted pursuant to a building contract with a head contractor involving no contribution or interference by the owner does not reflect common sense reality. Furthermore, as I have said, it is inconsistent with the judgment of the Full Bench in McMillan Britton and inconsistent with the approach of Cullen J in Rowson , endorsed by the Full Bench in McMillan Britton . Furthermore, it is inconsistent with the approach adopted by Kavanagh J in Brambles . Her Honour was able to identify many indicia in support of a conclusion that there existed in the circumstances of those proceedings relevant control, in the sense established by the Full Bench in McMillan Britton , which her Honour followed.
[98] Of course, there will be circumstances where owners of premises on which building work is being conducted will clearly have the requisite control for the purpose of s 10(1). A clear example is an owner builder. If the owner, having contracted for the whole of the building works to be carried out by a head contractor nevertheless retains the right to influence the manner in which the building works are being carried out and establishes a regime to allow the owner to regularly inspect and make directions about the manner in which the work is to be conducted, this will also arguably constitute control. However, in the circumstances of these proceedings, no such indicia exist. I reject the prosecution's submissions that the ability to regain possession after termination of the building contract or the mere fact that a breach of the Act constitutes a breach of the contract will per se create the requisite control of the premises for the purposes of s 10(1).
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[102] I know of no principle of law, apart from any contractual obligation or entitlement, that would result in the owner of premises upon which building works are being undertaken being able to exercise the relevant control over those building works so as to ensure that the construction site is safe and without any risks to the health of people who are working upon it. Any such control would need to be determined either pursuant to contract or pursuant to some custom and practice or course of conduct established as having an appropriate factual basis. Control cannot be equated with a contingent right of access which may, in certain circumstances, repose in the owner of premises. In the absence of any contractual or other basis properly established on the evidence, it is impermissible to conclude that Pymble No 1 was entitled in some way to direct what action should be taken or to give commands about any action designed to remove the unsafe circumstances and the risks to health which undoubtedly existed on the building site between the dates alleged in the charge.
[103] The conclusion that I have reached is reinforced in my opinion by the provisions of s 10(4)(a). There can be no doubt that in the circumstances of these proceedings, if there was any relevant control vested in Pymble No 1 (and I have found that there is no such control), it would be designated as "limited" control. Such control would therefore extend only to "the matters over which" Pymble No 1 had control. If, for present purposes, I assume that there was some control as asserted by the prosecutor in the nature of the ability to access the premises upon reasonable notice or the ability to give notice of a breach, this control would extend to these matters only. It would not extend, without further steps being taken, to the issuing of directions or the giving of commands that the deficiencies be rectified. Whether and to what extent the giving of notice about a breach could have been effected so as to compel action to be taken at some stage between 1 May 2007 and 22 June 2007 is a matter of speculation. In circumstances where there is no evidence that any representative of Pymble No 1 was aware of the state of the building works at any time and in circumstances where I have concluded that there was no obligation of any kind to inspect the premises, it would be unsafe to determine that there was any limited control which extended to the issue of a direction or the giving of a command which would have been effective at any given time after notice of the breach had been given by Pymble No 1 to Millennium and after the procedures which are set out in the building contract had been complied with.
[104] For completeness, I return to the particulars of the charge. They are all framed in terms of Pymble No 1 having failed to take certain action. These include the conduct of an adequate risk assessment, the provision of a fall prevention system, the provision and maintenance of a safe work method statement, the provision and maintenance of an occupational health and safety management plan and the conduct of site-specific induction training. These are all matters that would clearly fall outside any control that Pymble No 1 may have exercised in connection with these building works. It is feasible that it could have conducted a risk assessment and could have provided and maintained an occupational health and safety management plan at the premises. However, any such action on its part would have, in turn, required an appropriate interrelationship with Millennium and, in turn, between Millennium and any subcontractors on site. On the other hand, arguably it would be impossible for Pymble No 1 to provide any adequate fall prevention system, to provide and maintain safe work method statements to people who were working at height and to conduct any site-specific induction training before allowing people to work at heights at the premises. In order to attend to any of these matters, it would have been necessary first for Pymble No 1 to have terminated the contract with Millennium.
[105] The particulars levelled against Pymble No 1 are inappropriate and inadequate. They do not reflect the case that the prosecutor sought to make out in the course of the proceedings, which was based on a submission that Pymble No 1 should have given appropriate directions or commands to Millennium or others involved in the unsafe circumstances attending to the building site. Arguably, the prosecution case that was put during the course of the submissions is not consistent with any particular with which Pymble No 1 is charged. On this basis also, the proceedings should be dismissed. However, it is not necessary that I determine this particular matter given the conclusion that I have reached, that Pymble No 1 did not relevantly have control of the premises as alleged.