Inspector Paul Jorgensen v Christopher John O'Keeffe and CJ & SJ O'Keeffe Building Pty Ltd

The Prosecution Evidence

1. Evidence was given by Senior Constable Kraefft who had investigated the accident. From his investigations, it appeared to the Senior Constable that the point of contact was towards the centre of the footpath and that, at contact, Mrs Welsh fell straight to the ground. There was no evidence that she was dragged by the trailer. In cross-examination, the Senior Constable confirmed that the investigation clearly established that the pedestrian was at fault. After having regard to the physical evidence, the nature of the layout of the driveway and the roadway, and speaking with the truck driver involved and an independent witness, who was at the scene of the accident, the sequence of events was established. The Senior Constable came to the conclusion that there was no dangerous level of driving or even negligence on the part of the truck driver Mr French; he appeared to have done everything that a reasonably prudent person would do in the circumstances, given the restrictions of the position of his truck and the obstructions to his visibility.
2. Inspector Jorgensen gave evidence in relation to his investigation of the accident. The Inspector noted that the driveway from the construction site came in at an angle to Mona Vale Road of appropriately 60 degrees and that the driveway was 6.2 metres wide. He had given consideration to a number of documents which he considered touched upon the present matter, namely, the WorkCover Authority's "Safety Guide - Moving Plant on Construction sites"; the Australian Standard AS 1742.3 - 1996 entitled "Manual of Uniform Traffic Control Devices - Part 3: Traffic Control Devices for Works on Roads"; and, the WorkCover document entitled "Code of Practice - Excavation Work". The Inspector had interviewed a number of persons in connection with the incident.
3. In cross-examination, the Inspector said that, although the accident had occurred on 30 June 2001, he did not commence his investigation until late September 2002 and he was unaware of any WorkCover investigation prior to that date. He had been allocated the file and requested to investigate the matter. He was given a number of historical documents to consider which included material from the Coroner and correspondence from the General Manager of WorkCover expressing a view in relation to the accident. Despite the terms of that letter, a decision was made to investigate the matter after information was received by WorkCover from Mr Welch. Mr Welch had met with representatives of WorkCover and expressed certain views but they were not passed on to Inspector Jorgensen. Mr Welch had a brief conversation with Inspector Jorgensen and the Inspector told Mr Welch to raise any matters relevant to the investigation with his team manager. The manager had told Inspector Jorgensen that he wanted no outside interference in the investigation. The Inspector had formed his own view of the incident and those views were set out in his Affidavit and Application seeking to have a Summons issued against the defendants.
4. Inspector Jorgensen was aware that the accident had attracted some publicity, including a segment on the ABC's "Stateline" programme. He was told that the matter had been raised in State Parliament. Possibly he knew that before he commenced the proceedings. The Inspector was aware of an autopsy report from the Coroner's file but was unaware of any medical condition suffered by Mrs Welch. He was aware that Mrs Welch had difficulties with her eyesight before this prosecution was commenced and he was also aware that, in the view of the Police, the death of Mrs Welch was not the fault of the driver but was attributed to actions taken by Mrs Welch in walking forward and being hit by the trailer.
5. On 26 September 2002, the Inspector had issued an Improvement Notice to the defendant CJ & SJ O'Keeffe Building Pty Ltd. He had seen vehicles entering and leaving the site and parked on or about the entrance to the site and had formed the view that they may constitute an unsafe system: there were no signs warning pedestrians and there were no persons controlling the truck traffic. The Notice directed that certain measures be taken by way of providing and maintaining a safe system of work regarding access and egress to the site, including pedestrian traffic. The Inspector satisfied himself that the Notice had been complied with and he was satisfied with the compliance on a further inspection on 8 October 2002. The Improvement Notice drew the defendant's attention to the Australian Standards Manual and the Safety Guide concerning moving plant on construction sites. The Notice did not require a person to act as traffic controller in respect of vehicles going in and out of the premises but the Inspector said that the Improvement Notice asked for a system of work which would have included such a person. The Inspector was aware that the Land and Environment Court, in approving the development, had issued orders in relation to the construction site but it did not require any traffic management plan. However, the Inspector noted that the Land and Environment Court required the construction to be conducted with reference to the relevant standards and they were the documents he had referred to earlier in his evidence. He believed that those documents and codes were relevant to this work and applied to it.
6. In his investigations the Inspector was aware that an excavation company was employed to perform that type of work on the site and that the vehicle that struck Mrs Welch was not owned by the defendant. He was aware that the Police were of the view that there was no driver responsible for the accident but he did not consider any other individual should be charged. He accepted that the company engaged to transport the spoil from the site was obliged to ensure that its vehicles entered and left the site safely. The Inspector was also aware that Ku-ring-gai Council took the position that there was nothing in the conditions of consent associated with the construction site dealing with movements of vehicles or traffic. In the Inspector's view, the trucks accessing the site crossed the footpath and he regarded all of that as part of the construction site and that the various standards and codes he had referred to were therefore applicable.
7. Mr Welch had been married to Mrs Welch for 45 years and, in the period of two months before the accident, they had moved into a home which was located just off Mona Vale Road. Mr Welch said that his wife had previously walked down Mona Vale Road and had regularly done so in order to attend the St Ives shops.
8. Mr Welch said that on the day of the accident Mrs Welch had been in good spirits. She had made arrangements to go to Mona Vale Road in order to meet a friend and to play bridge. The couple had been aware since 1993 of a condition relating to Mrs Welch's eyesight but Mr Welch had observed his wife go about her daily life in the usual way without running into or knocking objects or doorways. Up until the time of the accident they had travelled together and his wife had found it unnecessary to adopt any special precaution as she walked about although she was personally careful. Her eyesight was deficient on the left hand side. Mr Welch had been present when his wife visited doctors including eye specialists and he was aware that, although the vision in her right eye was normal the vision in her left eye was limited to seeing straight ahead with very little by way of peripheral vision in that eye. Despite this problem she continued to play golf and bridge without difficulty. In cross-examination, Mr Welch rejected the suggestion that his wife's loss of vision in the left eye caused her to fail to recognise the presence of people standing to her left or accidentally hitting objects to her left such as door frames. He confirmed that his wife had voluntarily ceased to drive a motor vehicle when she learned of the condition affecting her left eye.
9. Mr Bourne had been an Inspector with WorkCover when, on 3 July 2001, he attended a construction site at 251-257 Mona Vale Road, St Ives to investigate a complaint referring to a construction site at 273 Mona Vale Road, St Ives which involved excavation work near a footpath and traffic management issues. The Inspector took certain steps in relation to that site and, on 5 July 2001, contacted the complainant to inform him of the steps taken by WorkCover. During this conversation, Mr Bourne came to understand that the 251-257 Mona Vale Road site was not the site referred to in the complaint. On 6 July 2001, he attended a site fitting the description provided by the complainant which he believed to be 273 Mona Vale Road, St Ives but was later able to clarify as being in fact 277 - 277A Mona Vale Road. There was no work proceeding at that time and, in the absence of any person on the site, Mr Bourne formed the view that no further investigation was required. In cross-examination, Mr Bourne agreed that part of the complaint he was addressing was the fact that, on the Saturday prior to his visit, an elderly lady had been run over on the pathway to the site. The other part of the complaint was that there was excavation work nearby and that trucks were coming in and out and that there were "no stops" by way of traffic control. A report on this matter compiled by Inspector Bourne contained the wrong address for the site he visited on 6 July 2001 and otherwise referred to action he took in relation to the construction site at 251-257 Mona Vale Road, St Ives.
10. Senior Constable Boyd held that rank when he investigated the circumstances of Mrs Welch's death on 30 June 2001. He was present when Senior Constable Kraefft arrived at the scene and undertook certain investigations including photographing the scene and taking a number of measurements. The officer described Mona Vale Road as a major arterial road of six lanes, three in each direction divided by a nature strip.
11. In cross-examination, Senior Constable Boyd stated he had been told by Mr Welch that Mrs Welch's peripheral sight was reduced by a medical condition, although he was not sure if the degree of that impairment had been specified in the conversation. It was in light of that information that the officer formed the view that Mrs Welch had failed to see that the truck was towing a trailer and, having allowed the truck to pass in front of her, walked in front of the trailer and was knocked to the ground and subsequently run over by the rear wheels of the trailer. In his view, no fault could be attributed to the driver of the truck.
12. Senior Constable Lee provided an expert's certificate in relation to the truck and trailer involved in this accident. He attended the scene of the accident on 30 June 2001 and carried out a "forensic mechanical examination" of the truck and trailer. Using his specialised knowledge, he formed the view that there were no steering, brake or mechanical component failures that contributed to the collision in which Mrs Welch was fatally injured.
13. Mr French was the driver of the truck involved in the accident. He had made a number of statements including statements given to the Police and to Inspector Jorgensen. He had been driving trucks for 14 years and had never had a serious accident. For the three years prior to the accident, he had been working with Hancock Excavations Pty Ltd and had usually driven the same truck during that period. This was the truck he was driving on the day of the accident, which he described as being a 1993 Western Star 4900 series truck with a trailer attached by means of a large draw bar. The draw bar was "about 12 feet long" and the entire length of the truck was just under "60 feet".
14. Mr French described the driveway from the site to the footpath at Mona Vale Road as being about 70 metres long and about 7 metres wide with a downhill grade to the footpath. The driveway was the only access route to the site and, because there was a sign down near the road concerning the site which partially impaired visibility, he always drove slowly down the access road usually at about five kilometres per hour. On this day, he was "only in first gear" and because of the sign the drivers had to "crawl" out of the driveway. Although people were walking past the access road all day there were no stop or go signs and no barricades. When Mr French was coming out of the driveway, he stopped at the footpath and moved forward so that the truck was right at the edge of the roadway allowing him to see past the trees. He saw a lady walking towards him and saw that she had stopped beside his driver's door: she could not get around the truck because of the traffic coming down Mona Vale Road. He was aware that she had stopped to let him out at the driveway and then he was concentrating on the traffic coming down Mona Vale Road so he could drive out on to that road. He had pulled up at the gutter waiting for the traffic to clear. He sat at the edge of the road for a few minutes before he could pull out into Mona Vale Road: it was only a couple of minutes and he had to wait for the lights to change to create a break in the traffic. The traffic lights were to his right and up Mona Vale Road.
15. When he was bringing the truck down to the gutter he saw an elderly lady about 6 - 8 metres away on the footpath walking south towards St Ives shopping centre on his right hand side. They made eye contact. When he stopped, the lady kept walking towards him and she stopped about 1 - 2 metres back from the right side door of the truck. They had acknowledged each other by eye contact but he had to look away to monitor the traffic. When the break in the traffic came, he moved out into lane 2 turning into Mona Vale Road and it was when he looked in the side mirrors that Mr French saw Mrs Welch lying on the ground. He immediately stopped his truck and ran back to where Mrs Welch had fallen. Mrs Welch was lying in the driveway to the site. The first time he had seen the pedestrian was when the truck was at rest in the gutter. Mr French estimated that his speed along the driveway was between 2 and 5 kilometres per hour but the speedometer did not even register a speed. He described the visibility along the driveway approaching the footpath as being not very good and having trees in the way as well as the sign. He noted that the cab of trucks which did not have a bonnet had a better view of the traffic than he did: his truck had a bonnet.
16. Mr French had told one of the other drivers in passing that it was not "a very good job, the entering and exiting were not very flash". He said that on the day of the incident there was no system or method of work to make sure the trucks entering and leaving the site did so safely. There were no signs giving instructions or directions to trucks entering and leaving the site nor were there any signs warning traffic that trucks were entering and leaving the site. Before the accident, he noticed there were no signs erected to give pedestrians instructions, warnings or directions about traffic entering or leaving the site. He had suggested to one of the other drivers that they should have a "stop and go" person to control the traffic when the trucks moved in and out of the driveway. He was unaware of any traffic management plan at the site.
17. Turning from the driveway when leaving the construction site required the drivers to turn left. Mr French said that the driveway did not meet Mona Vale Road at 90 degrees but was "roughly 75 to 80 degrees back on itself". Before the accident and at the beginning of the job the trucks were pulling up on the median strip waiting for the traffic to clear before entering the site but the Council stopped that happening. The drivers then started to pull into the gutter further down the roadway to wait for the traffic to clear, then pulled out across the three lanes and then back across the three lanes to turn into the site. He turned into the site from the middle lane because of the angle of the turn. Mr French described the week day morning traffic as being horrendous peak hour traffic that would clear about midday but it would be the same in the afternoon peak hour. On Saturdays, the traffic flow was alright until about 10.00 am when it would get heavier. He had heard that some of the neighbours were complaining about the trucks entering and leaving the site. He was not aware of any traffic incidents relating to trucks entering and leaving the site. He had regularly seen pedestrians using the footpath and in the afternoons he saw children with their parents using the path.
18. At the time of the accident, Mr French said that his truck and the trailer were fully loaded. He had been concerned that there was no "stop/go" supervisor at the entrance at Mona Vale Road but he did not complain to his boss or to the owner/developer of the site: he did mention it to a "couple of other drivers" because he had been at other sites where a stop/go supervisor was present. To his knowledge, there were no signs erected on the eastern footpath of Mona Vale Road on either side of the driveway entrance to 277 Mona Vale Road warning pedestrians that trucks were crossing.
19. Mr French was later contacted by police officers investigating the accident and informed that his licence had been suspended as a result of defaulting on fines. Mr French stated that he was unaware that his licence had been suspended and he had not received any notification regarding the suspension of his licence. He had made arrangements for those fines to be paid by another person and had been informed that the fines were paid.
20. Mr French commenced working at the site two or three weeks prior to the incident. During an interview with Inspector Jorgensen, Mr French said that on and before the day of the incident at the development site there was no system or method of work in place to make sure that the trucks entering and leaving the site did so safely. There were no signs erected to give instructions or directions to trucks entering or leaving the site, but he thought there were signs erected on Mona Vale Road warning traffic of trucks entering and leaving the site. He was unaware of any signs erected on or before the date of the accident giving pedestrians instructions, warnings or directions about traffic entering or leaving the site. He had not noticed the existence of traffic management plans for the site. Mr French said that the only direction given in relation to vehicle movements on the site was that, when a truck was driven in, it was to be driven to the left and the truck was to follow a track to the excavator. After the day of the accident, there was no person standing on the footpath near the entry/exit to the driveway controlling pedestrians, vehicle or truck movements.
21. When the truck was driven on to the footpath, Mr French said that a driver could clearly see and observe any pedestrians. There was also a point coming down the access path where there was a bit of a clearing which gave a brief view of pedestrians. During the time he was working on that site, he regularly saw pedestrians walking on the path but that did not occur on every occasion he was entering or leaving the site.
22. According to Mr French, the person running the site was Mr O'Keeffe. He was on site every day including the day of this accident. He acted as the site foreman and had the decision making power or authority on site. Mr French had been told by another driver that Mr O'Keeffe was the foreman and it was Mr O'Keeffe who provided supervision on the site. He said there was no site induction for that development.
23. Mr French had seen the document entitled "Safety Guide Moving Plant on Construction Sites'' dated February 2001, and had seen that on other sites but not at the St Ives site. On this site, he was not provided with or trained in a work method statement before starting work; he turned up, had his truck loaded and drove out of the site. He thought he had seen a document entitled "Code of Practice - Excavation Work" dated 31 March 2000 at other jobs. He did not recall seeing any occupational health and safety management plan at the site at any time. He thought the truck and trailer combination that he was driving at the time of the incident was suitable for use at this site at the beginning of the work but thought that, as the excavation hole deepened and widened, the area became "a bit restrictive". He thought the site should have had a stop and go sign at the bottom of the access path to make it easier.
24. Mr French had not seen Australian Standard AS 1742.3, the 1996 Manual of Uniform Traffic Control Devices. He had no recollection of any planning or discussion at the site about the need to make provision for road users other than vehicular traffic nor did he recall any discussion about the need to make provision for people with disabilities. Hancock Excavations Pty Ltd had not provided him with any safe work procedures regarding the work undertaken at the site and Mr French said he just turned up, did the job and went home. Mr French thought that someone controlling entry to the site could have prevented the accident from occurring.
25. In his oral evidence, Mr French said that he did not stop his truck before crossing the footpath but stopped it right in the gutter. He had not stopped before the footpath because he had not seen anyone on the path. He did not recall being given any instruction about how to leave the site. On this particular day, while coming down the path, he had some limited view of Mrs Welch walking on the footpath but that was somewhere near the neighbouring house and more than five metres away from the crossing.
26. Mr French did not recall any conversation he had with Mr O'Keeffe as to how he was to drive his truck when leaving the site, or any precautions he should take in relation to pedestrians or vehicular traffic on Mona Vale Road. There were no directions as to how he should control his truck as he was coming and going from the site nor was there any written plan or instruction regarding that matter. His employer, Darren Hancock, had told him that it was a "mongrel" of a job because of the really busy traffic. That was the only conversation he had as a briefing about the job with Mr Hancock.
27. Mr French gave evidence in cross-examination of the requirements he had to satisfy in order to obtain a licence to drive a truck of this size with its trailer. He had been involved in driving trucks with a trailer up to the size of a road train, but the rules of the road and the training given did not cover the means of exiting and entering a site - there was nothing in the Road Rules about that subject either.
28. Mr French said that he had occasionally refuelled the truck with the trailer at a petrol station separate from purpose built refuelling depots. On those occasions, the truck had to swing over two lanes to get into the petrol station and normally he had to wait for the traffic to clear to exit the service station. If there were pedestrians on the pathway, he waited until they had passed if they were there first. Once there were no pedestrians he could proceed to exit. There were no persons controlling traffic at petrol stations in his experience: there were no signs nor were barriers used.
29. Mr French was unable to say how far along the footpath from the site crossing was Mrs Welch when he first noticed her: she was just past the neighbour's driveway to his right when Mrs Welch came to a stop beside his driver's door. They made eye contact and it appeared to him she was acknowledging that she was aware of the presence of the truck. His truck had stopped in the gutter by the time Mrs Welch came up and stopped by his driver's door.
30. Mr French had seen Mrs Welch briefly on two occasions while proceeding along the driveway and knew she was walking along the path in his direction. He had not stopped his truck at the end of the driveway but had gone into the gutter and stopped, preparing to move into the traffic, because he thought Mrs Welch was some distance away. If she had been closer he would have stopped at the end of the driveway rather than at the gutter. He thought there may have been time to cross the footpath and get into the traffic before Mrs Welch arrived at the driveway. When the truck was in the gutter, he saw Mrs Welch twice more and they both looked at each other but he had then looked at the traffic. Mr French said that he was mainly concentrating on the traffic. He was not sure of all of the sequence of events and whether he had stopped twice or only once coming out of the driveway.
31. By reference to photographs of the driveway, Mr French said that there were points on the driveway where visibility was reasonable to the right hand side of Mona Vale Road. Further up the driveway, visibility was not as clear. Mr French said that he thought someone controlling the entry and exit from the site could have prevented this accident because it was his job to stop the traffic and warn pedestrians: maybe a barricade should have been used. He thought that, once there was a break in the traffic, it would take a few seconds or a bit more for his truck and trailer to move out onto lane two on Mona Vale Road. He had not stopped when he saw Mrs Welch walking along the path in order to let her cross in front of his truck because she was still quite some distance back from the driveway crossing. He was not in a hurry to get somewhere that day. It was not appropriate to reverse the vehicle to let Mrs Welch cross in front of the truck: because of the surface of the driveway that would have been "relatively hard" and the trailer would have "steered everywhere".
32. In cross-examination, Mr French also confirmed that he had been given no instructions by his employer Mr Hancock as to how to conduct himself on the job nor were there site meetings on a daily basis to the best of his memory. Mr French could not remember participating in a meeting on 30 June 2001 between 7.00 am and 8.00 am where Mr O'Keeffe was present with Mr Thomas, Mr Land, Mr Perrett, Mr Laing and Mr Flewett at which Mr O'Keeffe discussed the work to be done that day.
33. Although Mr French accepted that it was only his opinion that a person directing traffic at the bottom of the driveway could have prevented this accident and that person would have to control pedestrian traffic on both sides of the truck, he had seen that task effectively performed in the past. He rejected the proposition that his proposal would not have been effective to prevent this particular accident.
34. There were trees on the left hand side of the driveway close to the footpath that acted to obscure vision when driving the truck down to the road. The sign, which was on the right hand side of the driveway when driving down to the road, only momentarily interfered with visibility.
35. Evidence was called from the truck drivers who were working on the site as to the state of excavation, including Mr Flewett who operated the excavator. Mr Flewett stated that every morning the truck drivers spoke about how the trucks were to enter and leave the site and that Mr O'Keeffe attended during these discussions. There was no discussion about controlling pedestrians or controlling traffic on Mona Vale Road or warning pedestrians about trucks leaving the site. Mr Flewett could not remember what was said about trucks working on the site or what was said about safely entering or leaving the site.
36. On the day of the accident, Mr Flewett had loaded Mr French's truck before it proceeded down the driveway. After Mr French had moved off, another truck arrived. Mr Flewett saw Mr French's truck at the end of the driveway or on the footpath when it was stopped, and he also saw Mrs Welch standing bedside the truck. He did not see Mrs Welch until after he noticed Mr French's truck was stationary - after that he saw Mrs Welch. He was then told by another driver that something was wrong. Mr Flewett was unable to say where on the footpath Mrs Welch was standing.
37. Mr Tuckwell was a truck driver who was returning to the site on the day of the accident just as Mr French was leaving. He did not see Mrs Welch until after the accident. At the time, he was in the middle lane preparing to turn into the driveway.
38. In cross-examination, Mr Tuckwell spoke about the method of using the median strip to gain access to the site, with trucks waiting on the median strip until the traffic lights changed. The Roads and Traffic Authority had stopped the trucks from turning from the median strip and said that they were entitled to turn into the site from the middle lane of Mona Vale Road. Mr Tuckwell said that when leaving a service station with his trailer attached, he always stopped at the footpath and if there were any pedestrians present, he ensured that they walked past. It was always hard to see pedestrians. When leaving service stations, there were no signs or traffic control men to direct traffic.
39. In relation to the Mona Vale Road site, the procedure Mr Tuckwell adopted was to use a low "crawling speed" down the driveway and to stop for the pedestrians crossing the footpath. He made sure that no one was walking on the footpath and then he would turn left. Once out of the driveway, and after stopping at the footpath, Mr Tuckwell said that he could see both ways. Every morning there was a talk about the job, what was occurring on site, how the trucks were going to come in and out of the site and how the excavator was going to load the trucks. There would be a little bit of discussion and then work would commence. Mr O'Keeffe was present when these discussions took place.
40. Mr Land was a truck owner/driver who worked at the site. He had made statements to the police, insurance investigators and Inspector Jorgensen. On the day of accident, Mr Land had seen Mr French's truck waiting at the end of the driveway for traffic to clear, although he could not tell precisely where Mr French had stopped. He saw Mrs Welch about one metre from the door of Mr French's truck but that was at the edge of his view and she was at the edge of the driveway. Mr Land looked away but when he looked back, Mrs Welch had moved and he could not see her. Mr French's truck moved and then he was able to see Mrs Welch.
41. Mr Land said that Mr O'Keeffe was the supervisor on that day and he made decisions regarding the job. Mr O'Keeffe made sure that everyone worked in a safe manner and that the trucks were not overloaded. Mr O'Keeffe would talk to the drivers about arriving and leaving the site with due care and safety and would tell the drivers to which site they were to take the excavated spoil.
42. In cross-examination, Mr Land confirmed that in his statement to the police he had seen Mrs Welch walk between Mr French's truck and the trailer. Mrs Welch appeared to be walking towards the shops and then she stopped walking and stopped beside the truck. She nodded at the driver of the truck or did something by way of her body language to indicate to Mr Land that they were aware of each other. Mr Land then looked away, then looked back and Mrs Welch had gone from his vision. The truck was still waiting and had not moved. He assumed that Mrs Welch had gone back from where she had come. Mr Land acknowledged that there was a problem - from time to time it was often difficult to get on to Mona Vale Road from this site. Mr Land saw Mr French's truck move, then saw Mrs Welch walk as the truck moved off and she walked in behind the truck. He was about 30 metres behind Mr French's vehicle when he observed this happening.
43. Mr Land said that his approach was to stop for pedestrians and do so at the edge of the footpath, look both ways and then to proceed to the edge of the road. If he saw a pedestrian six metres away he would wait for them and wave them past - he wanted to see them pass his truck before proceeding.
44. Mr Land confirmed that Mr O'Keeffe told him to always look out for pedestrians and to be careful driving out of the driveway. Mr O'Keeffe talked about these matters as safety issues. On the day of the accident, he could not recall a meeting with Mr O'Keeffe, Mr Flewett, Mr French, Mr Land and the other drivers. There was a meeting each day because the excavation changed the configuration of the site. As the site was enlarged there was more room for the trucks to move, especially for his smaller truck.
45. In Mr Land's experience, the person for whom who you worked would tell you who to perform work for on that day, when to start and when to knock off and to be safe and to raise issues with the builder on site. This type of induction was given by Mr O'Keeffe at this site. Mr O'Keeffe's induction might not have been as detailed as he had experienced on other sites, for example dealing with first aid and minor details. Not all sites on which he had worked had a traffic management plan and he had never been required to provide such a plan when working with his truck.
46. Mr Perrett was an owner/operator of earthmoving machines and trucks. He had been interviewed by Inspector Jorgensen in October 2002. He had been a truck driver since he was 19 years old, a period of approximately 23 years. In that capacity, he had been working at the defendant's construction site on 30 June 2001. He had been engaged by CJ & SJ O'Keeffe Building Pty Ltd on an hourly hire basis to remove spoil from the construction site. This work had been organised by Mr Tuckwell, who was attempting to obtain further drivers to work at the site. Under the arrangement by which he was engaged, he was not required to provide a safe work method statement for the work he was to perform but there was a discussion about getting in and out of the job. That discussion was with all affected truck drivers, the excavator and the builder and it took place on the first morning that he was engaged and it also occurred when things on the site changed.
47. Mr O'Keeffe told him where the load was to be taken and he explained the excavation that was being undertaken on site and how the truck drivers would perform their task. There were no traffic control requirements and it was explained to the drivers that they had to come in and leave in a forward driving manner but there was nothing specific about any requirement when entering and leaving the site apart from commonsense road rules. In relation to pedestrians, Mr Perrett said they were to stop and look to see if there were pedestrians and to let them pass in a safe manner. He had no concerns or questions regarding the work he was required to undertake.
48. Mr Tuckwell was not at the site at the time of the accident involving Mrs Welch. Before the accident, he would travel at two or three kilometres an hour along the driveway approaching the footpath. He could not recall any speed signs in that driveway before the accident. The method of work was to turn into the driveway from the middle lane but because of the speed of the traffic the drivers found it safer to drive on to the median strip and wait for the lights to change and create a break in the traffic. Mr Tuckwell could not remember whether there were any signs erected before the accident giving instructions or direction to trucks entering or leaving the site nor could he remember any signs erected to give pedestrians instructions or warning about trucks travelling, entering or leaving the site. He had made no suggestion before the accident about erecting such signs. He had not seen any written traffic management plan and the drivers "figured" how to get out of the site. Before the accident, there was no person near the entry to the driveway controlling pedestrian, vehicle or truck movements and he had not asked for such a person to be engaged.
49. The truck Mr Perrett drove was a "cab over". He said that up until the day of the accident he had clear vision both ways on the footpath when he was leaving the site from the driveway and that there was "no problem" - he could see clearly to the left and right and observe any pedestrians. While working at the site, he had seen pedestrians using the footpath outside the construction site although it was not a continuous flow - just from time to time. He did not have to stop for pedestrians on all occasions. but there were occasions when he did have to stop his truck. He did so for mothers walking their children to and from school. He was not aware of any complaints concerning traffic entering and departing this site, although one lady in Mona Vale Road complained when the trucks parked on the road and blocked her vision: the drivers were told to park around the concern.
50. Mr O'Keeffe was the principal contractor on site and he attended the site every day. His company was CJ & SJ O'Keeffe Building Pty Ltd - it was Mr O'Keeffe who provided supervision on the site. Mr O'Keeffe gave a "verbal induction" to the site, pointing out the lunch shed, where the toilets were situated and explaining "what we are doing". There had been discussions at the job about how to get in and out of the site but there was no documented work method provided before Mr Perrett started work at the site describing the sequence of work tasks and activities and how the work was to be performed safely. Mr O'Keeffe did not ask him for a work method statement. There was only one entry and exit point and a footpath across it and the drivers had to stop and let pedestrians pass - there were traffic signs on the road but Mr Perrett could not remember if there were any signs in the driveway. He thought there was an occupational health and safety management plan in the site shed but he had not read much of it. He thought that the truck and trailer combination used on the day of the accident was suitable for use at this particular site.
51. Mr Perrett was not aware of any changes regarding traffic truck movement or pedestrian movement after the accident involving Mrs Welch. The principal contractor after that day did not provide any new information or instruction regarding vehicle and pedestrian movement. Mr Perrett observed that if someone stopped for pedestrian traffic or the truck, that system would have prevented the accident. While the truck could have been reversed in this incident involving Mrs Welch, it may not have been an appropriate course to adopt.
52. In cross-examination, Mr Perrett said his practice, when he saw pedestrians in the vicinity of the driveway where it met Mona Vale Road, was to stop his truck and to wave them past. He considered that was the safest way to drive and he kept pedestrians in his line of vision at all times.
53. Every day at the site, there would be a discussion at the beginning of the day with Mr O'Keeffe and the other drivers to talk about changes to the job if anything was being done differently or if any problems arose. On the first day, Mr O'Keeffe told the drivers to come into the driveway from the left and to go around in a clockwise direction. Mr O'Keeffe said that they were to take care and to give way to pedestrians on the footpath. Mr Perrett understood that to be a requirement of the general traffic law in any event, and Mr O'Keeffe said nothing more than that.
54. Mr Perrett explained that it was not appropriate to reverse into the site because a driver would be "driving blind" and would require a "spotter" to help the truck. The instruction on this site was not to reverse into the site: the trucks were to enter and leave in a forward direction. When Mr Perrett had worked on other sites driving his truck he had not been required to provide a traffic management plan. In 60 or 70 per cent of the jobs he had been involved with there was no written document as to site induction generally, dealing with safety rules. There was usually a verbal induction on site where the site was explained, what work was being performed and that was the type of thing Mr O'Keeffe did. On bigger sites with heavier pedestrian volumes he had experienced the use of traffic control and people sometimes on smaller sites but there were none in 60 to 70 per cent of the sites.
55. When refuelling his truck at a service station, Mr Perrett had never observed the use of a traffic control spotter. On those occasions, he would adopt his usual practice of stopping and looking to make sure there were no pedestrians coming or going, and proceeding when it was safe to do so.
56. When interviewed by Inspector Jorgensen, Mr Laing had approximately 15 years' experience driving trucks, had been employed by Hancock Excavations Pty Ltd to work at the defendant's development site off Mona Vale Road in 2001 and understood that Mr O'Keeffe had engaged the company for this work. Mr Laing's practice in leaving the site was to drive at about two or three kilometres per hour down the driveway. He was not aware of any street signs on the driveway before the day of the incident. The work method on the site was by word of mouth and was simply to be careful. He could not recall any signs erected on the site giving instructions or directions about entering and leaving the site or there being any signs in Mona Vale Road warning of traffic entering and leaving the site before the accident. He could not remember any signs erected to give pedestrians instructions or warnings about traffic entering or leaving the site. He could not recall anyone ever asking or suggesting that such signs should be erected.
57. Before the accident, he had not seen any traffic management plan for the site but said that Mr O'Keeffe had spoken to the drivers who were told to drive in two at a time. When the job started, they were driving in three at a time but later that changed to coming in two at a time with the other trucks waiting in a nearby street. Entry would then be called up by radio. There was nobody on the footpath directing traffic or directing the trucks that were entering or leaving the site.
58. When travelling along the driveway in his truck, Mr Laing had no problems seeing clearly in all directions as his truck approached the footpath. He could see if any pedestrian was approaching and if he saw them he would pull up, look to his left and right, and when it was all clear he would then proceed. On a few occasions, he had used the median strip in order to turn into the site. He regarded the traffic as reasonably heavy on Mona Vale Road between 7.00 am and 9.00 am on weekdays and it was probably as heavy on a Saturday. On occasions, he had seen pedestrians using the footpath but it was not heavy pedestrian traffic walking past the site. He could not recall seeing children or teenagers using the footpath.
59. Mr O'Keeffe was the principal contractor on site and he attended the site every day. On the day of the accident, Mr O'Keeffe was in control of the site. Mr Laing regarded Mr O'Keeffe as being in control because he was the owner/builder and he was in charge. It was Mr O'Keeffe who had the decision making power or authority on site and would provide supervision on the site.
60. There had been some site induction, such as where the toilets were placed and a "run down" of the job but it was not like a site induction carried out by a large builder. He could not recall a consultative process including a risk identification assessment and control process being carried out before the work started at the site. Nor could he remember a documented work method statement being provided at the site. He could not recall the principal contractor asking him to provide a work method statement either before or after the accident. The principal contractor did not provide him with a work method statement regarding the work to be done at the site. Hancock Excavations did not provide a method statement in relation to the site - these matters were done by word of mouth. The drivers were to be careful on entering and leaving the job. He did not recall seeing an occupational health and safety management plan of the site, although he thought the truck and trailer combination used on the day of the accident was suitable for that site.
61. After the accident, Mr Laing could not recall any changes regarding traffic and pedestrian movement other than that everybody was to be "extra, extra careful". He could not recall a person being placed at the entrance to the site directing or controlling pedestrian and vehicular traffic at the time of the accident.
62. In his oral evidence, Mr Laing said that his practice was to drive to the end of the driveway, check that there were no pedestrians and, if not, he would proceed. He would usually stop the truck before the footpath in case there were pedestrians. His truck was a cab over type truck which gave him a good view along the footpath. His practice was to let pedestrians cross the driveway before proceeding on to Mona Vale Road, even if they were not near the driveway. He thought that this was courteous and safer. In discussions with drivers about the job, the drivers and Mr O'Keeffe would say "be careful". All drivers would say the same thing although Mr Laing could not remember precisely what Mr O'Keeffe said, but he thought Mr O'Keeffe did not say anything in particular.
63. In cross-examination, Mr Laing said that he had been working for Hancock Excavations for approximately six years and that every job was virtually the same. He did not have to be told what to do. He would turn up at the job and the person in charge would tell him and the other drivers "what we are up to". Mr Hancock had given him no directions as to how to enter and leave the site, nor had he provided a traffic management plan for entering and leaving the site.
64. On the site, the drivers would discuss any of the issues that arose, such as complaints from neighbours and others about trucks being parked on the road. Every day there would be discussions about the work and everybody would say to take it easy out of the driveway. He could not recall Mr O'Keeffe saying "be careful, take it easy" and to stop and, look and if there were any pedestrians, to stop and let them pass in a safe manner. Mr Laing always gave way to pedestrians. Between 7.00 am and 9.00 am there were usually children around Mona Vale Road going to school. It was his practice to always give way to pedestrians. He would wait for pedestrians even if they were 10 or 20 metres away. He entered and left the site at Mona Vale Road in the same way he would enter and leave a petrol station.
65. Mr Laing said that in his truck there would be a couple of metres before reaching the footpath when pedestrians could be seen. He thought the driveway was 15 or 20 metres long, that was his recollection and pedestrians could be seen about half way down the path. Mr Laing could not recall on the day of the incident participating in a general meeting with Mr O'Keeffe and the truck drivers.
66. Mr Laing stated that he usually refuelled his truck at a depot used for refuelling trucks. He said that it would be quite obvious to people driving by that trucks used the depot regularly. The whole depot was built for trucks and sold dieseline. The depot was obviously a refuelling point for trucks because of the presence of trucks and the Ampol sign outside the depot.
67. On the day of the accident, Mr Thomas was driving a truck and performing work at the Mona Vale development site. He was the managing director of KJ & PA Thomas Pty Ltd who employed him to drive trucks and he had approximately 35 years' experience in that occupation. He had been engaged by Mr O'Keeffe to perform this work but there was no written contract in relation to the work. There was an agreement that he would take away excavated material from the site.
68. The agreement to perform this work was made with Mr O'Keeffe. Mr Thomas had worked for Mr O'Keeffe for ten years or more. Over that time, they had talked about safe work methods for the job to be performed and did so usually on a daily basis although Mr O'Keeffe did not require a written safe work method from Mr Thomas. Mr Thomas said that every morning before work the drivers would park in the street and talk about how they were going to perform the job. In these discussions, they talked about truck movements because trucks of the size used on the site needed room to move and such movements had to be planned so that they could be undertaken without difficulty. Truck movements on and off site were also discussed as well as the location of the tips.
69. It was not part of the work agreement with Mr O'Keeffe that Mr Thomas provide traffic control. The drivers were asked to be courteous to the neighbours and to do everything with safety. During the job, Mr O'Keeffe gave verbal instructions all the time but Mr Thomas could not recall any information being given about traffic control or requirements while on site. The requirement to work safely was taken by Mr Thomas to be a need to consider all aspects of traffic flow, pedestrian flow and movement of other trucks. He had no concerns regarding the work undertaken.
70. When Mr Thomas drove down the driveway he did so at "walking pace". He could not recall if there were speed signs in the driveway on the day of the accident. Up until the accident, the only directions given by Mr O'Keeffe were verbal. Mr Thomas was unable to recall whether there were signs erected prior to the accident giving instruction, direction or warning to trucks entering or leaving the site. He was unable to say whether there were signs erected to give pedestrians instructions or warnings about traffic entering or leaving the site.
71. The traffic management plan in force at the site was a verbal agreement that the drivers enter and exit safely from the site and not congest the site with trucks and other vehicles. That verbal agreement was with everybody on the site. Mr Thomas was unable to recall anybody placed at the end of the driveway to direct traffic nor was he aware of any request for such a person to be used.
72. In the period up until the accident involving Mrs Welch, Mr Thomas said that approaching the footpath from the site, he had a clear view along the footpath and was able to observe pedestrians. The drivers were usually doing two or three loads a day and during those occasions he rarely saw pedestrians. The first load was usually taken from the site very early in the morning and there were unlikely to be pedestrians at that time of the day. Mr Thomas did not think he had seen any pedestrians, whether children or adults, although there may have been one day on which he saw a child.
73. Mr Thomas regarded Mr O'Keeffe as the boss and the person in charge of the site: he was the person who gave instructions about what to do on the site. Mr Thomas had not seen either the site codes of practice or Australian Standards dealing with movements on a construction site nor had he seen a document detailing a work method statement for the site.
74. In his oral evidence, Mr Thomas said that from the beginning of this job the drivers were told that it was a busy area and they were to be careful, courteous and obey all road rules. That was the gist of what had been said to the drivers by Mr O'Keeffe. The drivers were not told how to do things safely - drivers knew what to do.
75. Mr Thomas' practice on leaving the site was to drive slowly along the driveway keeping an eye out for pedestrians and traffic and if need be stop the truck before turning into Mona Vale Road. He drove the truck along the driveway at walking pace but if he saw a pedestrian ten metres away, his practice was to stop before the footpath to allow them to walk across the driveway entrance.
76. In cross-examination, Mr Thomas was unable to recall whether on the day of the accident involving Mrs Welch he had been present at a meeting with Mr O'Keeffe and other drivers on site. He did confirm that every morning there was a site meeting and talk. Because of the size of the trucks involved there was talk about movement of the trucks on site and where to park so as not to cause congestion in the neighbouring area. There had been some complaints about parking on Mona Vale Road and Mr O'Keeffe had given instructions not to park there.
77. On 30 June 2001, Hancock Excavations Pty Ltd was working at the Mona Vale Road development site and a director of the company, Darren Hancock, was employed by that company as a truck driver and machine operator. He had 25 years' experience in those operations and five years' experience with heavy truck and trailer combinations. Hancock Excavations Pty Ltd had been engaged by a person known to him as "Chris", whose surname he could not remember, to perform work at the development site on Mona Vale Road. There was a verbal agreement to supply a truck and trailer at an hourly rate. Mr Hancock was not required to provide any documents or information prior to starting work at the site nor was he provided with any documents or information prior to starting work.
78. Hancock Excavations Pty Ltd did not undertake a risk assessment of the work at the site but drivers engaged by the company were sent to the site. Mr Hancock did not know if they did a course or whether "Chris" did something with them in that regard. Mr Hancock did not know if he had a safe work method statement for the work at the site but the company provided two truck and trailers together with drivers to work at the site. Both Mr Laing and Mr French were employees of Hancock Excavations Pty Ltd on 30 June 2001.
79. Mr Hancock worked at the site probably for a day after the accident. He could not recall seeing any signs on or about the site warning, directing or instructing trucks or warning, directing or instructing pedestrians about trucks. He did not think there was a person stationed at the entrance to the site directing trucks, traffic or pedestrians. While the company was working at the job, no one raised with him concerns about the worksite or the use of the trucks and he had no concerns in that regard. He considered "Chris" to be in control of the site. As he was paying the bills, Chris seemed to be the owner and was providing supervision on the site.
80. Mr Hancock had seen a safety guide relating to movement of plant on construction site at other work sites but he did not recall seeing one at the Mona Vale development site. He could not recall whether there was a consultative process at the site including risk identification assessment and control processes being performed for the work at the site. He did not recall seeing an occupational health and safety management plan at the site but stated that he had only been at the site for one day. He did not recall being shown a traffic management plan that operated at the site and he was not sure if one existed.
81. In cross-examination, Mr Hancock said that Mr French had been driving for the company for three or four years and had been instructed how to drive a truck with a dog trailer but not the method of moving in and out of a site.
82. To the best of Mr Hancock's knowledge, there was no shorter connecting bar to attach a trailer to a truck than the one used on the truck involved in the accident, nor was there a better method of identifying the presence of that bar. The truck and trailer were required to be inspected by the Roads and Traffic Authority every year. Mr Hancock also checked on the licence status of his drivers and after this accident found that Mr French's driving licence had been suspended. He would not allow Mr French or anyone else to drive a truck in those circumstances and Mr French did not drive a truck again.
83. Mr Hancock recalled that he had worked at the site for about three days prior to the accident involving Mrs Welch and it was after that period that Mr French worked at the site. He did not recall telling Mr French anything about the nature of the job at Mona Vale Road or that it was a "mongrel of a job". Mr Hancock did not regard the work at the site as being difficult. In the three days that he worked at the site there was a meeting each morning with the drivers and Mr O'Keeffe. At the meeting, they would speak about how they were going to attack the job and at what place they would be tipping the excavated soil. There was only one way into the site and one way out and the approach was to "take it easy" going in and out and to watch for traffic and pedestrians.
84. In leaving the site to enter Mona Vale Road, Mr Hancock said that he would have to stop before the footpath and crawl or nose the truck out of the drive. The truck would need to come out probably a metre to allow him to look to the right although he could not remember whether he could see to the left or right, before getting to the edge of the footpath. He would normally move the vehicle into the gutter if there were no pedestrians and wait for a break in the traffic before pulling into Mona Vale Road. He could not remember having to stop his vehicle to allow pedestrians to pass in front of the driveway during the three days he drove a truck at the site.
85. The truck and trailer used in the accident was still used by the company and used without any modification. WorkCover had not issued an improvement notice in relation to other trucks and trailers.
86. At other work sites where the company had provided drivers and trucks there had been some which utilised a traffic management plan but Mr Hancock had not provided such a plan. He recalled a particular job at Coogee which involved reversing into the job to get loaded and there may have been other jobs where a stop/go man was used but Mr Hancock could not be sure if that was so.
87. Mr Hancock said that every morning when he was on the job there was a discussion when "Chris" was present where they talked about the safety risks involved in driving in and out of the property. Those discussions were to the effect that the drivers should take it easy and watch for pedestrians and traffic - he could not remember anything else being discussed. In his type of truck the driver had to lean forward when leaving the site when watching out for traffic and pedestrians.
88. A number of witnesses gave evidence concerning the impact on vehicular traffic on Mona Vale Road caused by trucks and trucks with trailers turning from the road into the development site. Ms Saddington was driving along Mona Vale Road on 29 June 2001 travelling in the lane next to the footpath and was aware of a large truck to her right in the lane adjacent to the median strip. Approaching the defendant's building site, the truck turned across the road in front of her and drove into the driveway leading to the development site. Ms Saddington said she had to "jam on my brakes" to stop and, as she lifted her foot off the brake to accelerate again she realised there was a large trailer attached to the truck. Again, she jammed on her brakes. She did not observe anyone on the street controlling traffic on that day or see any warning signs of the presence of trucks turning in and out of Mona Vale Road. In the three or four weeks before Friday, 29 June 2001 whilst driving along Mona Vale Road in the same area (which she did daily) she had not observed anybody directing or controlling traffic in the vicinity of the building site. She had not seen any signs in relation to traffic coming to and from the building site during the same period. She had also seen trucks turning into the development site by turning across the median strip.
89. On 28 June 2001, Ms Matich was driving on Mona Vale Road on the inside (gutter) lane when she observed a large truck with a trailer travelling in the third lane closest to the median strip with its left blinker operating. She presumed that the truck was moving into the middle lane but it did a "U turn" straight into the defendant's construction site. Ms Matich had to apply to her brakes very hard to stop. She observed that the truck was very long and almost blocked the whole road so that her car could not move either way. She had to lock up the brakes bringing the car to a total stop and that frightened her. There was nobody in the vicinity directing traffic at the time and nobody warning drivers of vehicles travelling in that direction of the presence of the truck or the likelihood of it making a turn: there were no signs to warn of that likely occurrence. Two days later, while travelling along the same road at the same point, Ms Matich noticed an accident had occurred at the entrance to the site.
90. Dr Hollings knew Mrs Welch. In June 2001, he was driving along Mona Vale Road towards the St Ives shopping centre when he saw a very large double articulated earth moving vehicle suddenly "spring out" of the middle lane, cross the outer lane, mount the median strip and then turn in front of him and beyond three lanes of traffic and turn into a suburban driveway, which itself was not apparent. The driveway was not at right angles to Mona Vale Road and was at such an angle that it required vehicles going into it to make a very wide arc to be able to turn into the driveway. Dr Hollings did not see any person controlling traffic in the vicinity of this driveway or any flag man or any sign warning of the presence of the driveway or the truck. He thought there was a sign indicating it was a building site but there was nobody controlling traffic and no indication that vehicles were entering or emerging from the driveway. To the best of his memory, this event took place on 21 June 2001 somewhere between 10.00 am and 3.00 pm. Dr Hollings was able to identify the type of truck he had seen on that day by reference to photographs otherwise in evidence: it was a large truck with a long towing bar attached to a large trailer.
91. In the three or four weeks before the death of Mrs Welch, Mr Flanagan drove to work along Mona Vale Road and past the defendant's building site. Normally leaving for work between 7.00 am and 8.00 am, he became aware of a large amount of earth being removed from the site by use of articulated trucks entering the site. During the period, he saw those trucks enter and leave the site. From time to time, he observed these trucks entering the site from either the centre lane of Mona Vale Road or the lane next to the median strip. On some occasions, the trucks were parked on the median strip. He observed trucks using the innermost lane, moving then to the outermost lane and turning left across the three lanes of Mona Vale Road into the site. He observed these manoeuvres from his vehicle. He normally travelled in the inside (gutter) lane or the middle lane. When he saw trucks undertaking this manoeuvre, he saw that traffic travelling in the same direction was required to stop and also observed that other vehicular traffic was not necessarily expecting the truck to come across two or three lanes of traffic. He saw "near miss collisions" with other vehicles which almost came into contact with a truck negotiating the left hand turn into the driveway. He had also seen trucks leaving the site which used all of the gutter lane and, often, most of the middle lane. He noticed that the trucks had trailers attached to them by a long towing bar. Mr Flanagan was able to identify the type of truck he had seen by reference to photographs otherwise in evidence. On the occasions he was passing the development site, Mr Flanagan had not observed anybody directing traffic nor did he see any signs warning of the likelihood of trucks turning into or out of the site. After the accident involving Mrs Welch, Mr Flanagan observed on one occasion a person directing trucks around the site.
92. Mr Simmons was the managing director of an excavation and demolition company who travelled every morning along Mona Vale Road. In the few weeks before 30 June 2001, he observed the use of a truck and trailer to take spoil away from the defendant's development site. He had seen trucks driving over the median strip and swinging back across three lanes of traffic to enter the site and on one occasion it was this manoeuvre that resulted in a "near miss" when his car nearly hit a truck crossing in front of him to enter the site. He saw this happen every morning for about a week when he was travelling to work at about 7.00 am or 7.30 am. Mr Simmons did not see any warning signs or traffic control during that period nor was there any person controlling either vehicular or pedestrian traffic in the vicinity of the site. On the day of the accident, he went to the driveway outside the site and spoke to police officers who were there.
93. As at June 2001, Mr Simmons had experience in civil contracting including building and construction sites and his business had used trucks with trailers on sites on average for four out of every five days. It was his understanding that there was a requirement to control traffic at the point of egress and access to the construction site and his workers had undertaken a traffic controlling course. Often when working for a builder, they would insist that a person be there as part of a safe working model to handle movements on and off site. He had identified risks with the use of trucks and trailers of this nature on building sites he was working on and had himself nearly walked between a truck and its trailer because he had not seen the low level draw bar connecting them. He was also of the view that, because of the size of the trucks, to permit them to turn into and out of a site required control of vehicular traffic and to be aware of pedestrian safety.
94. In cross-examination, Mr Simmons said that he had contacted WorkCover about the site. After the accident he had observed that nobody was addressing traffic control and therefore somebody should inspect the site. In relation to work performed by his company, his employees were under instructions to ensure that someone supervised trucks and movement onto and from the site. Mr Simmons rejected the suggestion that, at a number of his sites, there was no stop/go man employed to control the movement of trucks on and off site. Mr Simmons expressed the view that a responsible builder should always inspect the certificate of qualification of a stop/go person who is engaged by the earthmoving contractor to ensure that it is in compliance with regulations and requirements. Mr Simmons had not completed the traffic controlling course himself but over the years he had employed people to undertake that task. In his view, it was not a safe practice to allow heavy trucks to enter and leave a suburban driveway without a traffic control person being present.
95. Mrs McIntosh lived next door to the defendant's development at the Mona Vale Road site in June 2001. During this period, Mrs McIntosh had passed the entrance to the site both in her car and walking as a pedestrian and had done so on a daily basis. Excavation work was being carried out from an early hour in the morning with large trucks entering the site. During this period of the development there were a number of cars, utilities and trucks in the street around the entrance to the site. Mrs McIntosh normally left the house between 7.30 am and 8.00 am with her children and noticed the trucks queued along Mona Vale Road to gain access to the property and some would be parked across the front of her property or across her driveway. The trucks would have to pull out into the middle lane to be able to turn down the narrow driveway to obtain access to the building site. Often the extended vehicles would have to cross three lanes towards the median strip in order to be able to turn into the driveway. These were usually the trucks with large containers attached to them and were similar to vehicles depicted in photographs which were in evidence and which were shown to the witness. She had also observed trucks with trailers mounting the median strip to turn into the driveway.
96. Mrs McIntosh had also heard trucks leaving the site and the screeching sounds of traffic on Mona Vale Road when cars reacted quickly to a very large truck coming out unexpectedly onto the road. Mrs McIntosh said that these movements caused a major disruption to traffic on Mona Vale Road. She found it very difficult to get out of her driveway because trucks would line up along the gutter and she was unable to obtain a clear view in order to leave her driveway. She often asked her husband to help leave by observing the traffic flow. The traffic would frequently be at a standstill because of the movement of the trucks themselves together with the fact that there were trucks and cars parked all the time in the area around the entrance to the site. The trucks became a major obstacle and disjointed the traffic flow.
97. Mrs McIntosh spoke to Mr O'Keeffe about the movement of trucks to and from the site and in particular the trucks that were parking across her driveway. She did not speak directly to Mr O'Keeffe about the way the trucks were turning in and out of the driveway. Mrs McIntosh stated that traffic collisions frequently occurred which were associated with the movement of trucks in or out of the property. Most of them were rear collisions resulting from vehicles trying to change lanes in a hurry and where vehicles were parked in the gutter lane so they would end up behind a parked car or were trying to move in and out to avoid the movement of the truck that was coming at them. This happened frequently before 30 June 2001. When walking past the driveway entrance, Mrs McIntosh said there was frequently a truck in the vicinity including the trucks with a trailer. On those occasions she would stop, make sure the truck was aware of her presence or that there was no traffic and for it to move well away before she tried to negotiate the crossing. If she had children with her, she would wait to make sure that there were no trucks. It was also very dusty when the trucks left the site under full load. As a pedestrian, especially when she had the children with her, Mrs McIntosh found the size of the vehicles very intimidating. She always accompanied the children as often as possible if they had to cross over the driveway and told them not to go there or ride their bicycles there unless a parent was present. Mrs McIntosh confirmed that there was a church, a college and child a care facility in the vicinity and that the area was going through a growth stage at the time of the development of the site. There was also a bus stop outside the properties that was on the side of the road near her property. In Mrs McIntosh's, experience there was constant pedestrian traffic along the path outside the site because buses stopped there and that was the footpath used to get to the post office, shopping centre and schools.
98. In cross-examination, Mrs McIntosh accepted that her concerns about the development of the site had been put before the Land and Environment Court. Among those concerns, she had raised the danger of access to the site, danger to pedestrians and the unsuitability of the entire site for this type of development. She thought that these matters had been ignored by the court. Mrs McIntosh accepted that she had described the development as having left her totally distraught and devastated. It was a condition of the development that her home be air conditioned, although that was not a request made by Mrs McIntosh. This seemed to be a court response to evidence that Mrs McIntosh and her son were asthmatic. Mrs McIntosh confirmed that her husband had applied to develop the site and that a developer had approached them to purchase their property as part of the development but that deal fell through because an acceptable price could not be negotiated. Complaints had been made to the Roads and Traffic Authority and to the Minister especially about not being able to get their car out of their driveway. Letters were also written to Ku-ring-gai Council and to a local bus operator about the congestion.
99. Mr Lethbridge held the position of Manager of Revenue/Internal Auditor with Ku-ring-gai Council as at 30 June 2001. In a statement to Inspector Jorgensen, Mr Lethbridge confirmed that the owner of the site 277 and 277A Mona Vale Road St Ives was CJ & SJ O'Keeffe Building Pty Ltd. That purchase took place in April 2001 and that entity owned the property as at 30 June 2001. Mr Lethbridge assumed that the driveway leading to the site was included in the purchase and that the property may be called a "battleaxe block", or simply one involving a shared driveway. The development on that site was known as a SEPP 5 development, being a reference to State Environmental Planning Policy No 5, which meant that only a person aged over 55 or with a disability could be the owner of each parcel in the development. This development involved five three-bedroom houses and three buildings with a total of ten three-bedroom units. The development proposal had been submitted to Ku-ring-gai Council in September 1999 but the name of the developer had changed when the site was sold to CJ & SJ O'Keeffe Building Pty Ltd. Ku-ring-gai Council did not pass the development proposal and the matter was taken to the Land and Environment Court. In July 2002, the Land and Environment Court approved the development. Mr Lethbridge expected that the Land and Environment Court would impose conditions on the development but, at the time of his interview, he was unable to find any such document on the Council's files. There was no requirement noted in the Council file for the implementation of a traffic management plan during demolition but there had been a private certifier for this site, namely Dix Gardner Pty Ltd.
100. Mr Lethbridge stated that Council had received and recorded complaints regarding traffic and pedestrian incidents occurring at the site and there had been an inspection by the Council's regulatory officers. However, it was determined that as Mona Vale Road was a main road, it was outside Council's jurisdiction and was controlled by either the police or the Roads and Traffic Authority.
101. A number of Council documents were produced by Mr Lethbridge, including an application for demolition. That application contained a condition that a traffic management plan was to be submitted and approved by the principal certifying authority where major demolition was likely to impact on arterial or main roads. If a traffic management plan had been provided to Council, Mr Lethbridge expected that a copy of it would have been on the demolition and development application file. He had made a search of the Council's files and had not found a traffic management plan in relation to the demolition. Council had given approval for demolition on the site.
102. When the Council's rejection of a development proposal goes to the Land and Environment Court, the Council usually provides the Court with a suggested list of conditions in the course of assisting the Court in the determination of the matter. The Court may incorporate some, all or none or the suggested conditions but in this case there was no court requirement in relation to traffic control during the development stage of the site. Council operated on the understanding that after the court's approval of the development, the developer or builder would comply with all legislation, including building codes, safety regulations and the requirements of bodies such as the Roads and Traffic Authority. At June 2001, Council had a practice of not imposing traffic control conditions during the development stage.
103. In cross-examination, Mr Lethridge accepted that an answer given to Inspector Jorgensen during his interview, about the role of the private certifier in the demolition stage of the project, was incorrect. The demolition was undertaken while the site was under the Council's jurisdiction and any conditions were those imposed by the Council. The development of the site was carried out in accordance with the Court's directions and the development was dealt with by a private certifier. The private certifier's role was to certify whether the development was being carried out in accordance with the Court's approval and conditions: the Council had no jurisdiction or authority in respect of the building process at the site. Therefore, at the time of the accident in June 2001 involving Mrs Welch, there had been no conditions imposed by the Council requiring a traffic management plan associated with the multi density development which was occurring at this Mona Vale Road site. Since that time however, Council had changed its approach and its policy documents now require a traffic management plan for construction of multi density developments undertaken on a main or secondary road such as Mona Vale Road.
104. Ku-ring-gai Council required its consent to be granted before barricades could be placed on a Council footpath. This approach applied to both permanent and temporary barricades placed on the path when traffic was crossing momentarily.
105. The certifier for the development stage of this project was Mr Dix. He emphasised that his role was limited to certification of the development as approved by the Land and Environment Court and that he had no role in the demolition stage of the development. He had therefore not certified the steps taken through the demolition stage nor had he certified as to the existence of an appropriate traffic management plan. From his search of the files, he could not find any record of a traffic management plan but in the development stage none was required for this site. After the Land and Environment Court had imposed conditions Mr Dix, as certifier, could not alter or add to those conditions.
106. A forensic medicine final report under the Coroner's Act 1980 was provided by Dr Ellis. That report noted the presence of severe crush injuries and that Mrs Welch had died as a result of multiple injuries. The Coroner had determined that there was to be no internal examination so no comment was able to be offered as to the nature, or possible influence, of any alleged brain lesion or other abnormalities that may have contributed to Mrs Welch miscalculating the effect of walking between the truck and its trailer. In cross-examination, Dr Ellis was unable to make any assessment as to whether Mrs Welch had suffered a heart attack or a stroke prior to the accident occurring on 30 June 2001. He had been authorised by the Coroner to conduct only an external examination of Mrs Welch's body so no internal examination of her organs was conducted.

Defence Evidence

1. Mrs Welch had been a patient of Dr Bors, an ophthalmic surgeon and physician with rooms in Macquarie Street, Sydney. He had first seen Mrs Welch in May 1995 and on examination concluded that her vision with glasses when looking straight ahead was normal in each eye for distance and for near sight with the only significant defect being a total loss of vision to the left hand side of each eye from the mid line. This meant there was a total loss of the field of vision of the left hand side and in the doctor's view, that defect had a very large impact on a person's ability to function. Such a defect meant that anything to Mrs Welch's left hand side from the straight ahead position was totally invisible. Mrs Welch was re-assessed every year until December 2000 but there was no progressive loss of her visual field which might indicate a need for surgery. During this period of review, Dr Bors found no change in her field of vision.
2. Dr Bors had received a letter from Detective Senior Constable Spark of the Corner's Support Section of the Coroner's Court asking him to document Mrs Welch's condition and to reply to a number of questions relating to the effect of her condition. In July 2002 Dr Bors replied to Detective Senior Constable Spark's request setting out Mrs Welch's medical history, the nature of the defect in her sight and the re-assessments conducted over a period of years. In that letter, Dr Bors expressed the view that Mrs Welch had long standing total loss of vision to the left side of each eye and was well aware of the defect. In his view, surgery on the intracranial lesion was not justified. Dr Bors then stated: Mrs Welch had lived for many years with the problems caused by the loss of vision to the left. These include for instance, failing to recognise the presence of people standing to the left, accidentally hitting objects to the left such as door frames, furniture and glasses set to the left on the table, and an inability to drive a car. Her compensatory mechanism to reduce but not abolish the effect of the loss of area of sight, was to regularly frequently turn her head to the left to observe what was there. The doctor then expressed the view that Mrs Welch had stopped or hesitated on the footpath on the day of the accident to allow the truck to pass in front of her and did not and could not see the trailer, failed to check that a trailer followed the truck and so walked into its path. It was an unfortunate accident not preventable by the truck driver in any way and wholly attributable to her loss of left field of vision - she simply made a mistake.
3. Dr Bors stated that examples of failing to recognise the presence of people to the left, accidentally hitting objects to the left such as door frames, furniture etc were not issues raised with him by Mrs Welch and were not in his clinical notes but they were "standard problems that a person with this disability would have". The compensatory measure adopted by Mrs Welch, that is looking to her left, was a matter discussed in consultation with her. The use of a stick or a guide would be of no use in Mrs Welch's case - she had to turn her head to the left to see what was there. He could not remember whether Mrs Welch was an alert and competent person but he did assure himself that she was aware of the compensatory measure in order to see in the otherwise blind area. Although there were other considerations the fact that Mrs Welch continued to play golf, shop and walk around without bumping into things, was indicative of a reasonably well developed compensatory mechanism.
4. As a member of the Australian Institute of Traffic Planning and Management, John Hewitt was called to give evidence about traffic management systems and the circumstances in which traffic management plans would be required in relation to building and construction work. Mr Hewitt held a certificate in traffic management from the University of New South Wales and was an accredited road safety auditor and held various positions in State Government, Local Government and the private sector. He had been a traffic engineer at Warringah Council with experience spanning over 35 years commencing with the Department of Motor Transport, then the Department of Main Roads in the fields of intersection and traffic signal assessment, design and commissioning and traffic management. He had been engaged by Mr O'Keeffe to prepare a report relating to a management control plan for truck loading at the development site situated at 277 and 277A Mona Vale Road St Ives.
5. In that report, Mr Hewitt noted that the traffic flow on this section of Mona Vale Road was in the order of 49,000 vehicles per day with heavier flows in bound in the mornings and outbound in the evenings. Parking restrictions were not applied to either side of Mona Vale Road in the vicinity of the development site. It was noted that there was signage displayed at the site entrance namely "All vehicles must stop before leaving", "Trucks crossing" and "Pedestrians watch your step". It was also noted that trucks delivering to the site approached from the north on Mona Vale Road, stopped south of the entrance and then reversed into the access. Mr Hewitt said that, due to the width of the access and the obtuse angle of the reverse turn, most large vehicles should have been able to enter the site without encroaching on the centre lane. He observed that these movements had potential safety implications for motorists and pedestrians.
6. In his report, Mr Hewitt then listed a number of recommendations: · "trucks turning" sign of a specified size with the words "80 m on left distance" be erected on a nominated telegraph pole in front of 285 Mona Vale Road which was situated 76 metres from the entrance; · building and material supply companies to be advised to schedule deliveries outside the 7.30 am - 9.00 am period to offset deliveries from peak traffic conditions; · an RTA accredited traffic controller or a responsible person nominated by the builder to control traffic movements at the site frontage when delivery or removal of building materials was occurring that required reversing across the footpath; · the accredited traffic controller or responsible person nominated by the builder to use a hand held "stop/slow" sign and as dictated by circumstances, to stop south bound motorists and pedestrians when necessary to enable trucks to access the site, ensuring that pedestrians were clear of the site frontage.
7. In oral evidence, Mr Hewitt said that, absent a requirement for vehicles to reverse across a footway, it would depend on the circumstances of the building site, including traffic levels, visibility, gradients, numbers of lanes -a host of things - whether or not there would be a need for a Road and Traffic Authority accredited traffic controller or a responsible person to control traffic movements. A truck leaving a property and entering a public road in a forward direction with no other influence relating to the building site appeared to be a fairly normal occurrence and would not require the presence of a traffic controller. The driver's obligation would be to stop before passing across the footpath, to give way to pedestrians and then to give way to vehicular traffic. These steps would be taken as a matter of prudence rather than as a matter of traffic law or local government regulations. He was not aware of any law that required the presence of a traffic controller at such a site. The Roads and Traffic Authority had recently required traffic controllers to be accredited by undertaking a course and other training. They had authority to stop traffic and had the right to stop pedestrians moving across the footpath.
8. Mr Hewitt answered a number of questions concerning the circumstances in which a traffic controller might be used but did so on the assumption that truck drivers leaving the site would obey the road rules. He accepted that if the drivers did not obey the usual rules, such as giving way to pedestrians or not stopping at the beginning of the footpath before moving into the gutter, then the use of a traffic controller might be warranted. Mr Hewitt understood that a fully laden large truck with a trailer would need to wait for a significant break in the traffic before pulling into Mona Vale Road. A normal truck would need eight to nine seconds to complete that manoeuvre but a truck with a trailer would probably need up to 12 seconds to do so.
9. Mr Hewitt had seen WorkCover codes for moving plant on construction sites and a code of practice but they were not documents which he dealt with regularly. He had never previously had to consider the requirements imposed upon a builder on a building site concerning persons such as pedestrians and traffic on footpaths and roads outside the building site, in relation to obligations arising under the Occupational Health and Safety Act. He had considered such matters in terms of concepts of negligence. In answering questions, he did not have in mind obligations of a builder on a building site under the Occupational Health and Safety Act but was dealing with an approach of prudence. He thought that it might be prudent but not mandatory to have a sign in the driveway warning drivers to stop before crossing over the footpath. Considering the daily movements of trucks at this site, he agreed that it would be prudent for some warning signs to be placed 60 or 70 metres north of the building site on Mona Vale Road warning of the likely presence of trucks turning out of the building site and also a sign warning of a possibility of trucks turning into the site. The provision of such signs on a public road to warn that trucks are doing something that is unexpected or unusual was of value. Large trucks accessing a private driveway might not be expected to turn from the middle lane or the lane nearest the median strip on Mona Vale Road, therefore signs would assist a motorist to be aware of what might occur. Such signs would be prudent and would have been prudent in June 2001. There was no reason why a single traffic controller could not control pedestrian flow approaching from both directions and to stop truck movements to allow pedestrian movements in other directions. It would be necessary for the traffic controller to firstly give a clear direction to pedestrians, then secondly to give directions to the south bound traffic on Mona Vale Road to stop when a truck was leaving the site. The traffic controller would need to be very close to the driveway entrance to perform these tasks and have an ability to observe pedestrians approaching.
10. For 24 years, Mr O'Keeffe had been a director of CJ & SJ O'Keeffe Building Pty Ltd, a company that was involved in building mainly residential properties. During that period, the company had not previously been the subject of a prosecution under the Occupational Health and Safety Act. On 30 June 2001, the company was working at 277-277A Mona Vale Road, St Ives, a property which CJ & SJ O'Keeffe Building Pty Ltd owned. The company was undertaking the building of a SEPP 5 development which comprised five houses and ten units with basement car parking facilities. The company was the principal contractor on site and on 30 June 2001 work was being performed on the basement excavation.
11. The site was described as a battle axe block with a 60 metres long driveway on the battleaxe to the street which was Mona Vale Road. The driveway had been cleared of all trees and there was something in the order of a 15 degree grade falling towards Mona Vale Road. The duration of the excavation work was approximately six to eight weeks for bulk excavation.
12. At the time of demolition being carried out at the site, there was no management plan in operation other than verbal instructions given by Mr O'Keeffe to people on the site. Those instructions were in general directed to how to demolish and dismantle the houses, where to put the material, how to load the trucks and the order in which to perform the tasks. Mr O'Keeffe was unaware of any requirement to have a traffic management plan in operation for the demolition although his attention had been drawn to clause 24 of the Council application for demolition.
13. Truck drivers working at the development site were engaged by his company under a verbal agreement. The trucks were to cart excavated material from the development to designated tips. Prior to commencing work, the only documentation the drivers were required to produce was evidence of insurance policies, public liability and workers compensation. The drivers were not supplied with documentation by the company prior to starting work at the site but were instructed on how the work was to proceed, how to enter the site, where to park, the sequence of loading the trucks and the tip to which they would proceed, which varied from day to day. The drivers were instructed to enter the site by waiting for a break in the traffic and to give way to all pedestrians, neighbours or vehicles. The instruction to enter the site safely meant that the drivers were not to break any laws and they were to do things legally as they would on any other road. Mr O'Keeffe believed the drivers understood what he meant when he said they were to drive safely.
14. Mr O'Keeffe was the company representative on site who supervised the work. He had the authority to control the site and was present at the site on the day of the accident. He rarely saw pedestrians on the footpath walking past the site and did not know if the postman walked past the site every weekday.
15. Up until the day of the accident involving Mrs Welch there were no speed signs in the driveway. The method of work ensuring that the trucks entered and left the site safely was conveyed by verbal instructions given by Mr O'Keeffe on a daily basis. Instructions about how the day's work was to be executed were given in the morning before work commenced. There were no records kept of those meetings. Before the accident, there were no signs erected on or about the site instructing or directing trucks entering or leaving the site and no one had suggested such signs should be erected. There was no reason why such signs could not have been erected. Mr O'Keeffe was not aware of any signs erected on Mona Vale Road warning traffic of the trucks entering and leaving the site nor were there any signs erected to give pedestrians instructions, warnings or directions about traffic entering or leaving the site. There was no traffic management plan for the site prior to the accident. The drivers were told to enter the site safely, park on the site where they were told to park and to leave the site safely. Those instructions were given by Mr O'Keeffe. Prior to the accident, there was no person near the driveway entrance controlling pedestrian, vehicle or truck movements and no one had suggested such a person be engaged.
16. Site induction was conducted by Mr O'Keeffe and occurred every morning. When the site had only truck drivers and the excavator working, the induction discussion involved how the work was to be done, where the amenities were placed and how to enter and leave the site.
17. Mr O'Keeffe told Inspector Jorgenson that the company did not have a documented occupational health and safety policy nor did it have documented procedures or work method statements. There was a verbal occupational health and safety system which included how to perform day to day work. Mr O'Keeffe did not understand entirely what constituted a risk management system but said the company issued verbal instructions: there was an occupational health and safety committee but only one person was a member and that was Mr O'Keeffe.
18. In relation to the improvement notice that had been issued to the company in relation to the site, Mr O'Keeffe said that the company had taken action to implement the recommendations, had erected signs and had engaged a traffic management consultant. There was no reason a traffic management plan or a traffic management consultant could not have been in use prior to 30 June 2001.
19. Mr O'Keeffe had previously seen a document entitled "Safety Guide Moving Plant on Construction Sites" dated February 2001 but he could not remember when he had seen that document. In accordance with the terms of that document, Mr O'Keeffe said there was a consultative process, including a risk identification assessment and control process, performed prior to the work being started on the site. All people on the site had been consulted regarding risk identification, assessment and control. Mr O'Keeffe had carried out the risk assessment and he did that "verbally" for the whole of the site including the trucks to be used on the site. When asked what was considered in the risk assessment concerning the trucks, Mr O'Keeffe said he could not remember the exact details but consideration was given to what was the work and how the work was to be performed. He could not remember whether the risk assessment included a consideration of the configuration of the trucks and was unable to state what level of risk might be posed to pedestrians using the footpath outside the site as the trucks entered and left the site, although Mr O'Keeffe did think that they would be no more than the risk posed by any other vehicle on the road. The drivers had been instructed by Mr O'Keeffe to enter and leave the site safely and, although he did not explain what "safely" meant, the drivers acknowledged his instructions.
20. Mr O'Keeffe had not previously seen "The Code of Practice - Excavation Work" dated March 2000. He accepted that there was no documented occupational health and safety management plan in operation at the site although there was a verbal plan which he provided. If he was absent from the site, that verbal plan would be passed on by the person placed in authority. Persons working on the site would know the content of that plan, even though not documented, because they would have been told what was in the plan.
21. Mr O'Keeffe was aware that the combination of truck and trailer was commonly used in excavation work in Sydney and was used at this site. In his opinion, that combination of truck and trailer was suitable for this site although he accepted that he was not an expert in that field. He did not think that the use of a truck without a trailer would have presented any less risk to pedestrians passing in front of the site because even single trucks came in a variety of sizes.
22. Australian Standard AS 1742.3 - 1996, the Manual of Uniform Traffic Control Devices dealing with traffic control devices for work on roads was a document not previously seen by Mr O'Keeffe. It was shown to him during the interview with Inspector Jorgensen. Mr O'Keeffe thought the document was irrelevant to his work as it involved working on the road and he worked at a building site off road. No changes were made to the method of work after the accident involving Mrs Welch because, as Mr O'Keeffe said, "there was nothing to change".
23. In February 2002, Mr O'Keeffe had given a statement in relation to the accident and confirmed the truth of that statement in his interview with Inspector Jorgensen. In that statement, Mr O'Keeffe said that the driveway leading to Mona Vale Road measured 37 metres in length and was 7 metres wide. He had told police who were present at the scene of the accident that there were no special conditions in relation to traffic control measures imposed by the building development application. On the Monday following the accident, 2 July 2001, he notified the Lindfield office of WorkCover of the accident and a receptionist took his message. He was told there might be no issue for WorkCover because the accident happened on the footpath. The Lindfield office did not contact him again.
24. In a further interview with Inspector Jorgensen, Mr O'Keeffe said his role in the day to day running of CJ & SJ O'Keeffe Building Pty Ltd was to do all the work of the company. At the Mona Vale Road site, he was acting as the supervisor of the development. As a director of the company, he assessed the site, developed a work method and how to build the new structures: he did this as part of planning with regard to occupational health and safety at the site. Risk assessment at the site consisted of analysing the site and making the site more accessible and safe to carry out the building work. He assessed the risk to safety of persons using the footpath running past the site and cleared the entrance to the property to make it more visible to vehicles entering and leaving the site and more visible to pedestrians. The entrance to the site was quite overgrown when the property was purchased. The property was fully fenced. No consideration was given to erecting signs to warn users of the footpath because there was no work on the footpath. Consideration was given to the use of a person situated at the entrance to the site to control vehicles, trucks and pedestrians but as there was no requirement under the development application for a traffic control plan such a person was not engaged. Mr O'Keeffe understood that the development application had been to the Traffic Committee of Council which consisted of police, the Roads and Traffic Authority and Ku-ring-gai Council and no special condition was imposed on the site. A stop/go person however was used whenever a major concrete pour was undertaken on the site or when trucks were reversing into the site from Mona Vale Road. That was commonsense. Prior to the accident he had performed a risk assessment in relation to trucks working at the site and that included how to get the trucks on and off the site and how the trucks would perform their work. No expert advice was received in relation to occupational health and safety prior to starting work at the site. Nor was expert advice sought regarding traffic management for vehicles entering or leaving the site.
25. Mr O'Keeffe accepted that he was the person involved in the company responsible for ensuring that the company met its occupational health and safety obligations under the Act and he did that by using his commonsense and relying on his 28 years' experience as a builder. He had never had an accident with any employee or had an issue or a fine imposed by WorkCover.
26. After the accident involving Mrs Welch, Mr O'Keeffe gave consideration to what steps may be taken to ensure that the same thing did not occur again. He did that by assessing what happened on the day but concluded that the company, including himself and all the people on the site, had done everything correctly but this had just been an unfortunate accident. He spoke to all the people on the site after the accident and they all came to the same conclusion. The use of the stop/go person during major concrete pours had been adopted because the trucks were reversing on to this site - that was not occurring during the excavation stage of the project.
27. In oral evidence Mr O'Keeffe clarified an earlier statement that while there was no written traffic management plan in place for the site prior to 30 June 2001 there was a general plan but not something written such as Mr Hewitt's report. There was nothing in either the judgment of the Land and Environment Court or by requirement of Council for there to be a traffic management plan. The Council had approved the demolition application and he noted that a traffic management plan was required for demolition that affected Mona Vale Road or any major street but he was of the opinion that the demolition of the two houses some 60 metres from Mona Vale Road did not require a traffic control plan. There was no notification to the Council that a traffic management plan would not be implemented.
28. During Mrs McIntosh's evidence Mr O'Keeffe had been present in Court - he could not recall any conversation with her concerning truck movements or parking in relation to the site. He did remember that sometime after the accident Mr McIntosh complained that his driveway was blocked and Mr O'Keefe took steps to have that vehicle moved.
29. It had been suggested by one of the drivers that they use the median strip for the purpose of waiting for a break in the traffic prior to entering the site. This had arisen at one of the morning meetings and although Mr O'Keeffe said he some reservations about the proposition he thought that if it was a safety practice and the drivers thought so, and they were using their vehicle, then it was worth trying. Eventually a representative of the Road and Traffic Authority came to the site and informed Mr O'Keeffe that the practice of using the median strip to wait for a break in the traffic and turn into the site was illegal: the trucks could legally turn from the centre lane and if a car ran into the back of them then that was "bad luck" for the car. At the normal site meeting the following day Mr O'Keeffe informed the drivers of the Road and Traffic Authority's directive and told them not to use the median strip. He told them to wait in a nearby street to be called by radio one two or three at a time depending on how many could fit on the site.
30. The drivers were chosen from people whom Mr O'Keeffe had known for between ten and 20 years and with whom he had previously worked. When the job got bigger he asked them for their recommendations for suitable drivers to perform the work. There was no written contract for the driving work just a verbal agreement based on an hourly rate. They were told basically what to do from day to day. The excavation ran from approximately 22 May 2001 and the bulk of excavation was completed on 20 July 2001.
31. None of the truck drivers who contracted to do the work provided Mr O'Keeffe with a work method statement as to how they would perform the work on site nor did Mr O'Keeffe provide them with a written work method as to how they should perform their work. He did provide them with guidance as to how they were to perform their work and this occurred at the morning meetings. The drivers would stand around and discuss the work to be carried out for the day and in that discussion if there were new drivers present Mr O'Keeffe would indicate where the amenities were placed. They would be instructed to drive slowly along the driveway, to give way to pedestrian traffic and any neighbours in the vicinity and to take it steady as there was no rush and they were on an hourly rate. It was not a job where a large amount of material had to be moved in a short period of time and Mr O'Keeffe operated his sites by maintaining a nice flow of vehicles entering and leaving the site and he reinforced every day that the drivers were to take is steady. The meetings were held daily because basically the site was changing daily. During the period up to 30 June 2001, while the excavation work was being carried out, Mr O'Keeffe had no cause to reprimand or counsel a driver about unsafe driving in entering or leaving the site. No pedestrian or resident complained to Mr O'Keeffe about the manner of trucks entering and leaving the site.
32. A site meeting was held on 30 June 2001. At this meeting Mr O'Keeffe recalled saying "take it easy, no rush" as it was a more casual day and the normal routine was to keep a steady pace.
33. When the driveway was cleared of vegetation and bushes to allow access to the site and improve vision of the roadway, Mr O'Keeffe did not touch any of the trees in the neighbouring properties which were near the boundaries. There was a large tree which overhung the fence which remained and there were other trees like that. There were some trees removed for a neighbour prior to work beginning and that was done at the neighbour's request and prior to excavation.
34. In cross-examination Mr O'Keeffe accepted that the instructions he gave to the truck drivers during the excavation work was to take it easy, go slowly down the driveway, give way to pedestrians and all traffic and wait for a break in the traffic from the north on Mona Vale Road and then to proceed: that was what was said in relation to a traffic management plan. He did not tell that to Inspector Jorgensen because he answered questions about the traffic management plan thinking that it was a reference to a written traffic management plan similar to the one supplied by Mr Hewitt. Mr O'Keeffe said that he had not previously had a traffic management plan for demolition work he performed.
35. In relation to the morning meetings Mr O'Keeffe said that he was relying on his memory and that there were discussions about the work every day and he had given evidence of the substance of what he said. He may not have repeated every single word but generally he would have told them to take it steady because the site was changing every day. He would generally say "start work, take it easy" and then talk about the particular work for that day and follow it by telling them not to forget to give way to pedestrians and traffic and to wait for a break in the traffic. That would not be repeated every day with exactly the same words because there was a meeting every morning but if there was a new driver on the site it would be repeated. It would be said between three to five times a week. He did not repeat this warning because he had observed drivers not giving way or not driving steadily or speeding: most of the drivers had been hand picked although Mr French had not been hand picked. Mr O'Keeffe said he repeated this advice because as a builder he had to be careful and he literally had control every day of everything the drivers and the excavators did. He had not heard, however, about incidents on the road in relation to trucks entering the site. He was able to see the trucks moving from the site and into the site, especially after the trees had been cleared, and he made it his business from time to time to observe the truck movements.
36. The drivers had not been told to bring their truck to a stop before entering on to the footpath at the end of the driveway. Later a stop sign directing drivers to stop before they left the site was installed and that followed the improvement notice issued by Inspector Jorgensen. The signs and the use of a person controlling traffic at the end of the driveway were steps that could have been taken prior to 30 June 2001. Mr O'Keeffe assumed that his obligations as a builder related to work on the site and that on the road, traffic rules applied. He did not think he had any responsibility to control the truck drivers once they left the site and came onto the footpath nor did he have control of the truck drivers prior to them crossing the footpath and coming onto the site.
37. In conducting his risk assessment, Mr O'Keeffe stated that he was able to stand on the edge of the site and look in both directions to ensure there was clear vision for any vehicle. He therefore took into account the level of visibility, the shape of the driveway, the grade of the driveway and concluded that it was safe. Mr O'Keeffe had thought about the nature of the busy road but from his experience with roads just as busy he could not see any particular risk in the use of trucks with trailers turning in and turning out of the driveway at this particular site.
38. In relation to the measures recommended by Mr Hewitt, those steps were taken and Mr O'Keeffe said it was unnecessary to apply to any Authority to obtain permission to take those steps. Mr O'Keeffe also adopted Mr Hewitt's suggestions about repairing the footpath and barricading the repaired area for pedestrians. That work had been undertaken without seeking approval from any Authority for erection of the barricades.
39. Mr O'Keeffe had given consideration to whether a pedestrian would be able to see the towing bar between the truck and the trailer: he concluded that an ordinary sighted person could not help but see the towing bar. Mr O'Keeffe was not sure whether he had considered this matter prior to 30 June 2001 but he had considered it in relation to the whole matter. In a similar way, he had considered putting a sign at the bottom of the driveway to warn pedestrians about trucks and trailers coming in and out of the driveway but, having considered the risk, he did not think it was necessary and instead of putting up a sign he relied on people's capacity to look out for themselves. He had also told drivers to give way to pedestrians. Mr O'Keeffe was aware there was a bus stop and schools in the vicinity of the site.
40. On the application of the defendants, the case was adjourned to enable evidence to be given by Detective Andrew Spark, a police officer attached to the Coroner's Support Section who had investigated the death of Mrs Welch. Detective Spark's report described the circumstances on the day of the accident noting that weather at the time of the accident was fine and dry and visibility was clear. The report noted that the accident had been investigated by Senior Constable Boyd of Ku-ring-gai Highway Patrol, Constable Brown of Hornsby Command with Detective Senior Constable Neilson present. Senior Constable Lee, a police vehicle examiner, and road and traffic vehicle inspector had examined the truck and trailer, finding that both were in good working order and in roadworthy condition. Crash investigation squad officers Senior Constable Kraefft and Senior Constable Sandridge attended the scene at the time of the accident, took a number of photographs and measurements at the scene and expressed their opinion that Mrs Welch was at fault.
41. A number of issues were specifically considered by Detective Spark. It was noted that the driveway of the worksite was difficult to see by persons southbound on the footpath and vehicles on the main road, but it was the responsibility of any vehicular traffic upon the driveway to give way to both. There was no evidence indicating that the truck involved in this accident did not give way to pedestrian or vehicular traffic. An independent witness driving a truck along the pathway to the building site had seen Mrs Welch waiting on the footpath on the right side of the stationery truck and trailer whilst it awaited entry on to Mona Vale Road. There was nothing about the manner of driving by Mr French that contributed to this accident.
42. It was noted that a Traffic Management Plan was not in place for the development and that the Land and Environment Court had approved the development and conditions relating to it. It was further noted that, generally, Traffic Management Plans were only stipulated by Council or the Land and Environment Court for demolition sites. The Council had lost jurisdictional responsibility for the site once the matter was dealt with by the Land and Environment Court. Traffic Management Plans were only considered a standard condition at the time of building demolition and no such plan had ever been associated with a SEPP 5 construction site. The incident had not been the subject of a full WorkCover investigation as it was thought that this matter did not fall within its jurisdiction. An inspector attending a nearby site in July 2001 indicated that barricades and safety observers would not have been required at the building site in order to discharge the employer's occupational health and safety obligations. The jurisdiction had been limited to the "employer's place of work" and, as this incident occurred upon the footpath away from the worksite boundary, the Authority did not have any jurisdiction. The Detective also had access to a brief report from a senior project officer within the occupational health and safety liaison unit, and a report from the General Manager of WorkCover pointing out the jurisdictional limitations upon the Authority and the fact that this incident did not occur at the builder's place of work.
43. The Detective had further regard to medical information concerning Mrs Welch's condition supplied by Dr Bors and the doctor's opinion as to the cause of the accident. Having considered these matters the Detective stated that this particular pedestrian fatality was unique due to the medical condition suffered by Mrs Welch. While a number of recommendations could be put forward to reduce or minimise a similar occurrence, he was of the opinion that none would have actually prevented this accident. Mention was made of Traffic Management Plans, with Council and police involvement being considered mandatory for construction sites as well as demolition sites, incorporating flagmen or gates at the site and warning signs for approaching vehicles and pedestrians. There was also consideration of high visibility skirts/flags slung between the vehicle and trailer thus "disturbing" the vision of the clear space between the trailer, and the articulated heavy vehicle. Having considered those matters, the Detective expressed the view that the only option to prevent this particular accident occurring would be to physically erect solid boom gates capable of blocking the footpath when vehicles were entering or leaving the site. This would be in most cases "inconceivable", but was at least an option in any Traffic Management Plan guidelines for areas considered a risk for pedestrians.
44. There was considerable debate about the admissibility of this evidence and to its weight and cogency if admitted. After detailed debate, the Court determined that the Detective's background and training qualified him to express opinions in relation to the cause and prevention of traffic accidents although the weight of such opinions may well be an issue in proceedings under the Occupational Health and Safety Act.
45. Detective Spark's opinion was influenced by the fact of Mrs Welch's medical condition affecting her left eye, the fact that she was aware of the presence of the truck and that there was an eye witness who saw her step off after the truck had commenced to pull onto Mona Vale Road. The Detective had assessed these matters but as an investigator he had never undertaken a course of study in relation to risk management or risk identification arising in connection with a worksite. Using his knowledge and experience as a collision investigator, the Detective could not find any physical fact that told him how this collision occurred without reading statements and speaking to other people.
46. In cross-examination, Detective Spark accepted that one method which could have been adopted to prevent this accident would have been the erection of a solid boom gate capable of blocking the footpath. He also accepted that a flagman positioned at the bottom of the driveway to halt a truck until such time as a pedestrian had passed the exit would also have prevented this particular accident. A flagman would not only have to stop the truck for pedestrians, but also for other vehicles. There may also be a need for more than one flagman. The Detective accepted that the use of one flagman with a Stop/Slow sign or some other sign warning of the approach of the truck would have been an improvement in the circumstances. Anything was better than nothing and it would have helped minimise the risks. The Detective noted the difficulty of trucks being able to secure a break in the traffic to enter the carriageway and that, mostly, they simply made their bulk visible by slowly moving into the inside lane with the traffic moving into the other lanes to allow that to occur. A truck stopped by a flagman at the end of the driveway and before the pathway could still be obscured from the traffic and the flagman would have to take the extra step of warning or stopping the traffic, to allow the truck enter Mona Vale Road. Once pedestrians had passed, there was nothing to prevent the truck from stopping at the edge of the gutter and then pulling into the lane of traffic as they appeared to have done during the course of the operation at the construction site. The Council had a policy of requiring a Traffic Management Plan for demolition. It might have been inconsistent not to apply the same to heavy loads coming in and out of a construction site - that is why the Detective offered the suggestion of a solid barricade on the footpath. Where there were pedestrians coming from both sides of the footpath, there might need to be two or three Stop/Go men at the entrance to the building site.

Deliberation

1. Following oral submissions, the parties filed written submissions relating to evidentiary matters and also to address recent decisions delivered by Full Benches of the Commission in Court Session. Unfortunately, this process took longer than anticipated and the finalisation of this matter has consequently been affected.

The tendency evidence debate

1. The prosecutor called evidence from a number of people who had driven along Mona Vale Road near the defendant's building site and who had observed or had themselves taken evasive action because of the movement of trucks and trucks with trailers from the centre or middle lanes of Mona Vale Road into the site. I am satisfied on the evidence that these trucks, not identified by reference to registration numbers, were attending the defendant's site. At an early stage, the defendant however challenged the admissibility of this evidence having regard to the particulars of the charges. Initially, the prosecutor classified this evidence as tendency evidence admissible under the Evidence Act and then developed an alternative bases upon which the evidence might be admitted. Although pressing for the admission of this evidence under the tendency provisions of the Evidence Act, the prosecutor also accepted that the observations of the way in which the trucks entered and left the site, with the necessity for trucks entering to swing in an arc from the middle or outside lane across lanes of traffic into the site, parking on the median strip and crossing the line of oncoming traffic to enter the site was admissible as evidence of the system of work adopted by the defendant at this site. I accept that submission which did not seem to be seriously challenged by the defendants. The evidence of Mr O'Keeffe acknowledged that he had spoken to the drivers about safe exit from and safe entry to the site so as to give way to vehicular and pedestrian traffic.
2. The defendant urged that a starting point for this consideration had to be the terms of the charges: the company had been charged with a failure to ensure the health, safety and welfare of persons not in its employment in that, on 30 June 2001 at 277-277A Mona Vale St Ives, it failed to ensure that persons not in its employment, and, in particular, Mrs Welch were not exposed to risks as to their health and safety arising from the conduct of the defendant's undertaking, namely, building and construction while in and about the said premises, with the particulars referring to the conduct of the defendant's undertaking in relation to the movement of trucks and heavy vehicles "in and about, and to and from the defendant's place of work". It was alleged that there was a failure to adequately identify, assess and control risks and hazards in relation to the movement of trucks and heavy vehicles in and about and to and from the defendant's place of work; a failure to ensure that trucks and heavy vehicles entering and leaving the defendant's place of work adopted procedures which would minimise harm to pedestrians and other users of the footpath and carriageway in the vicinity of the subject property; a failure to provide and maintain means of access and egress from the subject property which was safe and without risk to health and safety to persons not in the employ of the defendants; a failure to provide and maintain a safe system of work in relation to the movement of heavy trucks in and about and to and from the subject property; and a failure to provide any or any adequate instructions regarding the safe movement of heavy vehicles in and about and to and from the subject property. In relation to Mr O'Keeffe in his position as a director of the company, it was alleged that the company failed to ensure that persons not in the company's employment, namely Mrs Welch, were not exposed to risk of injury arising from the conduct of the company's undertaking in relation to the safe movement of trucks in and about and to and from the company's workplace situated at and known as 277-277A Mona Vale Road St Ives. The particulars alleged a failure to ensure that persons not in the company's employment were not exposed to risks to their health and safety arising from the conduct of the employer's undertaking in relation to the movement of trucks and heavy vehicles in and about and to and from the company's place of work; a failure to identify, assess and control risks and hazards in relation to the movement of trucks and heavy vehicles in and about and to and from the company's workplace; a failure to ensure that trucks and heavy vehicles entering and leaving the company's place of work adopted procedures and did so in a manner which would minimise harm to pedestrians and other users of the footpath and carriageway in the vicinity of the subject property; a failure to provide and maintain a means of access to and egress from the subject property that was safe and without risk to the health and safety of persons not in the employ of the company; a failure to provide and maintain a safe system of work in relation to the movement of trucks and heavy vehicles in and about and to and from the subject property; and a failure to provide any adequate instructions regarding the safe movement of heavy vehicles in and about and to and from the subject property.
3. The prosecutor's submission was that the evidence of trucks entering and leaving the site and the traffic problems created by this movement was admissible and that was its primary position: the prosecution pressed the evidence as tendency evidence only in the alternative to the primary submission that the evidence was otherwise admissible. This evidence was admissible to prove the system that the defendant company had in place to deal with the risk to health and safety consequent upon the movement of trucks in and about and to and from the site on the date of the offence. It was similar to the evidence given by Mr O'Keeffe (including in his statements) concerning the systems that he and the company had in place to address the risk to health and safety arising from the movement of trucks in to and out of the site.
4. Significantly, the prosecutor submitted that, if the evidence was admitted to prove the defendant's system, it was accepted that the evidence admitted on that basis was not available to prove that the defendant had a particular tendency. However, if the evidence was admitted for the purpose of proving the system of work, then the prosecution did not press the tender of the evidence as tendency evidence. As previously indicated, in argument, the defendant accepted that this evidence was admissible in proving the system of work here under consideration, a basis that the Court was willing to accept at an early point in the argument. I also accept the prosecutor's submission that evidence of the company's system on dates leading up to the date of the accident involving Mrs Welch is relevant and admissible to prove an ongoing system of work, and in particular, where the evidence demonstrated that the system did not change over the days and weeks prior to the accident. It was pointed out by the prosecutor that a number of the incidents of which evidence was given happened just days prior to the accident. Similarly, the use of the median strip and Mr O'Keeffe's compliance in and support of that system until directed otherwise by the Roads and Traffic Authority, was evidence of an unsafe system of access to the building site.
5. The evidence given by Mr Simmonds based on his experience in the building and construction industry was relevant in proving the existence of an alternative system of work, namely, the use of traffic controllers as a means of addressing the risks associated with the heavy vehicle movement into and out of building sites. It was also relevant to any defence based upon practicability.

What was the defendant's place of work?

1. Section 16(1) of the 1983 Act requires, relevantly, that an employer shall ensure that persons not in their employment are not exposed to risk to their health and safety arising from the conduct of his undertaking while they are at his place of work. The defendant's primary case is that this accident involving Mrs Welch took place on the footpath outside the building site and therefore did not occur at the defendant's "place of work". This approach, built on the earlier submission which was rejected by the Court, that the way in which the charge was framed and particularised raised an offence unknown to the law: this arose because of a lack of precision in the particulars, which made it impossible to determine at which point the trucks used on this construction site were to be considered as part of the defendant's place of work and that the offence could literally extend to the driving of these trucks in ordinary traffic many miles from the building site.
2. The defendant's case seems to rest heavily on the assertion that the particulars of the s16 (1) contravention by the company and that alleged against the company director Mr O'Keeffe were not identical. In taking this approach the defendant focused upon the primary allegation in the charge rather than the particulars. In relation to Mr O'Keeffe, the allegation is that Mrs Welch was exposed to risks in relation to the safe movement of trucks "in and about and to and from" the company's property while, in relation to the company, the charge was framed in relation to the conduct of the defendant's undertaking, namely, building and construction "whilst in or about the said premises". The essence of the charge in the particulars has been earlier set out and it is clear that, on a consideration of all of the particulars in both cases, the prosecutor has alleged an offence arising from the movement of trucks in or about the premises as well as to and from the company's property. When considered in this way, there appears to be no material difference between the charges.
3. The defendant makes two further submissions. Firstly, the proper construction of s 16 is assisted by the provisions of s 17 which seem to treat the place of work as being different to, and additional to, egress from and access to the place of work. Secondly, this charge was limited to events occurring on 30 June 2001 and there was no evidence of heavy vehicles leaving the site unsafely on 30 June 2001. There was no evidence of pedestrians on the footpath prior to 30 June 2001, and the car accidents and near misses were not evidence of foreseeability of a pedestrian accident.
4. It was submitted for the defendants that Mr O'Keeffe and the company had no control over the driver when they left the building site even though it was accepted that the drivers were told where to dump excavated soil and that there was control to that extent. The defendants did not control the trucks and the drivers while they were on the footpath outside the site or on the roadway. It was relevant that the police investigation did not culpably implicate the driver Mr French and had concluded that Mrs Welch was responsible for the accident. This finding should be given weight by the Court in concluding how the accident occurred.
5. It was also relevant that there was no Traffic Management Plan required by the Council as part of the approval process for the development nor was there any such requirement imposed by the Land and Environment Court after the successful appeal permitting the development to proceed. It was clearly industry practice in this municipality for Council not to require a Traffic Management Plan.
6. Other matters were pointed to by the defendant as indicating difficulties for the prosecution case. Mr French, the driver of the vehicle involved in the accident, was the direct employee of Hancock Excavations Pty Ltd, as were a number of other drivers. The prosecutor had therefore commenced this case against the wrong defendant. It was Hancock Excavations Pty Ltd that had the control of the drivers and the way in which they performed their work. The evidence raised the possibility that trucks with trailers connected by a long linking mechanism might not be readily observable and therefore unsafe but this was not part of the charge. Such a charge in any event probably required defendants other than the present defendants. Lastly, there was a question as to why Mr French did not stop and give way to Mrs Welch instead of proceeding to the gutter. This was the system of work and the truck drivers were meant to give way to pedestrians. This was not a matter however that could be raised against the defendants but related to the control exercised by Mr French's employer, Hancock Excavations Pty Ltd.
7. In considering the matters raised by the defendant, they may be appropriately tested against the evidence establishing the system of work in operation at the building site. That evidence demonstrates the following: (a) it was Mr O'Keeffe who discussed with the drivers the possibility of parking on the median strip to obtain entry to the site to avoid delays and difficulties with the traffic. Mr O'Keeffe appears to have acquiesced in the views expressed by the drivers and, in his position as site supervisor, agreed to that approach; (b) it was Mr O'Keeffe, as site manager, who later informed the drivers not to park on the median strip after he had been spoken to by the Roads and Traffic Authority. He clearly gave a direction to the drivers as to the means by which they came on to the site even though he did so by giving effect to what had been required by the Roads and Traffic Authority; (c) it was Mr O'Keeffe who told the drivers to move their trucks that were parked in the street when he received complaints from neighbours; (d) it was Mr O'Keeffe who told the drivers to park in a back street and to come to the site one or two at a time in accordance with a radio call made from the site; (e) in his almost daily discussions with the drivers Mr O'Keeffe instructed them how the work was to proceed, how to enter the site, where to park and where to take the excavated soil and materials. The drivers were told to enter the site by using a break in the traffic and were told to give way to pedestrians, neighbours or any other vehicle. The drivers were told by Mr O'Keeffe to drive safely and to drive as they would do on any road; (f) the truck drivers' evidence was that Mr O'Keeffe was in charge of the site and in charge of the job. It is clear from the evidence that they followed his directions, including the manner in which they left the site and joined the traffic in Mona Vale Road and the way they left Mona Vale Road to enter the driveway to the site; (g) the method of work ensuring that the trucks entered and left the site safely was conveyed by verbal instruction given by Mr O'Keeffe virtually on a daily basis according to his own evidence. Part of the induction training given by Mr O'Keeffe was that drivers were to enter and leave the site safely. Although he did not spell out what was meant by "safely", the drivers knew what was expected of them; (h) Mr O'Keeffe had performed a risk assessment for the whole site including what was the work to be performed by the trucks and how it was to be performed. He turned is mind to possible risks to pedestrians but he did not think they were at any more risk than from vehicles on the road. He took into account the fact that drivers had been told to enter and leave the site safely. Mr O'Keeffe had formed the view that trucks without trailers presented no less a risk to pedestrians than trucks with trailers; (i) Mr O'Keeffe said that there was no formal Traffic Management Plan other than the verbal instructions he had given to people on the site. (j) Mr O'Keeffe's role was to do all the work for the company and at this site he was acting as supervisor. In his role as director of the company, he had assessed the site as part of his planning with regard to occupational health and safety. He assessed the risk to safety of persons using the footpath and decided to clear the entrance to the site to make it more visible to vehicles entering and leaving and to make the site entrance more visible to pedestrians. (k) In his assessment of the site, Mr O'Keeffe had considered using a person at the entrance to control vehicles, trucks and pedestrians but there was no requirement under the development application for a Traffic Control Plan. He had used a STOP/GO man when concrete pours were required on the site, but only because the trucks were reversing into the site from Mona Vale Road. He accepted that the risk assessment he performed included consideration of how to get the trucks on and off the site.
8. Having regard to this evidence, it is clear that it was part of the defendant's case that there was a Traffic Management Plan in operation at the site albeit one that was delivered orally and did not exist in a written form. Mr O'Keeffe had given consideration to the nature of the site, the access to the site via the narrow driveway, the clearing shrubs and bushes to give better sight to the trucks and the pedestrians and had, on his own evidence, continually instructed the drivers to drive safely and to give way to pedestrians and other vehicles. In light of that evidence, I find as a fact that Mr O'Keeffe, as the site supervisor and the person in control of the site for the development company, exercised control over the manner in which the trucks entered and left the site, including the manner in which the trucks used the road in turning into the driveway and in turning out of the driveway and joining the traffic in Mona Vale Road. In this way, Mr O'Keeffe was directing the drivers as to the manner in which they drove their trucks in the immediate area outside the driveway and limited to the manner in which they drove over the footpath and gutter and the distance necessary to turn safely, having regard to their load and/or their trailer from the carriageway into the site or from the site into the carriageway. I do not find any ambiguity about these instructions nor the charge which is based upon them. While the instructions and the charges do not specify in metres or kilometres where the directions conclude, it is obvious from the evidence that the drivers accepted Mr O'Keeffe's authority in relation to the manner in which they entered and left the site, and the evidence demonstrates that was a relatively short distance on either side of the entrance to the site.
9. Having regard to the particulars and the evidence called in support of the prosecution case, I accept that the charges are not limited to the circumstances surrounding the death of Mrs Welch and that it is proper to approach this charge by having regard to persons not in the employ of the defendant, including those persons who were pedestrians using the footpath outside the site as well as those persons using the carriageway in the near vicinity of the site, and who were directly affected by the defendant's undertaking.
10. In the light of these findings of fact, it is then appropriate to consider the state of the authorities on that part of s 16 dealing with the "place of work". The first comprehensive review of this part of s 16 was undertaken by Peterson J in Inspector Page v Woolworths Ltd (unreported, [1994] NSWIRComm 95, 9 September 1994). In giving a broad field of operation to the words "the place of work" Peterson J adopted the approach taken by Fisher CJ in Inspector Clarke v W L Meinhardt & Partners Pty Ltd (unreported, 30 June 1992, No 1213 of 1990) that the place of work "includes every area which may be affected by the work being done". In that case Fisher CJ was dealing with the collapse of the facade of a building on to Hunter Street Sydney which had been left after demolition of the remainder of the building had taken place. The President considered that the employer's conduct of his undertaking, included the design of the facade retention structures, the safe retention of the facade and the residual maintenance and inspection of it. The place of work included every area which might have been affected by the work being done which included, in this case, the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding upon which the facade collapsed.
11. Peterson J referred to a decision of similar effect given by the Chief Industrial Magistrate in Mulder v Claude Neon Pty Ltd (unreported, CIM - 12 July 1991) in which wheeled scaffolding was being relocated on the roof of a city building and had capsized striking the brick parapet of the building and toppling to the road below narrowly missing pedestrians. The Chief Industrial Magistrate held that the street into which the scaffolding fell was not so discrete from the 15th level, the place where the work was actually being performed, to take the street outside the wide definition of "place of work" defined in s 4 of the Act. Bearing in mind these decisions, Peterson J concluded: Whilst 'place of work' is defined in s 4 to mean 'premises where persons work' I consider, taking the same approach in the two authorities to which I have referred, with which I would agree, that the Woolworths' place of work for the purposes of this matter includes not only the shop trading floor in which Woolworths was retailing plants but the immediate environs which may have been affected by the conduct of that business. On this approach it would include the retail trading area directly occupied by Woolworths and the area at the rear of the store which the evidence clearly establishes was accessible, not so easily from the Woolworths side, but quite readily from the Best and Less trading area. A child, or for that matter an adult, in the latter area had ready access to the Woolworths storage area at the rear of the store and whilst in that area would have had exposure to the potential falling of the freestanding column (shadecloth attached), which was abutting the rear section of palm trees and at least the adjacent column at the rear of the Best and Less area. That persons having access to the area might gain it through either the Best and Less or Grace Bros trading areas is to my mind immaterial. Woolworths should have seen that persons, particularly children, could gain access thereto and be, as a consequence, endangered by the same installation which fell upon the deceased child. It would also include that part of the Best and Less trading area which was within reach of the columns dividing that area and Woolworths trading floor. The columns were erected by Woolworths employees using Woolworths shadingcloth for the purposes of delineating or separating Woolworths' selling area and stock from first Grace Bros, later Best and Less. It would be absurd that the duty to protect from risk would operate only in relation to the columns falling towards, rather than away from, Woolworths' selling area. The unstable columns, together with the shadecloth, were abutted by plants stacked on the floor and on wooden pallets. The plants were replenished from time to time and of course, were available for sale. The activity related to replenishment and also selection of stock to my mind quite readily lends itself to the possibility that a column, either directly or per medium of the shadecloth, could have fallen into the Best and Less selling area. [pp 18-19]
12. It is to be noted that, in the context of the issues raised by the defendants about the lack of precision of the particulars referring to heavy trucks operating in "the vicinity" of the worksite, that Peterson J was prepared to contemplate the place of work extending to the "immediate environs". In Mainbrace Constructions Pty Ltd v WorkCover Authority (Inspector Charles) [2000] 102 IR 84, the Full Bench referred, with approval, to the judgment of Fisher CJ in Meinhardt and the decision of Peterson J in Inspector Page v Woolworths Ltd . The Full Bench noted that, while each case depended on its own facts, it was considered that a broad construction of the term "place of work" in s 16(1) was appropriate in that case consistently with the approach of Fisher CJ and Peterson J. In Mainbrace , there was a fall involving employees using a ceiling space in circumstances where there was no work being done or proposed to be done under any contractual arrangement involving that space: Kavanagh J at first instance had found the ceiling space to be a means of access to a work area. Both before her Honour and on appeal, it was contended that the employer's "place of work" in s 16(1) was not capable of including a reference to the means of access to the place of work. In rejecting this submission, the Full Bench stated at [57]: Given the basis on which we have found that the ceiling space, including the trafficable suspended ceiling, was a place of work, we do not consider in this case the distinction can or should be made between a "place of work" and "a means of access to or egress from" designated construction areas. The trafficable ceiling was an integral part of the appellant's place of work for the purposes of s 16(1). It was 'affected by the work being done' by the appellant and within 'the immediate environs' of the conduct of the appellant's undertaking. The fact that it may also have been a walkway used by persons to gain access to a point at which they performed work in the ceiling space does not change its character from being part of the place of work. In the same way as Fisher CJ regarded the external scaffolding above the hoarding as part of the place of work in Inspector Clarke v Meinhardt, we regard the trafficable ceiling as part of the place of work the subject of these proceedings .
13. In the following paragraph, the Full Bench stated that the adoption of a narrow approach to the words "place of work" in s 16(1), so as not to include "means of access to or egress from", would result in relieving an employer of any liability which would otherwise exist under the section if it could be shown that the subject persons at the material times were using a means of access to or egress from a location where they performed work. Further, if that place of work could not be said to be under the control of the employer then s 17 of the Act would also have no application. Section 15 would have no application because that section only dealt with the obligation of employers to their own employees - no other section in the statute would have application. The consequence of adopting the appellant's construction would be to create a significant loophole in the legislation which the Full Bench could not justify. With respect, I adopt that approach in the present matter.
14. By stating that in interpreting the obligations under s 16 the Court was obliged to take into account the purposes of the legislation, the Full Bench quoted with approval the judgment of Hungerford J in Kirkby v A & M Hanson Pty Ltd (1994) 55 IR 40. In that judgment, Hungerford J dealing with the proper construction of s 16 referred to 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 the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistent 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. Further his Honour referred to the judgment of Isaacs J 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 and the Act will reasonably permit.
15. The meaning of the words "employer's place of work" in s 16(1) of the 1983 Act has more recently been considered by Walton J, Vice-President in Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm 87. That case dealt with charges arising out of a fatal accident involving two articulated lorries on the Pacific Highway and raised the risks of fatigue in the long haul trucking industry. His Honour was able to clearly find that the company was an "employer" and that the articulated lorry was a "place of work" as defined in s 4, and then turned to the question as to whether the relevant exposure to risk occurred at the employer's place of work. At [302], his Honour referred to some of the cases that have dealt with the words "employer's place of work", noting that they had rejected a narrow construction of those words. In this case, the defendant submitted that the 'employer's place of work" should be limited so as to encompass only the central or general office or depot of the defendant and should not be extended to include construction sites or locations of field work where employees worked from time to time. His Honour noted that the decisions made it clear that the "employer's place of work" was not necessarily intended to be confined to a geographically fixed or central office location and he therefore rejected the defendant's submissions that the company's place of work should be limited to its depot. After referring to the judgment of Fisher P in Inspector Hardman v Allied Construction Pty Ltd (unreported, 21 December 1990), his Honour accepted that it was not necessary for the employer to "own" the premises where the work was performed. In Allied Constructions, Fisher P had rejected a submission that the building site was not the defendant's "place of work" because the defendant as head contractor did not have a proprietary interest in the land, saying, at page 7: I do not accept that by the language of the Act it is open to infer that rights analogous to an estate in land need to be found within the definition of 'premises' for the Act to have application. The emphasis of the Act seems always upon the place of work , whether the work is being done by direct employees of persons employed by others. The building site was such a place within the definition of premises in s 4 of the Act.
16. In the course of concluding that the long haul truck in that particular case was the employer's place of work, Walton J, Vice-President stated: [306] The decisions in Inspector Clarke v W L Meinhardt and Partners Pty Ltd, WorkCover Authority of NSW, (Inspector Page) v Woolworths Ltd (unreported, Peterson J, 9 September 1994) and Craig Andrew Corbett v Raymond Borg (unreported, Hungerford J, 29 March 1995) extend the meaning of 'employer's place of work' in a different direction, establishing that a place of work includes peripheral areas (such as adjacent public footpaths or roads) which may be affected by the work being done. ... [307] Again, the underlying importance of the performance of work (and the effect such performance may have on others) is clear. In the light of these decisions, which pose a clear test capable of straightforward application, and which contain obvious parallels to the present case (in that public roads or footpaths are included in the definition of 'employer's place of work' when they may be affected by work being done) I reject the defendant's submission that it is too difficult to determine, in the case of a moving lorry, where the place of work begins and ends. In any event, this mistakes the issue. The issue is not, in a conceptual sense, where the place of work begins or ends but whether the place in question was in fact the employer's place of work at the time of the accident.
17. Full Benches have now accepted that the question of whether the "employer's place of work" element in s 16(1) is made out is a question of fact notwithstanding any broad construction or provision that is appropriate. Having regard to the evidence in this case, I am satisfied that a vehicle preparing to turn into the driveway to the construction site and up until it merges into the traffic on leaving this construction site comes within the concept of the employer's place of work. This description may have more precision than a reference to the "environs" of the worksite but, as has been seen from the decided cases, a broad area such as the surrounding "environs" will not operate to take a location outside of the description "the employer's place of work". In particular, the finding of facts made in paragraph [170] permit that determination to be made in this case. Here, Mr O'Keeffe made an assessment of the risks present at the site and took into account the visibility of pedestrians to truck drivers leaving the site. He removed a number of bushes impeding drivers' vision, but it appears that, because there was no Traffic Management Plan required by the Council he formed the view that nothing more was required. Nevertheless, he then proceeded to instruct the drivers to give way to pedestrians and to vehicular traffic on Mona Vale Road as part of his instructions as to how the work was to be performed. The evidence of Detective Spark was that, from the driveway to the site, it was difficult to see persons proceedings southwards on the footpath and vehicles on the main road. This evidence demonstrates the closeness of the link between the work being performed on site and the necessity to cross the footpath to enter or leave the site so as to make that area part of the employer's place of work for the purposes of s 16(1) of the Act. The footpath outside the driveway and the roadway around it were clearly affected by the work being performed on site and were an integral part of the work site - without such access no such work could be performed on site. This finding disposes of what was described by the defendants as the critical issue in the case.

Was there a safe system of work at the site?

1. The defendants have raised a number of issues to support a finding that the method of work involving the entry to the site and the leaving of the site by large trucks and some large trucks with trailers was safe and posed no risk to pedestrians or vehicular traffic using Mona Vale Road. This approach essentially looks to the cause of the accident involving Mrs Welch and concludes that it was primarily, if not totally, due to her medical condition: she had seen the truck on the footpath and had stopped by the driver's door and had appeared to acknowledge the driver and the presence of the truck but then, after the truck had moved into the carriageway, appeared to have walked into the area between the rear of the truck and the attached trailer because her left side peripheral vision was non-existent. The defendants' approach is said to be supported by the fact that the Council did not require a Traffic Management Plan and that investigating police officers had formed the view that nothing could have prevented the accident, that the driver was not a fault and that Mrs Welch was at fault bearing in mind the views expressed by Dr Bors.
2. In assessing this submission, I am guided by the statement of Bauer J in Inspector Twynam-Perkins v Maine Lighting Pty Ltd (1995) 100 IR 248 at 257: The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as foreseeable risks in industry. This statement was cited with approval by the Full Bench in Riley v Australian Grader Hire Pty Ltd (2000) 103 IR 143 at [15] where, in relation to s 15, it was said: Section 15 of the Occupational Health and Safety Act requires employers to be diligent and pro-active to ensure the safety of employees. Those obligations are not diminished because of the error and negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing.
3. It is therefore no answer for the defendants to identify the cause of the accident as being Mrs Welch's disability. When Mr O'Keeffe was assessing the risk factors associated with the site and turned his mind to pedestrian and vehicular traffic, he had to accept that, in relation to pedestrians, it was conceivable that those passing the property would include not only the alert and active but also people who were elderly, frail and suffering from some disability, including the possibility that there could be exuberant children using the footpath who might be oblivious to the dangers presented by a large truck leaving or returning to the building site. The defendants' position cannot be advanced, because Dr Bors offered a concluded view as to how the accident happened - he was not an eye witness and his evidence in that respect is supposition, based upon what he knew of Mrs Welch's disability generally and his rather scant recollection of the remedial steps that she had adopted to cope with the disability. The view of the police officers is based partly on Dr Bors' conclusions and undoubtedly influenced by them. The police officers, however, as was their proper role, were investigating possible breaches of the motor traffic laws and had no role to play in assessing whether the Occupational Health and Safety laws had been breached. The point is that the defendants had to make provisions ensuring the safety of persons not being employees who were affected by the work being performed. That class included people such as Mrs Welch with a disability, and also those who might have been negligent in looking after their own safety. These are the matters that had to be considered by the defendants, and I am satisfied they did not do so.
4. It was then submitted by the defendants that there was no evidence that the vehicles were moving unsafely on the date of the accident, 30 June 2001, a date which limits the alleged breach. This is a curious submission. Having regard to the clear risks which existed to pedestrian and vehicular traffic of large and laden trucks entering and leaving a narrow driveway which came in at an acute angle to the road and which was partially obstructed from pedestrian and vehicular view, I am unable to accept the defendant's submission. The submission may be linked to the defendants' case that the cause of the accident was Mrs Welch's disability for which they could not be held responsible. If that is the way in which the submission is to be treated, then I have already disposed of it in earlier findings.
5. The defendants then submitted that there was no evidence of pedestrians using the footpath prior to 30 June 2001 and that car accidents were not evidence of a foreseeable pedestrian accident. The evidence of the drivers and from the neighbour Mrs McIntosh established that there were pedestrians and a number of facilities in the vicinity of the building site, including shops, schools, churches and a bus stop. Mrs McIntosh had instructed her children not to cross the driveway or play in the area without an adult or parent being present. The defendants' submission in this regard is mistaken, and on the evidence I am satisfied that prior to 30 June 2001 pedestrians used the footpath and crossed the driveway leading to the building site and used that pathway. On the date of the charge, Mrs Welch was using the footpath and the presence of pedestrians was contemplated by both the drivers and Mr O'Keeffe in their almost daily meetings, where it was emphasised that amongst other things, the trucks were to give way to pedestrians as well as vehicular traffic. It might well be accepted that car accidents or near misses on Mona Vale Road, as described in the evidence of a number of witnesses, were not evidence of a foreseeable pedestrian accident: those events, which I accept occurred, provide the evidence to make out the charge that the movement of heavy trucks to and from this site posed a foreseeable risk to not only pedestrian traffic but also vehicular traffic.
6. The defendants also appeared to rely on the practice of the local Council not to require a Traffic Management Plan for construction but to limit such a requirement to demolition. The fact that the Land and Environment Court whose orders ultimately governed the development, did not require a Traffic Management Plan was also relied upon by the defendants. Both these matters appear to have been relied upon by the defendants to justify the reasonableness of the steps taken in relation to site safety and how such a plan could not be reasonably expected of the defendants. There are elements of an argument under s 53 in these submissions. It is a difficult to know what use is to be made of this submission in light of the statutory duty to ensure the safety of persons not in the employment of the defendants.
7. There was some little evidence about the approach of the local Council to Traffic Management Plans but that evidence did not go so far as to explain the rationale for requiring a Traffic Management Plan for demolition work but not for the excavation at the same building site. Further, it is unknown whether the Council, in adopting its approach, did so having regard to matters of traffic flow and traffic safety alone and whether occupational health and safety considerations formed any part of their deliberations. Having regard to the broad obligations imposed by s 16, it seems highly unlikely, generally speaking, that an industry practice which proved to be deficient in particular circumstances could operate so as to defeat the statutory obligation as distinct from being a consideration in relation to penalty as discussed in Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales [2004] NSWIRComm 270.
8. The particulars in both charges are essentially the same. They focus on the movement of traffic in and around and to and from the building site. The evidence demonstrates that there was a risk to pedestrians and to vehicular traffic immediately outside the driveway to the building site, and I am satisfied that the defendants failed to address those risks. The defendants relied upon traffic experts, police investigations and local government practice to demonstrate that this particular accident involving Mrs Welch could not have been avoided. That evidence however did not go as far as submitted by the defendants. Improvement notices issued by the WorkCover Authority after the accident resulted in signs being erected requiring the trucks to stop at the end of the driveway, while other signs were placed on the road warning traffic that large vehicles were turning into and out of the site. Mr O'Keeffe had used a flagman at the entrance to the site when trucks involved in the pouring of concrete were required to reverse on to the site. Detective Spark, so heavily relied on by the defendants, ultimately agreed that a flagman at the end of the driveway would be able to stop trucks before they moved onto the footpath to allow pedestrians to pass. Detective Spark did think that more than one flagman might be required after a truck had proceeded on to the footpath and into the gutter before joining the traffic but that suggestion assumed the presence of pedestrians after the truck had been required to give way. Even in such an unlikely circumstance, it is difficult to see why a single flagman could not have walked in front of the truck to signal to any other pedestrians that they must not proceed further until the truck had cleared the driveway and to give a warning to any driver to stop his slowly moving vehicle if a pedestrian appeared to ignore or act contrary to that warning. In a similar way, a flagman could have controlled the entrance of a truck to the site so that pedestrians and vehicular traffic were not at risk. I am satisfied to the requisite standard that the charges as particularised against each defendant have been made out.

Section 53 defences

1. The defendants raised many of the same considerations under s 53 as they had relied on for the purposes of defending liability under the s 16 charges. Both s 53(a) and (b) were relied upon, with the defendants submitting that it was either not reasonably practicable for them to comply with the 1983 Act, or that the commission of the offence was due to causes over which they had no control and against the happening of which it was impracticable to make provisions. Counsel for the defendants accepted that they bore the onus to prove these defences although they had to meet the civil rather than the criminal standard.
2. The first submission was that there was a system of control and instruction in place that resolved any initial conflict between the truck and the pedestrian - namely Mrs Welch, stopped alongside the truck. This submission does not appear to address sub-section (a) or sub-section (b) of s 53 but seems to assert an effective system. There is no evidence that the system adopted by Mr O'Keeffe was such that Mrs Welch was obliged under that system to stop alongside the truck - the system was that the truck was meant to give way to pedestrians.
3. The next submission was that the accident on 30 June 2001 was caused by Mrs Welch and not by the driver, Mr French. Mrs Welch had walked into the area between the truck and the dog trailer because she no the field of vision in her left eye. At least two things need to be said about this submission. The first is that, properly approached, the charges as particularised are not limited to the circumstances of Mrs Welch's accident - that accident is evidence of the risk to pedestrians as particularised in each charge. Secondly, the system had to address all manner of pedestrians including those with disabilities, and had to ensure their safety. Mr O'Keeffe had used a flagman for reversing trucks, and stop signs had been installed after the accident together with warning signs for traffic up and down the road. The evidence of Mr Simmons and at least one driver as to his experiences in the industry was evidence of the use of flagman on building sites to address the risk of injury to pedestrians and the drivers on vehicles in the adjoining roads. In those circumstances the defendants are unable to establish a defence arising from this consideration.
4. The fact that no signs or controls were required by the development application, the Council or the Land and Environment Court did not mean that it was not reasonably practicable for the defendants to take those steps. The Council and the court did not make a ruling or impose a requirement that Traffic Management signs and controls were not to be used in the driveway. The evidence established that signs and controls were ultimately used and other controls could be used. Further, the evidence of the Council officer was that following complaints from drivers and pedestrians, the site was investigated but was outside the Council's jurisdiction being a main road. This submission is rejected.
5. The defendants then asserted that foreseeability of the accident was not clear. The defendants really needed to make out a case that on the evidence they had proved that the accident was not foreseeable at all and therefore they were not in a position to take any steps to prevent it. The evidence establishes that the potential for a pedestrian or vehicle accident was a matter addressed by Mr O'Keeffe, although he decided that no additional steps were required to meet that risk. The whole point of the instructions given to the drivers by Mr O'Keeffe was to avoid an accident with pedestrians of vehicular traffic. This submission is therefore rejected.
6. A briefing note by an officer of the WorkCover Occupational Health and Liaison Unit to the General Manager of the Authority in 2002 stated that it was unlikely that the Authority would have required the use of controlled measures prior to the accident as they had been imposed after the accident. The measures referred to were the use of barricades and safety observers. The defendants pointed out that the author of that note was not called as a witness to qualify his statement. The submission, however, does not raise any issue under s 53 and seems to fall into the same category as the submission made as to the local Council and the Land and Environment Court not requiring traffic control measures.
7. It was contended that a Stop/Go flagman could not have prevented this accident to Mrs Welch. The defendants rely on the evidence of Detective Spark that it would have depended on which side of the truck Mrs Welch approached and where the flagman was stationed once the truck had reached the gutter. The full effect of Detective Spark's evidence has been earlier referred to. He accepted that a flagman had a capacity, when stationed at the bottom of the drive to stop the truck from entering the footpath so as to give way to pedestrians. This evidence has a been discussed earlier: that analysis does not assist the defendants in establishing the s 53 defences.
8. It is submitted that signs limiting the speed of the trucks exiting the property would not have been effective in preventing this accident because the truck had already stopped at the gutter, was stationary and Mrs Welch had stopped alongside the truck. Signs limiting the speed of the truck were only one aspect of the controls required to ensure the safety of pedestrians and vehicles. The defendants focused upon the accident involving Mrs Welch rather than the particulars of the charge. A Stop/Go flagman was in a position to stop the truck at the bottom of the driveway and before it proceeded to the gutter as described in Mr French's evidence and to give right of way to Mrs Welch.
9. The submission was then made that signs referring to a rigid truck could not have assisted Mrs Welch nor alerted her to the presence of the dog trailer. She had already stopped alongside the truck. A sign showing a rigid truck towing a trailer may have alerted Mrs Welch to the trailer and the need to look to see whether there was one but, given her impairment, she would not have seen such a sign located to the left side of the footpath. Even so, these signs were not referred to in Mr Hewitt's report, which was specifically produced in response to the improvement notices issued to the Authority. There was possibly no relevant sign to warn of a specific type of vehicle. There are a number of assumptions and assertions in this submission and the defendants have failed to prove their defence. This submission also addressed the particular accident involving Mrs Welch rather than the charge as particularised. The submission also ignores the possibility of a sign using both symbols and words, alerting both pedestrians and vehicles to the fact that long trailers were emerging from the site or entering the site.
10. Again Detective Spark's evidence was relied in upon, namely that no recommendation he could have put forward would have actually prevented the accident to Mrs Welch. His only suggestion was to erect solid boom gates capable of blocking the footpath when vehicles were entering or leaving the site but he thought this would be inconceivable as an option. On the evidence there appears to be no reason why such a system could not have been implemented by a flagman. Detective Spark's evidence was that this was an option but it appeared to have been "inconceivable", apparently on the basis of some traffic practice. It is difficult to read his evidence as proposing a barrier of this kind, then stating that there was no way in which it could have been built - the evidence appears to be more directed to convenience rather than practicability.
11. Hancock Excavations Pty Ltd had provided the type of vehicle involved in the accident to the defendants for use at the site. It was the type of vehicle used to enter and exit other sites in a similar manner. There was no charge against the defendants about the use of this vehicle. This submission does not seem to address s 53 defences at all, bearing in mind, as pointed out by the defendants, the use of such vehicles formed no part of the charge. The use of this type of vehicle as opposed to some more appropriate vehicle has never been raised against the defendant. It is a false issue.
12. The defences relied upon have not been proved by the defendants. The defendants are found guilty of the charge as particularised against each of them.

Amendments 08 October 2020 - coversheet - corrected representation 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. Decision last updated: 08 October 2020