Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd

CATCHWORDS: Occupational health and safety prosecutions - defended hearings under s 8(2) of the Occupational Health and Safety Act 2000 - worker falls five metres from an elevated work platform while assisting in the dismantling of scaffolding - relevant risk to safety - alleged failures to ensure fall protection and to ensure the safe dismantling of scaffolding - whether risk to safety arose during the course of the defendants' respective undertakings - place of work - held offences proven - s 28 defences - held s 28 defences not made out - both defendants found guilty of offences - orders.

LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Act 1983

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 CASES CITED: Mainbrace Constructions Pty Ltd v WorkCover of New South Wales (Inspector Charles) (2000) 102 IR 84 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Ltd and Anor (2004) 135 IR 166 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 WorkCover v TRW [2001] NSWIRComm 52

HEARING DATES: 14/02/2005; 15/02/2005; 16/02/2005; 17/02/2005

Prosecutor: Mr P. Skinner, of counsel Solicitors: Carroll & O'Dea

First defendant: LEGAL REPRESENTATIVES: Mr V. R. W. Gray, of counsel Solicitors: Corporate & Civil Legal

Second defendant: Mr P. Newall, of counsel Solicitors: Hicksons

Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

Prosecution under s 8(2) of the Occupational Health and Safety Act 2000

1 The defendants, Hire N' Higher Scaffolding Pty Ltd and Lipman Pty Ltd (first and second defendants respectively) have each pleaded not guilty to one charge under s 8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 Both charges concern events that took place on 25 June 2002 at the Neeta Shopping Centre, Court Road Fairfield. Sometime shortly after 8am on that day, Harold Murdock, an employee of Pitchku Materno Pty Ltd (then known as Deno's Hire Pty Limited trading as Deno's Cranes) fell some five metres through scaffold planks. The prosecutor alleges that neither defendant at that time had provided any system of work to ensure Mr Murdock's safety and that when Mr Murdock fell he was not provided with a system for adequate fall protection. 3 The second defendant was the principal contractor at the Neeta Shopping Centre which was undergoing construction. On 19 March 2002 the first defendant submitted a quotation for the erection and dismantling of scaffolding. The quotation was accepted by the second defendant which communicated its acceptance by letter dated 21 March 2002. In that letter the second defendant requested that the first defendant provide, prior to commencing work, a hazard risk assessment and work method statement. 4 A document headed Work Method was duly provided by the first defendant. It nominated Ken Ross as the person on site responsible for supervision of the work and for safety. It identified other employees of the first defendant who would also be working on the site including the first defendant's director, Darrel John McCarron, and Shane Gordon and Wayne Mellish. The work method was set out in the document as follows:

Ensure all scaffolding work is carried out strictly in accordance with the applicable regulations in force for the area where work takes place at the time of installation.

It is our duty to work safely, to protect others, to provide a safe structure for ourselves and others to work on and to take care of our personal safety.

On completion of stages or total completion the scaffold will be covered with chainwire and shade cloth or brick guards if appropriate.

Before commencing to dismantle, scaffold is to be checked properly and tied to the building or structure, it may be necessary to put in ties before dismantling.

On dismantle all components to be lowered in a safe manner ie, roped or passed hand to hand or craned etc. No drop stripping to occur, material to be palletised and stacked in an area designated until removed from site.

When scaffolding is being erected, altered or dismantled, working signs will be used to alert others to potentially hazardous situations. These signs will comprise:

No Access: This will be displayed prominently where scaffolds are not completed or unavailable for use.

Incomplete Scaffold: This will be displayed on stop rails to keep other trades and people generally away from incomplete scaffolds or incomplete parts of scaffold.

Safety First: This can be displayed generally to create awareness of the load capacity of the scaffold. 5 Prior to the 25 June 2002, and after scaffolding had been erected along Court Road, by the first defendant, it became apparent that the scaffolding hoarding had been built too closely to the building site and had to be relocated approximately one metre closer to Court Road. This entailed shifting about eighty metres of scaffolding which spanned the length of the building facade along Court Road. To perform the task the second defendant engaged the first defendant and Deno's Cranes. No documentation was produced for the task. At that time the first defendant had been working at the site for some two months. The scaffolding as originally erected consisted of standard boards, and transoms. It sat on top of awning. Handrails had been erected on top of the awning. These handrails had been taken down in preparation for the task, and scaffold components including beams had been stacked in pallets on the scaffolding. About twenty tubes which had been tied down by girder clips to the beams (also referred to in the evidence as clamps) had also been removed to facilitate the dismantling process. The purpose of the girder clips was to prevent the beams from slipping. 6 After this preparatory work had been done, Deno's Cranes was contacted by the second defendant. Joe Maviglia, a spokesperson for Deno's Cranes allocated a Franna crane and three employees comprising the crane crew to the task. The crane crew consisted of Frank Zammit who was the crane driver, and two dogmen Harold Murdock and Jeff Vandresco. A Deno's Crane timesheet for the booking nominated the starting time on 25 June as 7am and the finish time as 10am. This document was taken to the site by the crane crew on 25 June. It was signed by Steve Ross an employee of the second defendant. According to the evidence Steve Ross was employed as a labourer by the second defendant and was not authorised to sign such documentation. 7 A safe work method statement had been generated by Deno's Cranes for the use of the crane crew on 25 June. This document was dated 9 May 2002 although the evidence suggested that it would not have been signed by the crane crew until its members had attended the site. The printed names and signatures of the three members of the crane crew appear on the document. In evidence Mr Zammit identified his signature but did not remember signing it. Mr Murdock also identified his signature on the document although it emerged in the evidence that he was unable to read. This fact was accepted by the parties during the course of the hearing. Mr Vandresco did not give evidence. 8 The safe work method statement contained the name Deno's Cranes in the top right hand corner and was headed "Neeta Shopping Centre". It listed a procedure comprising fifteen steps and identified possible hazards, controls and areas of responsibility. This work method statement on its face governed a procedure to be followed upon arrival at the site and preparatory steps which involved checking the crane and lifting equipment. The second step in the procedure required the crane crew to locate the site office, then take part in an induction. This was stated to be the responsibility of the "site manager". In his evidence Mr Maviglia confirmed that "site manager" was a reference to a supervisor at the Neeta Shopping Centre site and not to an employee of Deno's Cranes. (Two other safe work method statements were generated by Deno's Cranes for the task on 25 June but for present purposes they are not relevant to the charges before the Court). 9 The crane crew arrived at the site on 25 June at about 7am. The site supervisor on the day was Richard Quinlan, an employee of the second defendant. Mr Quinlan spoke to Mr Zammit and instructed him to wait until the scaffolders (a reference to the first defendant's employees) were there. He spoke to no other members of the crane crew. He then spoke to the scaffolders after which he returned to Mr Zammit and advised him that the crane crew could perhaps start about 9am. According to Mr Zammit when he arrived at the site someone whom he presumed was the site foreman told him to see the scaffolders who would show him what to do. He also said he was told he had arrived too early and would not be required until about 9.30am to 10.00am. After speaking to Mr Zammit Mr Quinlan then went to the opposite end of the construction site. He did not speak to Mr Zammit again. 10 At some stage during that morning Mr Ken Ross informed the dogmen that he needed a lift. In his evidence Mr Ross said that he was never introduced to the crane crew. He first spoke to Mr Murdock when they were both on the elevated platform. (This platform was some five metres above ground.) The task of the crane crew was to lift the scaffold components which had been stacked on pallets down to the ground. He gave no other instruction to the crane crew. He did not tell Mr Murdock that the tubes that had run along the length of the planking had been removed. 11 A considerable amount of evidence was given during the proceedings which focussed on the circumstances of Mr Murdock's accident. The prosecutor contended in final submissions that the platform was not secure when Mr Murdock fell. The task undertaken by the first defendant on 25 June of dismantling the scaffolding was achieved by taking out the tubes so that the beams were not tied down and could be dismantled. After the removal of the tubes the clamps were adapted to stop the beams from sliding. This meant that the structure was held together by its own weight. It was no longer stable because the tubes which had operated to tie the structure together had been removed. The evidence in support of this was given by Mr Ken Ross. He described the security of the structure in place just prior to Mr Murdock's fall as consisting of boards placed between beams which in turn were secured by clamps to other beams placed underneath to stop the top beams from sliding. In re examination Mr Ross gave some further evidence about the significance of the removed tubes and the clamps to the security of the structure which prevailed at the time of Mr Murdock's fall:

Skinner: Q. Is there some other sort of clamp that could have been used or some other method that could have been used to secure this top beam to the lower beam? A: No

Q. None at all in your experience? A. Well, no, as long as it is all tied together on top.

Q. But when those ties, the 20 foot long tubes are removed, is there some other interim measure you could have taken? A. We were pulling it down, there is no need to have it tied because you were actually pulling it down. You have undone the safety part to keep it together because you are pulling it down, you don't need that, you can't have that. You can't pull it down when its all locked together. You build it, you lock it together and you build it up; you pull it down, you reverse the role on the way up. 12 The second defendant made no submissions which specifically addressed the security of the structure upon which Mr Murdock was working before he fell. What was contended however by the second defendant was that since the precise reasons for the collapse of the scaffolding could not be determined and the accounts of the accident were contradictory it must follow that the prosecutor has not made out his case. The first defendant contended that on the evidence the decking was secured because the metal planks were placed between the RSJ beams and the RSJ beams were in turn supported by the girders underneath and held in place by the clamps. The platform failed because it was struck by the swinging load of the crane which dislodged the RSJ beam thereby causing the planks to fall. 13 According to the evidence the crane crew had lifted two loads of planks from the scaffold platform and placed them on the ground. Mr Murdock was situated on top of the planks and was directing the crane driver, Mr Zammit, by means of a whistle. Mr Murdock gave evidence that at that point in time the platform felt stable. On the third lift he said that Mr Zammit brought the jib around and lowered the chain to which he attached two sets of planks, one at each end. At that time he was standing in the centre of the platform about two metres from the edge. He then felt the planks move beneath him. He described the planks as becoming "really loose", and said it "felt like the whole frame was moving". In order to save himself he grabbed the load which he said caused it to swing. He did not remember the load coming into contact with an RSJ beam. Mr Zammit said in evidence that he did not see the load hit anything before Mr Murdock fell. Mr Zammit also said that he did not see Mr Murdock fall. He heard a noise which he said occurred when the planks hit the ground. He saw Mr Murdock hit the ground on his left side, get up and run, and then collapse shortly after. 14 Both Mr Gordon and Mr Ross gave consistent accounts of the accident that differed significantly from the accounts given by Mr Murdock and Mr Zammit. Mr Gordon and Mr Ross both said that the load was not under the jib of the crane and swung as soon as it left the platform, hitting the RSJ beam and flipping it over. Mr Murdock then fell between the planks. 15 Photographs tendered into evidence which had been taken on 25 June shortly after the accident show a steel beam lying on its side. Beside it is a scaffold clamp which appears to be attached to a support beam lying cross ways underneath. Whether the steel beam was dislodged by a misaligned load of scaffold planks or by Mr Murdock's actions in grabbing the load in an attempt to save himself from planks which became loose beneath him is an issue I do not have to decide. The precise circumstances of the accident do not have to be established by the prosecutor in order to make out the elements of the charges although the accident and any resultant injuries may form some relevant evidence of a risk to safety. In both matters this risk has been particularised as the risk of falls from heights. At the time of the accident Mr Murdock was working on top of an elevated platform at a height of some five metres. An issue that must be determined here is whether that risk arose as the result of some failure on the part of both defendants to ensure Mr Murdock's safety. I will return to this issue in more detail shortly. The relevance of evidence of how an accident occurred in the context of a charge under s 16(2) of the Occupational Health and Safety Act 1983 was the subject of comment by Walton J, Vice President in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel at 452 - 454 and WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [68].

16 Both defendants have been charged under s 8(2) of the Act. The elements of an offence under that section which the prosecutor must prove beyond reasonable doubt in order to establish the offence are as follows:

(ii) the defendant failed to ensure that persons not in its employ were not exposed to risks to their health and safety;

(iii) the risks to health and safety arose from the conduct of the defendant's undertaking;

(iv) the persons not in the defendant's employ were at its place of work.

17 The first element which the prosecutor is required to prove beyond reasonable doubt against both defendants was not put in issue during the proceedings. Mr McCarron gave evidence that at the time of the alleged offences he was a working director and managing director of the first defendant. A document entitled Statement of Facts was tendered into evidence by the first defendant. In that document the first defendant is described as an employer in the State of New South Wales working at the Neeta Shopping Centre site on 25 June 2002. Both Mr Gordon and Mr Ross gave evidence that they were employed by the first defendant on 25 June 2002 as scaffolders. Mr Ross was employed in the capacity of leading hand. Mr Quinlan gave evidence that he was employed on 25 June 2002 by the second defendant as a "leading hand carpenter" and as a "construction worker Level 5". He had been employed at that date for some ten years by the second defendant. This evidence enables me to conclude beyond reasonable doubt that as at the date of the alleged offences both defendants were employers.

18 The evidence adduced during the proceedings which I accept was that Mr Murdock was an employee of Deno's Cranes, as was Mr Zammit. The prosecutor's case against both defendants is that Mr Murdock was exposed to a risk to his health and safety. That risk was the risk of falling from the elevated platform which was some five metres above the ground. Against the first defendant the prosecutor alleges two failures to provide safe systems to ensure that Mr Murdock was not exposed to the risk of falling. These are:

(i) there was no system to ensure that Mr Murdock who was working on the scaffolding had any or any adequate fall protection; and

(ii) there was no system to ensure that scaffolding was dismantled in a manner that would not place Mr Murdock at risk of falling when the scaffolding was being dismantled.

19 There was clear evidence that Mr Murdock had no fall protection when he fell through the planks some five metres to the ground. Mr Murdock's evidence in this regard is that he didn't know whether he could have called for a safety harness or whether there was any such harness or safety gear on the site. He did not ask. Neither Mr Gordon nor Mr Ross discussed the use of a safety harness for people working on the platform. Mr Ross, who was nominated in the first defendant's Work Method document as the person responsible for supervision of the work and safety at the site agreed in evidence that Mr Murdock was not wearing a safety harness when he fell. Mr Ross was asked in evidence whether he thought Mr Murdock should have been wearing a safety harness given the prevailing circumstances at the time of the accident. He said:

Its not up to me, like, you see, nothing to do with me whatsoever. That is something between Lipman or his boss. It is nothing to do with me.

20 Mr McCarron gave evidence that following Mr Murdock's fall he, other employees of the first defendant and the employees of the second defendant jointly produced a Work Method statement for the specific task of relocating the scaffolding hoarding closer to Court Road. The document identified that task, and an attendant risk as, "accidents due to scaffold not having fall protection". A safety measure to counteract the risk was described in the document as "secure safe work system from scaffold sub-contractor that covers work". Another safety device outlined in the document to prevent falls from the scaffold was the erection of temporary decking underneath the work area. Mr McCarron explained in evidence that this device was utilised by the first and second defendants after 25 June in order to prevent a repetition of Mr Murdock's accident. No such device had been used on any sites prior to 25 June insofar as Mr McCarron was aware.

21 It is clear from this evidence that the first defendant on 25 June implemented no system to ensure Mr Murdock had fall protection while he was working on the elevated platform. It is implicit from the evidence that the first defendant did not regard Mr Murdock's safety as its responsibility. Rather, it considered that it was the responsibility of the second defendant as principal contractor. In evidence Mr McCarron was asked the following questions to which he gave the following answers:

Q: Was anything, other than the dogman relying on his own observation, done to alert him to a potential hazardous situation? A: Not to my knowledge but as far as he is - no, not to my knowledge. . . . . .

Q: As I understand your answer just now is that nothing was done to alert the dogmen to the foreseeable hazardous situation to your knowledge. The question is did you direct anyone to do something? A: My leading hand which I have full respect for should tell him whether or not you - whether you are or are not going up there or do you feel safe up there; I have full confidence in my leading hand.

22 It was Mr Ross' evidence earlier referred to that he gave no instruction to Mr Murdock concerning the necessity to have fall protection but regarded such matters as the responsibility of the second defendant.

23 The risk to Mr Murdock's safety was obvious. He was working on an elevated platform some five metres above the ground attaching loads of scaffolding planks to a moving crane. Under s 8(2) the first defendant had an obligation to ensure Mr Murdock's safety. In the context of the charge particularised against it, it had an obligation to implement a system to ensure that Mr Murdock had fall protection. It can not escape its statutory obligation by relying on the principal contractor to implement a safe system of fall protection for Mr Murdock. Mr Murdock was placed at risk of falling from the elevated platform. I therefore find that this second element has been made out by the prosecutor against the first defendant beyond reasonable doubt.

No system to ensure scaffolding was dismantled in a safe manner: first defendant

24 In relation to the second failure with which the first defendant has been charged Mr Zammit said that "the scaffolders" told him to commence work. He said:

… the scaffolders told me this is what we are to do. We are going to take the RSJs from this one by one. And do the planks first then come back and do the RSJs as well one by one. Lift them off. That was the tool box map we had.

25 Mr Gordon said he gave no directions to the crane crew in relation to the work. Both Mr Gordon and Mr Ross said they discussed between themselves about how the task of relocating the scaffold should be performed. Mr Ross described in evidence the extent of his discussion to the crane crew:

Just told the dogmen when I needed a lift. That was it. 26 Mr Ross also said that although no separate safe work method was devised for the specific task of relocating the scaffolding on 25 June, it was unnecessary because the original work method document submitted to the second defendant had adequately covered the task.

27 This evidence leads inevitably to the conclusion that the first defendant implemented no system on 25 June to ensure Mr Murdock was not at risk of falling when the scaffold was being dismantled. Whether or not the first defendant's original work method outlined in a document earlier submitted to the second defendant adequately covered safety aspects relevant to the particular task has no relevance at all to Mr Murdock's safety. Its contents were not brought to his attention. No aspect of Mr Murdock's safety was discussed by any representatives of the first defendant with Mr Murdock, and no measures of any kind were taken by the first defendant to ensure Mr Murdock could safely perform his work. As a result of this second alleged failure on the part of the first defendant I find beyond reasonable doubt that Mr Murdock was placed at risk of falling from the elevated platform.

Second element: second defendant 28 As I have found earlier in relation to the first defendant, Mr Murdock was employed by Deno's Cranes as at 25 June 2002. The prosecutor has alleged against the second defendant two failures which are in identical terms to the two failures alleged against the first defendant. As against the second defendant those failures (to provide safe systems) are particularised in the Application for Order as follows:

(i) there was no system to ensure that non-employees working on the scaffolding had any or any adequate fall protection; and

(ii) there was no system to ensure that scaffolding was dismantled in a manner that would not place non-employees at risk of falling when the scaffolding was being dismantled.

29 The evidence established that Mr Murdock had no fall protection at the time he fell from the elevated platform. As earlier stated in relation to the evidence against the first defendant, Mr Murdock's evidence was that he did not wear a safety harness; he did not know whether he could have asked for one, whether there was one on the site or some other kind of safety gear available, and, he made no enquiries.

30 When the crane crew arrived on site on 25 June Mr Quinlan was the second defendant's supervisor who had taken over the duties of the site foreman, Mr Nick Petrov on that day. He spoke to Mr Zammit and told him to wait until the scaffolders were there. He had no further conversation with any members of the crane crew and gave them no instruction or direction concerning safety measures or the implementation of any such measures. Having issued his one instruction to Mr Zammit he left that area of the construction site and did not return until after the accident. The reasons for the lack of implementation of any safety measures Mr Quinlan said were because the crane crew arrived early and the scaffolders were not ready. He intended to induct the crane crew and he intended to ask for a work method statement from the crane crew. He was not aware that the crane crew had commenced to work at the apparent request of the scaffolders. He was not aware that the task involved a dogmen (Mr Murdock) standing on an elevated platform five metres above ground. He was aware of the need of fall protection for persons working at heights. Had he been told a dogmen would be working on the elevated platform he would have considered whether fall protection was necessary. He said in evidence that the second defendant had safety harnesses on the site. Mr Quinlan was shown a photograph of the site taken on 25 June shortly after the accident. He identified a lifting iron to the right of the steel beams which he conceded, "…you could potentially use as a harness hook of some sort". Mr Quinlan according to Mr Cadby had authority on 25 June on behalf of the second defendant to authorise the crane crew to enter the site and tell them what to do. Mr Quinlan according to Mr Cadby also had the authority to prohibit Mr Murdock from working on the platform without a safety harness.

31 Although the foregoing evidence discloses a genuine intention on the part of Mr Quinlan to implement safety measures for the work to be performed by the crane crew (relevantly here in relation to fall protection) what Mr Quinlan did not do was issue an express instruction to the crane crew not to commence work until they had been inducted, and, a work method statement had been produced and discussed to see if it met all the relevant safety requirements. Simply telling the crane crew to wait there until the scaffolders arrived left open the possibility, that when the scaffolders issued the crane crew with a direction to commence work, the crane crew considered that they were authorised or had necessary permission to do so. Even if the evidence had been that Mr Quinlan had issued an instruction to the crane crew that they were not to commence work until all relevant safety measures had been discussed and implemented and the crane crew had ignored the instruction and commenced work such conduct would not necessarily exculpate the second defendant. It is well established in the field of occupational health and safety law that an employer's duty to ensure safety extends to the hasty, careless, inadequate, inattentive, unreasonable or disobedient employee or worker: see for example Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; WorkCover v TRW [2001] NSWIRComm 52 at [13] - [14]; WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Ltd and Anor (2004) 135 IR 166 at [161].

32 I find therefore in relation to this alleged failure against the second defendant that the requisite causal nexus between the alleged failure and the risk to Mr Murdock's safety has been established beyond reasonable doubt.

No system to ensure the safe dismantling of scaffolding: second defendant 33 An analysis of the evidence in relation to the second failure alleged against the second defendant reveals that the second defendant had in place a system to ensure the safety of all contractors on the site. That system included a requirement imposed on all contractors entering the site to produce a safe work method statement. The purpose of the requirement Mr Cadby said was so that the second defendant could make any adjustments and improvements to the work method proposed. The evidence disclosed that the first defendant provided such a document as did Deno's Cranes. In relation to this latter document no employee of the second defendant asked for it to be produced. As adverted to earlier in relation to the evidence against the second defendant concerning its failure to provide fall protection, the safe work method statement generated by Deno's Cranes for the site was not produced to Mr Quinlan although he had intended before the crane crew commenced work to ask for it. 34 Another aspect of the second defendant's system developed to ensure the safety of contractors working at the site was a practice of inducting all contractors. The induction involved discussion on how to perform the particular task. During an induction workers were required to provide evidence of their qualifications and employer details. Mr Cadby explained in his evidence that the second defendant had a standard form which was to be completed by each worker during induction. The workers were also questioned about their company's particular work method statement and whether they had such a statement or been involved in its creation. After induction a worker was given the two back pages of the standard form and the second defendant retained the first page. The front pages of the two standard induction forms were tendered into evidence to confirm that following Mr Murdock's accident the two remaining employees from Deno's Crane's, Mr Zammit and Mr Vandresco were inducted by the second defendant. Both forms contain details of each respective employee, including their relevant qualifications.

35 Despite the existence of this system in force at the time of Mr Murdock's fall, Mr Murdock was neither inducted nor asked about a safe work method statement. Had he been it is likely, for example, that it would have come to Mr Quinlan's attention that Mr Murdock was unable to read. More significantly, safety measures would no doubt have been discussed with him and devised to ensure he could safely perform his work on the elevated platform. Again it is no answer for the reasons earlier expressed in relation to the second defendant's failure to provide fall protection to claim that it was unable to implement its system in favour of Mr Murdock because the crane crew had commenced work before Mr Quinlan had had the opportunity to do so. 36 I find beyond reasonable doubt that the second defendant provided Mr Murdock with no system to ensure that the scaffolding was safely dismantled, and, that as a result of that failure Mr Murdock's safety was placed at risk, in that he was placed at risk of falling during the dismantling process.

37 In relation to the third element of the charge alleged against the first defendant, it has put in issue that the risk to Mr Murdock's safety arose during the course of its undertaking. In final submissions the first defendant described its undertaking as an engagement to provide labour to relocate scaffolding. Since its undertaking was confined to the provision of labour the risk to safety therefore arose in relation to its workforce while they were relocating scaffolding. Deno's Cranes by contrast was undertaking the operation of the crane and the second defendant was undertaking the entire operation. The complaint, according to the first defendant was that the decking (upon which Mr Murdock stood immediately prior to his fall) was struck by the swinging load attached to the crane which in turn caused the dislodgement of the RSJ beam. This activity did not fall within its undertaking the first defendant submitted, adding that if Mr Murdock had been struck by plant operated by its own employees which caused him to fall, then that activity would fall within its undertaking.

38 In my view this submission impermissibly focusses on the circumstances of Mr Murdock's accident. The risk to Mr Murdock's safety was the risk of falling from the elevated platform. This risk arose as I have earlier found because of certain failures directly attributable to the first defendant to ensure Mr Murdock's safety. Seen in this context it was not incumbent upon the prosecutor to establish a causal connection between, for example the actions of a misaligned crane load striking the platform, thereby causing Mr Murdock to fall in order to constitute the offence. The requisite causal connection that needs to be established is between the conduct of a defendant (the alleged failure or failures to ensure health and safety) and the risk to safety. The section under which the first defendant has been charged is concerned with the possibility of danger not present danger: see for example Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2004) 135 IR 317 at [55].

39 Nevertheless in order for a prosecutor to make out an offence under s 8(2) of the Act he or she must also prove that the relevant risk arose from the conduct of the defendant's undertaking. The relevant risk to safety was the risk of falling from heights, not a risk to safety occasioned by a swinging crane load striking and dislodging the structure upon which Mr Murdock was standing. As I have found the risk of falling was the direct result of first defendant's failure to ensure Mr Murdock's safety by not ensuring that there was a system of fall protection and by not ensuring that there was a system for dismantling the scaffolding in a safe manner.

40 The original agreement between the first and second defendants was for the erecting and dismantling of scaffold. This agreement consisted of the submission of a quotation for the works dated 19 March 2002 by the first defendant and the acceptance of that quotation by the second defendant by letter dated 21 March 2002. As the evidence revealed it became apparent sometime before 25 June 2002 and after the scaffolding had been erected that it had been built too close to the building site along Court Road and had to be relocated approximately one metre closer to Court Road. Although no further written contract was entered into between the defendants, the first defendant was engaged by the second defendant to undergo the work of relocating the scaffolding. Deno's Cranes was also engaged by the second defendant to assist in the work. Mr Maviglia's evidence was that he took the booking and allocated a crane, a crane operator (Mr Zammit) and two dogmen one of whom was Mr Murdock. At the time of Mr Murdock's accident the work of relocating the scaffolding was in progress.

41 In Mainbrace Constructions Pty Ltd v WorkCover of New South Wales (Inspector Charles) (2000) 102 IR 84 the Full Bench (at [19]) held in relation to the expression "undertaking" used in s 16 of the 1983 Act:

The issue comes down to whether the reconnection of the thermostats to the newly erected northern wall was part of any contract or arrangement between the appellant and Kennedy - Taylor, and whether the three employees were in the ceiling space pursuant to that requirement.

42 Although the Full Bench in Mainbrace found that there was no evidence indicating that the reconnection of the thermostats was part of the appellant's contract and therefore could not be considered a part of its undertaking, the circumstances in the present proceedings are quite different. The work of relocating the scaffolding was the subject of the contract or arrangement between the first and second defendants on 25 June 2002, and, on that day a number of workers, including Mr Murdock were on the elevated platform in the process of relocating the scaffold. The risk of falling from the elevated platform during that time therefore directly arose from the first defendant's undertaking, and I find that the third element has been proven by the prosecutor beyond reasonable doubt against the first defendant.

43 The second defendant's undertaking, like the first defendant's undertaking is also ascertainable by reference to the contracts or arrangements that it had in place on 25 June 2002. These have already received attention in my earlier analysis of the first defendant's undertaking. Shortly stated the second defendant entered into oral arrangements with both the first defendant and Deno's Cranes for the relocation of the scaffolding closer to Court Road. The work, begun by the first defendant on 24 June 2002 was in progress with employees of the first defendant and Deno's Cranes, including Mr Murdock working on the elevated platform on 25 June when Mr Murdock fell through the platform some five metres to the ground below.

44 The second defendant made no submissions during these proceedings concerning its undertaking. Indeed the prosecutor informed the Court at the commencement of the proceedings that he had received instructions from the second defendant, through its counsel, that it had conceded that Mr Murdock's accident occurred "during the conduct of the defendant's undertaking". While this particular element of the charge requires that the relevant risk (as opposed to the accident) arise from the conduct of the defendant's undertaking I am satisfied beyond reasonable doubt, on the evidence, and on the legal principles to which I have already referred, that the relevant risk to Mr Murdock's safety, that is the risk of falling from the elevated platform upon which he was working, arose from the conduct of the second defendant's undertaking. That undertaking on the evidence was the construction of the Neeta Shopping Centre site by the second defendant as the principal contractor at that site and included the arrangements it had made with both the first defendant and Deno's Cranes for relocating the scaffolding closer to Court Road on 25 June 2002.

45 "Place of work" is broadly defined in the Act to mean "premises where persons work", and, "premises" is also broadly defined in the Act to include "any building or part of any building." In accordance with the arrangement which existed on 25 June 2002 between the first and second defendants for the relocation of the scaffolding I consider that the first defendant's place of work was on and around the immediate environs of the scaffolding/hoarding which was in the process of being moved closer to Court Road, and, that Mr Murdock while working on the elevated platform was, at that time placed at risk to his safety, at the first defendant's place of work. This element has also been made out by the prosecutor against the first defendant, beyond reasonable doubt.

46 The definition of "place of work" and "premises" contained in the Act and referred to in relation to my findings against the first defendant outlined above, are sufficiently broad to encompass the area of scaffolding/hoarding being relocated and the immediate environs as the second defendant's place of work. The second defendant was the principal contractor of the site which included the area where the scaffolding/hoarding was being relocated closer to Court Road. Mr Quinlan was designated site supervisor by the second defendant on 25 June and therefore assumed direct responsibility for Mr Murdock while he was working on the elevated platform and, who was at all times while on that platform, exposed to the risk of falling. I therefore find that this element has been made out by the prosecutor against the second defendant beyond any reasonable doubt.

47 Two defences are available to both defendants under s 28 of the Act. Both defendants have sought to avail themselves of those defences. An onus lies on each defendant to successfully make out those defences on the balance of probabilities. It may be useful at this point to set out s 28 in full:

It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a) it was not reasonably practicable for the person to comply with the provision, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

48 The first defendant submitted in relation to the defence available under s 28(a) that it was not within its responsibility or legal capacity to compel Mr Murdock to wear a harness, and therefore it was not reasonably practicable for it to insist that Mr Murdock wear a safety harness. In relation to the erecting of a temporary platform or decking which was devised in the work method statement created after Mr Murdock's accident, the first defendant contended that only the second defendant as occupier and controller of the site had authority to construct such a temporary platform.

49 In my view s 28(a) is not concerned with the question of compulsion, rather it is concerned with what is reasonably practicable to enable compliance with the Act. On the evidence the first defendant made no attempts and no inquiries to ensure that Mr Murdock had some sort of fall protection equipment while working on the elevated platform. The fact that the first defendant did not approach the second defendant, or Mr Murdock, about the advisability and availability of fall protection does not discharge the first defendant from being capable of complying with the Act. It was not reasonable for the first defendant to take no steps at all in relation to fall protection for Mr Murdock. It could readily have approached Mr Quinlan, for example, and made an inquiry about the need and availability of a safety harness. Mr Quinlan, no doubt would have assessed the situation and steps may then have been taken to ensure Mr Murdock's safety. This did not happen.

50 Nor does the evidence support the first defendant's submissions that the erecting of temporary decking was outside its area of responsibility because only the second defendant had authority to construct it. According to Mr McCarron in evidence already referred to, the work method statement which came into existence after Mr Murdock's accident was jointly created by both defendants following consultation between them. This suggests that at minimum, any discussion about the need for temporary decking between both defendants before Mr Murdock's accident could have been entered into, with the first defendant having an opportunity to put forward its views on safety requirements for the workers performing the task of relocating the scaffolding. There is no doubt on any view of the evidence that the risk to Mr Murdock's safety was both obvious and foreseeable. There were a number of steps reasonably open to the first defendant that could have been taken to obviate this risk.

51 The first defendant also submitted that in accordance with s 28(b) of the Act if the commission of the offence was due to its non provision of a safety harness or in not erecting the temporary decking, that these matters were not within its control and it was impracticable for it to have provided a safety harness or to have erected temporary decking.

52 As described above in relation to the first defence and the submissions made by the first defendant in relation to it, the first defendant had within its capacity a number of measures which it could have taken to ensure Mr Murdock's safety, including consultation with Mr Quinlan concerning the need and availability of adequate fall protection for Mr Murdock. It did none of those things. In fact, the evidence revealed that it took no measures at all. The safe work method statement developed after Mr Murdock's accident was on the evidence a document jointly prepared by both defendants to identify potential risks to safety and safety measures to obviate those risks. This co operative venture suggests that there was nothing to prevent the first defendant prior to the accident from taking steps to ensure a similar document was created prior the task of relocating the scaffolding commenced on 25 June 2002.

53 I find therefore that the first defendant has not discharged its onus under s 28(a) or s 28(b) of the Act. The first defendant is accordingly found guilty of the offence. Defences: second defendant 54 The second defendant has also sought to avail itself of both defences under s 28 of the Act. In relation to the defence available under s 28(a) the second defendant submitted that it was not reasonably foreseeable that the crane crew would commence work on the platform before they had been inducted by Mr Quinlan. The decision of Walton J, Vice President in Kirk Group Holdings Pty Limited was relied upon to support this submission, specifically comments made by his Honour as to the relevance of the inattentive and careless employee to a defence under s 53 of the 1983 Act. At [129] of the judgment his Honour said:

I note that the statement of principle in Arbor Products appears to qualify the extent of the duty to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee to only that conduct which is "reasonably foreseeable". The use of the words "reasonably foreseeable" in that context should not be construed as introducing an element of foreseeability to the duty owed under s15, or to limit the risks to safety contemplated by s15 to only those that are foreseeable (as was proscribed by the majority in Drake Personnel ). Rather, to the extent that the behaviour of careless or disobedient employees may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under s53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against.

55 In my view the conduct of the crane crew in commencing work before they had been inducted by Mr Quinlan was foreseeable. I have dealt with these circumstances in some detail in this judgment. Mr Quinlan's instruction to the crane crew was deficient in that it left open the possibility that the crane crew would form the impression that they could properly commence work when the scaffolders or more particularly Mr Ross informed them that he needed a lift. Nor was it not reasonably practicable for the second defendant to comply with the Act. Mr Quinlan gave evidence that safety harnesses were available at the site and he identified in his evidence a lifting iron that he said could potentially be used as a possible harness hook. In relation to the second defendant's failure to provide a safe system for dismantling the scaffolding it was open to Mr Quinlan to issue an express instruction to the crane crew not to commence work until they had been inducted and safety requirements discussed. As the evidence disclosed Mr Quinlan did not do this. 56 In relation to the defence available under s 28(b) of the Act the second defendant submitted that it had successfully made out this defence on the facts, those facts being that Mr Murdock had suffered a head injury the previous day and was unable to read the safety instructions contained in Deno's Cranes safe work method statement. These facts together with the fact that the crane crew commenced work contrary to Mr Quinlan's instruction and without being inducted even though they knew an induction was necessary means it was impracticable for the second defendant to make provision against the commission of the offence. 57 In my view this submission cannot be sustained. First, Mr Murdock gave uncontradicted evidence that a head injury which he had suffered the previous day at another worksite did not affect his capacity to work on 25 June 2002. Secondly, Mr Murdock's inability to read may well have come to Mr Quinlan's attention if Mr Quinlan had properly instructed the crane crew not to commence work until they had undergone an induction. In any event Mr Murdock's inability to read safety instructions does not preclude the giving of safety instructions orally by way of, for example, discussion about how the task could be performed safely. It was reasonably open on the evidence for Mr Quinlan to have initiated discussions at any stage after the crane crew entered the site. Thirdly, the crane crew did not, as I have found, commence work contrary to Mr Quinlan's instruction. Mr Quinlan's sole instruction issued to Mr Zammit was to wait until the scaffolders were there. Fourthly, there was no evidence to support a conclusion that the crane crew knew an induction was necessary. 58 I find that the second defendant has not discharged its onus under either s 28(a) or s 28(b) of the Act. The second defendant is therefore found guilty of the offence. 59 I find the offences proven in relation to the prosecution in Matter No IRC 3476 of 2004 against the first defendant and in relation to the prosecution in Matter No IRC 3475 of 2004 against the second defendant. Both matters will be set down for directions hearings at 9.30am on Tuesday, 7 February 2006 for the purpose of programming sentence hearings. Orders

1. In Matter No IRC 3476 of 2004 the defendant Hire N' Higher Scaffolding Pty Ltd is found guilty of the offence.

2. In Matter No IRC 3475 of 2004 the defendant Lipman Pty Ltd is found guilty of the offence.

3. Both matters are set down for directions hearings at 9.30am on Tuesday, 7 February 2006 for the purpose of setting dates for sentence hearings.

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