Inspector Victor Page v Rail Infrastructure Corporation [2007] NSWIRComm 180 | Case summary

This reference to switching meant isolating the power. Under that section, there was a reference to the 2Kv section air break switch at Pole 49 Beecroft, which indicated that the action to be taken was "check open and lock open with special lock and D.T". Mr Pedersen understood that the 2Kv section would be isolated and danger tagged. When the substation indicated that the lines were isolated, they tested that power was out so that earths could be applied to the feeder line. The instruction to "prove dead and earth" meant that there needed to be a test of the overhead lines to prove the power was isolated, which was done with a high voltage tester, and once it was proved that there was power isolation, earthing had to be applied to the conductors as an additional safety measure to ensure that no power was running along the lines. 23 Under the Working High Voltage Instruction, there was a limitation on the area in which work permits could be issued. In relation to the 23 June 2004 notice, Permits to Work could be issued between Epping substation and Hornsby substation on 726 33Kv feeder and the Epping substation to Pole 48 on NL16 feeder line and Poles 51 to 134 on NI21 to Kv feeder. Anyone working in that area required a permit called a Permit to Work. Mr Pedersen was shown a document entitled "Electrical Permit to Work" carrying permit No T401/04 concerning planned work for 29 June 2004. The work to be conducted on that day was described as "pole top overhaul to be carried out using cherry picker between Cheltenham and Beecroft". Mr Pedersen signed that document and agreed that he must have completed the document having received the Working High Voltage Instruction. Mr Pedersen did not recall when he completed that document. He thought he would have filled out the document before he had signed it and included a time and date. The time and date would probably have been inserted when he received word that the power had been isolated - he would then have signed the Permit to Work. The usual process was to fill out the permit but not to sign it until notification was received that the power had been isolated. 24 As far as he could remember, Mr Pedersen was told by Mr Rogers that the work was to be carried out using a cherry picker. Mr Rogers was the leading hand for the team. The Electrical Permit to Work carried the following entry made by Mr Pedersen: "It is safe to carry out work between Poles 18 to 134 on 726 feeder, NL16 feeder and NL21 feeder". That section did not say that it was safe to carry out work on Pole 49, but from the document it was possible to say that it was safe to carry out work on Pole 49 because there was no instruction not to work on Pole 49 written by him on the form. 25 Stapled to the electrical Permit to Work was a slip of paper containing "special instructions". Those special instructions were the same as those appearing as special instructions in the Working High Voltage Instruction document dated 23 June 2004. The special instruction stated that work was to be carried out, amongst other things, clear of Rail Infrastructure joint use Pole 49. 26 The Electrical Permit to Work issued by Mr Pedersen contained an acceptance that he would comply with the provisions of Parts A and B on the reverse side of the form and that he accepted the associated responsibilities and would ensure that the work party complied with the provisions of Part B on the reverse side of the form. The work party was to sign and acknowledge that they had been shown and understood the details contained in the permit. By signing the Permit, Mr Pedersen knew where the safe working areas were located and, having regard to the special instructions, the safe electrical working area was between Poles 18 to 134 on 726 feeder and the NL16 and NL21 feeders. 27 When Mr Pedersen filled out the Electrical Permit he acknowledged that the specified electrical equipment had been earthed, namely, the 726 feeder 33Kv with working earths at Poles 18 and 134, NL16 feeder 2Kv with working earths at Poles 47 and 51 used as working earths. When filling out this information, he assumed that he had been told by Mr Buatava that earthing had taken place at those locations. He acknowledged that, by earthing Poles 18 and 134, there would be no voltage running between the poles. Similarly, in relation to the 2000 volt feeder NL16, there would have been no voltage running between Poles 47 and 51 if it had been earthed. Pole 49 at the 726 feeder had been isolated and earthed also. If earthing was applied to Poles 47 and 51, there would not have been any current or voltage at Pole 49 in relation to the NL16 feeder. Neither would there have been any voltage current running along NL21 at Pole 49. 28 In completing the Electrical Permit to Work, Mr Pedersen said that he worked off the Working High Voltage instruction. Mr Buatava would have told him when the lines were earthed and the power had been isolated. The permit had been signed by Mr Pedersen, Mr Mortlock and Mr Ponos. When the other members of the team signed the form they did not have regard to the Working High Voltage instruction. They simply read the nature of the electrical work completed by Mr Pedersen in the permit and signed their names. 29 Mr Pedersen was aware of a "Pre-Work Briefing" document during his employment and that its purpose was to identify hazards before commencing a job. Mr Pedersen did not exactly recall when he had previously carried out pole top maintenance prior to this accident but it was likely to have been for a period of less than two months. The reference in the document to a Certificate of Competence was a reference to being qualified: Mr Pedersen held certificates in relation to linesman duties. He had attended schools run by the defendant and had various qualifications. To continue working as a linesman with the defendant, it was a requirement to annually undertake electrical safety instructions: that training lasted for a day and there were various other mandatory courses. 30 The Pre-Work Briefing document referred to a worksite protection officer. On the day of the accident, Mr Rogers performed those duties which were mainly to do with working near the track. Mr Pedersen had no recollection of the details of the Pre-Work Briefing regarding this job and, in his 13 years as a linesman, he had not performed maintenance work on Pole 49 at Beecroft. From photographs of Pole 49, Mr Pedersen was able to recognise identification plates attached to the pole. The plate with the number "726" he understood to be a reference to a transmission line being a feeder attached to the pole - the purpose of the plate was to identify the presence of that feeder on the pole. Another plate identified the pole by number, that is, Pole 49. Another plate with "NL16" printed on it identified NL16 as a feeder attached to that pole. Mr Pedersen said that if there were any other feeders attached to that pole he would expect them to be identified by another plate. At the time of the accident he was aware of two feeders being attached to Pole 49, being feeders 726 and NL16. As far as he was aware they were both isolated and he was told that by Mr Buatava. 31 Insulated cable running up the middle of Pole 49 did not tell Mr Pedersen what that cable was or its purpose. On the day of the accident, Mr Pedersen did not remember if an elevated work platform was available for working on the poles. To obtain access to Pole 49 he used a portable ladder that was carried on the work truck. He thought Mr Rogers directed him to climb the ladder to access the pole but he did not totally recall what happened. He recalled being on the ladder and falling, and feeling electric shocks through his arms. He had experienced an electric shock previously and the sensation was like an electric shock. He did not recall how far he was up the ladder or his position on the pole, but he believed he was wearing his safety harness. He assumed that he had not anchored the harness using the lanyard. 32 Before going up the pole, Mr Pedersen remembered being told that the power was out and that it was allright to work on Pole 49. As a result of falling from the ladder, Mr Pedersen suffered significant injuries including spinal cord injury and was admitted to the Royal North Shore Hospital. He underwent significant rehabilitation at Ryde leaving the Rehabilitation Centre just before Christmas 2004. He continues to undergo physiotherapy and electrical stimulation to keep his leg muscles working and to avoid muscle waste. 33 Photographs of Pole 49 after the accident containing additional identification plates were shown to Mr Pedersen. The plate warning that the HV cable must be isolated and earthed before ascending the pole was the type of plate he had seen throughout the course of his employment with the defendant. There was an additional plate with the writing "NS21". Mr Pedersen knew that was a feeder line but he did not know exactly what it meant. 34 In cross-examination, Mr Pedersen agreed that, when he began his employment as a linesman, he attended a training school and was trained in the duties of a linesman, including the use of ladders in the climbing of poles. He was also trained in the use of fall arrest harnesses and the way such harnesses should be worn, as well as being trained generally in the work involved in pole top overhaul. He was required to be retrained and re-certified in all electrical safety instructions each year and he accepted that, prior to the accident, he had been re-certificated in November 2003. During the re-certification, he was again instructed on the correct use of ladders in climbing or descending poles and the use of portable extension ladders in gaining access to elevated work locations. He was instructed that non-conductive ladders should be used for electrical work. A fibreglass ladder had been used at Pole 49 on the day of the accident. 35 The ladder training included instruction to secure the top and bottom of the ladder by use of a pole chain or fall rope. He was trained that ladders should be adequately supported at the base. He was instructed that, when working in an elevated position from a ladder, a fall could result because of incorrect use of the ladder. He was instructed that injuries involving ladders could be prevented, by using, amongst other things safety belts or harnesses in a correct manner. That involved using correct anchorage points and knowing appropriate release and rescue procedures in the event of falling when wearing a fall arrest harness. The harness was to be correctly adjusted for secure fit. Before a harness could be trusted to support him in his work, he had to ensure that all hooks and other connections were correctly secured. He understood that he was to test the load of the harness and that only after ensuring all fittings were correctly secured and the harness tested for load, was he to trust the harness to carry his weight. Mr Pedersen said that this was not something he did very often but that was the training. He was instructed not to work alone when using a safety harness and was trained in the steps to follow when using a harness to ascend or descend a pole. He acknowledged each of the steps involved, including attaching a pole strap to the side ring of the safety harness and, on reaching the top of the ladder, he should place the pole strap around the pole and secure it to the D ring on the other side of the harness. The head of the ladder was to be secured if not already done. Once the pole strap was around the pole and secured to the two D rings on the harness only then was he able to leave the ladder. He was trained and instructed that he was to be attached to the pole structure while ascending and descending or while moving his work position. 36 In both his initial training and annual re-qualification and re-certification, Mr Pedersen was taught the elements of electrical discipline and the correct way in which to perform electrical work. He was given instruction in safety while working aloft and was trained in working on live low and high voltage conductors. For the purpose of carrying out such work, the line was to be tested and proved not alive before work commenced. The line must be earthed and proved not alive before work commenced and a testing device was used for that purpose. That equipment was part of the kit available to the crew. In the course of his training, he was told not to assume that a line was de-energised and that he should prove that fact himself once the power was isolated and the earth was connected where he was working on something. 37 The events that occurred on the day of the accident were only partially remembered by Mr Pedersen: some matters were recalled but other parts he could not remember. Mr Pedersen did not recall completing and signing the Electrical Permit to Work in relation to the work to be performed that day but he accepted that the document contained his handwriting and he had signed it. On that document there was a strip of paper containing "Special Instructions" for the work. He accepted that he attached that slip of paper to the permit. He was familiar with that document during the course of his employment but he was not sure there was printed material on the reverse side of the permit. Mr Pedersen accepted that on the front of the permit he acknowledged that he would comply with the provisions of Parts A and B on the reverse side of the form but he said he did not look at the reverse side of the permit and he did not remember that detail. 38 On the day of the accident, Mr Pedersen remembered asking whether they were to work on Pole 49 although this was not a face-to-face conversation: it was directed to Mr Rogers. Mr Rogers confirmed that work was to be performed on Pole 49 but Mr Pedersen did not remember him saying anything else about Pole 49 before he climbed it. Mr Pedersen remembered starting to put on his harness. He said he would not have taken that step until he was to commence work because it was uncomfortable to sit waiting in the harness: he thought he had been told at that point that the power was isolated. He thought that he had been told that the power was isolated by Mr Rogers or Mr Buatava. He had no memory of being told anything else about Pole 49 by Mr Rogers or anyone else before he began to climb it. Mr Buatava arrived on the site and said that the power was out and earthed and work could be commenced up the pole. That conversation took place before he started to get his gear ready and occurred somewhere at the foot of Pole 49. The conversation with Mr Buatava took place before his conversation with Mr Rogers. He could not remember whether anyone else was present when Mr Buatava spoke of the isolation of the line. Mr Pedersen assumed that Mr Buatava was referring not just to Pole 49 as being isolated but that all poles and feeders were included. He understood that feeder 726 and feeder NL16 were de-energised. 39 In relation to the isolation of transmission lines that was to take place on the day of the incident at Pole 49 there was an air break switch that could be operated from the ground which opened the air break on the pole thereby breaking the circuit that would isolate the circuit. On the day of the incident although he could not remember the exact words, Mr Buatava had arrived and told him that they were right to begin work effectively because the power was isolated. Mr Pedersen was under the impression from what was said by Mr Buatava that the lines had also been earthed but he did not remember any conversation about using the cherry picker. He had no recollection of conducting any tests of any feeder or conductor on Pole 49 before he began to climb, but he thought he would not have done so. That work would have been done at the other end of the work area which he could not have seen. 40 Although he remembered putting on the harness before climbing the pole, Mr Pedersen did not remember what steps he took to ensure that he was securely attached to the pole. He remembered climbing the pole but did not remember exactly where he fell. He thought he was either in the process of attaching himself or had not attached himself to the pole, but accepted that he had not attached himself to the pole. Mr Buatava and Mr Rogers were present as he climbed the pole as was Mr Mortlock. He could not remember where Mr Buatava was standing but heard his voice just after he had arrived and it was not a large area around the base of the pole. He had no recollection of Mr Buatava saying anything about using the safety harness as he climbed the pole. He did not recall where Mr Rogers was standing, but he did speak to him. He could not remember where Mr Mortlock was standing. He did not recall whether the ladder was adequately supported at its base or whether the head of the ladder was secured. 41 At the time of the accident, Mr John Rogers was employed by the defendant as a leading district linesman. He had been employed by the defendant since 1985. On the day of the accident, the work being performed was "Pole top overhauls" which involved looking after the infrastructure at the top of the poles, tightening cross-arms and steel work and making sure that the pole top itself was in good condition. He had previously participated in this maintenance task. The work on this day had been contained in a document he knew as the "work commit", that nominated the actual poles to be overhauled. This document was different to the Working High Voltage Instruction, the isolation request and the permit. The work commit document came via the computer and contained the scope of the work for the month. Mr Rogers was not sure where the document came from but he received it from the foreman who at that time was Mr Naividi. 42 On the day of the accident, Mr Rogers and Mr Pedersen went to Pole 46 at Beecroft to undertake switching and earthing. They drove a truck to the site. The truck had no elevated work platform attachment. A work platform or cherry picker was not needed and Mr Pedersen had undertaken the earthing by climbing the pole using of an extension ladder. The extension ladder was "footed" by Mr Rogers. Prior to the earthing, Mr Buatava told them that the two feeders at Pole 46 had been isolated. After the earthing had been completed, he and Mr Pedersen waited for the Permit to arrive. The Permit advised in more detail than the Working High Voltage Instruction as to the switching to take place - the Instruction document allowed the carrying out of isolation of any particular area where work was needed on the high voltage lines. Work could not go ahead unless an Instruction had been provided by "electrical trouble" being the electrical operator. Copies of the instruction were provided to those carrying out the switching. 43 In relation to the Instruction for work to be carried out on the day of the accident, there was no mention of the isolation of the feeder known as NS21. The "Special Instructions" referred to "joint use" poles which were poles shared by the defendant and other users such as Energy Australia. The Special Instructions stated in part that all work was to be carried out clear of RIC joint use Pole 49: Mr Rogers understood that to be a reference to a joint use pole, but he attached no importance to the words "all work to be carried out clear of the joint use Pole 49". 44 Work that day had commenced with earthing at Pole 47: Mr Pedersen then performed pole top maintenance at Pole 48 using a ladder. Mr Pedersen and Mr Rogers then arrived at Pole 49 and he thought that Mr Mortlock was there by the time they arrived. Mr Mortlock had been with Mr Buatava performing switching. Mr Ponos was at Pole 51 in a "bucket truck" which was a cherry picker attached to a truck. That was a hired vehicle with an allocated driver. Mr Rogers said he would have directed the team including Mr Pedersen to go to Pole 49. He knew to go to Pole 49 because of the "commit" document. As far as Mr Rogers knew on the day of the accident, there were three feeders attached to Pole 49 being NL16 coming from the Epping end, NL21 coming from the Hornsby end and 726 going straight through the top of the pole. Mr Rogers was not aware of any other feeder attached to Pole 49 on the day of the accident. He knew the three feeders were attached to Pole 49 because the instruction documents said so. 45 Work at Pole 49 had to await the electrical Permit. The plan was to use a cherry picker and, although it was available and being used by Mr Ponos, it was unable to be used at Pole 49 because it could not obtain access from the street because cars were parked in a way that obstructed the cherry picker. The cherry picker supplied was very big and old and there was little chance of getting it near Pole 49. Mr Rogers said he made the decision to use other means than the cherry picker to get access to Pole 49. There was no particular discussion or direction about working on a particular pole as the team knew what had to be done. When he returned to Pole 49, he laid the ladder against it having carried it from Pole 48. He then went to the cab of the truck to check the "commit" and whether work was to be performed on Pole 49. It was part of the work programme to perform pole maintenance at Pole 49. He did not direct anyone to climb Pole 49 nor was there a decision made by anyone to climb that pole. 46 As a leading linesman, it was part of his duties to direct persons he supervised as to when and at what time to gain access to particular poles for maintenance. In relation to Pole 49, Mr Rogers had given no instructions to Mr Pedersen at that time. He had placed the ladder against the pole and he returned to the cab of the truck to look at the commit document. Mr Mortlock was present. While at the truck he came come across Mr Buatava: they had a conversation during which Mr Pedersen was on the other side of the truck. The conversation with Mr Buatava did not conclude but was interrupted by Mr Pedersen falling from the pole. Mr Rogers did not know he was up the pole but when he heard him scream he realised that he had gone up the ladder. Mr Mortlock told them that he had been at the foot of the ladder. Prior to Mr Pedersen's fall, Mr Rogers was not aware of any person instructing or directing Mr Pedersen to climb the ladder. Mr Rogers could not remember discussing with Mr Pedersen prior to his fall whether he was to climb Pole 49. When Mr Buatava arrived, he had told them to go ahead to test dead and when lines were found to be dead to apply the earths - that was at Pole 47. Mr Buatava had said nothing about the isolation of power to Pole 49 which was something that would not normally be done. Pole 49 had not been tested dead. That testing had been done at Pole 47 and at Pole 51. There were no earths attached to Pole 49 but they had been attached to Poles 47 and 51 and had been attached prior to Mr Pedersen's fall. They were aware that power at Pole 49 had been isolated because Mr Buatava instructed them that he had clearance from the electrical operators that isolation had been carried out and it was appropriate to go ahead and prove the line dead and, if dead, to apply the earth. This was what had been done at Poles 47 and 51. Mr Rogers had understood that it was safe to work on Pole 49 because of the detail in the Instruction and the fact that Mr Buatava had given the clearance to go ahead to test for dead and supply the earth. 47 On the morning Mr Rogers arrived, he was able to get his vehicle through the access gates at Pole 49 because the vehicle was not an average size truck but was designed for tight manoeuvres. When he arrived, there were cars obstructing the entrance gates. There was little point postponing the work on Pole 49 until later in the day because commuters had parked their cars obstructing the gates and they were unlikely to return before the end of the day. It was impossible to swing the cherry picker truck through the access gates because of the cars parked at the corner of the access way. 48 No particular instruction to work on Pole 49 was given. However, Mr Rogers believed that if there had been a discussion about the pole and if it had been decided to work on it, then that work would have taken place. If there was an agreement to work on Pole 49, then the work would be performed. The commit document contained details of the work programme and nominated each pole on which work was to be performed. Mr Rogers went to check that document in the truck to see that Pole 49 and the other poles were contained within that document. Pole 49 was contained in that document and pole top overhaul was to be performed on it. 49 A Pre-work briefing had been conducted by Mr Ponos in relation to the work to be performed that day. That Briefing looked at the hazards associated with the work and how to avoid the identified hazards. Mr Rogers said that he was the "protection officer" on that day as referred to in the Pre-work Briefing. The role of the protection officer was to check the Pre-work to make sure it was in line with what they were doing on the day. There was to be a check of the hazards associated with the work under the worksite protection plan and also to see if they were working near the tracks. 50 The plates on the pole identified the overhead transmission lines for the workmen. On the day of the accident, the black insulation cable running up Pole 49 was merely a cable to Mr Rogers, he did not know exactly what type of cable it was and he had never been told, although he would have expected to be informed. He did not know whether that cable was alive or not. Had the instruction stated that there was a live cable, he would have known. There was no reference to that high voltage cable in the Instruction concerning Pole 49. After the accident, Mr Rogers understood that the insulated cable was NS21, a signal cable. He would have expected to be informed about that cable and whether it was alive or not. Any supervisor would have known that; his immediate supervisor was Mr Buatava. After the accident, a warning plate was attached to the pole with another plate identifying the presence of NS21. 51 In relation to the black cable NS21 running up the pole, Mr Rogers stated that the insulation for that feeder ended just below the point of attachment which was adjacent to an insulator. There was no insulation beyond that point. Mr Rogers did not know whether feeder NS21 would be dead or alive if the air brake was in an open position. When Mr Rogers arrived at Pole 49 with Mr Pedersen and up until the time of his fall, he did not provide any supervision to Mr Pedersen. 52 In cross-examination, Mr Rogers accepted that, in the course of his work, he had often completed Permits of the kind in operation on the day of the accident. The Pre-work Briefing had identified electrocution as a hazard which was addressed by the Electrical Permit to Work. That Permit was a control against the hazards of electrocution. 53 In relation to the Permit to Work on the day of the accident, the Permit holder and the person authorised to complete and issue the Permit for that day's work was Mr Pedersen. After it was completed by Mr Pedersen, it was shown to Mr Rogers who signed it. There were obligations set out in that document applying to the Permit holder and to those who had signed the Permit. 54 The Permit contained a general comment that work could not commence until the Permit had been received and all staff engaged on the work had signed the Permit. Under Part A, the responsibilities of the Permit holder were set out and included a responsibility to ensure that the work described on the Permit fully described the work to be carried out and that no work was to be carried out on or near the isolated equipment other than that specified on the Permit. It was also the Permit holder's obligation to ensure that persons carrying out the work understood the electrical equipment covered by the Permit that was safe to work on or near and that all other exposed equipment was to be treated as alive. The Permit holder was to ensure that persons carrying out their work were warned not to allow any part of their bodies, clothes, tools or materials they might be using or carrying to come within the safe working distance of any exposed equipment other than the isolated equipment in the electrically safe work area. Under Part B, persons signing the Permit acknowledged that they had been instructed and understood the extent of the electrically safe working area and that all other electrical equipment was to be treated as alive; that they had been instructed that, in order not to incur any danger, they must confine themselves, their clothing, tools and material within the electrically safe work area. Mr Rogers understood that this was the way in which the Permit operated. He agreed that nothing in Part A on the back of the Permit referred to the work commit document. The electrically safe work area was a reference to the area of the equipment that had been isolated. 55 Mr Rogers's practice in completing an Electrical Permit to Work was that he filled out that document and the Working High Voltage Instruction at approximately the same time and together. The Working High Voltage Instruction told him what equipment was to be isolated and identified the electrically safe working area. That area was to be identified in the Permit. The Instruction had the principal purpose of identifying the electrical equipment to be isolated and was the primary reference point for that information. On the day of the accident, when Mr Rogers signed the electrical Permit, he had not by that time looked at the Instruction. The Special Instructions were on a slip of paper stapled to the electrical Permit to Work on that day. Those Special Instructions informed him of all work to be carried out on that day and that it was to be carried out clear of certain pieces of electrical equipment. The electrically safe working area was between Poles 18 and 134. The work within that area was to be carried out clear of the pieces of electrical equipment specified in the Special Instruction stapled to the Permit. This was his understanding on the day of the accident. Mr Rogers accepted that the Special Instructions told him that, under the Permit, the electrically safe work area for the day did not include Pole 49 and that the workers were to stay clear of that pole. Pole 49 was not within the electrically safe area which he understood on the day of the accident. He also understood, from the obligations under the electrical Permit, that employees were to confine themselves to the electrically safe work area and that they were to treat all other electrical equipment as live. 56 By reference to photographs of Pole 49, Mr Rogers said he that, on the day, he thought that all the air break equipment was part of NL16. He understood that, when the air break switch was operated and opened, it ensured that NL16 above the air break switch was de-energised and isolated. When he first arrived at Pole 49 he noticed that the lever on the Pole had been opened, locked and danger tagged. That was the requirement under the Instruction for the day's work. He looked at the air break in that state, he knew that NL16 had been isolated and was thus de-energised above the air break switch. He was not aware that it was not isolated below the air break switch but he thought it was all connected in the one and that the whole was connected to NL16, including the cable. 57 Mr Rogers had placed the ladder against Pole 49 and recalled that it rested against the second step on the fixed ladder attached to the pole. It rested on the pole parallel to the fixed steel ladder. He did not see that ladder moved after he had placed it at Pole 49 and before he heard Mr Pedersen cry out as he fell. When he ran to Mr Pedersen's aid, the ladder was still standing against the pole but he did not know whether it was in the same position in which he had placed it. 58 Early in the day, he had been with Mr Pedersen when he climbed Poles 47 and 48 and observed him correctly wearing his arrest harness. Mr Pedersen knew how to wear the harness and use it properly as he was an experienced linesman. 59 At the work site, and before Mr Pedersen began to climb Pole 49, Mr Rogers said there was a discussion as to how to get the cherry picker near Poles 49 and 50. He thought he had discussed that with Mr Pedersen and the driver of the cherry picker: they had asked the driver if he could get access to those poles. He could not. The reason he could not get access was because he could not get past the cars outside the access gates. Had it not been for those cars, he could have gone through the access gates if it was wide enough and it could then have been used for Pole 49. Mr Rogers could not recall who made the decision that the cherry picker could not be used on Pole 49 but it was a general conclusion with which he agreed. 60 After giving his initial evidence, Mr Rogers made a search for the "work commit" document he had referred to on the day of the accident. That search resulted in the production of a one-page document, although he was unsure whether there had been other pages attached to the document on the day. The document had been given to him on 29 June 2004 by the foreman, Mr Naividi. The document contained work numbers for each pole, including Pole 49, but Mr Rogers was unsure whether, on that day, he also had a copy of the actual Work Order. He believed he had seen a copy of the Work Order as at 29 June 2004, but was unsure whether that had been at the depot or in the field. Mr Rogers agreed that from time to time, work orders were raised for work to be performed from particular poles: that was the way the defendant asked him to perform work on a particular pole, through the Work Order. The Work Order Mr Rogers read relating to the work to be performed on Pole 49 mentioned feeder 726, also mentioned in the commit document. The Work Order also identified the period which work on Pole 49 was to be performed. However, Mr Rogers did not remember the period during which work on Pole 49 was to be performed. 61 Mr Rogers accepted that the electrical Permit to Work was a document that gave the team members and Mr Rogers permission to perform work on a particular day. The document issued on 29 June 2004 specified work to be done that day, the Instruction identified the electrical equipment to be isolated on that particular day thus identifying the electrically safe work area for that day. The area in which the team was to work and the electrically safe work area were defined and identified by both the Permit and the Instruction. Mr Rogers agreed that anything contained in any other document which reproduced any part of that information was to be read subject to the Work High Voltage Instruction and the electrical Permit. Mr Rogers did not remember if the Work Order for the day regarding Pole 49 identified feeder NS21. 62 The use of truck-mounted cherry pickers had been observed and used by Mr Rogers in the course of his work: he had observed the use of 23 metre and 28 metre cherry pickers. Mr Rogers agreed, from his own observation, that both the 23 metre and 28 metre cherry pickers had a width of 2.5 metres and were designed to be driven on ordinary roads and when so driven they did not need to carry a sign warning of a wide load. The 23 metre travelling tower was, from his observation, 9.5 metres long: the 28 metre cherry picker 10.5 metres long. 63 In re-examination, Mr Rogers confirmed that on 29 June 2004 his understanding was that the Working High Voltage Instruction and the electrical Permit with the Special Instructions meant that all work to was to be carried out clear of Pole 49. Despite the Special Instructions and his understanding of it, he thought he was directed by way of the work commit document to carry out that work on that particular Pole. He regarded himself as being responsible for the work site on the day of the accident and it was therefore incumbent upon him to identify the Special Instructions. He did not think he had disregarded those Special Instructions. He thought that Pole 49 was totally isolated and he did not "pick up" the Special Instruction to stay clear of Pole 49. According to the Instruction that he read, Mr Rogers had "total control" of Pole 49, it was totally isolated and safe to carry out work. He thought it was safe to carry out work on Pole 49 because, on reading the Instruction, there was no mention of a live cable going up Pole 49, namely NS21. He thought that the line NL16 ran from the aerial feeder to the ground because beside the Pole there was a box with a "pad mount type system" that was an automatic switch from the Electrical Trouble Office. When that office carried out the total switching it would switch it from that particular pad mount which was how the whole area, including cable NS21, was isolated. Mr Rogers described the "pad mount" as similar to a small substation system containing switching components that could be switched from a central area such as the Electrical Trouble Office. He had made the assumption that the pad mount near Pole 49 had been used to isolate the entire pole. 64 In performing work on 29 June 2004, Mr Rogers said he had a brief look and had skipped through the Special Instructions within the Working High Voltage Instruction and electrical Permit to Work - it looked like the same type of document as was always used. 65 It was understood by Mr Rogers that pole top overhaul work could be carried out over a period of time and up to 18 months. The Permit required the pole top overhaul work to be undertaken by use of a cherry picker. Mr Rogers said there was no reason why he could not have deferred the overhaul of Pole 49 on the day until he was able to obtain access to Pole 49 using a cherry picker. He had continued with the work at Pole 49 because the work was on "a bit of a roll" and Mr Pedersen was a bit of a fitness fanatic who did not mind climbing the poles. 66 The commit document used by Mr Rogers for the work on the day of the accident referred to transmission line 726, and only 726. From that entry in the commit document, Mr Rogers understood that the high voltage feeder 726 was to be isolated and nothing else. When working in the field Mr Rogers had the commit document and had a number of other documents called commit documents stapled together. The other documents and pages dealt with different types of work including line clearing, vegetation clearing etc. Mr Rogers relied on those documents to set his work pattern including work on Pole 49 on the day of the accident. Mr Rogers did not remember whether, on the day of the accident, he had a one-page commit document or a number of pages with him. 67 At the time of the accident, Mr Peter Ponos was employed by the defendant as an acting linesman, general, and had been employed for nine years. On that day he had conducted the Pre-work Briefing at the Hornsby depot with Mr Rogers, Mr Pederson and Mr Mortlock present. That was the first occasion that he had conducted a Pre-Work Briefing. During the Briefing, he identified all the hazards associated with the job and how to control each hazard. He then filled out a Pre-work Briefing form, being the holder of a certificate of competency. In completing the document Mr Ponos did not look at any other document. The leading hand, Mr Rogers, had told him that they would be doing pole top overhaul that day. The immediate hazard that he considered was electrocution, because of working on high voltage lines. The work had been allocated by the foreman, Mr Naividi and that work was contained in the paperwork, namely, the commit. The commit specified what jobs had to be done. The commit was issued every month and set out the jobs to be performed in that period. The document came from the foreman and was taken from the computer. On the day of the accident, Mr Ponos had not sighted the copy of the commit but the leading hand, Mr Rogers, had informed him that the job that day was pole top overhaul. 68 After completing the Pre-work Briefing Mr Rogers directed him to go to Epping. Mr Rogers, Mr Pedersen and Mr Ponos travelled by work truck to Epping to lay earths. At Epping, Mr Ponos went to a specified pole, prepared and laid out earths and stood by until he received a call from the operations control that there was clearance. Operations spoke to Mr Rogers to tell him in relation to a particular authority, that the team could proceed to test the line to see if it was dead. At the particular pole Mr Ponos was working on, two lines had been isolated, the 33kV and a 2kV line. Mr Ponos tested the lines, found that they were dead and applied the earths. After completing the earthing, Mr Ponos, Mr Rogers and Mr Pedersen proceeded to Beecroft to meet the cherry picker in the Beecroft car park. Mr Ponos did not arrange for the cherry picker and was unsure who made those arrangements. The cherry picker was big and not the usual type used on line work. Mr Ponos had previously carried out pole top overhaul and on most of those occasions, had used a cherry picker. In Mr Ponos's experience, work was usually performed with a small 23 metre cherry picker: he thought that the smaller cherry picker was preferable because of its reach and extension which were better than the larger cherry picker. It was also preferable because it was easier to access sites and there had been difficulties with the longer cherry picker. The defendant did not own the cherry pickers but hired them for each job. This was the task of the manager, Mr Buatava. 69 Mr Ponos had been directed to attend Pole 51 by Mr Rogers and to earth it. He had been told by Mr Rogers that the lines at Pole 51 had been isolated and he tested them for dead and laid the earths. He used the cherry picker for that task. He saw the advantage in using a cherry picker over the use of a ladder for that task as being able to get closer to the pole. It was easier with a bucket to get right to the point of the work. Mr Ponos regarded the cherry picker as a safer procedure because he was surrounded in the bucket and was hooked on the inside of the bucket. After completing the tasks at Pole 51, he returned to Pole 49 to meet Mr Rogers to see which pole would next be overhauled. After finishing the earthing at Pole 51, Mr Ponos returned to Pole 49 when he signed the electrical Permit to Work. He then returned to Pole 51 to complete the pole top overhaul. Mr Rogers had directed him to return to Pole 49 when he completed earthing Pole 51. When he returned to Pole 49, Mr Rogers, Mr Pedersen, Mr Mortlock and Mr Buatava were present. They were all present to complete the Permit. When completing the Permit, he sighted the Instruction, being the Working High Voltage Instruction. At that point, he did not observe anything in relation to any ladders or equipment. 70 On the day of the accident, Mr Ponos firstly read the Working High Voltage Instruction. He understood the purpose of that document was to explain the work which was to be carried out, what feeders were to be isolated and the type of job to be performed. He understood that on that day the feeders to be isolated were the 726 and the NL16. He could not see from the Instruction whether any other feeders were to be isolated. In relation to the Special Instructions on the Working High Voltage Instruction, Mr Ponos understood that entry to refer to the fact that there could be other feeds on the pole and that linesmen must stay clear of such feeds: he was not to go near it because it was live. Having regard to the Special Instructions, Mr Ponos's understanding was that no work was to be carried out in relation to Pole 49 and that it was a "joint use" pole. Under the Special Instructions, there were references to a number of joint use poles and Mr Ponos understood that to be the top part of the pole but not the whole of the pole. The Special Instructions in relation to Pole 49 meant that he was to keep away from any live feeders on the pole. Having regard to the Special Instructions, Mr Ponos understood he could access the top part of Pole 49. Mr Ponos said that he understood how this Special Instructions was to be read and that he was not guessing when giving his answers. Mr Ponos expected to be told by labelling plates on the pole what feeders were on the pole and whether it was a joint use pole. 71 Having read the Working High Voltage Instruction document, Mr Ponos then read the Electrical Permit to Work document. The Permit had a strip of paper attached to it containing special instructions which were the same instructions appearing in the Working High Voltage Instructions document. He did not think that there was any reference to feeders other than the 726 and the NL16. It was pointed out to Mr Ponos that in the Permit, in Section 6, there was now a reference to a different feeder, namely, NL21. Mr Ponos said that was the same feeder but a different section. The electrically safe work area for the task on the day was between Poles 18 and 134. Mr Ponos understood that it was safe to carry out work between those poles, including pole top overhauls. The electrically safe working area referred to three feeders, 726, NL16 and NL21. If there were any other feeders present, Mr Ponos expected to be notified in the documents of their presence because they could be a potential hazard. 72 Having concluded the pole top overhaul at Pole 51, Mr Ponos and the cherry picker driver returned to Pole 49 as directed by Mr Rogers. He was stopped at the access gates before reaching the pole by Mr Buatava and told that Mr Pedersen had fallen from the pole. The access gates were partially obstructed by parked vehicles. Mr Ponos then walked to the base of Pole 49 and saw Mr Pedersen lying there. There was a ladder lying on the ground. 73 The cherry picker in which Mr Ponos was working on the day of the accident could not have passed through the access gates near Pole 49 because it was a bigger cherry picker than the one normally used and could not have passed through the gates regardless of any obstruction. Mr Naividi was the foreman of the gang who was more senior than Mr Rogers but under Mr Buatava. The foreman was involved with the "commit" document but Mr Ponos did not know who generated that document which had appeared at the depot. The document specified the work to be performed in that monthly period and when that work was to be performed. It was Mr Ponos's understanding that Mr Rogers gave the linesmen the work to be carried out on a day-by-day basis and organised the gear that was required for that work. Mr Buatava's function was to hand out work to the foreman who would hand it down to the leading linesmen. The foreman was responsible for liaising with the Electrical Controller. The foreman usually attended the site rather than staying at the depot: on the day of this incident, Mr Ponos was unsure whether Mr Naividi was at the site. 74 The Working High Voltage Instruction and the Electrical Permit were documents in which linesmen were retrained every 12 months. There was retraining in relation to electrical safety manuals and permits were completed as an exercise during training. 75 On the day of the accident, Mr Ponos was not part of any discussion or decision as to whether work would be performed on Pole 49. He was not asked whether work should be carried out on that pole and, before Mr Pedersen's accident, he had no knowledge that work was to be carried out on that pole. His practice was to work on poles identified to him by Mr Rogers and he confined himself to such poles. 76 Mr Ponos understood that the Working High Voltage Instructions carrying the identification T401/4 was a number given to that particular document and identified that particular instruction. The document identified equipment to be isolated for the purposes of the work and identified a number of feeders being 726, NL16 and NL21. Mr Ponos's understanding was that any feeders not isolated were live. The Instruction stated that the air break switch on Pole 49 was to be opened and locked open, secured with a special lock and a danger tag. On the day of the accident, Mr Ponos noticed that the lever had been opened, locked and danger tagged. Mr Ponos understood the Electrical Permit to Work defined the electrically safe working area within which work was allowed to be performed. Anything outside the area and the feeders identified in the Permit were areas in which he was not permitted to work. He was not to work on electrical equipment which was not identified because that equipment had not been isolated. If it was not isolated, it was alive: that was his understanding. He understood that equipment not identified as being isolated was to be treated as if alive. He agreed that this was a fundamental part of his training. 77 A joint use pole was a different pole from an ordinary pole because it carried feeders other than those that were isolated. On the day of the accident in the area in which work was to be performed, most of the poles in that area carried only two feeders and all the poles carried feeder 726, an aerial feeder. Some of the poles also carried feeder NL16. Other poles did not carry feeder NL16 but carried NL21. NL16 was an aerial feeder line carried at the top of the pole. There were also poles where feeders were carried underground which emerged from the ground and ran up the pole. Within the area, the poles either had "726", and "NL16" or "726" and "NL21". There were other poles which carried another feeder called "joint use poles" which carried a feeder other than NL16 or NL21. An example was a pole carrying Energy Australia feeders. The Working High Voltage Instruction informed Mr Ponos where 726, NL16 and NL21 were isolated. Mr Ponos understood from the Working High Voltage Instruction and the Permit that, on the day, Pole 49 carried another feeder that was not isolated and that the pole was a joint use feeder. The instructions were that he was not to work on that pole. Under the Special Instructions, all poles identified were poles that were not to be worked upon. 78 Mr Daniel Mortlock, at the date of the accident, was employed by the defendant as an apprentice linesman and had been so employed for about two years. He was working in a team with Mr Rogers, Mr Pedersen and Mr Ponos, together with Mr Naividi the foreman. The acting manager was Mr Buatava. On the day of the accident, he was working on pole top overhaul maintenance. He had attended the Pre-work Briefing conducted by Mr Ponos and had signed an acknowledgement of the matters raised in that Briefing. 79 After the Briefing, he drove with Mr Buatava to the location of the work to apply earths. He applied those earths to the 33Kv feeder after testing the feeder. Before he undertook the testing he was informed that the power had been isolated. After completing the earthing, he proceeded to Pole 49 at Beecroft to commence the pole top overhaul work: Pole 49 was to be the meeting place. He drove to Pole 49 with Mr Buatava and, on arrival, found Mr Rogers and Mr Pedersen present. He was unaware of any pole top overhaul work having been commenced prior to his arrival. 80 When Mr Mortlock arrived he saw a ladder against Pole 49 and noticed that Mr Pedersen was putting on his harness. The ladder was in a vertical position against the pole but Mr Mortlock could not recall if it was fixed at the base or the head. He could not recall if the ladder was being footed when he arrived. When he left the vehicle, Mr Mortlock was proposing to put on his harness to commence work on the pole overhaul at Pole 49. As Mr Rogers told him that Mr Pedersen would be climbing the pole while he was putting on his harness, Mr Mortlock took off his harness and put it back on the truck. As he was doing so, he heard Mr Pedersen scream and hit the ground. He was 20 or 30 meters from the pole when he heard the scream and was unsure whether he had seen Mr Pedersen on the ladder or on the pole prior to that. When he heard the scream, Mr Rogers was close to the pole, "observing" Mr Pedersen. He was unsure if anyone was footing the ladder or where Mr Buatava was standing when Mr Pedersen fell. 81 As at the date of the accident, Mr Mortlock understood that, in relation to performing pole top maintenance, documents dealing with the pre-work briefing, the Working High Voltage Instruction and the Permit to Work were documents to be used and referred to. The Instruction told him where he was able to work and on what date. The Permit to Work detailed specifically which poles were to be worked upon and those which were not to be worked upon. By reference to a photograph of Pole 49, Mr Mortlock said that he was unaware of another feeder on that pole on the day of the incident that ran down the pole - he became aware of it after the accident and had been told of its presence by senior staff at the depot. On the day of the incident, Mr Mortlock was aware of two feeders that were fixed to Pole 49, being the 33Kv and the 2Kv underneath it, known as NL16. He believed that both feeders were isolated at the time of the incident. Mr Mortlock expected that all feeders on Pole 49 would have been identified so that he would know exactly what was on the pole. 82 On 29 June 2004, the Permit indicated that a cherry picker was to be used but, from memory, Mr Mortlock understood that the vehicle could not fit through the available space to get to Pole 49 - the space was too confined for it to gain access. By reference to the Working High Voltage Instruction, Mr Mortlock understood on the day that the Special Instructions meant that the linesmen should not work on Pole 49. 83 Mr Ioane Buatava, (known as "John") on 29 June 2004 was employed by the defendant at Gosford as an acting team manager. His function was to organise the staff monthly roster and any outages required and to attend meetings of all team leaders for various areas to discuss isolation. At that time, he worked at the Hornsby depot. There were two team leaders below him, Mr Page and Mr Naividi, and two group leaders, one of whom was Mr John Rogers. He was also responsible for eight linesmen and a trainee linesman. On the day of the incident, Mr Rogers was supervising Mr Ponos, Mr Pedersen and Mr Mortlock as well as another person. 84 On 29 June 2004, the team leaders were to work on feeders 726, NL16 and NL21 carrying out pole top overhaul. The schedule of work was supplied via computer with a planned schedule organised by the engineers each week. Every week, he knew what work was to be done for the year January to December. Instructions were relayed by computer as to what work was to be carried out and when it was to be completed. The engineers planning the schedule were located at Tuggerah on the Central Coast. The plan was known as Planned Schedule Work. That schedule proceeded to Control in Sydney by way of the computer and when it did Mr Buatava knew what work was to be carried out on the schedule and in what month it was to be carried out including the date it was to be started and the date on which it was to be completed. Team leaders and team managers had access to this schedule. Others might have access to the system if they had been trained. On the day of the accident, Mr Naividi's group were to carry out pole top overhaul on lines 726, NL16 and NL21. 85 Information on the computer regarding work to be performed could be printed out. Team leaders printed out their work for a certain day when work was to be performed. There were daily meetings with the team leaders regarding what they were to do. When these meetings were held, they had a copy of the schedule from the computer. 86 In relation to power outages, Mr Buatava was responsible for costing the isolation on certain days of the week on transmission lines. In relation to overhead lines, he had no power - that function was performed by the support manager. On 29 June 2004, the outage on the overhead work was done by a manager, Mr Rathbourne, located in Gosford. Mr Buatava would receive the request, enter the date and time required and send it to the Electrical Systems Office in Sydney where it was sorted out. The Electrical System Office would send back the Working High Voltage Instruction and Mr Buatava would send it on to the authorising officer to sign because he was not authorised to sign that document. The authorising officer was Mr Robson. Once authorised, it was returned to Mr Buatava. The electrical isolation request form was a form available from the computer. Mr Buatava entered the necessary information on that form and some of that information was already in the computer system. Sometimes that information was added to for a particular job. Mr Buatava knew that on the day of the incident that the 726 feeder needed to be isolated because he had been informed of that by the team leader Mr Naividi. The planning for this type of work was done in advance at a meeting of team managers. The Special Instructions were already within the computer system. The reference to Pole 49 in the Special Instructions meant that there was an RIC high voltage feeder within that pole. That was a joint use pole. On the day of the accident, Mr Buatava was aware that there was a 726 feeder and NL16 feeder but was not aware of any additional feeder on Pole 49. There was no tag to say that there was another feeder on the pole and only two feeders were identified by a pole plate. Mr Buatava would have expected to have been notified of the presence of another feeder if there was one on that pole. 87 On the day of the accident, Mr Buatava said that he was only responsible for the outage for the work team, which was to ensure that the electrical system operator contacted him to advise that the isolation had been carried out and that it was all right to test and install the earths. Mr Naividi was unable to be present at the worksite that day and the group leader was intending to act in his place. The supervisory role assumed by Mr Buatava in the absence of Mr Naividi on the day was to inform Mr Rogers to carry out the earthing when he was told by Operations that the lines were isolated. It was Mr Naividi who directed Mr Rogers and his team as to what poles were to be worked on that day. Mr Buatava said that on that day he did not know what poles were to be the subject of maintenance but he did not think that the team was going to start at Pole 49. 88 As the holder of the High Voltage Instruction, Mr Buatava said that, on the morning of the incident, he was required to make sure that the earthing was carried and that the switching was carried out. He carried out earthing at a particular pole with Mr Mortlock after having been informed by the electrical systems operator to go ahead and test the line and apply the safety earths on Pole 48 and Pole 51. After receiving the call that the line was isolated, it was tested and the safety was applied on two poles, 48 and 51. Mr Buatava relayed the message to Mr Rogers that he could go ahead to test and supply the safety at those poles. After passing that information to Mr Rogers, he called back and advised that he tested the line and that message would be relayed to the electrical systems operators by Mr Buatava. 89 After the earth had been applied, Mr Buatava and Mr Mortlock made their way to Pole 49. Although Mr Buatava had participated in the Pre-work Briefing he was not required to acknowledge the electrical Permit because he was not responsible for that permit. Mr Buatava was only going to take part in the isolation and the earthing. A Permit was not required to merely apply the earths. Once the earths were completed then Permits were issued which enabled the linesmen to carry out their work on the transmission lines. 90 Mr Buatava drove Mr Mortlock to Pole 49, and spoke to Mr Rogers near the truck about four meters from Pole 49. He did not recall where the ladders were placed on the pole and did not see Mr Pedersen. The first time he saw Mr Pederson was when he was lying on the ground. Mr Buatava said he was in his car about to drive away when the accident happened. He thought that the work on Pole 49 that day was going to be carried out using a cherry picker but he believed that the machine supplied was too big to get through the gates. 91 In cross-examination, Mr Buatava said that he did not take part in any decision as to whether the cherry picker would or could be brought alongside Pole 49, nor did he make any assessment as to whether it could be brought through the access gates to Pole 49. 92 Mr Paul Crawford was the electrical control room manager employed by the State Rail Authority on the day of the accident. In that position, he was the manager of the electrical systems and the issuing of safety documentation. He was responsible for issuing the Working High Voltage Instruction and 1500 volt Instructions under which trains operated. He had held the position of control room manager for about 25 years. 93 The issuing of the Working High Voltage Instruction commenced with a request from the region in the form of a Works Order detailing the feeders involved together with the Special Instructions and the area in which the Permit was to be issued. That information came in one document and was called a Works Order. When that document was received, the control room worked off the electrical diagrams that named the feeders and all the switching requirements together with notes and special notes for working in joint use for crossings. Those diagrams were called reticulation diagrams. All field staff had copies of reticulation diagrams in their offices and also their vehicles. A reticulation diagram identified what feeders connected to any pole including Pole 49 at Beecroft. Mr Crawford was able to identify the Works Order for the period of 29 June to 1 July 2004 signed by Mr Buatava. It was also known as an isolation request. That document would have been received either by facsimile or email and was directed to a particular person who, in the case of this work, was Mr Radford. He was assigned the task of completing the Working High Voltage Instructions, creating three copies of it. One copy was retained in Mr Crawford's office for reference purposes, the second copy was forwarded to the electrical systems operators (being his staff in the control room) and the third copy was given to the regional district. In the field, the copy was signed by the "mains" person who checked the Instruction and signed the copy - this person was Mr Rathborne. When he received the Instruction, his obligation was to check it against all the information given to him by his staff who had looked at the job. He was to ensure that the Instruction covered all the work which was to be carried out. 94 Looking at the Instruction issued, Mr Crawford stated that the line NS21 was not to be isolated on that day, nor was it requested that it be isolated in the request document. If there was no request to isolate it on 29 June 2004, NS21 would have continued to have been energised. Standard operating procedure was to isolate all feeders in relation to pole top maintenance where Permits were to be issued to make it safe for staff to carry out their duties. 95 In cross-examination, Mr Crawford accepted that the electrical systems operation centre was operated by the State Rail Authority on the day of the incident and that it was an entirely distinct authority from Rail Infrastructure Corporation. The operation centre was staffed by SRA employees and those employees had the capacity to isolate aspects of the electrical infrastructure. In order for RIC to carry out work on electrical infrastructure or near that infrastructure it was necessary for RIC to request SRA to isolate the relevant electrical components. That was done by way of a request. The Special Instructions were drawn up by the districts.

96 The document known as "Working at High Voltage Instruction" was not a document that Mr Crawford constructed but he had seen it over his years of employment - it followed a standard format. That document stated the equipment to be isolated and, in this case, mentioned feeders 726, NL16 and NL21. This informed him of the feeders required to be isolated. It referred precisely to what was to be isolated and nothing else. The Special Instructions identified what was in joint use and what sort of feeders crossed over feeders that were mentioned in the initial part of the Instruction. Its purpose was to make staff aware that they were to stay clear of those poles or aerials. On this particular Instruction, employees had to work clear of Pole 49 and the entry conveyed that there was a live conductor on Pole 49. The Special Instruction conveyed to Mr Crawford that no work was to be carried out on that pole, either at the base or the top. The base was not a specified part of the pole but the rest of the pole should not be gone near. To check, open and lock open the special lock and danger tag the air break on Pole 49 was work that would be carried out at the foot of the pole. The Permit that was issued did not include Pole 49 and Permits could not be issued other than for the area identified on the form. 97 Mr James Lawson was employed by WorkCover as an electrical engineer having commenced with that Authority in February 2006. On 23 June 2006, he attended the site of the accident and took a number of photographs. He also completed three diagrams. Mr Lawson prepared a statement in which he expressed certain opinions. 98 Mr Lawson's statement set out his qualifications and employment history noting that he had extensive experience in the design, construction, operation and management of electrical supply, distribution and transmission. He identified the conductors present on Pole 49, stating that the uppermost conductors were feeders 726, the lower conductor was feeder NL16 and that the underground cable was feeder NS21. He was unable to ascertain the supply source, the root of or the ultimate destination of the high voltage underground cable NS21. 99 Mr Lawson had studied copies of the electrical systems operations centre, the Working High Voltage Instruction, the electrical Permit to Work No T401/04 and the Pre-work Briefing dated 29 June 2004. Having considered those documents, he established that the work to be carried out on the day was tree-lopping and pole top overhauls on the 726 feeder and the NL16 and NL21 using cherry pickers and ladders. In order to clarify the electrical, physical and geographical details, he drew three diagrams using information contained in the documents he had studied and from information received during his visit to the site. 100 To enable the specified work to be safely performed, Mr Lawson stated that the following actions were carried out: (a) 33kV feeder 726 isolated at Hornsby substation and Epping substation by opening the 33kV line air break switch and attaching a danger tag at each substation; (b) 33kV feeder 726 was proven dead at Hornsby substation and Epping substation and earths applied to feeder 726 at each substation; (c) 2kV section air break switch on Pole 49 was checked to be in the open position, operating handle locked with a special lock and a danger tag attached; (d) 2kV feeder NL16 was isolated at Epping substation and a danger tag attached to the isolation point; (e) 2kV feeder NL21 was isolated at Hornsby substation and a danger tag attached to the NL21 transformer, 11kV oil circuit breaker at Hornsby substation; (f) NL16 2kV was proven dead at Epping substation and earths applied; (g) NL21 11kV transformer oil circuit breaker was proven dead at Hornsby substation and earths applied; (h) 2kV transmission line at Poles 47 and 51 was proven dead and earths applied at each pole; (i) The "electrical Permit to Work T401/04" advised that it was safe to carry out pole top overhaul work between Poles 18 and 134 for the 33kV feeder 726 and on 2kV feeders NL16 and NL21. 101 Mr Lawson then expressed the following opinions: · I have encountered difficulty in ascertaining the system used to identify the 2kV feeders. My assumption is that 2kV feeder NL16 commenced at Epping substation and finished at the set of normally opened 2kV links on Pole 50 and that 2kV feeder NL21 commenced at Hornsby substation and finished at the set of normally opened 2kV links on Pole 50. Pole 48 which is the next pole south of Pole 49, that is, the Epping side of Pole 49, carried a label "NL21". Poles 45, 46 and 47 each carried a label "NL16"; · Based on my expertise and review of the documents referred to above, in my opinion it would have been safe to carry out pole top work associated with the overhead feeders 726, NL16 and NL21 as all sources of feed onto these feeders had been opened and danger tagged. In addition, the 33kV feeder 726 had been earthed at each end and 2kV feeders NL16 and NL21 had been earthed at each end and also at Poles 47 and 51. The 2kV air break switch on 2kV feeder NL21 had been checked open and locked and danger tagged; · Because of the presence of the live underground cable NS21 on Pole 49, it is not possible to safely climb Pole 49 from ground level. The connections from the cable termination to the lower portion of the open 2kV air break switch were alive. It would have been safe to carry out work on the top portion of Pole 49 while working from the bucket of a cherry picker, if this working position was well clear of the live 2kV equipment below the open air break switch; · I note that in the document "To Electrical Systems Operations Centre (SRA)" and "Working High Voltage Instruction" that mention was made for work to be carried out clear of "RIC HV JOINT USE POLE 49"; · It is my opinion that 2kV feeder NS21 is an alternate supply to the 2kV network and at the point of connection on Pole 49 the controlling air break switch is normally in the open position and the cable normally alive. Therefore if work was required to be carried out on or near the 2kV equipment between the underground cable termination and the 2kV air break switch then 2kV feeder NS21 would have to be isolated at its source, danger tagged and earths applied to the busbars adjacent to the underground termination on Pole 49; · In studying the documents mentioned above it is my opinion that work was to be carried out on the 33kV and 2kV overhead main and associated fittings whilst working from a cherry picker; · I note that in studying the document "Electrical Permit to Work T401/04" no mention is made of the presence of live 2kV equipment on Pole 49 from the underground cable NS21 terminations to the bottom of the open 2kV air break switch. In my experience, it is normal safe operating practice when working near or on high voltage equipment, to treat it as alive until it is proven dead and earths applied to equipment to be worked on. 102 By reference to photographs, Mr Lawson was able to divide into sections NS21. He was able to state that, from the ground up to the first section, that cable was insulated but he was unable to say if the next section was insulated. The third section at the top of the cabling was not isolated. He would class everything from the beginning of the second section as being live with the assumption that it had not been isolated. In his view, a mere touch by any part of the body would have been sufficient to experience an electric shock from the exposed part of the cable. 103 In cross-examination, Mr Lawson agreed that where the cable on NS21 was covered, it was insulated and posed no risk of electrocution. He was unsure if the second section of covering was insulation and therefore took the view that it was to be treated as live although it was covered. He was certain that the top section of feeder NS21 was no insulated which was an opinion derived from his own observations. 104 The defendant called one witness. Mr Tony Costantinou was the acting manager Implementation and Support with RIC and had been acting in that position for six months. His substantive position was as support officer for the Metro North Region, a position he had held for approximately nine years. The defendant maintained a computer system dealing with various work activities including maintenance programmes. There were earlier versions of this system and that information had been transferred to the latest system. 105 The system, as it operated in June 2004, enabled Mr Costantinou to determine from information held in that system what work was to be performed on any particular rail pole. Under the present system in place, it was possible to search historical records and search for work orders from 2004. Using this system, it had been possible to search for the Work Order in relation to Pole 49 with regard to the work to be carried out on the day of the accident. The entry for Pole 49 described the work as pole top transmission line examination and the equipment at Pole 49 referred to feeder number 726. The entry referred to only one feeder but, where there was more than one feeder on a pole, the practice was to identify the feeder at the top of the pole. Reference to only one number did not mean there were not more feeders on that pole. There was an entry that indicated the work to be done at a certain frequency under the technical maintenance plan. The computer system itself did not keep work orders but there were systems where hard copies were kept, for example, at the site. The entry also identified a work group operating from Hornsby and stated that the work had been completed. The document indicated that the job was to be done on 30 June 2004 but there was flexibility in the system allowing a span of time in which the work could be completed. Although this work was to be completed on 30 June 2004, there was flexibility to allow it to be finished by 22 December 2005. The entry also indicated that on 15 June 2006, the job was completed or performed. 106 Mr Costantinou raised a query within the current database shortly before giving his evidence and had raised a nine page spreadsheet document. Included within that document was information concerning the Work Order relating to Pole 49 and the work to be performed on the day of the accident. That document identified the Work Order description as a transmission line examination (pole top): the description of the equipment stated "Pole 49 belonging to FDR 726" and in a further description stated, "Cable term. On NS21 feeder". The record for each Work Order ran along a line on the first page and the corresponding line on the following eight pages, so that the whole nine pages had to be consulted to obtain the information in relation to the specified Work Order. 107 As at the date of the accident in 2004, the computer system, when asked to prepare a list of Work Orders due in the "preceding month", examined the maintenance schedule activity due in that preceding month. Based on instructions given, the system then produced Work Orders relating to those activities in the preceding month. There was a standard process that users followed to generate Work Orders. Based on the standard set of instructions when printing out a Work Order in the standard form, the two descriptions of the equipment namely "Pole 49 belonging to FDR 726" and "Cable term. On NS21 feeder" would appear on the standard Work Order form. In June 2004, if the system had operated as it was designed to do the whole entry should have appeared on the order form. 108 Mr Costantinou was aware of the term "work commit" and understood it to refer to a package of work for a set period of time usually in the future. It was a package of Work Orders containing jobs due in the "preceding" period of time plus any backlog Work Orders that had not been completed within a previously committed period. Mr Costantinou was shown the commit document produced by Mr Rogers and used by him on the day of accident. He recognised that document as a screen capture of a computer application that was in use in June 2004. The document had been cut short and should have contained the description of the work and read "Pole top examination". A double click on the entry in that document on Pole 49 would have resulted in the system bringing up the Work Order details which would give the information largely contained in the spreadsheet. As a result of double clicking the reference to "726", the computer would display the Work Order number, the task number, the "726" and "49", and would show the equipment description as set out in the spreadsheet document. 109 In cross-examination, Mr Costantinou said the spreadsheet document had been produced under the current computer system although in June 2004 another system was in operation. He had not conducted any query relating to Pole 49 under the previous system. Any person trained in the previous system and who was in a role that was able to carry out maintenance could access that system. and that was generally supervisors. In 2004, approximately 1200 people were authorised to access the system as it then existed. He was not able to say, by reference to the spreadsheet document, how many people had accessed the computer system in relation to Pole 49 since June 2004. The system left no imprint as to who had access at any particular time. Mr Costantinou was unable to say what information had been logged into the system at any particular period of time. He was unable to identify who had entered a date indicating the work had been "closed" in June 2006. He made an assumption that the entry relating to the description of the equipment was entered in June 2004. Information for a job could be added to the system after an event and from time-to-time. When that occurred, Mr Costantinou did not know when it had been added or by whom. He could not say with 100 per cent certainty that the equipment description in the spreadsheet taken from the current system had been in the system used at the date of the accident in June 2004. 110 The "Search for Work Orders" recently raised by Mr Costantinou had, in the system regarding the Work Order on the day of the accident, referred to Pole 49 and transmission line 726, but did not contain reference to cable termination on the NS21 feeder. There was no reference to cable termination on the NS21 feeder on the "commit" document held by Mr Rogers on the day of the accident. The commit document was a summary list of the activities performed. It did not contain full details of the activity - several pages would have been needed to do so. It was Mr Costantiou's view that the information contained in the work commit document was inadequate to enable a work team to properly carry out their work. It did not contain enough information. He hoped that people in the field carrying out pole top examinations would be armed with more detail than was contained in the work commit document. The computer system was capable of giving more detail than the commit document. The commit document was a printout of information on the computer screen and showed a "Print" icon: if the print icon was activated in relation to Pole 49, it generally allowed the user to print a more detailed version of the Work Order. 111 Mr Costantinou was unaware what action was taken in each region for the team leaders to confer and plan the work to be undertaken. In June 2004, managers and supervisors of work teams were able to access the then existing system containing the Work Order information. That meant that perhaps three or four people had access to the computer system. Those people would be team managers and team leaders. Thus, there were three or four people in management at the Hornsby depot who could have access to the system to check what work was required to be undertaken by the work teams and by when that work was to be carried out. 112 There were variations as to how the Work Orders were retained in the districts: some required a filed and signed copy to be kept, while others completed the Work Order through the computer system and electronically signed the work off as being completed. Without a hard copy of a Work Order, there was no way of ensuring the accuracy of what was now kept in the computer system which produced the spreadsheet document. 113 The Work Order for Pole 49 on the day of the accident was not able to be found. Mr Costantinou was 80 to 90 per cent confident that the information now held in the system and printed out on the spreadsheet referring to cable NS21 appeared on the Work Order. In the spreadsheet document produced under the present computer system, the Work Order description "T/line examination (pole top)" covered climbing the pole or using a cherry picker or elevated work platform to get to the top of the pole, and carry out an inspection to check if the fittings were tight, if the insulators were cracked, making sure the timber around the head of the pole had not degraded - generally, it was the activity of an examination and more an inspection - putting out a hand and tapping the pole to make sure there was no rotting or anything else about the pole that had degraded its condition. Mr Costantinou said he was fairly familiar with the task because he knew what was written in the Technical Maintenance Plan which were engineering standards and he had worked as an engineer. DELIBERATION 114 The particulars of the charge under s 8(1) of the Act have been set out earlier in this judgment. The essence of the prosecution case was that, although the defendant had established a system of work addressing safety ultimately, it was no more than a paper system and lacked the necessary provisions under which that paper system was enforced and applied at the workplace. The documents used in the work of pole top overhauling were confusing and misleading: none of the work team involved on the day of the accident, including Mr Buatava, was aware of the presence of the high voltage cable NS21. The work proceeded on the basis that Pole 49 was to be overhauled despite the Special Instructions appearing in the Working High Voltage Instruction and the Work Permit. Mr Rogers regarded himself as being required to undertake maintenance work on Pole 49 because of the content of the work commit document. None of these documents mentioned the presence of NS21. All members of the team, including Mr Buatava, expected to be informed of its presence including an identification plate on Pole 49. Because this high voltage cable was not identified and known when Mr Buatava applied for isolation of the transmission lines to allow the overhaul work to proceed, no mention was made of isolating NS21. In his role as supervising the work, Mr Rogers was also unaware of the presence of NS21. 115 The prosector submitted that, although all members of the crew acknowledged that the Special Instructions required them to work clear of Pole 49, Mr Pedersen, Mr Mortlock and Mr Rogers on the day of the incident were prepared to carry out overhaul work on Pole 49 contrary to that instruction. Mr Buatava as acting team manager and the holder of the Instruction, failed to ensure or, at least, comply with the Special Instructions contained in the Working High Voltage Instruction and the electrical Permit. The failure in the defendant's system of work included: inadequate training and instruction in relation to the interpretation of Working High Voltage Instructions and the preparation and understanding of electrical Permits to Work; inadequate supervision by Mr Buatava and Mr Rogers who were both in a position of authority to police and ensure strict adherence to the terms of the Special Instructions; and, the fact that the system created uncertainty such that employees were required to carry out overhaul work on Pole 49 pursuant to the work commit and yet, at the same time, were told to carry out work clear of that Pole. It was the responsibility of the defendant through its management who created the work commit or Work Order to ensure that, if work was to be carried out at Pole 49, all feeders on Pole 49 had been properly identified both on paper and in the field in order that feeders could be isolated before pole top overhaul work commenced. The system of work was to be coherent and systematic so all employees performing work at any given site could properly understand what was required of them: the paper system alone was clearly insufficient to comply with the obligations imposed by the Occupational Health and Safety Act 2000. The Court was to have regard not merely to the system as it existed in theory, but as it was implemented in practice. 116 It was submitted that it was not open to the defendant to simply establish safety rules and to effectively delegate responsibility for implementation of those rules to its workforce. The defendant's duty was to ensure the safety of its employees by not only establishing a safe system of work but enforcing that system in the workplace. Nor was the defendant's obligation diminished because of error or negligence of an employee, although it was accepted those matters might reflect on the degree of the employer's culpability. 117 There was a failure by the defendant to ensure adequate information and instruction was provided in relation to the documents used in the isolation procedures. Mr Buatava had requested the isolation of Pole 49, but not in relation to cable NS21. No information was provided to the work team, including Mr Rogers, informing them that there was an additional feeder at Pole 49 that needed to be isolated prior to work commencing on the pole: had they been informed of the presence of NS21 they could have taken steps to ensure that it was isolated before they commenced their work. There was nothing in the instructions or documents given to the work team or in the Pre-work Briefing relating to the isolation or presence of NS21. There was a failure by both Mr Buatava and Mr Rogers to provide adequate supervision of the work team in that neither of them were able to identify the presence of NS21 on Pole 49. The defendant, through these two officers, failed to provide adequate supervision of its employees. Mr Rogers directed and allowed Mr Pedersen to ascend Pole 49 to carry out maintenance contrary to the Special Instructions while there was present an energised feeder NS21, and Mr Buatava had acquiesced in those actions. Although the electrical Permit required that the work be carried out using a cherry picker, that method of performing the work was not undertaken because of a perceived difficulty in obtaining access for the cherry picker at Pole 49. The work, however, could have been performed on any of the other designated days or, indeed, in a period of up to 18 months as specified in the Work Order. If an elevated work platform had been used it was unlikely that Mr Pedersen would have come into contact with the live NS21 feeder because he would have been working in a bucket well clear of that feeder which terminated below the open air break switch. The work to be carried out by Mr Pedersen related to aerial feeders sitting some distance above the air break switch. There was a failure by the defendant to ensure its employees properly used a harness or related fall arrest mechanisms. Mr Pedersen fell because he was not adequately secured by his fall arrest equipment. No-one had observed Mr Pedersen climbing the pole and no one was footing the portable extension ladder at the Pole. Mr Rogers and Mr Buatava failed to ensure that Mr Pedersen used his fall arrest equipment properly and had they been watching, they could have ensured that he used his fall arrest equipment in a safe and proper manner and they could have ensured that he used the two fixed ladders to obtain access to the top of the pole. The Pre-work Briefing should have identified all the feeders on or connected to Pole 49 and ensured that those feeders were isolated prior to commencing work. There was a failure to clearly mark Pole 49 to identify the existence of the additional feeder and to ensure that employees at the site were aware of the existence of that feeder. 118 For the defendant, it was submitted that the evidence established that the work team was experienced, regularly trained, was qualified to safely perform the work it was asked to do, and, was specifically instructed in writing that it was to undertake all work on the day clear of Pole 49. The evidence established that these employees were specifically instructed in writing that Pole 49 was a joint use pole which they knew meant that it had a feeder that was neither 726, NL16 nor NL21 and which was a high voltage feeder operated by RIC that had not been isolated and was therefore alive. Further, the evidence established that Mr Pedersen's training, experience and practice was that, when ascending a pole using a portable ladder, he firstly securely attached himself to the pole using the pole strap or lanyard attached to his fall arrest harness before leaving the ladder. Mr Pedersen, however, having ascended Pole 49 contrary to the Special Instructions did not securely attach himself to the Pole as he was required and trained to do. Overall, there was a failure of supervision by Mr Buatava and Mr Rogers in that they did not follow the Instruction laid down by the defendant: thus the failures were the result of the casual acts of negligence of these employees and were not the acts of the defendant. 119 It was submitted that the information contained in the defendant's computer data base included the Work Order or work commit. However, that document did not require any work to be done on a particular day but allowed a period, often of several months, within which the work could be completed. The evidence showed that there were up to 18 months in which to complete the work on Pole 49 in this document. Mr Rogers knew and understood that the work that was or could be done on any particular day was not defined by the Work Order or work commit but was defined and limited by the critical working documents issued by the defendant. Those critical working documents were said to be the request sent to the operations centre (operated by the State Rail Authority) for the isolation of electrical equipment where work was to be performed during a particular period, the Working High Voltage Instruction and the electrical Permit to Work together with the Special Instructions. The Working High Voltage Instruction identifying the electrical equipment to be isolated, contained the Special Instructions identifying, amongst other things, what was in joint use so that staff were aware that they were to stay away from such poles: it also contained switching and safety earthing operations, as well as identifying the area where the Permit to Work would be issued. The Special Instructions specifically directed that all work was to be carried out clear of Pole 49. The completed Working High Voltage Instruction was usually provided to the foreman of a relevant work group. The Permit was then completed by an authorised Permit holder. Mr Pedersen completed that document and was authorised to do so. He wrote on that document under the heading, "Details of electrically safe work area" that it was safe to carry out work between Poles 18 - 134 on 726 feeder, NL16 feeder and NL21 feeder. The Special Instructions from the Working High Voltage Instruction was stapled to the front of the Permit and each employee in the work group signed the Permit. The notes on the back of the Permit required the Permit holder to ensure that the work described on the back of the Permit fully described the work to be carried out, that no work was to be carried out on or near the isolated equipment other than that specified on the Permit, that persons carrying out the work understood which electrical equipment was covered by the Permit, and, that it was safe to work on or near and that all other exposed equipment was to be treated as alive. 120 Mr Pedersen was familiar with these documents and understood that the Special Instructions dealt with the actions that needed to be carried out. He understood that the Special Instruction relating to Pole 49 meant that it was a joint pole, that somebody else was using that pole as well as the defendant. The Special Instruction in relation to Pole 49 was to keep clear of it and not to work on it. Mr Rogers was also familiar with the documents and understood the Permit to fully describe the work to be carried out. Mr Rogers understood that all equipment not identified in the Instruction in the Permit as having been isolated were to be treated as alive. The Special Instruction stapled to the Permit applied to the work to be carried out that day and he understood the Permit stated that work between Poles 18 -134 (specifying the electrically safe work area) was subject to the pieces of equipment identified in the Special Instructions. A Special Instruction meant that the Permit did not include Pole 49 and that Pole 49 was not within the electrically safe work area and that they were to stay clear of the pole. Mr Rogers also understood from the material on the back of the Permit that the work team was to confine itself to the electrically safe work area and to treat all other electrical equipment as alive. 121 Mr Ponos understood the Special Instruction meant that there might be another feeder on the Pole which he was to stay clear of and not to go near that feeder because it was alive. He understood the reference to joint use Pole 49 as being a reference to a RIC high voltage pole and that no work was to be carried out in relation to that pole. He understood that everything outside the area and the feeders identified in the electrical Permit was an area in which he was not permitted to work because that equipment had not been isolated. As it had not been isolated, it was alive and was to be treated as if it was alive. He agreed that was a fundamental part of his training. Mr Mortlock understood the Special Instruction to mean that he should not work on Pole 49. Mr Crawford's evidence was that the Special Instruction meant that no work could be carried out on Pole 49: not at the base, the top or anywhere. 122 Special Instructions were well and properly understood by the work team, although the only relevant minds were those of Mr Pedersen and Mr Rogers. Despite their clear understanding of the need to stay away and not work on Pole 49, they ignored those instructions and they failed to adhere to those instructions. This was the failure of those two employees and was not a failure of the defendant: it was an unanticipated and unforeseeable act of negligence on the part of Mr Rogers and a failure of a trained and experienced supervisor and employee to adhere to the safe system of work established by the defendant. To the extent that Mr Rogers felt he could rely on the work commit to conclude that work should be performed on Pole 49 on the day, he was wrong to do so and that feeling was not supported by any information in the work commit nor did it involve the proper use of the information. In any event, he accepted that the work on that pole could have been deferred to another day: in the face of that concession, it was not possible to accept that he saw the work commit as a direction to perform work on Pole 49 on that day. 123 In a further submission, the defendant asserted that the members of the work team had been instructed in writing that Pole 49 was a "joint use pole" which they knew meant it carried a feeder that was neither 726, NL16 nor NL21, and that the feeder was a high voltage feeder operated by the defendant that had not been isolated and was therefore alive. Mr Crawford's evidence was that the Special Instructions regarding joint use Pole 49 conveyed that there was a live conductor on that pole which was a RIC high voltage line in joint use, in addition to the feeders earlier identified. Mr Rogers understood the Special Instruction entry in relation to another pole as being a reference to a joint use by Energy Australia. He thought the reference to joint use in relation to Pole 49 was "joint use again". Mr Ponos understood the joint use of Pole 49 meant that there was a potential hazard because there might be a different feeder on that pole other than those which had been isolated. He agreed that a joint use pole was different to an ordinary pole because it had feeders other than those which had been isolated. He understood that most of the poles in the area in which they were working on the day of the accident carried only two feeders, being either 726 and NL16 or 726 and NL21. He understood joint use poles were poles that carried a feeder other than NL16 or NL21. He understood that the extra feeder had not been isolated and if it had not been isolated it was alive. The work group, having been specifically instructed that Pole 49 was equipped with a high voltage feeder that was not feeder 726, NL16 or NL21 and had not been isolated, should have treated the pole as being live in accordance with their training and experience. 124 Mr Pedersen had been trained and accepted that he had been trained to secure himself to the pole. He agreed that he knew and understood each of the steps in the process when using ladders and a fall arrest harness. The requirement to be attached to the pole or the structure at all times was part of his re-qualification and re-certification. Mr Rogers's evidence was that Mr Pedersen was an experienced linesman and knew how to wear and use his fall arrest harness and understood the importance of using it correctly. In the Pre-work Briefing on the morning of the incident, the work group was reminded of the use of their fall arrest harness. Mr Pedersen had worn his harness correctly earlier in the day. He had the harness on when he climbed Pole 49 and it was accepted that it was in good working condition. While Mr Pedersen could not remember climbing the pole or the height to which he had ascended when he fell, no one else observed him at that point. Nevertheless, he must have at least reached the transition point of feeder NS21 and so must have reached a height where he transferred from the head of the portable ladder to the fixed ladder. Mr Pedersen acknowledged that he did not secure himself to the ladder or the pole. Mr Rogers was present and in the vicinity but said nothing to Mr Pedersen about securing himself and, by his own admission, Mr Rogers failed in his duty of supervision. It was not clear whether Mr Pedersen lost his grip and fell because he felt an electric shock or whether he may have experienced an electric shock as he fell. Whatever occurred, there was no evidence that Mr Pedersen received any injury as a result of the electric shock. The injuries he received were as a result of the fall from the ladder. However, if he had secured himself to the pole, as he had been trained and was required to do, there was no reason to doubt that the fall arrest harness would have operated as it was intended to operate and would have prevented the fall and the consequent injury, thereby ensuring Mr Pedersen's safety. 125 While the work team envisaged that a cherry picker would be used, on the evidence, it seemed that a decision was taken not to use it, not because it was too large but, because the access gate was blocked by parked cars. Mr Rogers conceded that he could have deferred the work until another day when the access gate was clear and that the only reason for working on Pole 49 was that they had been to Poles 47 and 48, were "on a roll" and Pole 49 looked much the same as the rest of the poles. In addition, Mr Pedersen was athletic and prepared to climb the pole himself. 126 The prosecution's reliance on the fact that NS21 was not identified failed to acknowledge that such identification was not required, given that the Special Instruction directed the work group not to work on Pole 49. In addition, the Special Instructions indicated that there was another line on the joint user pole and it was to be treated as alive. There was no evidence that, by placing a plaque on Pole 49 identifying feeder NS21, it would have made any difference had it been present on the day of the accident. There was no evidence that any of the employees made any inspection of the existing plaques for any purpose, including the identification of the feeders on Pole 49. There was a high order of probability that the Work Order relating to Pole 49 included an express identification of feeder NS21. 127 Having regard to these matters, the defendant submitted that the prosecution had not established the case beyond reasonable doubt. The defendant had established and maintained a safe system of work that, if followed by Mr Rogers and the members of the work group, would have ensured that Mr Pedersen did not climb Pole 49 and, even if he did climb the Pole, any fall from it would have been safely arrested by the harness and there would have been no injury to him. Notwithstanding their training and their understanding of every important element of the system of work, Mr Rogers and Mr Pedersen failed to follow the system in a way that was unanticipated and unforeseeable. In the alternative, the circumstances made out a defence under s 28(b) of the Act. 128 The statutory provisions dealing with the powers, functions, duties and responsibilities of RIC, as set out in the particulars of the charge, were not contested and it appeared to be accepted that the defendant was subject to the provisions of the Rail Safety Act 2002 - that legislation had the purpose of promoting the safe construction, operation and maintenance of railways. Similarly, the defendant made no submission challenging the more formal elements of the alleged offence under s 8(1): the evidence, in any event, established that the defendant was an employer at the time of the alleged breach and that the relevant employees were at work. The matters raised by the defendant focused on whether an employee's health and safety was exposed to any relevant risk and whether there was a causal connection between the defendant's alleged breach and the risk to the employees' safety. 129 The evidence disclosed a somewhat complex process by which maintenance work was ultimately undertaken on transmission lines. There appeared to be a maintenance schedule compiled by engineers specifying the regularity of inspection and maintenance work and that schedule became the subject of discussion in regions or districts with team managers and foremen. In Mr Rogers's team, he became aware of the maintenance work to be performed by receiving a copy of the work "commit" from the foreman. He appeared to keep the work proposed for the coming months in a bundle in order to organise the work team and the equipment that might be necessary. As the authorised mains officer, Mr Buatava formulated a request for the isolation of lines necessary to allow the maintenance task to be performed. An amount of the relevant information appeared to be kept within the computer database he used which acted as a type of precedent document that he amended as required. The Special Instructions for this overhead maintenance work, however, were not matters he gave independent consideration to, but were instructions drawn earlier by another authorised mains officer. Mr Buatava appeared to have no personal knowledge of the existence of the high voltage cable NS21 on Pole 49 at Beecroft and so made no request for that line to be isolated. The request was then considered by the operations centre operated by SRA and checked against extensive records of the transmission system. The exercise had regard to the nature of the work to be performed and the area in which the work was to be performed and, following that exercise, the Working High Voltage Instruction was produced and approved. That Instruction was used as the foundation for the completion of the electrical Permit to Work prepared by employees of the defendant. The evidence showed that both the Working High Voltage Instruction and the Permit contained the same special conditions. It was in this way that arrangements were made within the defendant for the performance of overhead line maintenance in the railway system. 130 Against that background, it is appropriate to consider how the work team performed the maintenance task having regard to the documents provided by the defendant. The defendant relied upon its system of training and instruction and the terms of the Pre-work Briefing, the Working High Voltage Instruction and the Permit, especially in relation to the Special Instructions. I accept the prosecutor's submission that attention has to focus on the actual system of work as undertaken under the defendant's overall scheme. Because of his supervisory role as the group leader of the work team, it is appropriate to start with an analysis of the evidence given by Mr Rogers, the leading hand or, as he described himself, the leading district linesman. 131 There was a degree of contradiction in Mr Rogers's evidence although it was clear that he regarded the work commit document as playing a significant role in directing him as to the work to be performed. As with other witnesses, his evidence in-chief was given in relation to non-leading questions that allowed him to frame his answers as he chose: in contrast, much of his evidence in cross-examination was a response, usually to acknowledge the correctness of a proposition forcefully put on behalf of the defendant. While the defendant was perfectly entitled to conduct the cross-examination that way, Mr Rogers remained an employee of the defendant and, as contradictions were exposed in connection with his evidence in-chief, the answers given to such firmly put propositions need to be treated with some caution. 132 The degree of confusion or lack of full understanding of the defendant's documented system is shown in parts of Mr Rogers's evidence. He understood that pole top maintenance work was contained in the work commit document that nominated the poles to be overhauled. When he gave that evidence, it was apparent that the commit document was not known to the legal advisers of the defendant and Mr Rogers made clear that it was a document different to the Working High Voltage Instruction and the Permit. It was not until near the end of the evidence that Mr Rogers was able to conduct a search, and found the work commit document he used on the day of the accident that nominated work was to be performed on Pole 49. The term "work commit" was understood by others, such as Mr Ponos and Mr Costantinou. Mr Rogers had directed the work team to meet at Pole 49 because that pole was specified in the commit document. He stated a number of times during his evidence that the commit document contained details of the work programme and nominated each pole on which work was to be performed. He was aware that the work commit document was contained within the defendant's computer system and was given to him by the foreman Mr Naividi. Mr Naividi was not called to give evidence nor was there any evidence sought from Mr Rogers as to any discussion between the two of them as to the purpose of this document and the use to which it was to be put when it was handed over. Clearly, Mr Rogers placed great emphasis on the document and used it to set his work pattern: on this day, his work pattern included Pole 49. Mr Rogers agreed in cross-examination that work orders were raised from time to time for work on particular poles but he added that this was the way in which RIC had asked him to perform work on a particular pole by using the work order. 133 Despite this evidence, Mr Rogers readily agreed with the propositions put to him in cross-examination that he understood, on the day of the accident, that the Working High Voltage Instruction and the Permit defined the work and the electrically safe working area and that those documents made no reference to the commit document. He also understood the Special Instructions to mean that he was to work clear of Pole 49. This understanding is to be contrasted with his evidence in-chief, when he was directed to the words in the Special Instructions: 'All work to be carried out clear of RIC HV Joint Use Pole 49" and asked to state what that Special Instruction meant to him: he said it was a joint use pole like ones that were in joint use between the defendant and Energy Australia. When asked what importance he attached to those words, he said that he did not attach any importance to them. Despite that answer, in cross-examination Mr Rogers readily accepted that the Permit was a control against the hazard of electrocution and that he understood the obligations under the Permit for those who signed that document and that he was to treat all other electrical equipment as alive and outside the electrically safe working area which included treating Pole 49 as alive. He also agreed that the Special Instructions in the Permit operated so that the electrically safe work area was between Poles 18 and 134 and within that area and that work within that area was, nevertheless, to be carried out clear of the equipment specified in the Special Instructions on the Permit. He accepted that the Special Instructions told him that the electrically safe area did not include Pole 49 and that he and the work team were to stay clear of Pole 49. In re-examination, he accepted that, in the team, he was responsible for the work that day and that he had to identify the Special Instructions. He did not think he had disregarded the Special Instructions. This was, it appeared, because of the content of the commit document and his assumption that all the lines were isolated on Pole 49: nevertheless, the commit document only referred to line 726 and he would have understood from that entry that only line 726 was isolated. Those passages of Mr Rogers's evidence demonstrate the confusion in his mind as the leading hand group leader as to the interaction of these important documents dealing with the maintenance work to be performed by the team. 134 The lack of clarity and the resultant confusion arising within the defendant's system of work was also evident in other areas. For instance, Mr Rogers understood the joint use poles were those shared by other users such as Energy Australia which was the type of joint use referred to in the Special Instructions regarding Pole 49: the pole was not used by an outside authority. As already recorded, he placed no importance on the provisions of those instructions referring to joint use Pole 49 and staying clear of it. Mr Rogers read the Working High Voltage Instruction as advising the presence of three feeders on Pole 49 which he thought were 726, NL16 and NL21. There was nothing to inform him that there was another feeder on that pole, such as NS21. The defendant points to the spreadsheet document and the assessment that there was a high level of probability that the reference to cable NS21 in that document would have been found in the work order. However, it had to be conceded that was not necessarily so and that information could have been added to the spreadsheet after the work order had been issued and used by Mr Rogers. Further, there was no evidence that the foreman or the team accessed or used the spreadsheet document in the field. There was no evidence as to what the work team would make of the entry in the spreadsheet, namely: "Cable term. On NS21 feeder". The spreadsheet document, like the work commit, seems to refer otherwise only to feeder 726 with the entry: "Pole 49 belonging to FDR 726" and does not mention NL16 and NL21. In the complexity of the defendant's system, this inconsistency in information available to the workforce carried with it potentially serious risk. 135 The NS21 cable on Pole 49 was merely a cable to Mr Rogers and he did not know precisely what kind of cable it was and was not told by the defendant what kind of cable it was for the purposes of working on the pole top overhaul during this period in late June/early July 2004. He had been told of the presence of NL21 and NL16, even though he thought they were both present at Pole 49. He apparently did not treat the Special Instructions as informing him that there was another high voltage line on Pole 49. Mr Rogers expected to be informed of the presence of another cable on Pole 49 by the attachment of a plate to that effect (as was subsequently done by the defendant) and by information from his supervisor - apparently a reference to Mr Buatava - whom, he would have expected would know of the existence of such a cable on the pole. Mr Rogers did not know if NS21 was dead or alive with the air break in the open position. On the day, he though that all the air break equipment was part of NL16 and, when the air break was operated for NL16, all that was above the air break was isolated. When he arrived at Pole 49, the air break was open and tagged and he was not aware it was not isolated below the air switch but he thought that the whole pole was connected to NL16 including the cable, and therefore had been isolated. He thought it was safe to work on Pole 49 and that he had total control of the pole because it was isolated. In addition, Mr Rogers thought that NL16 ran from an aerial feeder to the ground because, beside the pole, was a mini control box for automatic switching from electrical control and he thought that was how the whole area, including the NS21 cable, was isolated. He assumed this to be so and assumed it was the means by which the entire Pole 49 was isolated. 136 These misunderstandings from an experienced leading hand undermine the defendant's submission that the Special Instructions clearly identified the presence of NS21 and clearly gave instructions to work clear of the pole and that no work was to be performed on Pole 49 being an instruction which any of the experienced work team would understand from their training and instruction. The possibility that one experienced member of the work team, operating on an unwarranted assumption or acting with over-familiarity with the work or in a careless way may thereby have operated outside the clear working instructions of the defendant is a proposition that has greater difficulty when it is clear that Mr Pedersen was also clearly of the view that Pole 49 was to be worked on and that it was fully isolated in circumstances where he was the author of the Work Permit and had attached the Special Instructions to that document. It is also apparent that Mr Buatava expected work to be performed on Pole 49 even though he had requested the isolation for the work and had included the Special Instructions in that request. Mr Mortlock had signed the Permit but was preparing to work on Pole 49 when told by Mr Rogers that Mr Pedersen would be doing the work. 137 From a number of members of the work team the defendant drew acceptance that they were thoroughly trained upon their engagement and were re-trained and re-certificated each year in the defendant's electrical instructions. Apart from Mr Pedersen's evidence about his training in the use of a safety harness and the use of ladders and an extract from the defendant's safety manual dealing with "Working At Heights", no detail was provided of the defendant's training, re-training and re-certification process in relation to the use of the work commit, the Working High Voltage Instruction, the Work Permit and the role of the Special Instructions in the last two documents. No written instruction relating to this subject was in evidence, nor was it referred to in any of the oral evidence. The result is that there is no evidence as to what, if anything, the defendant had laid down in its instructions to employees about the relationship between these documents and how they might interact. It might be that the defendant was unaware of the use made of the commit document, but it was a document within the defendant's system and appeared to be known beyond the foreman, Mr Rogers and, Mr Ponos. The evidence suggests that the defendant was unaware that the commit document would be regarded as another direction that maintenance work be performed on a particular pole regardless of the Special Instructions appearing in the Working High Voltage Instruction and the Permit. The evidence directly raises the question as to how members of the team knew to disregard any inconsistency between the Work commit, the Working High Voltage Instruction and the Permit and the details of how such instruction was passed to the workforce and how it was enforced. Although I am unable to accept the prosecutor's submission that the defendant's system was no more than a paper system (having regard to the yearly re-training and re-certification in particular), nevertheless, there was no evidence of the system used by the defendant to enforce that training and re-certification in the field and to obtain compliance with its safety instructions in the field by use of spot checks, periodic safety audits or similar inspections. The use of the work commit document in the field was simply not addressed. It was not a document that could be ignored coming, as it did, from the engineers and laying down the regular maintenance schedule. 138 As earlier observed, the Special Instructions in those terms was the work of an earlier supervisor and was used as a precedent document by Mr Buatava who showed in his evidence no recognition that the Special Instructions meant that no work at all was to be performed on Pole 49. Another experienced linesman Mr Ponos thought that the reference to "joint use" in the Special Instructions meant there were parts of the pole that could be worked on and that it was only the "joint use" line which was to be avoided in the performance of work. He understood the entry in the Working High Voltage Instruction to refer to the fact that there could be any other feeder on the line and that he was to stay clear of that feed and not go near it because it was live. Mr Ponos also said that, if there were any other feeders on the line, he expected to be notified of it but there was no reference to NS21 on Pole 49. Again, this evidence shows the confusion that can result from an understanding of the Special Instructions that a live feed was available on a pole but nothing on the pole identifying that live feed. Mr Ponos thought the document should specifically refer to the presence of the live feed because of the hazards involved. His practice was to work on poles identified to him by Mr Rogers and he confined himself to working on poles so identified. This is evidence of another practice operating in the field despite the existence of the Special Instructions. It is apparent from this evidence that, in the Pre-work Briefing he conducted, Mr Ponos could not have mentioned specifically the presence of cable NS21 on Pole 49 because he was not aware of it. Further, although conducting the Pre-work Briefing to identify potential hazards in relation to the work required to be undertaken that day, he had no other document to assist in identifying those hazards. Again, in cross-examination, Mr Ponos accepted the proposition that the entry in the Special Instructions identifying Pole 49 as a joint use pole told him that Pole 49 carried a feeder other than 726, NL16 and NL21 and that it was a high voltage feeder. He also accepted that the Instruction told him that the extra feeder had not been isolated. He also agreed that the entry meant that he was to stay away from Pole 49 but, by his earlier evidence, he would have worked on Pole 49 if directed to do so by Mr Rogers. 139 The other experienced employee was Mr Buatava who was the team manager having two team leaders below him and two group leaders, one of whom was Mr Rogers. It was Mr Buatava who had completed the request for isolation using a precedent document within the computer. Mr Buatava also spoke about a "work schedule" being supplied via computer that contained the planned schedule of maintenance work organised by the engineers. Mr Buatava's evidence had been completed before Mr Rogers found the document he had referred to as the "work commit" and it was not confirmed with Mr Buatava that the "work schedule" he referred to as coming from the computer via the foreman was the same document referred to by Mr Rogers or as containing the same information: they appeared to have the same purpose of setting out a schedule of work to be performed over a period of time. Although the Special Instructions were already within the computer system, Mr Buatava stated that the reference to Pole 49 in the Special Instructions meant that there was an RIC high voltage feeder within that pole and that it was a joint use pole. On the day of the accident, he was aware that there was a 726 feeder and an NL16 feeder but was not aware of any additional feeder on Pole 49. There was no tag on the pole identifying another feeder and he would expect to have been notified of the presence of another feeder if there was one on that pole. That evidence demonstrates that Mr Buatava, despite the terms of the Special Instructions regarding joint use Pole 49, did not regard that entry as identifying the presence of a live high voltage cable on Pole 49 that was not isolated. In the early part of his evidence Mr Buatava said that the entry in the Special Instructions regarding Pole 49 was that there were two feeders on it - and that was the joint use: the two feeders were 726 and NL16. On the day he filled out the request for isolation he was not aware of any other feeder on Pole 49. Mr Buatava said that, in his position on the day, if Mr Rogers as group leader required instructions for any of the work, he would come to Mr Buatava. This evidence, again, demonstrates the lack of complete knowledge of the system and what was meant by the entry in the Special Instructions. It also demonstrates how misunderstandings of the system could be passed to the work team. 140 The lack of clear understanding of what was contained in the various documents of the defendant was also exposed by Mr Pedersen's evidence. His evidence was that he understood the Special Instructions as meaning he was to keep clear of the nominated poles, although his evidence did not mention a knowledge of a live high voltage line being energised at Pole 49. Mr Pedersen noted that the Permit he had filled out stated it was safe to carry out work between Poles 18 to 134 on the 726 feeder, the NL16 and NL21 feeders. Pole 49, in that part of the document, was not identified as a pole not to be worked on. Mr Pedersen believed that he had not ever read the reverse side of a Permit and the obligations set out there regarding his role in relation to the Permit document. He thought that, if there were any other feeders attached to Pole 49, they would be identified by a plate on the pole. At the date of the accident, he was aware of only two feeders on the pole, being 726 and NL16. He was aware that both had been isolated. Significantly, the insulated cable running up the middle of Pole 49 did not tell Mr Pedersen what that cable was or its purpose. Mr Rogers was similarly uninformed. 141 Having regard to this evidence, it is clear that there was a good deal of confusion and a lack of full understanding amongst some very experienced and trained linesmen and supervisors concerning the meaning and operation of what the defendant described as the critical work documents. On the evidence, I am unable to accept the proposition that what occurred on the day of Mr Pedersen's accident were merely isolated acts of negligence or carelessness over which the defendant had no control. Although it is to be accepted that the defendant had a system of instruction and training (even though the full scope of that material was not placed before the Court), the fact that these experienced men were so ill-informed about the full effect of the Special Instructions and what to do in relation to the work, leads to the conclusion that there was a breakdown in the defendant's system of safety in its workplace. There was a failure in the defendant's system to adequately enforce its instructions and training so as to ensure the safety of its employees working on overhead transmission lines while performing overhaul maintenance. That failure was causally connected to the presence of a risk of electrocution while performing the overhaul work. 142 While the team members in various ways acknowledged that the Special Instructions meant that they should work clear of Pole 49, they were also prepared to work on Pole 49 because it was part of the maintenance task and they assumed that the pole was isolated. The confusion and misunderstanding about the documents, critical to the overhaul maintenance task, results in the conclusion that the defendant did not ensure the safety of its employees in the sense of making secure or certain their safety in the workplace. It has often been said that a provision such as s 8(1) imposes both a preventive and remedial duty upon employers and that their obligations extend to searching for risk rather than being merely reactive to an incident. While an employer must take into account the fact that employees may be careless on occasions or lacking in attention, especially where work is routinely and repeatedly performed, the Act, nevertheless, protects against inadvertence and inattention and even a foolish disregard for personal safety. The employer's obligation is to make reasonable contingencies within its system although an employer is not liable for merely speculative risks or unduly remote risks. The present case is not necessarily one involving employee inattention, carelessness or negligence: rather, the variety of misconceptions and misunderstandings reflects on the defendant's system of safety in the workplace. There were steps available to the defendant to address these risks and the evidence shows that, indeed, some steps had already been taken by the addition of identification tags and warning plates placed on Pole 49. The breach alleged in para (m) of the particulars of the charge has been made out. 143 In relation to the various aspects of the breach alleged in para (n) of the articulars, the evidence establishes the breach alleged in sub-paras (i), (ii), (iii), (vi), (vii) and (viii). The thrust of the prosecution case relating to these matters is accepted. 144 There is then to be considered some contradictory evidence about whether work was to be undertaken at Pole 49 and if any direction was given to anyone, including Mr Pedersen, to perform work on Pole 49. The effect of Mr Rogers's evidence was that he was proceeding to check the commit document, which he kept in his truck, to see if work was to be done on Pole 49 - that document indicated that work was to be done on Pole 49. Before he could return from the truck, Mr Pedersen had apparently climbed the pole and had fallen. Mr Rogers said that he gave no direction to anyone to climb Pole 49. However, he also said that there was no particular direction necessary because the team knew what was to be done. When Mr Pedersen fell, and the team members ran to give assistance, he said that Mr Mortlock told him that he had been at the foot of the ladder. Mr Rogers could not recall having a discussion with Mr Pedersen about him climbing the ladder. 145 Mr Mortlock's evidence was that, when he arrived, he saw the ladder against Pole 49 and noticed Mr Pedersen putting on his harness. Mr Mortlock had proposed to put on his harness to commence work on Pole 49 but, because Mr Rogers told him Mr Pedersen would be climbing the pole and performing the work, Mr Mortlock removed his harness and put it back on the truck. As he was doing so, he heard Mr Pedersen scream and hit the ground. He was at that point some 20 to 30 metres from the pole and not footing the ladder as Mr Rogers said. When he heard Mr Pedersen scream, he saw Mr Rogers close to the pole observing Mr Pedersen, although Mr Rogers's evidence was that he was at his truck speaking to Mr Buatava. Mr Buatava's evidence was that at the time he was in his car leaving the site when Mr Pedersen fell but just prior to that he had a discussion with Mr Rogers. Mr Pedersen thought that Mr Rogers had directed him to climb Pole 49, although he did not completely recall what had occurred but he remembered being told that the line had proved isolated and that it was "alright" to go up Pole 49. He had asked Mr Rogers if he was to work on Pole 49 which Mr Rogers confirmed - work was to be undertaken on Pole 49 although Mr Pedersen could not recall anything else being said by Mr Rogers about Pole 49. Mr Pedersen had been told by either Mr Buatava or Mr Rogers that the isolation was effective, then Mr Buatava told him that work could commence up the pole. He had been told this before he began to put on his harness and before he had spoken to Mr Rogers. In the conversation with Mr Buatava, he thought Mr Buatava was referring to all the poles being isolated. Mr Buatava, having informed him that the lines were isolated, then said it was "allright" to begin work. Mr Pederson thought that Mr Buatava, Mr Rogers and Mr Mortlock were present as he climbed the pole and that he spoke to Mr Rogers. 146 Importantly, Mr Mortlock's evidence was not challenged and, given the imperfection of Mr Pederson's memory of the entire incident, nevertheless, his account has some elements of consistency with Mr Mortlock's version of what occurred. On the evidence, I am satisfied that, whatever the precise terms used, Mr Rogers and Mr Buatava gave an indication to Mr Pedersen that work could commence on Pole 49, a pole that was designated in the Commit document as one requiring overhaul work. 147 Under para (n)(iv) of the particulars, it is alleged that the defendant failed to provide a safe method to perform the undertaking at heights in failing to provide or use a suitable elevated work platform to gain access to the feeders isolated for pole top maintenance upon Pole 49. The evidence shows that it was anticipated that a cherry picker would be used in this work and, indeed, a cherry picker was available. Although there is some confusion in the evidence, it is clear that, although the cherry picker was not too large to fit through the access gates, parked cars obstructed that entrance preventing this particular cherry picker, (which was somewhat larger than normally used for this task) being driven into the railway corridor and close to Pole 49. I accept Inspector Estreich's evidence that use of a cherry picker would have provided the highest level of safety but that there was another safe means of gaining access to the top of Pole 49, namely, by use of a suitable ladder. A suitable ladder was provided and quite detailed instructions were laid down by the defendant for working at heights requiring the foot of the ladder to be secured as well as the top of the ladder and the use of fall protection equipment whilst on the ladder. This was accepted by the Inspector as a safe method of work, although not as safe as working from a cherry picker. Having regard to the manner in which the charge is framed, this Particular is not made out to the requisite standard. 148 Particular (n)(v) alleged that the defendant failed to ensure its employees properly used (or used at all) a harness and related fall arrest mechanisms when the undertaking was carried out at heights. The evidence shows that, prior to working on Pole 49, Mr Rogers had observed Mr Pedersen using his harness properly in performing work at height. The defendant tendered Mr Pedersen's harness and a variety of lanyards that were accepted to be in good working order. Mr Pedersen accepted that he had been initially trained and had been re-trained each year in the use of harnesses and he understood how the harness was to be used. 149 When the team assembled at Pole 49, Mr Mortlock initially thought that he would be climbing that pole and put on his harness. This evidence shows not only that the harnesses were available and that employees had been trained in their use, but also shows that the employees put on harnesses when they were about to work at heights on the transmission poles.

Inspector Victor Page v Rail Infrastructure Corporation

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Judgment (19 paragraphs)

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Cited By (2)