Inspector Yeung v Thiess Pty Ltd

PROSECUTOR: Mr D B O'Neill of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr S Rushton SC and Mr A Gotting of counsel Solicitor: Mr G Delaney Corrs Chambers Westgarth

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under section 16(1) of the Occupational Health and Safety Act 1983

JUDGMENT [2003] NSWIRComm 325 1 In 2001 Thiess Pty Limited ("the defendant") was engaged in the role of construction manager on a large redevelopment site at the Royal Prince Alfred Hospital Clinical Services Building, Lambiedew Drive, Camperdown in the State ("the site"). DJD Masonry Contractors Pty Ltd ("DJD"), a firm of commercial and industrial brick and blocklayers, had been engaged to perform building work on the site. On 21 March 2001 a number of employees of DJD were working on the site including Brent Leadbitter, a third year bricklaying apprentice and Brian MacMahon, a leading hand. Nigel Jones, an employee of QMP that had been contracted by DJD to provide assistance in the construction work, was also on the site on 21 March 2001.

2 In the afternoon of 21 March 2001 Mr Leadbitter was undertaking the repair of blockwork on level 6 of the building. The wall on which the repair work was being undertaken was, on one side, adjacent to what is referred to as a riser. These are holes or shafts running through the concrete floors of the various levels of the building that are temporarily covered over at each level by what are known as penetration covers. During the course of construction the temporary covers are removed in order to allow for the installation of air conditioning ductwork and other services that run up through the various levels of the building. On the other side of the wall being repaired by Mr Leadbitter was a smoke ventilation shaft running up through the building under construction.

3 In the course of repairing the wall adjacent to riser 4 on level 6 Mr Leadbitter apparently stepped on the penetration cover on riser 4 at level 6, it gave way and he fell through the penetration covers below on levels 5 and 4. He landed on level 3. As a consequence of the fall Mr Leadbitter suffered lacerations to his face and right forearm and the injuries to his right leg and foot were such as to require amputation below the knee.

4 The defendant was prosecuted by Inspector Thomas Yeung ("the prosecutor") of the WorkCover Authority of New South Wales under s 16(1) of the Occupational Health and Safety Act 1983 which provides: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 5 In an amended application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 the prosecutor alleged that the defendant failed to: ensure that persons not in its employment, in particular Brent Leadbitter, Nigel Jones and Brian McMahon were not exposed to risks to their health and safety arising from the conduct of its undertaking whilst they were at its place of work contrary to section 16(1) of the Occupational Health and Safety Act 1983.

6 The particulars of the charge were that the defendant: (a) Failed to provide a means of entry to and/or to work in, on or around penetration areas to riser 4 of the said site that was safe and without risk to health.

(b) Failed to provide proper and/or adequate warning regarding risk of injury in relation to the entry to and/or work in, on or around penetration areas to riser 4 of the said site.

(c) Failed to maintain in a condition that was safe and without risk to health safety fences to the penetration areas of riser 4 of the said site.

(d) Failed to provide adequate and/or proper training of such persons in relation to the risks posed by the penetration areas of riser 4 in relation to the said site.

(e) Failed to provide adequate and/or proper supervision of such persons in relation to the risks posed by the penetration areas of riser 4 in relation to the said site.

As a result of the said failures, Brent Leadbitter suffered a serious injury and Nigel Jones and Brian McMahon were exposed to risks to their health and safety.

7 The defendant pleaded not guilty to the charge against it. Being the employer of Mr Leadbitter, DJD had also been charged under s 15(1) of the Act in relation to the incident on 21 March 2001 but it had pleaded guilty. That matter was dealt with by the Court in relation to sentence in Inspector Yeung v DJD Masonry Contractors [2003] NSWIRComm 236.

8 In any prosecution under the Act the prosecutor must prove the essential legal elements of the offence beyond reasonable doubt. In Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at 88 a Full Bench confirmed that the essential elements under s 16(1) were as follows: 1. The defendant was an employer. 2. There were persons not employees exposed to risks to their health and safety. 3. The risk arose from the conduct of the defendant's undertaking. 4. The exposure to risk was at the defendant's place of work.

9 Mr S Rushton SC with Mr A Gotting of counsel for the defendant did not dispute that on 21 March 2001: · It was relevantly an "employer".

· Certain persons who were not its employees, namely, Brent Leadbitter and Brian McMahon, were exposed to risks to their health and safety.

· Mr Leadbitter and Mr McMahon were exposed to risk at the defendant's place of work.

Further, no challenge was made to Inspector Yeung's standing as a prosecutor.

10 However, what the defendant did dispute was that: · On 21 March 2001 Nigel Jones was exposed to any risk to his health and safety;

· The risks to the health and safety of Mr Leadbitter or Mr McMahon on 21 March 2001 were as particularised by the Prosecutor; and

· Most significantly, that any risk to which any person that was not an employee of the defendant was exposed on 21 March 2001 arose from the conduct of the Defendant's undertaking. 11 Before going to each of the particulars of the charge it is necessary to record some matters of general relevance.

12 The defendant has been referred to as the construction manager but it was not the case that other contractors such as DJD were contracted to the defendant in the relationship of principal contractor/subcontractor. Each of the contractors had separate contracts with the Department of Public Works or the Central Sydney Area Health Service. The defendant did not directly supervise the work of other contractors. The defendant's role did, however, involve the coordination of work on the site. The defendant was also responsible for conducting site inductions, chairing the site safety committee and participating in site safety inspections. As senior counsel for the defendant conceded: The Defendant acknowledges that it had certain occupational health and safety obligations on site. It took those obligations seriously. It assumed the responsibility of conducting the site induction, it chaired the safety committee and participated in site safety inspections. If a hazard was identified, then the Site Safety Committee would take steps to ameliorate the risk by requiring the relevant contractors to rectify it, either immediately (class 1), within 24 hours (class 2) or within 1 week (class 3) Mr P Martinovich, a civil engineer employed as the project manager and site administrator by Wideform Constructions Pty Limited, the contractor that constructed the formwork including the risers, described the defendant as "the project co-ordinators of all the contractors on site." The site manager was an employee of the defendant, Mr M R Fidock.

13 The defendant employed Mr Jack Waitai-Tipene as a general foreman on the site. Mr Waitai-Tipene described his role as: Fairly broad. Generally the supervision, management, occupational health and safety to the areas designated to me. Mr Waitai-Tipene agreed that the area of his responsibility included riser 4.

14 Mr G D Peterson, DJD's foreman on site, described Mr Waitai-Tipene as being in charge of riser 4. Mr Martinovich said that Mr Waitai-Tipene's responsibility included work adjoining riser 4.

15 The evidence shows that the defendant's coordinating role involved coordination of the work of other contractors on the site including DJD. I will come to it in more detail shortly but in respect of the repair work to the wall adjacent to riser 4 on level 6, the direction as to how the work was to be carried out came from Mr Waitai-Tipene. This is consistent with his responsibility for the area in and around riser 4.

16 I consider that part of the defendant's undertaking as the construction manager on the site was the coordination of the work of other contractors. Mr Waitai-Tipene had responsibility for coordinating the work in and around riser 4 to the extent of directing how the work was to be done. The defendant also had a site-wide responsibility for occupational health and safety.

17 The construction of the penetration covers is relevant. In laying the concrete floors on each level of the building, the reinforcing mesh to be used for the concrete slab is not put in place over the penetration area (approximately 3200mm x 1500mm) where the riser is to be located. Instead a product known as "Pekaform" is used. Pekaform is a steel mesh covered in plastic on both sides. The Pekaform is nailed to the formwork on three sides of the penetration hole into the slab on three sides (but not on the fourth side on riser 4, level 6 because on that side a concrete wall (the lift shaft wall) had already been erected). Concrete is then poured over the mesh leaving a uniform floor of the same texture and look as the actual slab. The concrete over the penetration covers at the site were 30 mm thick.

18 The reason why the penetrations in the concrete floors were covered was to prevent water and debris falling down through the various levels of the building. Apparently, the usual practice in the construction industry was that penetrations were covered by appropriately sized plywood placed over the holes but on this site a new approach involving the Pekaform and concrete layer was adopted. Mr Martinovich proposed this new approach. After the concept was brought to his attention Mr Martinovich brought it to the attention of designers, engineers and architects at a regular coordination meeting on the site. The meeting agreed to use the new concept. In his evidence Mr Martinovich explained that the concept: [W]as discussed at one meeting, where we looked at the proposal. I am not sure whether or not it was the architect or another representative wanted to know how these penetrations were going to be made and finished off and it was then proposed and which way would people know they were penetrations; I said we will mark them the day after the concrete pour so my guys would not put any of my frames there before we stripped the bigger ones; we would put fences there so people would not walk over them. They had a look at the proposal and they all thought, from that meeting, that it was a good idea and we would go ahead with it and that is how we came up with the whole concept order.

Particular (a): alleged failure to provide a safe means of entry to and/or to work in, on or around penetration areas to riser 4

19 The allegation in this particular goes to a failure by the defendant to provide a means of entry to and/or to work in, on or around penetration areas to riser 4 that was safe and without risk to health. The allegation is confined to 21 March 2001.

20 It is to be noted that as at 21 March 2001 the penetration covers above level 6 on riser 4 had been broken open to allow for the installation of ductwork. The penetration cover on riser 4, level 6 had a sag in it, probably caused by debris falling on it from the upper levels. The defendant was aware of the sag. The penetration covers in riser 4 on levels 4 and 5 were intact. Riser 4 did not extend below level 4.

· The safety of Mr Leadbitter and Mr McMahon was put at risk on 21 March 2001 by virtue of the failure of the defendant to provide a safe means of entry to, and a safe means to work in, the area around riser 4, level 6;

· The safety of Mr McMahon and Mr Jones was put at risk by the fact that in standing on the penetration cover of riser 4, level 5 on 21 March 2001 they were not provided with a safe means of entry; and

· The safety of Mr Leadbitter was put at risk on 21 March 2001 when he walked across the penetration cover of riser 4, level 5 in gaining access to and egress from the smoke shaft.

22 As to the first contention, on the morning of 21 March 2001 a "tool box meeting" took place to consider how a block wall on level 6 immediately adjacent to the penetration in riser 4 might be repaired. It is not entirely clear who all of the personnel were who attended the meeting, although it is clear it was attended by Mr Waitai-Tipene, Mr McMahon, Mr Jones and Mr P F O'Brien, a mechanical supervisor employed by Hastie Australia Pty Limited ("Hastie"). Hastie installed the air conditioning ductwork.

23 It was apparent to those attending the meeting that repair of the wall would have to be carried out from within the smoke shaft which ran up through the building parallel to riser 4 but on the other side of the block wall. Inside the smoke shaft a scaffold had been erected that ran up from level 3 to level 6. The repair work was to be undertaken from a platform on the scaffold. The repair work could not be undertaken from that side of the wall adjacent to the riser 4 penetration on level 6 because the penetration cover had been compromised and Mr Waitai-Tipene considered it to be unsafe. A work platform was in place over the penetration but repair work on the wall could not be performed as the platform obstructed part of the wall where the repair was required.

24 Accordingly, Mr Waitai-Tipene instructed Mr McMahon the repair work would be undertaken from inside the smoke shaft. Mr McMahon then briefed Mr Leadbitter on the work method and Mr Leadbitter entered the smoke shaft and undertook the repair work. There was no evidence that either Mr Waitai-Tipene or Mr McMahon made a point of saying that Mr Leadbitter was not to undertake any part of the repair work from that side of the wall adjacent to the penetration in riser 4.

25 In the course of the repair work Mr Leadbitter required more "mud", or cement, to finish repairing the block wall. Mr McMahon delivered the extra cement by pulling the fence covering riser 4, level 6 to one side, placing two timber beams across the compromised penetration cover (which by now had removed from over it the work platform), walking onto the beams and handing the shovel of cement through the remaining small opening in the wall. Mr Leadbitter asked Mr McMahon to leave some extra cement. He did so. Mr McMahon also left the two timber beams in place across the penetration cover. Mr McMahon said that on exiting the penetration area at riser 4, level 6 he pulled the fence back into position.

26 After finishing his work inside the smoke shaft Mr Leadbitter said he climbed down the scaffold and exited the shaft at level 5. He went up to level 6 and using the cement left by Mr McMahon, he finished off the outside of the wall. Mr Leadbitter then proceeded to level 9 or 10 to ask Mr McMahon whether he required the repaired wall to be sealed using a caulking gun. Mr McMahon replied in the affirmative. Mr Leadbitter then proceeded back to level 6. In the course of either approaching the block wall or in the course of sealing it, Mr Leadbitter fell through the penetration cover on riser 4, level 6. His fall continued through the penetration covers on levels 5 and 4 and he landed on level 3, seriously injured.

27 It is apparent from the evidence that at the time Mr McMahon came down to level 6 to deliver more cement to Mr Leadbitter, the fence was in place on riser 4, level 6. The action of Mr McMahon in removing the fence and placing two 100mm x 100mm timber beams to access the hole in the wall without a safety harness was a foolish action and seriously jeopardized his own safety. His evidence that he placed the beams across the penetration cover in order to avoid having to walk on rubble because of hip replacement surgery is not to be believed. Mr McMahon was well aware of the sag in the penetration cover and I am satisfied the reason why he utilized the timber beams was to avoid stepping on the penetration cover in case it collapsed under his weight.

28 Not only was Mr McMahon's action foolish but also it was reprehensible. By leaving extra cement on level 6 Mr McMahon should have realised that Mr Leadbitter intended to use it and that in doing so he would most likely access the wall in the same way Mr McMahon had - across the timber beams.

29 In the cross examination of Mr Leadbitter the following exchange occurred: Q. I want to now ask you some questions about what happened on 21 March. May I preface my questions by saying I am not here to suggest to you in any way that what happened to you was - it was obviously a terrible tragedy and we accept that. You received instructions, as I understand your evidence from Mr McMahon to carry out the work which led up to the accident, is that correct? A. Yes.

Q. He told you that the work had to be conducted inside the riser? A. His words were "There is a scaffold built inside the riser". He told me the scaffold is going to be built, do it within there. But when he passed the mud in to me through the front I said "Leave the mud at the front so I can sludge it on the front." so he left his mud there, and I asked him if he wanted it caulked and he said "finish it there".

Q. So although he had indicated to you that you would do the work from a scaffold your conversation with him when he was delivering the mud across the plank led you to think he was approving of you doing it from the outside? A. No, because he said "We are going to throw smoke bombs in it", and when I put it in, like my blocks were - I had to cut them with a bolster so they were pretty smashed on their side, and I said "Leave some mud there so I can patch it on the front of it" and he left some out there.

Q. So you understood from what he said that he was approving of you going out to where he was standing and doing the patching from that side? A. Yes. 30 As Mr Leadbitter said in his evidence "I was just following my leading hand." Mr McMahon gave no directions to Mr Leadbitter that he was not to enter the fenced penetration area on level 6 or if he was to enter it, to wear a safety harness.

31 There was a significant failure on the part of DJD in relation to what occurred on 21 March 2001 and, indeed, it may be said that the immediate cause of the risk to health and safety to which Mr Leadbitter was exposed was the conduct of Mr McMahon. But one has to look behind those actions to determine whether there was any preceding link in the chain of causation to culpably connect the defendant to the risk: See for example, WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at 43-44.

32 There is no doubt on the evidence that the defendant's role on the site included responsibility for occupational health and safety. The responsibility was not exclusive, nor could it have been given the obligations that are imposed on all employers under the Act. But there is no scope for the defendant to contend that occupational health and safety matters in relation to riser 4 were beyond its responsibility. The record of interview of Mr Brendan Donohue, the defendant's building manager, shows conclusively that the defendant was engaged as the construction manager for the site, that it had a responsibility for occupational health and safety on site and that its supervisors were charged with the responsibility of ensuring that persons on the site complied with the defendant's occupational health and safety policies and practices. Mr Waitai-Tipene agreed in his evidence that part of his area of responsibility included riser 4.

33 At the toolbox meeting on the morning of 21 March 2001 Mr Waitai-Tipene observed that in order to repair the damaged wall it would be necessary to undertake the repair work from inside the smoke shaft. Mr Waitai-Tipene was aware that the penetration cover on riser 4, level 6 had a sag in it and that it was "pretty unsafe". He knew that in order to complete the repair work it would be necessary to remove the work platform covering the penetration on riser 4, level 6. He noted that whilst only a metre of sealing work was required if the sealing could be done on the outside (compared to 30 metres inside), "there was no feasible way of doing the seal [on the outside] once the work platform was removed [from over the penetration]".

34 Mr Waitai-Tipene conveyed the following instruction to Mr McMahon: Brian I need to do the blocks from inside the smoke shaft in the scaffold and you have got no choice but to take the steel (sic-seal) in the shaft and do it all in the internal side only, because you will never get a complete seal from the outside. In order to make the smoke shaft effective, it has to be able to stop smoke from penetrating.

35 It was apparent to everyone at the toolbox meeting whilst they were standing on level 5 looking up that the penetration cover on level 6 was sagging, thereby making it unsafe to work in the vicinity of the penetration. It would appear that Mr Waitai-Tipene assumed the consensus was all of the repair work was to be undertaken from the scaffold inside the smoke shaft in accordance with his instructions. Accordingly, Mr Waitai-Tipene assumed that there was no danger of anyone falling through the compromised penetration cover. Moreover, Mr Waitai-Tipene was aware that a fence had been erected in riser 4, level 6 and the rule on site was that safety fences were not to be removed unless approved by the defendant. That rule had been conveyed to employees of DJD, including Mr McMahon and Mr Leadbitter, and was set out in DJD's work method statement. Additionally, it was a requirement on site that where a person was working more than 1.8 metres above the ground and there was a danger of falling, they were required to wear a safety harness. Mr Leadbitter and Mr McMahon were aware of this requirement. In these circumstances, in instructing Mr McMahon to carry out the repair work, did the defendant satisfy the duty cast upon it under s 16(1) of the Act to ensure persons were not exposed to risk? 36 Mr O'Neill of counsel for the prosecutor contended that the defendant had not discharged its duty. Essentially, it was Mr O'Neill's submission that the defendant's regard for the safety issues involved in repairing the wall was superficial. He submitted that the defendant well understood the detriment to safety represented by the compromised penetration cover once the work platform was removed, that the defendant was aware that fencing was often ignored, that the defendant had not, in accord with usual practice, insisted on a written work method statement being submitted as to how the repair work was to be carried out, that there was no specific instruction to DJD not to undertake any of the repair work in the vicinity of riser 4, level 6 and that Mr Waitai-Tipene was dealing with Mr McMahon on 21 March 2001 and not the usual foreman, Mr Peterson who was absent on that day. As to this last issue, Mr O'Neill submitted there could not have been any confidence on Mr Waitai-Tipene's part that Mr McMahon - a person who Mr Waitai-Tipene did not normally deal with - would carry out the instruction to undertake all of the repair work from inside the smoke shaft and do so in a safe manner.

37 Clearly, the defendant had a duty to ensure that any repair work in relation to the wall on level 6 was accessed and undertaken without risk to the health or safety of persons involved in doing the work. That duty cannot be delegated to some other entity: Inspector Stewart v Siemans Pty Ltd (formerly Mannesman Dematic Colby Pty Ltd) No 2 [2003] NSWIRComm 45 at par [42]. In other words, it is not a defence to the charge to say that the work of repairing the wall and any associated occupational health and safety responsibilities belonged to DJD and, therefore, the defendant was absolved. The defendant was aware of the detriment to safety represented by the compromised penetration cover on riser 4, level 6 in circumstances where the work platform had been removed. The evidence was that the responsibility for coordinating the repair work and ensuring it was carried out belonged to the defendant and that, as part of that undertaking, the defendant was responsible to ensure persons were not exposed to risk.

38 The absolute nature of the duty cast upon an employer under ss 15 and 16(1) is well known and has been reinforced in numerous decisions of the Commission in Court Session including Full Bench decisions: Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467 at 470; Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 359; State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 at 120-121; Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 156-157; Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449-456; Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71 at par [82]; Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at par [31]; Legge v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319 at par [16]; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at par [43]; Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 (at pars [32] - [33]) by reference to WorkCover Authority of New South Wales (Inspector Farrell) v Schrader (2002) 112 IR 284.

39 The duty is a proactive one: WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248; Riley v Australian Grader Hire (2000) 103 IR 143 at par [15]; WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85; Ferguson v Nelmac Pty Limited (1999) 92 IR 188 at 209; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at par [43]; Inspector Neil Buggy v Weathertex Pty Limited [2003] NSWIRComm 273 at pars [58]-[60]; Workcover Authority of New South Wales (Inspector Farrell) v David Carl Schrader (2002) 112 IR 284 at par [57].

40 It is understandable that having discussed the method of undertaking the repair work and having decided that it was to be done from inside the smoke shaft, Mr Waitai-Tipene would not have expected any person to be in the vicinity of the penetration in riser 4, level 6 for the purpose of doing any of that repair work. Putting to one side for the moment the issue of fencing and safety harnesses, and taking in isolation the toolbox meeting on the morning of 21 March 2001, I do not consider the defendant could have been assured that the health and safety of persons would not be put at risk. Apart from an instruction given at the meeting that the work was to be carried out from within the smoke shaft, Mr Waitai-Tipene took no other steps to ensure the work would be carried out safely. Mr Waitai-Tipene usually dealt with Mr Peterson on such matters yet he undertook no follow up with Mr McMahon to ensure that the instructions had been clearly understood or that Mr McMahon was going to undertake the work in a safe manner. It would have been prudent of Mr Waitai-Tipene to at least require a work method statement in relation to the repair work. As Peterson J observed in Inspector Schultz v Leonard J Williams (Timber) Pty Ltd [2001] NSWIRComm 286 at par [13], "It is simply insufficient to give general directions and to, effectively, hope for the best." Arising out of the toolbox meeting, Mr Waitai-Tipene could not have been satisfied, to a standard that required the defendant to ensure the health and safety of persons, that Mr McMahon would adopt a safe method of work. 41 In this connection I note the observation of the Full Bench in Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 at par [31]: In the context of an employer's obligations under s 16(1) of the Act, we consider it is unhelpful and inappropriate to draw a distinction between specialists and non-specialists. We consider that it is incumbent on employers, regardless of the extent of their specialist knowledge or skill, to satisfy themselves as far as reasonably possible that, indeed, the contractor had the necessary skill and experience to carry out the work for which he or she had been contracted and the tools and equipment to be used were up to the task.

42 This was not a situation such as that in Inspector Anthony John Davies and Prospect Electricity (unreported, matter No CT 747 of 1991, Fisher CJ, 9 November 1992) where the defendant could have been satisfied that a well-developed and safe system of work applied and that DJD would carry out the work according to that system.

43 The evidence also revealed that Mr O'Brien asked Mr Waitai-Tipene about two weeks before the accident if anything could be done about rectifying the sagging penetration cover in riser 4, level 6. Mr Waitai-Tipene said he would take steps to have the problem rectified but failed to do so. In other words, on being alerted to what was an obvious detriment to safety the defendant took no steps to rectify the detriment. I will come to the matter of fencing and safety harnesses shortly.

44 Mr Rushton referred to the evidence of the prosecutor and that he believed Mr Leadbitter had ignored the instructions of Mr McMahon and Mr Hopson not to go into the penetration area of riser 4, level 6. There was no direct evidence that Mr McMahon instructed Mr Leadbitter not to go into the penetration area. Indeed, leaving the two timber beams in place across the penetration cover meant that in the circumstances, Mr McMahon virtually invited Mr Leadbitter to go into the penetration area.

45 Mr Hopson's evidence was that he told Mr Leadbitter that once he removed the work platform he was not to "come out" into the penetration area from the smoke shaft at level 6. Mr Hopson said nothing about the danger presented by the sagging penetration cover. Even if Mr McMahon and Mr Hopson had given Mr Leadbitter instructions about not going into the penetration area it could not be said that such instructions had flowed from any words of Mr Waitai-Tipene or any other representative of the defendant to the effect that persons were not to go into the area of the penetration on riser 4, level 6.

46 As to the fact that there was a fence erected across the access to the penetration and that there was a requirement to seek the defendant's approval to remove any fencing, the defendant contended that it had not, therefore, failed to provide a safe means of entry to the penetration area. The evidence about fencing revealed quite a confused state, a matter I will address in more detail shortly. However, although the site requirement was that no fences were to be removed without the defendant's approval and it was clear from the evidence that Mr McMahon and Mr Leadbitter well knew of this requirement, there was also evidence that the requirement was not always adhered to. 47 Mr P F Curtis was the defendant's project safety coordinator on the site. He gave evidence of the safety committee conducting regular safety inspections. He was asked how regularly during 2001 up to March 2001 did he observe that a fence was not in place. He answered: A. Well there was obviously, there was a safety committee inspection, formal inspection once a week on a daily basis. Paul Doyle and I would do the daily inspection. I couldn't tell you how many times but there could be up to two kinds of fencing on that project. So there is always fences missing somewhere, not missing, maybe loose so I couldn't tell you exactly how many times that happened. Whenever there was that fence panel missing or not installed correctly we would ensure it was reinstated immediately.

48 Mr J W Verrell, who operated a company called Pennant Promotions, gave evidence. Pennant Promotions provided advice and services to Hastie on the site. Mr Verrell was asked whether on the morning of the accident Hastie personnel and members of the safety committee "went around and satisfied themselves that all fences were installed". He answered: A. They did an inspection and, in fact, found a number of fences were not installed and subsequent to that, in that particular riser, my people under my direction and Hastie's contractors worked down through the building and put all fences back on.

49 Mr Hopson, in answer to a question about fencing of penetration covers in the period March 2001, said: A. There was some fencing in some areas but not on a lot of areas.

50 Mr Peterson said in his evidence that in the period in 2001 up to 20 March 2001 not all penetration covers were fenced.

51 Mr Leadbitter was asked whether he made any observations in relation to the fencing of penetration areas around March 2001 and he replied: A. No, not really. There was just fences was down and up everywhere. It was all over the shop. No-one took much notice of.

52 The impression that is conveyed to me by the whole of the evidence is that the requirement to seek the defendant's approval to remove fencing was only loosely observed by workers on the site and apart from daily inspections when fences were placed back into their correct position, the requirement for workers to adhere to the policy regarding fence removal was not strictly policed. I note that following the accident on 21 March 2001 the defendant introduced a system of fence removal permits. This was explained by Mr Doyle in his evidence: A. Any contractor who needed to work in that area, near the area, if they had to get into the penno [penetration] - the air conditioning contractors for example - they would need to fill out this fence permit and state what method of work they are going to be doing in there, safety procedures et cetera.

Q. To whom did they provide the completed working permit form? A. Thiess management.

53 The lax policies of the defendant relating to fencing are highlighted by the fact that notwithstanding senior management's view that the penetration covers were not designed to carry a person's weight, no fencing of the covers occurred until June 2000, when apparently a piece of mobile equipment cracked one of the covers. There was evidence that fencing on at least some of the covers did not occur until late 2000 at the earliest.

54 In any event, I do not consider that the defendant could have been satisfied that the existence of a fence would have been sufficient to prevent a person entering into and working in the area of the penetration in riser 4 on level 6. In this regard I also note that the fences could easily be removed.

55 I come to the issue of safety harnesses. As I have already stated, it was a requirement on site and one well known to Mr Leadbitter and Mr McMahon, that if they were working in a situation where there was a danger they might fall, they were required to wear a safety harness above a height of 1.8 metres. Working in the area of a penetration that was not covered was obviously an area where there was a danger of falling. There was no evidence of any laxity on the part of the defendant in policing the requirement to wear safety harnesses. Harnesses were clearly worn by persons working in the proximity of penetrations. In this regard I note Mr Campbell's evidence that he insisted on the wearing of safety harnesses when cutting out penetrations and Mr Verrell's evidence that "if it did not look safe wear a safety harness".

56 Nonetheless, in failing to ensure by inquiry or observation that Mr McMahon would carry out the repair work in a safe manner, Mr Waitai-Tipene failed to ensure that the work to be done on level 6 in the vicinity of riser 4 would be undertaken without exposing any person to risk to their health and safety.

57 An instruction to a worker that a job is to be done in a particular way will not always ensure that will be the case. Hence the observations of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (No 1) (1999) 101 IR 253 quoted with approval by the Full Bench in Riley v Australian Grader Hire at par [16] as follows: In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees.

In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer).

I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8).

58 As subsequent events proved, it was not beyond the bounds of possibility that in repairing the wall a worker might go outside instructions and approach it from the vicinity of riser 4 on level 6. The worker might do so unaware of the danger presented by the compromised penetration cover because it was covered in rubble or, knowing of the danger, not wear a harness in order to finish of the job quickly. Whilst it might seem an onerous obligation on an employer to foresee such a prospect and to take measures to avoid any risk to injury thereby arising, it is what the Act requires. Mr Waitai-Tipene took no proactive steps to actually identify, assess, control or eliminate any risks associated with the repair of the wall.

59 The second aspect relied upon by the prosecutor in relation to particular (a) was that the safety of Mr McMahon and Mr Jones was put at risk by the fact that they stood on the penetration cover of riser 4, level 5 on 21 March 2001. As to this allegation the defendant contended the Court could not be satisfied to the requisite standard that the toolbox meeting on 21 March 2001 involved workers stepping onto the penetration cover of Riser 4, level 5 or any other penetration cover. Alternatively, the Court could not be satisfied to the requisite standard that the penetration cover on Riser 4, level 5 gave rise to a "risk to health" if one or more of the members of the "tool box" meeting stepped upon it on 21 March 2001.

60 Mr McMahon was asked some questions about walking on the penetration covers: A. Well, we walked on them. We worked on them. We laid blocks on them. We didn't put any blocks on the penetration but we stood on them and built the walls that went across the penetration risers.

Q. Did anyone from Thiess say anything to you in relation to that? A. No.

61 Mr McMahon's evidence was that there was no fence around the penetration cover on level 5 on the morning of 21 March 2001 and that on that morning, during the course of the toolbox meeting, he stood on the penetration cover. Mr Jones said level 5 was not fenced on the morning of 21 March 2001 and that he "definitely did" stand on the penetration cover on level 5. Mr Rushton submitted there was "grave difficulty" accepting anything Mr McMahon said without the strongest corroboration and Mr Jones' recollection of events on 21 March 2001 was inaccurate.

62 Of course, if there was no fence surrounding the penetration cover on level 5 and the penetration covers were regarded as safe to walk on, there is no reason to consider that Messrs McMahon and Jones would not have stood on the cover as they considered what to do about repairing the wall on level 6 given the compromised penetration cover that could be seen to be sagging from level 5. However, the issue of whether riser 4, level 5 was fenced and whether the penetration covers were regarded as safe to walk on was the subject of conflicting evidence.

63 As I have said, Messrs McMahon and Jones stated there was no fence, as did Mr Leadbitter. Mr Hopson was somewhat confused about which levels he had visited on 21 March 2001 but I consider that in saying there was no fence on level 4 and when he later recognised his mistake that level 4 was in fact level 5, it would seem that his evidence was confirmatory to some degree at least that that there was no fence around the penetration cover on level 5. Further, Mr Hopson's evidence in examination in chief was as follows: Q. In relation to penetration covers that didn't have any working platform built over them, did you make any observations on the site as to what people on site did or didn't do in relation to those penetration covers? A. People were walking on them. I walked on a few myself.

Q. On the occasions you walked on them would they have included occasions within a month of March 2001? A. No because I knew from experience that it wasn't solid ground underneath you. Q. How did you know that? A. By just - I put some material on it one day and you could tell by hearing it, it sounded drummy.

Q. Did you make any observations and I ask you to focus on the period March 2001 of the fencing in relation to the penetration covers? A. There was some fencing in some areas but not on a lot of areas.

64 Mr Waitai-Tipene's evidence was that it was only those penetration covers that had been broken through or compromised that were fenced. That would mean that as at 21 March 2001 fencing had been placed around penetrations on riser 4 from level 6 and above but not on levels 4 and 5.

65 It was also Mr Waitai-Tipene's evidence that the penetration covers that were not in some way compromised were not fenced because they were considered to be structurally sound and safe for workers to walk on. His evidence in this respect is set out in the following exchange in examination in chief: Q. What was the purpose of the penetration covers? A. Its main purpose was probably, it was to give us protection from basically the rain coming in or water. Also, it was safe enough to actually walk on as well but it certainly had a limited live load.

Q. When you say that it was safe enough to walk on? A. Yes.

Q. Are you aware of there ever having been any assessment of the load bearing capacity of the penetration covers in riser 4? A. From memory there was a submission but I cannot remember the actual loadings.

Q. Was it, what was your position as foreman in charge of - sorry, with the responsibility in relation to riser 4, what was your position as to why contractors could or could not walk on the penetration covers? A. Well, as far as riser 4 and the others, the same principle remained. They were definitely safe and in all shape and form to be able to walk on. It was only if they were compromised that we had to do an alternative system within that place.

Q. In those circumstances what can you tell his Honour about the fencing arrangements if any relating to the various penetration covers? A. Definitely any and all locations that were compromised we fenced, effectively those ones that were compromised, and there was probably a good half dozen on the site, were definitely fenced because they had structural problems; they had quite severe bellies in them.

Q. And the non-compromised penetration covers? A. They were all marked.

What was the situation with them up to and including 21 March 2001 in relation to fencing? A. Really depended on the situation. A lot of them, those that had had their penetration removed, they were fencing off. Those where the structural integrity were still good they were generally painted on, had paint markings put on the floor mainly to identify to contractors that was the penetration.

Q. As at 21 March 2001 what was your position vis-a-vis contractors walking on penetration covers with penetrations that were sound? A. Um, there was, as I say there was no, persons walking on them; there was no threat or danger to anyone. Mr Waitai-Tipene confirmed this evidence in cross-examination. However, his evidence conflicted with that of others. 66 In the course of his evidence Mr Martinovich was asked a number of questions by Mr O'Neill relating to the capacity of the concrete/Pekaform penetration covers to bear loads: Q. Why were people to be excluded from that area? A. When we stripped the formwork - when we stripped our formwork part, which was supporting the whole area, so people wouldn't walk over who was working on it.

Q. What was the problem? A. So people wouldn't walk over and work over them; it's a penetration, that's why.

Q. What was the problem with people walking over the penetration? A. Obviously it's not a design concept - it's not a structural element there, it's just a thing to stop water and any dust falling through; it was not a structural design.

Q. What might happen? A. Probably fall, depends on the size of the penetration and where it was.

67 Mr Martinovich indicated that no tests of the penetration covers had been undertaken as to their load bearing capacity. There was no evidence as to just what load the penetration covers could bear. It may be observed that Mr Martinovich's evidence was that he did not consider the penetration covers were designed to be walked on yet the evidence of other employees of Thiess and that of Mr Verrell indicates that fencing was not erected around the penetration covers from the outset. 68 Mr M R Fidock was the defendant's site manager. His evidence in relation to the penetration covers was that in about June 2000 he noticed a scissor lift driving close to a penetration and that "from there we started installing fences around the penetrations because penetrations were not for carrying scissors on." Mr Fidock said the penetration covers were also marked with a cross to indicate a potential hazard. Mr Waitai-Tipene also claimed the intact penetration covers were marked with a cross. However, Mr Jones said that there were no crosses on the covers on riser 4 and only one marked with a cross on either riser 2 or 3.

69 Mr Verrell said in his evidence that prior to the scissor lift incident there was no fencing around the penetrations. He said that by 21 March 2001 all penetrations had been fenced and were deemed "not suitable for walking on." Mr Verrell said that the penetrations were deemed not safe to walk on because towards the end of 2000 it had been noticed the penetration cover on riser 4, level 6 had partly collapsed and it was considered there "may have been some instability or inability to support weight."

70 In an interview conducted by Inspector Leung on 7 September 2001, Mr Brendan Donohue, the defendant's building manager, NSW/ACT was asked whether Thiess was aware that workers had been standing on the floor penetration covers without safety fences having been installed. Mr Donohue replied: No, they were not designed to carry people's weight. That's why the safety fence was erected.

71 Mr Curtis, the project safety coordinator employed by the defendant, gave the following evidence regarding the penetration covers: Q. When the penetration covers were first built what was the situation in relation to fencing? A. When they were first installed there was no fences erected around the covers. We believe they were safe to walk on. Once I became aware there was a problem with one of the penetration covers in riser 4, level 6 the safety committee instructed that fence panels be erected around the riser covers.

Q. Was there some change in the view about whether they were safe to walk on? A. When we noticed that one had sagged we took the step of protecting all riser covers to ensure that there wouldn't be a repeat of the situation in riser 4. So yes we ensured that all riser covers were protected as a precaution.

72 Mr O'Brien was of the opinion that the penetration covers were safe to walk "until broken into so a lot of penetrations had no fence on them." Mr O'Brien said in his evidence that on 21 March 2001 the penetrations on riser 4 were fenced. I take that evidence to mean that where Mr O'Brien referred to "penetrations" he was referring to the actual hole in the floor as opposed to the penetration covers.

73 Croydon Sheet Metal Pty Limited employed Mr D J Campbell as a foreman/leading hand on the site. Much of Mr Campbell's evidence was incoherent and of little use to the Court. He did say, however, that he stood on penetration covers "Heaps of times, every day", including covers on riser 4.

74 Mr G D Peterson was employed by DJD as a leading hand. He was not present at work on 21 March 2001. He said in his evidence, however, that no one from Thiess had told him not to stand on a penetration cover and that he had observed " everybody was working on it, everyone was standing on it, I was standing on it, yes." He also said in his evidence that up to 20 March 2001 not all penetration covers were fenced. It may be seen from this view of the evidence that Mr Donohue and Mr Martinovich, the engineer who introduced the idea of the Pekaform penetration covers, did not consider the covers were designed to carry a person's weight. But the defendant gave no directions to that effect and initially there was no fencing around the penetration covers. Understandably, in the absence of any instructions to the contrary, workers would have regarded the penetration covers as being safe to walk on. If Mr Donohue regarded the covers as not being designed to carry a person's weight, I would make the observation that there was a considerable failing on the part of the defendant in not taking steps at the outset to ensure workers stayed off the penetration covers.

75 Mr Verrell and Mr Curtis gave evidence that there was no fencing around the penetration covers until at least June 2000 following the scissor lift incident. Mr Curtis, at least, considered they were safe to walk on. Mr Curtis, however, seems to have been of the opinion that the penetration covers were not fenced until the problem arose in riser 4, level 6, which on the evidence would seem to have been late 2000 at the earliest and two weeks prior to the accident at the latest.

76 Going to the specific issue of the penetration covers on riser 4 on levels 4 and 5 where Mr McMahon and Mr Jones claimed they stood on 21 March 2001, there was evidence contradicting their claim that the risers on those levels were not fenced on that day. Mr Verrell evidence was as follows: Q. As at 21 March 2001 what was the situation on site in regard to walking on the penetration covers? A. By that date all penetrations had been fenced and were deemed to be not walked on, not suitable for walking on.

Q. Do you know why that was? A. The observation had been made, particularly in the instance of the riser 4 on level 6 where the penetration had actually partly collapsed, that there may have been some instability or inability to support weight. … RUSHTON: Q. It is your understanding on the morning of the accident, that is 21 March 2001, Hastie personnel together with members of the safety committee went around and satisfied themselves that all fences were installed? A. They did an inspection and, in fact, found a number of fences were not installed and subsequent to that, in that particular riser, my people under my direction and Hastie's contractors worked down through the building and put all fences back on. Q. Can we safely assume on what you know from your own people, at least by, say, 10, 10.30 on 21 March 2001, they were satisfied to the extent that any particular fence was not in place it had been put in place? A. Specifically I have spoken to the person working in that area who put the fences back in.

77 Mr Doyle's evidence regarding the fencing was as follows: RUSHTON: Q. Mr Doyle, you were asked questions in relation to the things that may have occurred in November or November 2001; I want to take you forward to the day of the accident namely 21 March. Now you were Chairman of the Safety Committee at that time were you not? A. Yes.

Q. And was there a safety inspection which was carried out on site on the morning of 21 March 2001? A. Yes.

Q. Were you part of the team that went around and did the inspection? A. Yes.

Q. Did you inspect the various levels of Riser 4 during the course of the safety inspection? A. Yes.

Q. Were you able to observe anything in relation to the fencing on the various levels of Riser 4 on that morning? A. They were all in place. … Q. And do you recall that he asked you some questions about what you observed on levels 4 and 5 after the accident? A. Yes.

Q. And can I just remind you what you said in answer 26. You were asked this question; what did you see on the other levels. And you said; I went up to levels 4, 5 and then 6. I saw the fence on level 6 pulled back and with two 4 by 3 timbers hanging over the penetration. I also saw there was some barricaded safety tape taping off the area. It was right back a few metres. I saw Jack up there too and I think he would have taped it to make the area safe. Then you said on levels 4 and 5 the fence panels were still secured in position. In the witness box today, is that your recollection of what you observed on levels 4 and 5? A. Yes.

Q. Can you tell his Honour if you are able just how soon after the accident occurred did you proceed to levels 4 and 5? A. Ten minutes your Honour, 15 minutes maximum.

78 The state of the evidence regarding fencing is unclear. One thing, however, is certain and that is the defendant's approach to the safety fencing of penetrations and penetration covers was very muddled and it is no wonder different personnel had different understandings about it.

79 The likely situation was as described by Mr Waitai-Tipene in his evidence, supported by the evidence of Mr O'Brien. That is, once the penetration covers were opened up to allow for the erection of ductwork and the like the penetration was fenced. However, where the cover remained intact it was regarded as safe to walk on but not to place materials and equipment on. Covers that had not been compromised were not fenced.

80 I do not place much weight at all on the evidence of Mr Fidock. He only "understood" the penetration areas were fenced. Whilst I am somewhat sceptical about the evidence of Mr Verrell and Mr Doyle that the penetration covers on riser 4 at levels 4 and 5 were fenced, their evidence is sufficient to inject reasonable doubt about the contrary evidence of Messrs McMahon and Jones that they were not fenced. If the penetration covers were fenced on 21 March 2001 at the time the toolbox meeting occurred it is most unlikely that Messrs McMahon and Jones stood on the penetration covers.

81 My conclusion on this aspect is that there is reasonable doubt about whether Mr McMahon and Mr Jones did stand on the penetration covers on riser 4, level 5 on 21 March 2001 during the toolbox meeting with Mr Waitai-Tipene.

82 The third aspect relied upon by the prosecutor in relation to particular (a) was that the safety of Mr Leadbitter was put at risk on 21 March 2001 when he walked across the penetration cover of riser 4, level 5 in gaining access to and egress from the smoke shaft.

83 Notwithstanding that level 5 may have been fenced I am satisfied on the evidence of Mr Leadbitter and Mr Hopson that on 21 March 2001 Mr Leadbitter walked across the penetration cover of riser 4, level 5 in order to gain access and egress from the smoke shaft. I have already determined that the fact the penetration cover was fenced does not absolve the defendant of responsibility. The question arises, however, whether walking on the penetration cover constituted a risk to health and safety.

84 Mr Rushton contended that there was not a "scintilla" of evidence the penetration covers could not bear a live load and, therefore, that standing on the covers gave rise to a risk to health and safety. However, I would make the observation that if a person falling from level 6 can break through penetration covers on both levels 5 and 4 on the way down, there must be a serious question about whether it was safe to allow building workers to go about their daily tasks on the basis that the penetration covers were perfectly safe to walk on.

85 Putting that observation aside, according to Mr Martinovich and Mr Donohue, the penetration covers were not designed to carry a person's weight. Mr Rushton acknowledged this evidence but contended the issue was not whether the penetration cover on riser 4, level 5 was designed to bear a live load but rather whether in fact it could bear a live load. In other words, Mr Rushton contended that the onus was on the prosecution to prove beyond reasonable doubt that the penetration cover on riser 4, level 5 could not bear a live load in order to make out this aspect of particular (a). I do not consider that is so.

86 The onus on the prosecutor is to prove beyond reasonable doubt that the penetration cover constituted a risk to safety. If the cover was not designed to bear the weight of a person - a matter not contested by the defendant - and, according to Mr Martinovich, depending on the size and position of the cover, a person walking on it would "probably" fall - another matter not contested by the defendant - it seems to me to be self-evident that the penetration cover constituted a risk to the safety of any person walking on it. 87 I find that the prosecutor has made out particular (a).

Particular (b): Alleged failure to provide proper and/or adequate warning regarding the risk of injury in relation to the entry to and/or work in on or around penetration areas for riser 4

88 Proceeding on the basis that all of the penetration areas, including those with covers still intact were fenced, I have earlier found that the fencing was not an adequate protection measure because the requirement to seek the defendant's approval to remove fencing was only loosely adhered to by workers and not strictly policed by the defendant. In those circumstances, the fact that penetrations were fenced was not a proper or adequate warning regarding risk of injury. Further, even if I were to accept that intact covers were marked with a cross I do not accept, without more, the cross constituted an adequate warning. There was no evidence that the defendant conveyed any warning to Messrs Jones, Leadbitter or McMahon regarding the dangers associated with intact penetration covers. 89 It was a requirement, however, for workers to wear a safety harness on any live edge and Messrs Leadbitter, McMahon and Jones were aware of the danger of falling. I consider that the combination of fencing and the requirement to wear a safety harness when working in or near the penetration would have provided sufficient warning to workers of the risk to injury of falling from height. I also consider that in relation to Mr McMahon he was adequately warned about the risk of injury at riser 4, level 6 because the penetration was fenced, Mr McMahon was well aware of the requirement and rationale for wearing a safety harness and he was aware that the penetration cover had been structurally compromised.

90 However, in respect of Mr Leadbitter, there was no evidence that he comprehended the penetration cover on riser 4, level 6 represented a risk to safety. In fact, in a statement by Mr Leadbitter dated 30 March 2001 and tendered into evidence, the question was asked of Mr Leadbitter whether he believed if he had "slipped off the 4x4 beams that the penetration covers/safety mesh would have given way and caused you to fall", he replied "No. I did not believe that I would fall through."

91 In light of that evidence I do not consider that Mr Leadbitter was adequately warned of the risk to injury in relation to the entry and/or work in, on or around penetration areas for riser 4 on 21 March 2001. Particular (b) is made out.

Particular (c): Alleged failure to maintain safety fences

92 I have already largely addressed this issue. I consider that given there is reasonable doubt about whether or not penetration areas were fenced on 21 March 2001 I am bound to proceed on the presumption in the defendant's favour that all penetration areas were fenced on that day. Given that presumption, and having regard to the fact that in combination with the fencing workers were required to wear safety harnesses, there was no failure on the defendant's part to maintain safety fences in relation to penetration areas other than those in riser 4 on levels 5 and 6.

93 In relation to riser 4, level 5 I have found that on 21 March 2001 Mr Leadbitter walked across the penetration cover to gain access to and egress from the smoke shaft. In doing so he removed the fence. He would not have considered the need to wear a safety harness because it had clearly been the practice of workers to walk on the penetration covers in the belief they were safe. He removed the fence because, on my view of the evidence, the defendant had failed to maintain an appropriate policy and practice regarding the removal of safety fences.

94 In relation to riser 4, level 6 I have found that on 21 March 2001 Mr Leadbitter accessed the penetration area on riser 4, level 6 and did work in that area. The defendant's requirement to seek its approval to remove fencing was known to Mr Leadbitter but it was a requirement only loosely adhered to and not strictly policed by the defendant. Mr Leadbitter was also aware of the requirement to wear a safety harness where there was a danger of falling. However, the defendant did not warn Mr Leadbitter of the danger presented by the compromised penetration cover. Accordingly, the failure to maintain a strict practice and policy regarding safety fencing constitutes a failure on the part of the defendant in the circumstances described.

Particular (d): Alleged failure to provide proper or adequate training

96 Given my earlier findings, the defendant's failure in relation to particular (d) may be confined to its failure to provide proper or adequate training to Mr Leadbitter regarding penetration covers. The defendant conceded its responsibility for conducting site inductions and its responsibility regarding occupational health and safety. Notwithstanding the view expressed by both Mr Donohue and Mr Martinovich that the penetration covers were not designed to carry a person's weight, no training or instruction was given to Mr Leadbitter to avoid walking on penetration covers. The fact he was given training in relation to safety fencing was not, for the reasons I have already explained, sufficient to relieve the defendant of the need to inform Mr Leadbitter that penetration covers, in any condition, were not designed to carry his weight and that he was not to walk on them, in particular the covers on riser 4 at levels 5 and 6.

97 Whilst Genner Constructions Pty Limited v Workcover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267 was an appeal relating to s 15(1) of the Act the following observation at par [58], I consider, is apposite: [T]he employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character.

Particular (e): Alleged failure to provide adequate and/or proper supervision.

99 The defendant submitted that the Court could not be satisfied to the required standard that the defendant failed in its duty to supervise. It was submitted it would have been impractical for the defendant to supervise the work of other contractors on the site on a "micro level". Further, it was submitted that: As a matter of practical commonsense, such a system would have been unworkable. What did happen on site (which was entirely appropriate) was that supervisors were provided by each of the Contractors in relation to their workers. In the case of DJD, Mr McMahon reported to his supervisor, Mr Peterson, and Mr McMahon in turn as leading hand was responsible for supervising Mr Leadbitter. The Prosecutor's case flounders on the so-called "infinite regression of supervision argument". A similar argument was considered and rejected by Fisher CJ in Inspector Anthony John Davies v Prospect Electricity (Unrep: 9 November 1992). His Honour said (p8-9): "WorkCover's second submission was that someone should have overridden the cherry picker's controls at ground level, or that the cherry picker should have been controlled from ground level and not in the way that appears customary, namely from the working platform itself. This assumes it could be anticipated that the two workmen in the bucket itself, contrary to the expectation of everyone present, in defiance of all their instructions and their undoubted knowledge of safe working, might in fact abandon all care and precaution by moving without authorised access to the 11 KCV wires. I consider this view to be contrary to the evidence. It is a version of the infinite regression of supervision argument, which if accepted would mean that every well trained tradesman should be supervised or observed by a superior trained tradesman, and he seemingly in turn should be supervised himself by someone even higher."

100 I do not understand the defendant to contend that it had no responsibility in relation to the repair of the block wall on level 6 including the associated responsibility regarding occupational health and safety. If it had no responsibility how was it that Mr Waitai-Tipene, the defendant's general foreman, gave instructions to DJD as to how the work was to be carried out?

101 It was not a question of Mr Waitai-Tipene being required to look over Mr Leadbitter's shoulder whilst he did the work or of supervising the supervisor, namely, Mr McMahon. The fact was that beyond giving instructions as to how the repair work was to be carried out in the smoke shaft, there was no further supervision by the defendant of the work. Mr Waitai-Tipene made no inquiry of Mr McMahon about any of the safety requirements that had to be observed. This was notwithstanding the fact that the hole in the wall that Mr Leadbitter was to repair was not only large enough for him to climb through (otherwise Mr Hopson would not have needed to tell Mr Leadbitter not to "come out" after he removed the work platform) but the hole was immediately adjacent to the compromised penetration cover that Mr Waitai-Tipene considered to be unsafe.

102 The requirement that a worker stand atop a scaffold extending three stories high to repair a hole in a wall adjacent to a structurally compromised penetration cover was potentially dangerous and a real risk to health and safety. The manner in which such work was to be carried out, in my opinion, required careful thought and planning and adequate supervision, especially in relation to safety aspects. The evidence reveals that Mr Waitai-Tipene articulated nothing about safety measures at the toolbox meeting and took no further steps to supervise the work. I find particular (e) is made out.

103 I am satisfied beyond reasonable doubt that on 21 March 2001 the defendant failed in the manner particularised to ensure that Brent Leadbitter was not exposed to risks to his health and safety arising from the conduct of its undertaking whilst he was at the defendant's place of work.

Section 53 defence 104 Section 53 of the Act provides: 53 Defence It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

105 As the defendant submitted, in relation to s 53(a) of the Act Walton J, Vice President said in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Limited (2001) 110 IR 182 at par [87]: It is evident from these authorities that what is required by section 53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the cost, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence (see Jayne v National Coal Board (1963) 3 All ER 220 at 224 and Shannon v Comalco Aluminium Limited at 362). Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: (See WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellog (Aust) Pty Limited at 259 and Austin Rover Limited v Inspector of Factories at 627 per Lord Goff and at 635-636 per Lord Jauncey of Tullichettle. See also Bultitude v Grice Constructions Pty Ltd [2002] NSWIRComm 20; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 and Inspector Moore v Blacktown City Council [2003] NSWIRComm 47.

106 The onus, on the civil standard, is on the defendant to prove that it was not reasonably practicable to comply with s 16(1). The defendant submitted that what occurred on 21 March 2001 was not reasonably foreseeable. It was submitted that: The Defendant had in place a more than adequate system of safety in relation to the penetration covers on Riser 4. As a consequence of the "tool box" meeting of 21 March 2001 a safe method of carrying out the relevant work had been agreed. The Work Method Statement of DJD expressly provided that safety fences could not be removed without the authority of the Defendant. A safe working platform had been erected across level 6 which gave safe egress to the riser. What then happened could hardly have been reasonably foreseeable, namely, a senior supervisor who had been present at the tool box meeting and was aware of how the work could be safety carried out dismantled the safe system which was then in existence by removing the safety fence at level 6 of Riser 4 and placing two pieces of wood across the structurally compromised penetration cover at that level. No-one has suggested in evidence any means, practical or otherwise, by which the Defendant could have protected persons on site from this disgraceful behaviour.

107 In my opinion, it was reasonably practicable for the defendant to comply with the provisions of s 16(1) of the Act in respect of Mr Leadbitter on 21 March 2001 by: 1. providing a means of entry to and/or to work in, on or around penetrations areas to riser 4 on levels 5 and 6 that was safe and without risks to health by requiring an appropriate work method statement to be lodged, by advising that the penetration covers were not safe to walk on and by providing specific instructions not to enter the penetration areas on levels 5 and 6 unless wearing a safety harness; 2. providing proper and/or adequate warning regarding the risk of injury in relation to the entry and/or work in, on or around the penetration areas of riser 4 on levels 5 and 6; 3. maintaining in a condition that was safe and without risk to health safety fences to the penetration areas of riser 4 on levels 5 and 6 by implementing a strict policy, adequately policed, prohibiting the removal of safety fences under any circumstances without approval; 4. providing adequate and/or proper training to Mr Leadbitter in relation to the risk posed by walking on penetration covers, whatever their condition; 5. providing adequate and/or proper supervision of Mr Leadbitter in relation to the risks posed by the penetration areas on riser 4 at levels 5 and 6.

108 It does not seem to me that in considering whether a risk to health and safety was reasonably foreseeable that the precise nature of the risk needs to be foreseeable, as the defendant appears to contend. I do consider, however, that if a safe means to work in a penetration area is not provided, if proper warnings are not given to workers such as Mr Leadbitter about the danger of falling through penetration covers, if adherence to appropriate safety fence policies are not strictly observed and applied and if there is no adequate training and supervision in relation to the risk of falling in a penetration area, then it is reasonably foreseeable that a worker may be injured or killed unless appropriate precautions are taken.

109 As to s 53(b), it follows from the foregoing consideration that the commission of the offence was due to causes over which the defendant had control and against the happening of which it was practicable for the defendant to make provision.

111 I find the offence under s 16(1) of the Act proven. I will hear submissions on penalty on a date to be fixed.

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