Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales

APPELLANT: Mr G J Parker of counsel Solicitor: Mr D Sun Eakin McCaffery Cox LEGAL REPRESENTATIVES: RESPONDENT: Ms P E McDonald of counsel Solicitor: Mr S Pertsinidis WorkCover Authority of New South Wales

JUDGMENT:

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM : WRIGHT J, President HUNGERFORD J BOLAND J

Matter No IRC 1780 of 2000 MAINBRACE CONSTRUCTIONS PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR STEPHEN CHARLES)

Appeal against decisions of Justice Kavanagh given on 13 October 1999 and 29 March 2000 in Matter No. IRC 608 of 1998.

JUDGMENT OF THE COURT [2000] NSWIRComm 239 1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 and s 5AA (1) of the Criminal Appeal Act 1912 by Mainbrace Constructions Pty Limited from two judgments of Kavanagh J in Matter No IRC 608 of 1998. The first judgment of her Honour, handed down on 13 October 1999, related to liability of the appellant for an offence under s 16(1) of the Occupational Health and Safety Act 1983. The second judgment, subsequently handed down on 29 March 2000 ([2000] NSWIRComm 36), related to the sentence for the offence. 2 The proceedings before Kavanagh J concerned a prosecution brought by Stephen Charles, an inspector of the WorkCover Authority of New South Wales, for a breach of s 16(1) of the Occupational Health and Safety Act. 3 The prosecution arose from an incident that occurred on 5 March 1996 when a trafficable suspended ceiling, on which the three persons named in the summons were standing, collapsed. The three persons, who each suffered injuries to varying degrees as a result of the collapse, were electrical workers employed by Kennedy-Taylor (NSW) Pty Limited. Kennedy-Taylor had been subcontracted by the appellant to carry out electrical work at the premises of Chisholm Manufacturing, a division of Woolworths Limited. The appellant, in turn, had been contracted by Pinnacle Pacific Pty Limited, the project manager appointed by Chisholm, to carry out building renovation work on sections of a meat processing facility which was owned and occupied by Chisholm at Blacktown in the State. 4 Kavanagh J described the nature of the construction work and the events leading up to the collapse of the ceiling in her first judgment. Relevant extracts are as follows: Inspector Charles gave evidence that on the premises a large meat processing factory operated. The Hanging Area measured approximately 10 metres x 6 metres. The room was made of sandwich cool room panels with foam inserts, which lined the walls and ceiling. The ceiling was approximately 6 metres above ground level. Inspector Charles on his first visit saw the ceiling at the northern end of the Hanging Area had collapsed. Five sandwich ceiling panels were on the ground. He observed electrical wiring at ceiling height. Three further ceiling sandwich panels which had collapsed were resting on a metal structure which was connected to horizontal 'I' beams, within the Hanging Area. The demolition and construction included improvements to a room known as "Cellar Processing", which adjoins the Hanging Area, separated by a wall at the northern end of the Hanging Area. Owing to the headroom required to install a new loading machine in the Cellar Processing Room and the construction of new Cool Rooms, the old wall between the Hanging Area and Cellar Processing Room was removed in early February, 1996. For hygienic reasons, before the old wall was removed, a Dust Suppression Wall (the dust wall) was erected about 1.2 metres away from the northern wall, within the Hanging Area. Mainbrace, in accordance with a variation to the original contract, sub-contracted another company, Thermal Insulations Pty Ltd, to construct the new northern wall between the Hanging Area and Cellar Processing Room, comprising new 150 mm thick sandwich wall panels. The dust wall was made of sandwich ceiling panels. It was designed and erected and removed by Mainbrace. It was never intended that the dust wall be a load bearing wall. It was erected to prevent dust and other material entering the Hanging Area where the meat processing continued to be conducted throughout the demolition and construction process. The dust wall was connected to the existing trafficable ceiling and floor of the Hanging Area by aluminium angle irons (50 mm x 50 mm) between the ceiling and dust wall. In addition, silicone sealant was applied between the gap which was approximately 12-15 mm between the top of the dust wall and the existing ceiling panels. Approximately 1 hour before the accident, Mainbrace, through Mr Doring, the site manager for Mainbrace, directed its employees to remove the dust suppression wall in the Hanging Area. In accordance with common practice in the industry acrow props were used to support the suspended ceiling as the dust wall was removed. Mainbrace did not inform other companies' workers on site especially workers from either Thermal Insulations or Kennedy-Taylor prior to the collapse that they were taking the dust wall down. Although, the Hanging Area was not an area where original construction was taking place, it was necessary for many tradespersons involved in the conduct of normal business and in the construction to use the ceiling above this area as a means of access and egress to their work areas. It was being used on 5 March 1996 as an access area to an electrical site by the injured electrical workers at the time of the accident in accordance with a task allegedly arising out of a variation to the contract. Immediately prior to the accident, Mr Ruttiman, Mr Smith and Mr Tillet entered the suspended ceiling area to inspect electrical wiring on the northern wall. They climbed the access stairs to the ceiling. In the area of the stairs was a warning sign which said: WARNING - ACCESS AREAS INDICATED BY MARKINGS MAX. LOAD NOT TO EXCEED 110kg at 1.2m SPACING OTHER AREAS NOT TO EXCEED 1 MAN + 20kg/PANEL At some stage, when is not clear from the evidence, but prior to accessing the ceiling, Glenn Smith, foreman for Kennedy-Taylor, was advised by Mr Doring, foreman for Mainbrace, to ask a tradesman employed by Chisholm Manufacturing on the site how to access the ceiling for the removal of electrical fixtures on the northern wall. He was advised by the Chisholm worker to stay close to the edges of the roof near a wall support or close to the suspension chains where there was more support when he travelled along the ceiling. Mr Smith had been into the ceiling prior to the day of the accident to disconnect the thermostats from the old wall. When the three men entered the roof area, they spaced themselves at approximately 2 metre distances from each other and were standing on separate ceiling panels at the time of the collapse. All three men were standing on the ceiling within 1 to 3 metres of the newly erected northern wall of the Hanging Area. They had only been standing on the ceiling for some minutes when it collapsed. The panel Mr Smith was standing on was the first to collapse followed quickly by the panels that Mr Tillet and Mr Ruttiman were standing on. None of the three men were carrying any equipment at the time of the accident. Their weight at the time was estimated at: Mr Smith 83-84 kgs, Mr Tillet 70kgs approx and Mr Ruttiman 83-84kgs. Summons 5 The summons alleged: That the defendant, Mainbrace Constructions Pty Ltd, did fail to ensure that persons not in its employ in particular Erwin Ruttiman, Glen Smith and David Tillet were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, in particular Mainbrace failed: (a) to provide or maintain a means of access to and egress from designated construction areas via means of the trafficable suspended ceiling over the Hanging Area, that was safe and without risk to health. (b) to conduct any, or any adequate risk assessment of the structural integrity of the trafficable suspended ceiling above the Hanging Area, and of the potential effects upon such integrity of the construction and removal of the dust suppression wall. (c) to instruct all persons engaged in construction works at the site that the suspended ceiling above the Hanging Area was not to be entered or used as an access way until its structural integrity for such purposes was adequately assessed. (d) to notify employees of Thermal Insulations Pty Ltd and Kennedy-Taylor (NSW) Pty Ltd, of the demolition of the dust suppression wall which had been erected in the Hanging Area, and of the potential effect of this on the structural integrity of the trafficable suspended ceiling in the Area. (e) to prevent persons from entering the trafficable suspended ceiling over the Hanging Area or to warn of the danger of ceiling collapse, once it had been notified of sagging in the said ceiling. (f) to ensure aluminium angle for support of the said new wall and suspended ceiling in the Hanging Area was adequately riveted prior to allowing persons access to the trafficable suspended ceiling. (g) to ensure that the said temporary dust suppression wall which provided partial support to the suspended ceiling in the Hanging Area was not removed until adequate alternative measures were in place to support the ceiling. 6 The appellant pleaded not guilty. Her Honour found, however, that the prosecution had made out particulars (a), (b), (c), (d), (e) and (g) and found the offence proven. 7 In her subsequent judgment relating to sentence, Kavanagh J imposed a fine of $100,000. In doing so, she applied the principle of parity between the appellant and Kennedy-Taylor, who had also been prosecuted and found guilty by her Honour in relation to the same incident arising out of the same factual circumstances but under s 15(1) of the Occupational Health & Safety Act in Matters Nos IRC 605, 606 and 607 of 1998. 8 Kennedy-Taylor also appealed from the judgment by Kavanagh J going to liability. The Court's decision relating to the Kennedy-Taylor appeal and its implications for the decision in this appeal are addressed later in this judgment. Approach on appeal 9 This being an appeal under the combined operation of s 196 of the Industrial Relations Act and s 5AA(1) of the Criminal Appeal Act, leave is not required and the appeal is to be by way of re-hearing on the evidence and not by way of a hearing de novo: Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) [2000] NSWIRComm 71, (2000) 99 IR 29; Warman International Ltd v WorkCover Authority of New South Wales (Inspector AnKucic) (1998) 80 IR 326 at 331, 339. In Capral Aluminium the Court (Wright J, President, Walton J, Vice President, and Kavanagh J) stated at para 17: The present appeal is an appeal as of right: see s 5AA(1) of the Criminal Appeal Act and s 196 of the Industrial Relations Act . The approach to be adopted in an appeal under those provisions is now settled. Section 5AA(3) of the Criminal Appeal Act provides that an appeal brought under that section shall be "by way of rehearing on the evidence … given in the proceedings before the Supreme Court in its summary jurisdiction." This provision has been considered in a number of judgments of the Court of Criminal Appeal and its application in this jurisdiction has been considered in a number of judgments of Full Benches of this Court. The Full Court hearing the appeal is not determining whether the trial judge fell into error, but is independently determining the appropriate conviction and sentence. In NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6 at 11, Enderby J (with whom Hunt CJ at CL and Allen J agreed) stated: "… it has to be borne in mind that it is not a question for this Court of whether or not his Honour erred in making the findings he made, but whether this Court is independently of the same opinion as his Honour." An appeal brought under s 5AA is not a hearing de novo and new evidence may be adduced only with leave of the Court: s 5AA(3A). Nonetheless, the appeal court must consider afresh the ultimate issue to be determined. 10 We respectfully adopt and follow the approach of the Full Bench in Capral Aluminium. Elements of section 16(1) of Occupational Health & Safety Act 11 Section 16(1) provides: 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. 12 In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994), Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s 16(1). These we paraphrase as follows:

1. The defendant was an employer;
2. there were persons not employees exposed to risks to their health or safety;
3. the risk arose from the conduct of the defendant's undertaking; and
4. the exposure to risk was at the defendant's place of work. Appellant an employer 13 In the present proceedings, the first element was admitted by the appellant. In Exhibit 1 in the proceedings before her Honour it was indicated that amongst the matters admitted by the appellant were: "3. On 5 March 1996 the defendant was an employer." Persons not employees exposed to risks 14 In relation to the second element, it was admitted by the appellant that "On 5 March 1996 Erwin Ruttiman, Glenn Smith and David Tillet were persons who were not in the defendant's employment." Additionally, the evidence reveals that employees of Chisholm and employees of contractors other than Kennedy-Taylor performed work from time to time in the ceiling space above the Hanging Area. This aspect, together with the question of exposure to risk, is addressed more fully in relation to the third and fourth elements of the offence. Risk arose from conduct of appellant's undertaking 15 Under the third element, the prosecution is required to prove that: (a) the defendant was conducting an undertaking; and (b) a risk arose from this undertaking. 16 In Exhibit 1 in the proceedings before her Honour it was admitted by the appellant that "On 5 March 1996 and at all material times, the defendant's undertaking was as a principal building contractor for the renovation of part of a meat processing facility at the said (Chisholm's) premises." 17 In the proceedings below there was considerable focus on the presence in the ceiling of the three Kennedy-Taylor employees at the time of the accident and the purpose of them being there. Mr G J Parker, counsel for the appellant, submitted, in effect, that the employees were not in the ceiling as part of the conduct of the appellant's undertaking. In other words, the appellant submitted that if it could not be shown that the employees of Kennedy-Taylor were using the trafficable ceiling as part of the conduct of its undertaking at the time of the accident then the third element of the offence could not be made out. 18 In considering this aspect of the appellant's case, the relevant facts would appear to be as follows: (a) Chisholm owned and occupied the premises where the risks to health or safety were alleged to have arisen. (b) Chisholm contracted Pinnacle Pacific Pty Limited to act as the Project Manager in the renovation of the premises. (c) The appellant was contracted to undertake building construction work in respect of part of the premises. This included the construction of a cool room, the demolition and re-construction of the northern wall in the Hanging Area and the construction and dismantling of a dust suppression wall. (d) According to the evidence of Jeffrey Robert Hill, who was the Project Manager for Pinnacle Pacific the appellant was responsible for the day to day management of the site. Exhibit 11, which was admitted without objection, described the appellant as "the principal contractor" and that as such "Mainbrace is responsible for safety and Vikool must comply with the site safety requirements and mainbraces (sic) direction in this matter." Telephone listings in Exhibit 11 refer to the appellant under the heading "Builder" as "Head Contractor". (e) The appellant subcontracted certain electrical work to Kennedy-Taylor. Due to the initially unforeseen need to demolish the whole of the northern wall and to erect a new wall, a variation to the contract between the appellant and Kennedy-Taylor was agreed. This variation required Kennedy-Taylor to remove cable trays and disconnect a number of thermostats attached to the old northern wall. This was done approximately one month prior to the collapse of the ceiling. Cable trays were then re-attached to the new northern wall by an employee or employees of Kennedy-Taylor at sometime prior to 5 March 1996. (f) Kennedy-Taylor had also contracted, independently of the appellant, with Chisholm to undertake certain electrical work. (g) The three employees of Kennedy-Taylor referred to in the summons, entered the ceiling area about 3.30 pm on 5 March 1996 to make a visual inspection of the new northern wall for the purpose of re-connecting the thermostats. While standing on the ceiling it collapsed. (h) The appellant did not control access to the ceiling space. Access to that space was via a permanent ladder in a plant room controlled by Chisholm. (i) Putting aside the question of the re-connection of the thermostats, the appellant was not required to undertake any work in the Hanging Area underneath the collapsed ceiling as part of its contract and was not required to undertake any work in the ceiling space above the Hanging Area. 19 The issue comes down to whether the re-connection of the thermostats to the newly erected northern wall was part of any contract or arrangement between the applicant and Kennedy-Taylor, and whether the three employees were in the ceiling space pursuant to that requirement. 20 It seems to us that if the appellant, under a contract or some other arrangement, was required to demolish and re-construct the northern wall and in doing so found it necessary to remove and re-attach thermostats, even though the work relating to the thermostats was required to be done by a specialist contractor, that work formed part of the appellant's conduct of its undertaking. 21 In R v Associated Octel Co. Ltd [1996] 1 WLR 1543 the appellant operated a chemical plant. During an annual shut down of the plant for maintenance and repair the task of repairing the lining of a tank within the chlorine plant was entrusted to an independent contractor. One of the contractor's employees was badly burned during the process. The appellant at first instance was convicted under s 3 of the Health and Safety at Work etc. Act 1974 (UK) of failing to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in his employment who might be affected thereby were not exposed to risks to their health and safety. The appellant appealed and the Court of Appeal dismissed the appeal. On appeal to the House of Lords it was held that what had to be determined was whether the activity in question was part of the employer's undertaking at its plant to have the chlorine tank repaired; but that that was a question of fact and should have been left to the jury, though in the circumstances a properly instructed jury would have undoubtedly convicted. 22 Lord Hoffmann delivered the judgment of the House of Lords and at 1547-1548 said: The question, as it seems to me, is simply whether the activity in question can be described as part of the employer's undertaking. In most cases, the answer will be obvious. Octel's undertaking was running a Chemical plant at Ellesmere Port. Anything which constituted running the plant was part of the conduct of its undertaking. But there will also be ancillary activities such as obtaining supplies, making deliveries, cleaning, maintenance and repairs which may give rise to more difficulty. In Reg. v. Mara [1987] 1 W.L.R. 87, 90-91, Parker L.J, said this about the cleaning of a factory: "A factory, for example, may shut down on Saturdays and Sundays for manufacturing purposes, but the employer may have the premises cleaned by a contractor over the weekend. If the contractor's employees are exposed to risks to health or safety because machinery is left insecure, or vats containing noxious substances are left unfenced, it is, in our judgment, clear that the factory owner is in breach of his duty under section 3(1). The way in which he conducts his undertaking is to close his factory for manufacturing purposes over the weekend and to have it cleaned during the shut down period. It would clearly be reasonably practicable to secure machinery and noxious vats, and on the plain wording of the section he would be in breach of his duty if he failed to do so." I entirely agree and I draw attention to the language used by the judge. It is part of the conduct of the undertaking, not merely to clean the factory, but also to "have the factory cleaned" by contractors. The employer must take reasonably practical steps to avoid risk to the contractors' servants which arise, not merely from the physical state the premises (there are separate provisions for safety of premises in section 4), but also from the inadequacy of the arrangements which the employer makes with the contractors for how they will do the work. Likewise in the present case I think that it was part of the conduct of Octel's undertaking at Ellesmere Port to have the chlorine tank repaired. 23 Further, at 1549 his Lordship said: ……. the question of whether an employer may leave an independent contractor to do the work as he thinks fit depends upon whether having the work done forms part of the employer's conduct of his undertaking. If it does, he owes a duty under section 3(1) to ensure that it is done without risk - subject, of course, to reasonable practicability, which may limit the extent to which the employer can supervise the activities of a specialist independent contractor. 24 Mr Parker submitted that the only evidence relating to a contract between the appellant and Kennedy-Taylor about electrical work on the northern wall was a variation of the original contract between it and Kennedy-Taylor that went to the removal of cable trays and the disconnection of the thermostats; but there was no evidence the variation required Kennedy-Taylor to re-connect the thermostats and replace the cable trays. That being the case, Mr Parker submitted, the re-connection of the thermostats was not part of the conduct of the appellant's undertaking. 25 Kavanagh J rejected the proposition that "it was a Mainbrace undertaking to disconnect the thermostats but not a Mainbrace undertaking to re-connect them." Her Honour held that re-connection of the thermostats was part of the contract between the appellant and Kennedy-Taylor. 26 Ms P E McDonald of counsel, for the respondent, conceded that the evidence did not reveal there was any express instruction that the thermostats were to be re-connected but submitted that re-connection was an integral or implicit part of the work contracted by Kennedy-Taylor with the appellant. Counsel submitted that it was not necessary to prove this implied term beyond reasonable doubt because it was merely an individual item of evidence - a building block towards establishing one of the essential elements of the offence: Shepherd v The Queen (1990) 170 CLR 573. Ms McDonald submitted that it was properly open to the Court to draw the inference that re-connection was an implied term of the contract between the appellant and Kennedy-Taylor. 27 It does not seem to us that re-connection of the thermostats was a term necessary for the effective operation of the contract between the appellant and Kennedy-Taylor or that it was a term that "goes without saying": BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266. In other words, because Kennedy-Taylor disconnected the thermostats on the appellant's instructions it does not necessarily follow that re-connection was part of the contract. On the evidence, it could have been a matter for Chisholm to direct Kennedy-Taylor to re-connect the thermostats. Accordingly, in the absence of reliable evidence to the contrary, we are unable to find that the re-connection of the thermostats was part of the conduct of the appellant's undertaking. 28 The second aspect that needs to be considered, however, in relation to whether the risk to safety arose from the conduct of the appellant's undertaking, concerns the demolition and re-construction of the northern wall and the erection and dismantling of the dust suppression wall. This work was unquestionably part of the conduct of the appellant's undertaking. Nevertheless, Mr Parker submitted that no risks arose from the conduct of that part of its undertaking. 29 The evidence established that the demolition and construction undertaken by the appellant included improvements to a room known as "Cellar Processing", which adjoined the Hanging Area, separated by a wall at the northern end of the Hanging Area. The old wall between the Hanging Area and Cellar Processing Room was removed in early February, 1996. For hygienic reasons, before the old wall was removed, a Dust Suppression Wall was erected about 1.2 metres away from the northern wall, within the Hanging Area. 30 Mainbrace, in accordance with a variation to the original contract, sub-contracted another company, Thermal Insulations Pty Ltd, to construct the new northern wall between the Hanging Area and Cellar Processing Room, comprising new 150 mm thick sandwich wall panels. 31 The dust wall was made of sandwich ceiling panels. It was designed, erected and removed by Mainbrace. It was erected to prevent dust and other material entering the Hanging Area where the meat processing continued to be conducted throughout the demolition and construction process. The dust wall was connected to the existing trafficable ceiling and floor of the Hanging Area by aluminium angle irons (50 mm x 50 mm) between the ceiling and dust wall. In addition, silicone sealant was applied between the gap which was approximately 12-15 mm between the top of the dust wall and the existing ceiling panels. 32 Mr Peter Doring was the foreman for the appellant at the site. He was aware that work was being performed from time to time by a variety of persons in the ceiling space above the Hanging Room. He had been in the ceiling space on a number of occasions prior to 5 March 1996. Mr Doring had noticed "a lot of condensation, a lot of leaking pipes, drip trays … moisture on panels" and that moisture from pipes was leaking "onto the drip trays or onto the ceiling panels." Mr Doring had also been informed by Mr Smith, the foreman for Kennedy-Taylor on the site, that chains connecting ceiling panels to the roof were loose. 33 There was other evidence which led Kavanagh J to find that the state of the ceiling was "appalling" and, indeed, the appellant conceded that the ceiling was "inherently unsafe". 34 Mr Doring appears to have taken the view that, regardless of whether the ceiling was safe or unsafe, it was not an area in respect of which he or his employer had any responsibility and he therefore took no action to ensure that it posed no risks to health or safety. 35 We note, however, in demolishing the northern wall, angle iron connecting the ceiling to the old wall had to be removed and, once the new wall was in place, the angle iron would have to be re-attached to the new ceiling and the new wall. This occurred except for one of the angle irons that could not be attached because of the presence of the dust suppression wall. It appears, therefore, that between the time after the demolition of the old northern wall and the re-fixing of angle irons to the new northern wall, the ceiling was supported by suspension chains from the roof and, according to evidence, by the dust suppression wall. 36 Whilst the evidence was that the dust suppression wall was not designed to be a load bearing wall, Mr G Henry, a consulting structural engineer who was asked by the appellant to provide a report on the collapse of the ceiling, gave evidence that the dust suppression wall became load bearing during the period the ceiling was not connected to the northern wall. This came about because of the amount of work activity in the ceiling space and the equipment being used by workers. 37 On 5 March 1996 Mr Doring authorised the removal of the dust suppression wall. This followed what could only be described as a cursory inspection by him of the new northern wall. The appellant at best made no inquiry of its subcontractor, Thermal Insulations Pty Ltd who had erected the wall, as to whether the new northern wall was complete and safe and, at worst, if the evidence is to be accepted, took no action to properly assess the structural integrity of the ceiling despite being informed the day before by Mr Johnson, the foreman for Thermal Insulations, that the new northern wall had not been completely attached to the ceiling. 38 Importantly, prior to the removal of the dust suppression wall, acrow props were put in place to support the ceiling. Once the dust wall was removed the acrow props were "removed slowly to see if there was a sag in the ceiling." It appears from the evidence that the purpose of the acrow props was directed to safety and to ensure that the transfer of weight from the dust wall to the northern wall took place in a controlled manner. 39 Although it may have been the case that the acrow props were not put in place to support the ceiling, it is clear from the very fact they were used there was a potential, with the removal of the dust wall, that the ceiling might sag. Indeed, that is what the workers were looking for as they slowly removed the props. No sag appeared until a short time later after the workers had finished their task. 40 The situation in the period immediately prior to the collapse of the ceiling, as we view it, was this: · Mr Doring knew that, from time to time, persons performed work in the ceiling space above the Hanging Area. These persons included employees of Chisholm and employees of Vikool, a refrigeration contractor in respect of whom according to Exhibit 11, the appellant had responsibilities in respect of safety. · Mr Doring had been in the ceiling space a number of times prior to 5 March 1996. He observed the presence of a lot of moisture; Mr Smith had advised him of loose suspension chains. Nevertheless, whether Mr Doring regarded the ceiling space as safe or unsafe he apparently took the view that the space was not part of his employer's construction area and he took no action in respect of it. · Acrow props were installed against the ceiling as part of the process of removing the dust wall. This was obviously a step taken in the interest of safety so that, if a problem developed in the ceiling as it came to rest on the northern wall, the props would prevent any collapse. To illustrate the risk involved, if the ceiling had commenced to sag immediately on the removal of the props no prior steps had been taken by the appellant to ensure that no persons were present in the ceiling and no steps were taken to warn persons not to enter the ceiling area while the dust wall and acrow props were being taken down. · No steps were taken by Mr Doring to determine whether the new wall was properly attached to the ceiling and, therefore, safe other than a cursory visual inspection by him. To illustrate the risk involved, if the ceiling had not been attached, or properly attached to the new wall, no prior steps had been taken by the appellant to ensure that no persons were present in the ceiling and no steps had been taken to warn persons not to enter the ceiling area until it had been confirmed that ceiling and wall had been properly attached. 41 We consider that the risk to health or safety that arose from the conduct of the appellant's undertaking was that the construction work on and around the trafficable ceiling might adversely affect its structural integrity, leading to its collapse. Obviously, any person on or under the ceiling at the time of the collapse would be exposed to great risk. This risk was exacerbated by the work activity in the ceiling space and water being absorbed in the ceiling panels. The appellant's place of work 42 Before dealing with the alleged failures as particularised in the charge it is convenient to consider the fourth element of the offence, namely, that the exposure to risk was at the appellant's place of work. 43 It was submitted by Mr Parker that on 5 March 1996 the ceiling space was not a place of work within the meaning of s 16(1) of the Occupational Health and Safety Act. The principal reasons put forward in support of this contention were that:

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