R v Irvine; DPP v Dynamic Industries Pty Ltd; DPP v Irvine [2009] VSCA 239

R v Irvine; DPP v Dynamic Industries Pty Ltd; DPP v Irvine [2009] VSCA 239 - VSCA 2009 case summary — Zoe

[165]

He told you on the second day he had Irvine removing and fixing screws on Area 2 in the morning, and after two o'clock he decided he wanted the bin filled, that is the bin in Area 1, and they would start working a bit earlier than their normal lunchtime break. He said that there was a discussion with Irvine and Mastek. Irvine suggested that he, Irvine, should get on top of the roof in Area 1 because it was closer to the bin, and because - some issue has been made about conversations, maybe I should say something to you about what he said. He was asked in evidence-in-chief by Mr Livermore, this is Mr Cini, 'When you came back from that break, did you have a discussion with Andrew?' Answer: 'Yes, and Raymon'. 'What was that discussion?' 'As I said, we needed to get that bin filled before we left that night, and Andrew suggested that he gets on top of the roof in Area 1 because it was closer to the bin. We basically had a bit of an argument. I said, no, you need to do Area 2, that's what we planned to do. I wanted to do. And I walked off.' Question: 'Did you explain to him why you wanted him to do Area 2 rather than Area 1 from the top?' 'Well, I pretty much said that there is no mesh in Area 1'. Question: 'Yes?' 'The majority of it had been done from underneath, why change it, sort of thing.' 'Did he reply? Did he say anything to you?' 'He just said it would be quicker.' 'Did you say anything to him when he said that?' 'I said, no, and I walked off ... '

He said that the plan after the break was to do Area 2. It was put to him that the conversation he had said took place did not take place. He said it did and that it was with Irvine. He mentioned that the plan had been to do Area 2 after the break and that is why he had Irvine up on the roof earlier in the day cutting the bolts. He denied that there was a plan to complete Area 1 before moving on to Area 2. It was put to him that since the accident he had been attempting to put much of the blame onto Irvine as possible. He responded that he probably blamed both of them actually. He said he could not believe that it was his, Cini's, fault.

[167]

Coming to perhaps the more important aspect of it, he talked about the discussion between he and Cini with Mastek not far away after lunch on the day in question. He said that Cini had wanted them to fill the bin so that a new one could be brought the next day for Area 2. He said that Cini wanted them to go on top where the access problems were - this is in Area 1 - to remove sheets over the bowser and the bin. He said Cini told him them to go over the top, as it was put, to get at those matters.

He described how he had got the scissor lift and told Mastek to get a harness, then to get an inertia reel, and that Mastek had said, 'What for, if it's only for a couple of sheets?' You will know that much of this is contained in that statement. I perhaps ought not bother - not bother, but it is unnecessary for me to summarise just what is said there, because you actually have it in print before you.

Indeed, I will not waste time going through his statement because, as I say, you have it, but you will remember that there is a good deal of detail there in that.

He was asked a lot of questions by the prosecutor in cross-examination. He was asked about conversations about finishing the Area Number 1, and he was pressed on that, and ultimately said that that conversation is what Cini, in his version of it, that is Mr Irvine's version, would have said that he was to go over the top. It was put to him that this conversation was not to be found in his earlier statement, that is the one that you have, in paragraphs - you will recollect 9 and 13, and it was put to him that that was not part of the conversation that was put to Cini when he was being cross-examined.

I should say to you at this stage that you will recollect that the prosecutor at this point made some - took on at some length the proposition that when the accused has made his statement in 2004 through his solicitors, which had been then sent to Worksafe, that this conversation upon which he relied had not been put by way of cross-examination to - Mr Matthews, or that part of it, to Mr Cini.

[169]

Mr Livermore was asking about burning off bolts and so on and he went on to put to Mr Irvine, 'You were aware and had been trained, had you not, as at October 2003 that unless it was proved otherwise an asbestos roof should be treated as a fragile roof?' Answer: 'That's correct.'

Question: 'You should make the assumption that it is not safe to walk on, that you might go through it?' 'Correct.' 'That was very well known, wasn't it, and well known to you?' The shorthand writer recorded the witness nodded. Question: 'You were also aware as at October 2003 that even if a fragile asbestos roof had secure protective wire throughout that had been certified, if you were working near a perimeter you still needed additional fall protection?' 'That's correct.'

Question: 'The fall protection could be by way of scaffolding around the outside?' 'Yes.' 'You had worked in that situation before?' 'Yes.' 'Or by way of harness and inertia reel fixed to a solid object to prevent a person falling to the ground?' 'That's correct.' 'You knew as at October 2003 that it was unsafe to work on a roof without the additional fall protection of perimeter protection or harness properly connected? You knew that it was unsafe to work on a roof in the state that that roof, number one, was in when you got up there on 22 October 2003, didn't you?' 'That's correct.'

'You knew it was unsafe?' 'Yes.' 'And you didn't do anything to prevent Mr Mastek from getting up and walking on the roof did you?' 'We did describe where, discuss, sorry, where the wire was.' 'Is that good enough? Well?' 'We both got onto the roof to have a look.' 'Do you think it's good enough?' 'We both got onto the roof where there was secure wire.' 'Do you think it's good enough, no harness connected, no perimeter protection, gaps in the wires? As you sit there today do you think it was good enough to discuss where the wire was?' 'We discussed from below, we discussed from above.'

Question; 'Do you think it was good enough, Mr Irvine?' 'No, it wasn't good enough.' 'Because you could have done more, couldn't you?' 'We all could have done more.' 'Mr Mastek could have done more?' 'Yes.' 'You could have done more?' 'Yes.' It went on at line 7 on p.294: 'You knew precisely what you were doing and you took the risk, didn't you?' 'We knew the area we had to remove, yes.'

'You knew precisely what you were doing and you took the risk, didn't you?' Answer: 'Like I said we knew the area that we were to remove, yes, directly over the bin.' Question: 'You knew there was a risk because you didn't have proper fall protection, did you, when you went up on the roof?' 'Yes.' 'And you took the risk because you didn't in fact think it would take very long to get the job done?' 'That's correct.'

'You were also aware, weren't you, that despite the fact that the rule might have been contravened in the past that you were not supposed to access a roof by use of the scissor lift, are you?' 'That's correct.' It went on to talk about scissor lifts and them being unstable and the reason why you were not meant to get out onto the roof from a scissor lift.

That should be read and understood in conjunction with the statements in his statement. The accused was also asked a number of questions about removal of sheets as depicted on photo 31, and agreed that some of those sheets could have been removed from below. They were, he said, not removed before they got on top of the roof because they were trying to fill the bin because you had to work right to left because the sheets overlapped that way.

He was asked questions about the documents behind Tab 4 and his name appearing with Cini as being responsible and his signature on it. He said that the naming of him in effect only operated with him taking over as supervisor if Cini was off site. If he was actually on the site he said that he, Irvine, had no responsibility for supervising.

You will recollect there was a passage of cross-examination where he asserted that it was one foot outside the perimeter fence and then he would be the titular supervisor. I want to make a comment, ladies and gentlemen, about this aspect of supervisor. It seems to have taken on a meaning, a special meaning, here. I suppose you could say that there is the officially he has to be a nominated supervisor of someone who is competent to conduct the activities on the site.

Being the supervisor doesn't necessarily just because of that mean that someone can't tell others to do it or direct others to do it, as I understand it. I'll say to you shortly there seems to be from the defence point of view some magic about whether you're the titular nominated supervisor or not.

[171]

I have to tell you as a matter of law, that the Crown does not have to establish that Irvine was the or a supervisor. It is not necessary for you deliberations [sic] as to the elements of the offence that they establish that. Further, they do not have to establish that it was in a formal sense Irvine's decision to go on to the roof. The fact is, in any event, that he did go on the roof, and he says he did, and it is contained in his statement. But, nevertheless, if it means anything at all, it does not require proof beyond reasonable doubt in that regard.

The third factor is that he talked to, is a difficult factor, namely that the Crown could not establish that the work methods were Irvine's. Now what precisely that meant he went on to say a good deal about and talked about the practices of Dynamic and some of its employees and so on, but I tell you that that is not a matter that the Crown has to establish and you must bear in mind in the terms of the section, as I put to you, that the obligation imposed by Parliament is a personal one on each employee. So if the employee adopts a course of conduct or a mission in terms of his work that endangers or brings into possibility a risk of harm, then it does not matter what the employer or anyone else might have said.

The first two matters are matters of general perhaps interest in terms of the evidence that is given, and if you think there are matters contained in the evidence that relates to the question of who was in charge of the room, if anybody, if that assists you in your assessment of what a reasonable objective observer knowing all the circumstances of the case, then by all means those matters in those two categories that Mr Matthews spoke to you of, you may, if you wish, take into account, but I reiterate, they are not fundamental points that the Crown has to prove to that standard. ...

The fourth matter as to what happens on the roof and it was put to you that the Crown could not establish which sheet came down, second last. Now I confess (indistinct) not being sure as to why that was thought by Mr Matthews to be germane. He sought to explain it to you, but in the end result the fact seems to be that Mr Mastek went off to an area of the roof which, as we all sadly know, was unwired, even though it is claimed that they both examined the wire from above and below. The fact that he removed a sheet from the unwired portion of the roof demonstrates very sadly that the risk came to pass.

At a glance

Court

Decision date

Before

Source

Judgment (284 paragraphs)

R v Irvine; DPP v Dynamic Industries Pty Ltd; DPP v Irvine [2009] VSCA 239 (23 October 2009)

Legislation Cited (8)

Cases Cited (24)