R v Powercor [2005] VSCA 163 | Case summary

R v Powercor [2005] VSCA 163 | Case summary | Zoe

1 I agree with Cummins, A.J.A. that the application by Powercor Australia Ltd. for leave to appeal against the conviction recorded against it in the County Court on 30 April 2004 should be dismissed; and for the reasons given by his Honour. There was, however, one matter which arose on the hearing of the appeal about which some comment should be made.

2 As Cummins, A.J.A. has pointed out, the issue in dispute at the trial of this matter was limited. It was the Crown's contention that the applicant company had, on the relevant date, been in breach of the obligations imposed upon it by s.22 of the Occupational Health & Safety Act 1985 because it had failed to provide adequate supervision for the work being done by its linesmen at the Pipetrack Reserve in Highton. The Crown alleged that adequate supervision required the presence of an additional person, in the form of a supervisor, whose responsibility it was to ensure that safety procedures required to be carried out were, in fact, carried out. On the other hand, it was the applicant's case that the level of supervision inherent in its practice of requiring one linesman to "offside" and "observe" a fellow linesman who was "aloft" was perfectly adequate to meet the law's requirement that, as an employer, it had "ensured so far as ... practicable" that others were not exposed to risk. Thus the real issue between the Crown and the applicant at trial was not whether a level of supervision was required, but rather the degree of supervision which the circumstances demanded. Accordingly, it was not in issue that some form of supervision by the employer was required. That is why, with respect, Cummins, A.J.A. is correct in concluding that ground 3 of the application cannot be made out; namely that the trial judge had withdrawn from the jury the main issue in contention between the parties. Indeed, as his Honour points out, there was no exception to this portion of the trial judge's charge.

3 With regard to the issues to be resolved, her Honour gave instructions to the jury in accordance with the written document (Exhibit C9) to which Cummins, A.J.A.

refers at [103] of his reasons. It would appear from the transcript that these written directions as to "what the Crown must prove" were provided to counsel for each party; and that each counsel agreed to the judge instructing the jury in the terms recorded (T.976). In short, these directions told the jury that the Crown had to prove beyond reasonable doubt that a reasonable employer in the situation of Powercor would have foreseen the risk of possible electrocution; and - if the jury were so satisfied - that the provision by Powercor of a person at the worksite whose responsibility was to supervise the linesmen was a reasonably practicable way of avoiding the possible risk (i.e. the Crown contention). On the hearing of the appeal, a query was raised by the Court whether the answer to these questions could eliminate the possibility that the system of supervision actually provided by Powercor, and contended by it to be adequate, was also a reasonably practicable way of avoiding the risk. However, this matter does not have to be resolved. The parties were content to allow the directions to be given in the form which they took; and this Court can only assume that, in the context in which the issues arose at the trial, counsel had concluded that those issues would be adequately addressed by the written directions provided to the jury.

[8]

7 The applicant is a limited company involved in the supply of electricity to consumers in Victoria. It also owned infrastructure used in the supply of electricity including power poles and the lines attached to them and was involved in the maintenance of that infrastructure.

8 On 23 July 1999 three employees of the applicant - T.R. Kelly, D.A. Hasell and S.F. Cassar - were performing duties for the applicant in Highton, Geelong. Working with them was a third year apprentice linesman, Brock Andrews, aged 20, an employee of VicTec Group Training Limited (VicTec) and who was sub-contracted to the applicant. The four were working as a team removing switch wire from poles. In circumstances to which I shall come, during the course of that work Mr Andrews received a severe electrical shock while working on the applicant's overhead power lines. Fortunately Mr Andrews survived.

9 As a consequence, the applicant and VicTec were on 12 June 2001 charged by summons with offences in contravention of the Act. On 14 February 2002 VicTec pleaded guilty in the Magistrates' Court at Geelong to one charge contrary to s.21(1) and (2)(a) and s.21(1) and (2)(e) and was sentenced without conviction to pay a fine of $10,000. VicTec had no prior convictions.

10 The applicant was charged with offences contrary to s.21(1), s.21(2)(a) and s.21(2)(e) of the Act. At a contest mention in the Magistrates' Court at Geelong on 19 October 2001, the applicant elected to proceed to trial in the County Court. The matters proceeded by way of hand-up brief and came on for trial in the County Court at Geelong in March 2004. The applicant pleaded not guilty to all counts. On the counts contrary to s.21(1) and (2)(a) (Count 1) and s.21(1) and (2)(e) (Count 2) the learned trial judge ruled that Mr Andrews was not an employee of the applicant and pursuant to s.391 Crimes Act 1958 directed that a verdict of not guilty be entered in respect of those two counts.

11 That left Count 3.

12 Count 3 was that the applicant -

[18]

16 At trial the prosecution called 11 witnesses and tendered a number of exhibits. Apart from the tendering of three documentary exhibits, the defence called no evidence.

17 In essence the prosecution case was that on Friday 23 July 1999 the applicant's team of three employees together with Mr Andrews were working on its electrical undertaking in Highton including removing switch wire from poles, which was an ongoing maintenance task. On the poles there had been lighting which was operated by switches but which had been replaced by new technology rendering the switch wire redundant. Thus the switch wire progressively was being removed. The crew arrived at the relevant site at 3.00 p.m. The crew started to remove the switch wire spanning between three poles numbered 30, 31 and 32. The team proceeded to the task as if it were a standard operation and did no pre-planning. However, pole 31, unlike other poles at the site and other poles worked on earlier in the day, had on it a high voltage sub-station with high voltage wires. Mr Andrews positioned an elevated work platform (commonly called a cherry picker) near pole 30. Mr Kelly did likewise at pole 32. Mr Andrews cut a wire that supplied power to the switch wire. Mr Kelly then determined that the switch wire was live. Mr Andrews cut the wire that provided the current to the switch wire and lowered it to the ground and Mr Kelly did likewise at pole 32. The wire remained connected to pole 31 which pole supported the high voltage sub-station. Mr Kelly went to pole 31 in his elevated work platform. At the same time Mr Andrews was rolling up wire at ground level. While he was doing that Mr Kelly cut the wire at pole 31 and rather than lowering it as had occurred at poles 30 and 32, let the wire fall to the ground. On its descent it came into contact with a conductor with a voltage of 22,000 volts. Current flowed through the wire Mr Andrews was holding and it electrocuted him. He suffered burns and electric shock injury. He was hospitalised and survived.

18 The prosecution case was that, contrary to s.22 of the Act, the applicant did not ensure so far as was practicable that Mr Andrews was not exposed to risks to his health or safety arising from the conduct of the undertaking of the applicant, in particular by failing to provide any or any adequate supervision for such a hazardous undertaking. The prosecution case was that there was no or no effective supervision of the work activity at poles 30, 31 and 32 that afternoon.

19 The site at which the incident occurred on the afternoon of 23 July 1999 - at Maidie Street, Highton and known as the Pipe Track Reserve - was not in the 7.45 a.m. briefing assigned to the crew that day. There was, however, no instruction not to do extra work (such as was in fact done at Maidie Street).

20 Relevant evidence called by the prosecution was as follows, summarising the evidence of the prosecution witnesses. I turn first to the witnesses at the scene.

21 Brock Andrews gave evidence that in 1999 he was an apprentice line worker. The role of a linesman is essentially to do with putting up and taking down of lines that are used for conveying electricity. He was employed by VicTec and had been placed with the applicant to obtain practical experience. As part of his apprenticeship he performed work on live low voltage powerlines, under supervision. This included removing switch wire, namely the wire that is hung with the low voltage lines that runs the street lights in the area.

22 Mr Andrews gave evidence as to the procedure whereby work was generally allocated to him during the period between August 1998 and July 1999. There were several different workgroups, and Daryl Clutterbuck was in charge of Mr Andrews' group. Mr Andrews usually started work at 7.45 a.m. and waited in the smoko room with the other workers until Mr Clutterbuck came in. Mr Clutterbuck would approach the different people who would be working together that day, and hand a work folder over with a small explanation as to what had to be done. The work folder contained a description of the job, maybe directions and a brief of overview of what they wanted done. He was asked "Who was given the folder?", and answered, "I suppose the people who got the jobs done". There was no one in particular that Mr Andrews answered to at that time.

23 Mr Andrews gave evidence that on 23 July 1999, he commenced work at 7.45 a.m. He was in the smoko room when Mr Clutterbuck come out and told him he would be working with Dean Hasell, Simon Cassar and Terry Kelly that day. They were given a folder with several different jobs in it, but Mr Andrews did not look at the folder. As an apprentice, Mr Andrews listened to what the senior linesman said. There were several jobs that day, and the last job of the day in Maidie Street, Highton was where Mr Andrews was later injured. Mr Andrews said he could not recall any specific linesman talking to him about what he had to do at that site. Nor could he recall any meeting or discussion at the site before the work started. He said he had overheard a conversation on another work site as to whether they would complete the final job before finishing for the day.

24 As to who was directing the final job that had to be done on that day, Mr Andrews agreed the three other linesmen seemed to be deciding collectively what was going to be done and how it was going to be done. Throughout the day, Mr Andrews had been driving his cherry picker truck without a passenger.

25 To get to Maidie Street, Mr Andrews said he followed the other trucks to where they went. He started at pole 30 in Maidie Street because Simon Cassar said, "We'll do this pole first". The other two linesmen went the other direction up the line. Mr Andrews was driving a small cherry picker truck. He went up pole 30 and removed the switch wire from the pole. Before removing the switch wire, he put his personal safety equipment on and tested the line to see if it was de-energised. He found it had no voltage in it, and cut the bridge away from the remaining wire.

26 While Mr Andrews was up in the cherry picker, Mr Cassar was at the base of the pole, "supposed to be performing the function of safety observer". Mr Andrews said the role of the safety observer is to look and make sure the person who is working is not getting themselves into a dangerous situation, making sure they don't make contact with other wires while working on the switch wire and don't cut the wrong wire. Quite often, that person also passes tools and other things up the cherry picker while the other person is working. Throughout his work on pole 30, Mr Andrews was communicating with Mr Cassar, asking him whether or not there was anything that was a problem. Mr Andrews stated that, according to the books on line work, a safely observer is just a safety observer, and shouldn't be handling tools, but with the number of men they had, you can't afford to do that. Mr Andrews understood that the role of the safety observer only really applied when you were working up in the air, and you didn't need a safety observer on the ground. While Mr Andrews was up the pole cutting the wire, Mr Cassar's prime function was "to make sure I didn't make a second point of contact". When the wire had dropped to the ground, Mr Cassar went away to help the other men out. About two or three minutes later, Mr Andrews picked up the wire and started rolling it.

27 Mr Andrews was rolling one end of the wire while the other end of the wire was still attached to pole 31. Mr Andrews was unaware of what the linesmen were doing at pole 31, and no one warned him not to roll the wire. During this process, Mr Andrews received an electric shock.

28 Whilst he was in the cherry picker, Mr Andrews had been wearing a pair of low voltage insulated gloves (Exhibit C3). When he came down from the cherry picker, he removed those gloves, and put on a paid of rigger gloves, being a pigskin glove (Exhibit C4). The rigger gloves are not insulated against electrical current, but are designed to protect your hands whilst rolling up the wire that had been cut down. Exhibit C2 depicted a person rolling up the wire.

29 Prior to commencing his apprenticeship with VicTec, Mr Andrews completed a six month pre-apprentice training course at Bendigo TAFE, which involved electrical theory. The course also involved a standard Occupational Health & Safety course. This part of the course taught Mr Andrews to discuss how to do a job with his workmates. It also involved assessing the job, its hazards and identifying risks before you get too far into the job.

30 Mr Andrews stated that prior to 23 July 1999 he had not had any training in relation to removing switch wire. His experience was limited to going out with other crews and seeing the way they had removed switch wire. He had spent maybe two days at the most removing switch wire prior to this day. In addition, during the first year of his apprenticeship he had gone along with gangs removing the wires as an observer. On 23 July 1999, no-one told Mr Andrews how to go about removing the switch wire on pole 30. He was not aware of any dangers in performing this work, as he had not received any instruction in relation to this. Mr Andrews was aware of an alternative procedure, in which a rope was used to lower the wire to the ground, which would be used if there was an imminent danger in dropping the wire, say a car or person underneath. Mr Andrews was given a copy of the Code of Practice on Electrical Safety for Distribution Businesses in the Victorian Electricity Supply Industry ("The Green Book") (Exhibit PI).

31 Mr Dean Hasell gave evidence that he was a linesman employed by the applicant, and was so employed in July 1999. In July 1999 he was qualified to work on low and high voltages, and had occupied the role of work site leader on several occasions. In July 1999 the normal procedure relating to the allocation of work to linesman consisted of the construction project leader handing the folder to the person in the crew who was the work site leader for the day. In July 1999 the construction project leader was Mark Gardiner.

32 On 23 July 1999, he attended work later than the usual time of 7.45 a.m. He met his crew at the donga, which is the place they met every morning. Mark Gardiner handed the work folder to Simon Cassar. Either Mr Gardiner or Mr Cassar briefed him on who he was working with and what he was doing for the day. Mr Hasell was asked who was in charge on this particular day and said, "Whoever takes the folder is usually in charge ... We don't come in and put my hand up and say, 'I'm in charge'. It's just like you said, if you take the folder you're in charge for the day. In other words, you've got the, what we have to do for the day". It was put to him that no one specific was in charge that day and Mr Hasell said, "No one specifically put their hand up. It's like I said, whoever takes the folders got the role of being in charge. That's why it should be - it's disappointing because if we go in the CPLI should make sure who's in charge".

33 Prior to July 1999, Mr Hasell had been a permanent site leader for about four months, until those positions were shut down. He could not recall when those positions were shut down. He agreed that, as a work site leader as at 23 July 1999, the duties of the work site leader included directing members of the crew as to where the work was to be done, how the work was to be done, and when the job was completed to sign off on various bits of paper in the folder.

34 Mr Hasell stated that that day he worked with Terry Kelly, Brock Andrews and Simon Cassar. They worked together as a crew. "We decided that we'd work together, this is just amongst ourselves, because we were working up in - like, it was in Highton, in amongst the - there was a lot of cars parked on the sides of the road, under the poles and so when we're dropping a switch wire we need a - we wanted to keep all together for safety reasons. We made that decision at the start of the day and it's silly. You need a decent work crew for safety reasons. No use going out with a personnel of two". The crew changed some cross arms during the day, and attended at the site where the incident occurred at about 3.00 p.m.

35 Mr Kelly went up pole 32. Mr Hasell was his offsider, which meant if "the person who's in the air requires any assistance on the ground, he needs tools or be there for, like, hold the line, you just - for safety also, if something goes wrong, there's always someone there". Mr Hasell was familiar with the role of a safety observer, but said an offsider was a "completely different role". He said a ground safety observer applies where you are working on high voltage or a complicated low voltage system, and if you are not 100 per cent sure, you have someone to observe, and that is all they do.

36 Mr Kelly went up pole 32 and tested it. The switch wire was alive so Mr Andrews went up at pole 30 and de-energised it. Mr Kelly then tested the wire again and found it was de-energised and cut the wire. He put a handline on it and Mr Hasell held the handline and lowered it, because it was under strain. Mr Kelly then came down, and set up at pole 31. Mr Hasell walked down to Mr Andrews and Mr Cassar, who were at pole 30. He said, "I just walked down to them. I can't even recall what I went down for but I was just going down. It could've been something related to the job and then I thought that by the time he packed up his truck with the bucket on it and went and set up at pole 31 I would've been back to off-side him again at pole 31". Mr Kelly packed his bucket up at pole 32 and then set up pole 31 and proceeded to drop the switch wire from there. "Me and Simon [Cassar] were walking back to pole 31, to off-side Terry and that's when the accident happened. As we were walking towards pole 31 we heard a bang ... I looked up and I'd seen Terry. I didn't see Terry in the bucket and I thought something might've happened to him and then he got up and pointed and then we heard, seen Brock lying on the ground". Mr Andrews had cable on top of him and was yelling out, "Get it off me, get it off me". Mr Hasell did not have time to get back to a position alongside Mr Kelly's elevated work platform before Mr Kelly cut the wire.

37 Mr Hasell was asked about any discussions he had with crew prior to performing work at the site. He said Mr Kelly, Mr Cassar and himself had discussions prior to commencing work at Highton. "We were in the wrong spot and we go, right, well to show initiative we thought it has to be cut down so we cut down - thought we cut that cable down while we were there. The three of us made that decision". He agreed no-one rang the office and suggested they drop the wire between poles 30 and 32 rather than those allocated, but said "I wish we did, because they would have said, 'Yes, drop that' ". Mr Hasell was asked whether there were occasions when crew members would do work that wasn't allocated in a work file, and said "Yes, all the time".

38 He said they could have had a discussions as to how they were going to perform the job with each other, and probably would have said "Brock sets up at pole 30, Terry's up at pole 32, Simon off-sides to Brock. I off-side to Terry and we keep - we drop it as we go. Make sure it's de-energised and drop it as we go."

39 Mr Simon Cassar gave evidence that he was a linesman employed by the applicant, and was so employed in July 1999. He said that in July 1999 the normal procedure for the allocation of work was that the construction control leader would come into the donga room, they'd yell out whoever was working with you and give you a job file. Then you'd just sit down and work out what equipment you needed and where to meet. Mr Cassar said there was no special obligation on the person holding the work file. He said everyone talked about the work as a team, and worked out the best way to do the job. If there was a designated work site leader on that day, they would take charge.

40 Mr Cassar gave evidence that on 23 July 1999 he commenced work at 7.45 a.m., at the donga, which was one of a group of meeting rooms. Mark Gardiner issued a work folder, and nominated Mr Kelly, Mr Hasell, Mr Andrews and himself to do the work in the folder. Mr Cassar ended up having the file in his hand at that stage. He was asked what the job would be for a person who had the file, and Mr Cassar said that it was "no different to any other guy that was involved in working on that job". In cross-examination it was put to Mr Cassar that, "as far as you knew, nobody had complained about the work of a group leader and that that type of work oughtn't to be allocated to one of the, say, a four member team?" Mr Cassar replied that it had been raised as a concern, because he raised it as a concern himself. He said, "Back in an earlier statement I said about it, 'I will not take responsibility, I'll take a job file out, but I will not take responsibility for allocating work to the work party' because I didn't agree on the payment that was allocated to the work site leader. I thought it was an insult for the responsibility you had to take on. So I haven't been a work site leader for several years". He agreed the $2.70 per day allowance was not enough. He further stated that he had said he would take a work file out, but that he would not allocate any work instructions, and would not act as a work site leader. Mr Cassar was asked why he did not simply refuse to take the work file from Mr Gardiner, and he answered, "because then he would say, 'Dean, that is being refusing to work', and I would be stood down without pay."

41 Mr Cassar said that when the crew got to Maidie Street, there would have been a discussion among the crew along the lines of: "Ok, I'll go here. I'll go here. And we'll meet in the middle." He said there was no assessment done of the site before they split up and went to opposite ends. He was Mr Andrew's off-sider, and Mr Hasell went off with Mr Kelly to the other end. Mr Kelly was aloft in his cherry picker at pole 32, and Mr Hasell was his off-sider. Mr Andrews went up in his cherry picker at pole 30. Mr Cassar said, "I can't remember who realised that the switch wire was alive, Terry Kelly up his end or Brock at this end, but there was a wave indication and yelling to say that the switch sire's alive, we need to de-energise it." Either Mr Kelly or Mr Andrews cut the bridge, so the wire was no longer alive. Mr Cassar then watched Mr Andrews cut the wire with one hand and let it go on the ground. He said this was the standard practice.

42 Mr Cassar stated that Mr Andrews then removed the old hardware that was attached to the switch wire and came down in the cherry picker. While Mr Andrews was aloft, Mr Cassar was just making sure he stayed in his clearances. He described his role as being that of a safety observer as well as an off-sider. When Mr Andrews came down to the ground, Mr Cassar was at the road standing next to the cherry picker. Dean Hasell was walking towards him at the time. Mr Hasell came over and they talked. Mr Cassar then said, "That was it for the day as far as Brock's role, Brock's job with the cherry picker ... so, I just said to Brock then, 'Pack the truck up', and me and Dean started heading towards Terry Kelly at the - was already set up at the transformer pole." Mr Cassar said that from the time that Brock Andrews came down off the cherry picker and started to pack up, to the time he saw Terry Kelly at pole 31 "would've been a few minutes, it takes a while for the cherry picker to come down and that sort of thing".

43 Mr Cassar and Mr Hasell were walking back to pole 31, when they heard "an almighty bang". As far as Mr Cassar knew, Mr Andrews was packing up his truck. He saw Mr Kelly drop in the cherry picker and ran to him, thinking he had been hurt. Mr Kelly then stood up and yelled, "Brock", and Mr Cassar turned around and saw Brock on the ground, with the cable on him. Mr Cassar removed the cable from Brock and rendered assistance to him.

44 Mr Cassar said he did not look back at Mr Andrews after leaving him to walk towards Mr Kelly, believing that Brock was packing up his cherry picker. Mr Cassar was asked whether there was any rule in place in July 1999 about when to start rolling up switch wire, and said "I thought everyone knew that you didn't touch it until both ends were on the ground". Mr Cassar said he knew this rule because his mentors had taught it to him. There were no written procedures in place about how to remove switch wires. Mr Cassar agreed that cutting down switch wire in the vicinity of a substation such as was located on pole 31, without ensuring that you control the way in which the wire falls, is potentially very dangerous.

45 Mr Terrence Kelly gave evidence that he was a grade electrical linesman, employed by the applicant, and was so employed in July 1999. He was an indemnified witness pursuant to s.22(1)(cb) and s.22(1A) Public Prosecutions Act 1994 as to his evidence at trial and has been granted an undertaking therefor by the Director of Public Prosecutions (Exhibit C7).

46 Mr Kelly gave evidence that on 23 July 1999, he was part of the crew in which Mr Andrews was working. He commenced work at 7.45 a.m., and received his instructions for the day. Usually Daryl Clutterbuck gave Mr Kelly his instructions. Mr Kelly knew Mr Gardiner around July 1999, but could not say what position he held or what dealings Mr Kelly had with him. Mr Kelly that that generally he did not receive any documentation during the briefing, but that the folder was distributed to the supervisor. The folder contained all the information needed for the day, and might include a map, a street directory, a report from the office, and a toolbox checklist, which is your sheet to say that you understand what's going on, and which is marked off as you go. He could not recall whether the toolbox checklist was in operation in July 1999. Mr Kelly was asked who was the work site leader on any given project, and said it was generally the person who took the folder. On 23 July, Mr Kelly was working with Dean Hasell, Simon Cassar and Brock Andrews. Mr Cassar took the folder on that day. Mr Kelly said Mr Cassar was the person in charge of the job, and was leading the job on 23 July 1999. When asked what the function of the person who took the file was, Mr Kelly said, "Well, he just pointed out where we were going and what we were doing .... he was just a part of the party -- the work party ... he's not going to tell me exactly how to do my job, because I think he thinks I'm capable of doing the job". Mr Kelly agreed that in the old days, when he worked for the SEC, there was somebody specific in charge of the group, and said this was not the same as what happened while working for the applicant.

47 Mr Kelly stated that he did not get the file that morning. Hence he did not regard himself as having any responsibility for directing the crew that day. He could not recall whether he looked at the file that day. Mr Kelly agreed there was no reason why he could not look at the file, nor was there any particular reason why he would, as he was not the site leader. He agreed he expected the group leader to tell the group where to do the work, and to explain any complications. The standard procedure as of July 1999 was that if there were any peculiarities in the work this would be discussed with the group by the construction project leader at the time the work was allocated.

48 On 23 July, the incident in which Mr Andrews was injured was the last job of the day. Mr Kelly was driving an elevated platform vehicle and working in a loft. Mr Kelly put on his personal protective equipment and got ready to go up. Mr Kelly said Dean Hasell was "off siding" him, and acting as a safety observer. Mr Kelly then said, "I might just change that. Safety observer's not the right word. He was more or less an offsider. He would just, as the word says, offside you". Mr Kelly explained he needed the handline to be held, and this is what Mr Hasell did. The difference between a safety observer and an offsider is that a safety observer purely observes, whereas an offsider does other things like manhandles the handline. It is a different job.

49 Mr Kelly recalled testing the switch wire, and it was alive. He told Mr Hasell it was alive, and asked him to check with Mr Kelly and Mr Andrews whether the wire was alive on their end, and if so to "kill it". Mr Kelly was aware that they were working on either side of a transformer. Mr Andrews then broke the bridge. Mr Kelly tested the switch wire again, and found it was de-energised. Mr Kelly then "attached a handline to the cable, which is a piece of rope, told Dean to take the tension, and then I cut the cable and lowered it to the ground". Mr Kelly finished the work he had to do on this first pole, came down and packed up. He then moved on to the pole with the transformer, and proceeded to go aloft. At this stage, Mr Kelly said Mr Hasell was still his offsider. He could not recall there being any discussions about the fact that there was a transformer on this pole. Nor did anyone give him instructions about the way to do his work at this site.

50 Mr Kelly intended to drop the switch wire. He "got the rope on it, cut the wire, went to lower it, but because there's no weight on it, there was no use having the rope on it. So I took the rope off and let it fall to the ground". At this time, he was not aware of what Mr Andrews or Mr Cassar was doing. Mr Hasell was on the ground assisting him. The witness could not recall whether he told Mr Hasell specifically that he was going to drop the rope, but said Mr Hasell was aware of this. Mr Kelly then let go of the rope and "it reacted differently to normal, it sort of sprung back at me a little bit, and then it slid off the side of the bucket" Mr Kelly said he then heard the sound of a shock and heard moaning on the ground. He said the wire reacted differently to other occasions. "It sprung back. Usually you cut a wire and just let it go and it falls but as I let this one go, it sort of sprung back a little bit". In July 1999, there was no specific way to bring switch wires down to the ground.

51 In cross-examination Mr Kelly said he attached the rope to the wire, lowered it and cut it. He was asked whether he tied the rope off at all, and answered, "No, Dean had hold of it on the ground at pole 31". Counsel for the applicant referred the witness to his statement, which was said to be a prior inconsistent statement. Mr Kelly adopted his statement as the correct version. In his statement, Mr Kelly made no reference to using the rope, stating instead, "I cut the switch wire. I had it in my hand. I pushed it over the side of the bucket".

52 It was put to Mr Kelly that on the afternoon of 23 July 1999 his crew chose to remove switch wiring from a different location than that which they were assigned "because you were wanting to take a short cut, at 3 o'clock on a Friday". Mr Kelly disagreed with this proposition. It was further put that Mr Kelly went up pole 31, and simply cut the wires going both from pole 30 to 31 and from pole 31 to 32 in one quick action. Counsel for the applicant suggested to Mr Kelly that he did this in order to complete the work in a short time frame. Mr Kelly also disagreed with this proposition. Counsel for the applicant put to Mr Kelly that, in light of having received an undertaking from the Director of Public Prosecutions, the witness was happy to "come along here and tell the court anything" and has "every reason to try and paint a picture to this Court that is consistent with some sort of innocence in the way in which you performed your work on 23 July 1999". Mr Kelly answered "no comment" to the final proposition.

53 Mr Kelly agreed he had received a copy of the Green Book. He was also familiar with an earlier model of the Linesman's Handbook (Exhibit P2). Mr Kelly agreed it was part of a linesman's responsibility to undertake an assessment of any risk involved with any work involving live wire. He couldn't recall whether he undertook a risk assessment prior to the removal of wire at pole 31.

54 In response to a suggestion in cross-examination that he could have telephoned his manager and requested the power be turned off, Mr Kelly said, "We're not allowed to kill the energy ... If we had have rung up and said we wanted to kill the energy they would have said straight out 'No' ... What's the use of ringing when you know the answer?"

55 I turn next to witnesses as to the system provided by the applicant.

56 Mr D.P. Clutterbuck gave evidence that he was a construction project leader employed by the applicant, and had previously worked as a linesman. He had had 25 years experience in the power industry at July 1999. In July 1999, the applicant company was involved in an ongoing project of removing switch wire from poles in Geelong, as a new system of switching on street lights was being introduced that did not require the use of the wire.

57 In July 1999, Mr Clutterbuck had approximately 18 personnel working under him. He allocated work to several different crews, each crew consisting of 3 to 10 workers depending on the task. There were four project leaders in Geelong, each with their own personnel, totalling about 30 linesmen. The allocation of work was planned by Mr Clutterbuck with the other project managers. They split up and allocated workers to each project, ensuring they had enough suitable workers and machinery for each task. The work was planned out by the leaders a couple of weeks prior to the work actually being done. At the commencement of each day, the project leaders gathered with the workers to issue the work that is allocated for the day and go through the file. The file consisted of assessment sheets, maps, plans and written work instructions for that day. The project manager determined the contents of the file. Mr Clutterbuck was unable to locate the file for the work to be completed by Mr Andrews' crew on 22 July 1999, which had been given to Mark Gardiner. Mark Gardiner was a project leader in that gang, who was working under Mr Clutterbuck.

58 Mr Clutterbuck stated that as tasks were allocated to a group, there was generally a work site leader allocated to that particular day. The work site leader would be one of the linesmen in a crew. When the crew is issued work in the morning, the project leader issuing the work would discuss with the crew the question of the work site leader, and one of the linesman would take on this responsibility. On 22 July 1999, it was Mark Gardiner and not Mr Clutterbuck who allocated the work to the crew in which Mr Andrews was working, and handed over the work file.

59 As a result of his experience, Mr Clutterbuck was able to indicate the dangers that existed when removing switch wires. There were no written guidelines setting out these dangers and safety procedures in July 1999, but a document has since been issued addressing these procedures. In relation to the systems that the applicant had at July 1999, Mr Clutterbuck said the linesmen would have been taught at trade school about working on live wires, and they had refresher training on a regular basis so that their knowledge was refreshed and their competencies checked. He described the role of the person in charge of a crew as ensuring the allocated work is completed on the day to a satisfactory standard, and in a safe manner. On 22 July 1999, all of the linesmen on the project had a responsibility to look after each other, especially when someone's working aloft.

60 Most of the maintenance work was carried out live, so as to maintain the electricity supply to the applicant's industrial and residential customers. The ultimate judgment, however, as to whether it was safe to perform a job live lay with the actual linesman doing the job.

61 Mr Clutterbuck stated that a linesman was paid approximately $45,000 a year, for 37 and a half hours work per week. This was calculated as approximately $900 per week and $20-25 per hour. Mr Clutterbuck stated that he earned about $1,200 per week. It was put to him that the applicant company could have a position for a person supervising a crew, who would be paid an amount between the salary paid to the linesman and that paid to Mr Clutterbuck. He was asked from a management point of view, how many supervisors he would need for the 30 linesmen to be able to have a supervisor with them on each job, and Mr Clutterbuck said, "With those 30, you know, like you say, a wish list, I suppose you could look at eight". He also said that from a management point of view, three would be enough on an ongoing basis.

62 Mr Clutterbuck gave evidence that the applicant company had a procedure whereby before somebody could take on the group leader role, they had to be accredited by the company. Mr Hasell was accredited to work as a group leader, and had from time to time worked as a group leader. When he did that work, he could apply to be paid a relevant loading as the group leader. On 23 July 1999, Mr Hasell was being paid the group leader loading. Mr Cassar and Mr Kelly were also accredited to work as group leaders, but were not paid the loading on 23 July 1999. Mr Hasell and Mr Kelly were not qualified live high voltage linesmen, nor were they currently so qualified at the time of trial. Mr Cassar at the time of trial was a qualified high voltage linesman, but the witness was not sure whether Mr Cassar was so qualified in July 1999.

63 Mr J.T. Clarke gave evidence that in 1999 he was the Client Services Manager at VicTec. In approximately 1997 he had discussions with representatives of the applicant company about the applicant recruiting junior apprentices into their organisation. A final agreement was signed by both parties on 28 May 1998, involving VicTec leasing out apprentices to the applicant. In June 1997, Brock Andrews was selected to work at the applicant company. Mr Andrews was an employee of VicTec.

64 Mr M.D. Gardiner gave evidence that in July 1999 he was appointed a Construction Project Leader at the applicant company. There was a restructure of various positions around that time. Mr Gardiner's job was to plan the project files as they were delivered into construction. The file would be issued by the design section of the company, and detailed the work to be carried out. Mr Gardiner's role involved scoping the works, site visits, resource allocation and plant equipment allocation. He worked with Mr Clutterbuck on the projects as they came in. Both he and Mr Clutterbuck conducted briefings of the crews.

65 Mr Gardiner stated that in July 1999 the system of allocating project files involved the crew being given a collection of documents such as plans, and verbal instructions. The verbal instructions might be given to an individual or a group. The file would be issued to a member of the crew, who would be selected based on experience and competency. The function of that person was to ensure the work was completed and the file returned at the end of the day. On 23 July 1999, the file was given to Simon Cassar. He was advised to take out two cherry pickers. Mr Gardiner could not otherwise recall precisely what he said to Simon Cassar. Mr Gardiner expected Mr Cassar would co-ordinate the rest of the group to their first location, that is, work out which location they would go to first. At that time, the company did not have designated work site leaders or field leaders. The applicant company has since changed its system by requiring work site leaders at any work sites involving complex tasks. There was no requirement for a work site leader for tasks involving the removing of switch wire.

66 The project file given to Mr Cassar would have consisted of technical specifications, which gave the pole details and instructions as to what needed to be done at each pole. The file may also have included a map. Mr Gardiner identified Exhibit C5 as the document the work crew were given on 22 July 1999.

67 Mr Gardiner stated that there was no specific written instruction relating to the taking down of switch wire in the applicant company in July 1999. The applicant company conducted annual refresher courses, training to introduce changes in technology or new equipment, and toolbox meetings. The instructions for removing any low voltage wiring would be contained in a Linesman's Handbook, which were issued to all linesmen when they start their apprenticeship.

68 The system of work in July 1999 was such that any linesman who considered a task he was required to do was too dangerous could refuse to do the work. Linesmen had mobile telephones and truck mobile phones, which they could use in such situations. Mr Gardiner expected that if any member of the crew had a problem to do with safety, they would contact him.

69 Mr Gardiner could not say whether the project file was returned to him at the end of the day or at some later stage. He could not recall the usual process in July 1999 in relation to completed files.

70 Mr Phillip Lilley gave evidence that he was an electrical engineer, and in July 1999 was working in the office of the Chief Electrical Inspector as the Manager of Network Safety. He conducted an investigation into the incident in which Mr Andrews was injured.

71 Mr Lilley said the Linesman's Handbook is a hands-on manual and guide for line workers to perform their day-to-day functions. It forms part of the core information that is taught to apprentices in the electrical industry. Mr Lilley agreed that it is fundamental to the training of linesmen that they are taught to conduct an appropriate assessment before any work is done, to ensure that the work can be done safely. The witness was shown the Electrical Safety Act 1998 and agreed that a fundamental principle contained in s.43(4)(b) of the Act placed the responsibility on the person carrying out electrical installation work to ensure adequate precautions are taken to prevent electrical shock. The witness agreed section 43(4)(b) of the Act does not relate to linesmen.

72 Mr Lilley formed the view following his inquiries into the incident in which Mr Andrews was injured that there was some inadequacy in relation to the instructions that existed, particularly for work in which an apprentice was involved.

73 Mr Lilley was asked about the regime that had previously existed under the SEC, and said that under that regime, there was a requirement for on-site supervision of a crew which was related to training requirements that existed at the time. Had the job that was performed on 23 July 1999 been done by an SEC crew, Mr Lilley said a supervisor would visit the site, perform a safety assessment and plan the job, then hand the job to a team leader who would then manage the crew and allocate tasks.

74 Mr A.B. Wallace gave evidence that he was a construction project leader employed by the applicant, and was similarly employed in July 1999. He was Mr Andrew's mentor, but did not have any supervisory responsibilities for him.

75 Mr Wallace stated that he was aware that since July 1999 the applicant introduced toolbox meetings. These were job site assessments consisting of a checklist which can be read out with a crew to check whether people are properly trained, have protective apparel, can do the job safely and so on. He was not sure whether these were introduced as a result of the incident involving Mr Andrews.

76 Mr L.G. Cameron gave evidence that he was a Field Officer for the Victorian Workcover Authority. On 23 July 1999 at 5.15 p.m. he visited the site of the incident in which Mr Andrews was injured at Maidie Street, Highton. The site is a public reserve, named Pipe Track Reserve. Mr Cameron took a number of photographs at the site, some of which formed part of Exhibit Cl. At the scene he observed two cherry pickers or elevated platform vehicles and a number of people on site. He observed two power poles, one which had a substation. The power poles had overhead cables on them, except for one cable that was lying on the ground. That cable was coiled, and on the coil of cable was one glove and two safety boots. The glove was a rigger's type glove, without insulation. There was a spreader bar located in between the two power poles, and the cable lying on the ground was still attached to the spreader.

77 Mr Cameron was not aware at the time he visited the site that the crew in which Mr Andrews was working was not working at the site they had been directed to, but had actually been working on some other area they had not been directed to.

78 Mr Cameron defined risk assessment as "a set of principles that are used, can be utilised to manage risk in terms of business practice". He said those principles were applied in the electrical industry. He described a hierarchy of controls as "a set of controls that can be put into place on a priority basis from best practice or more effective methods to least effective methods, and it is basically a series of five or so control measures that can be used in general terms". The most effective level would be to eliminate the risk associated with a given hazard. The second level would be to substitute the risk for an article that would be of a lesser risk. The next would be to engineer the risk out of the particular hazard and/or isolate that risk, for example to put a guard over a revolving blade that has the potential to cut somebody. The fourth level would be administrative controls, namely a package of documented procedures, training and supervision. The final level was the use of personal protective equipment.

79 Mr P. DenBrinker gave evidence that he was a professional electrical engineer, with extensive qualifications which were given in evidence. On 13 April 2000 he was requested by the Victorian Workcover Authority to provide an expert opinion in relation to the incident that occurred on 23 July 1999.

80 Mr DenBrinker said the incident occurred when a switch wire was being removed from a pole which held high voltage wires on top. The high voltage wires had 22,000 volts on 15 of them. From the high voltage wires, there were connections to the transformers, which are commonly known as droppers. In the process of removing the switch wire, the switch wire made contact with the droppers which were connected to the high voltage wires. The droppers also had 22,000 volts, being at the same potential or voltage as the wire on which it came to hold. As the switch wire made contact with the dropper, it got the same potential, namely 22,000 volts. Mr DenBrinker said a high voltage is referred to as anything over 1,000 volts.

81 Mr DenBrinker described risk management as a system "where you try to sort of see what the hazards are and, say, make an assessment of a risk, and then institute controls". He said the five levels of the control hierarchy were substitution, isolation, engineering, administrative controls and personal protective equipment. Mr DenBrinker applied these principles to the incident involving Mr Andrews, and gave an opinion as to measures that could have been taken to address the risk. He said isolation could be removing the supply to the 22,000 high voltage wire. He said you could also have a circuit breaker that isolates the power to the system. He also said you would make sure and have a system whereby the people working on the site had permits and authorisation, and were briefed as to what the job was. In relation to the third level, engineering, he said certain things could be done at the design stage, such as insulating the drop wires either permanently or temporarily. Administrative control refers to paperwork that outlines the job that is being done, and refers to the Blue Book and the Green Book. Supervision would also fit into the category of administrative control, and usually there would be a person permanently in charge. The final level, personal protective equipment, would include the use of insulating sticks, an insulating mat and rubber gloves.

82 In relation to supervision, Mr DenBrinker said that the system that had previously operated under the SEC usually involved a person in charge, who was responsible for making sure that the people understood the job they were undertaking, any preparation that may be associated, and then make sure that at the end of the job everything was put back in place and all personnel were accounted for.

83 Mr DenBrinker expressed the opinion that the simplest way the incident involving Brock Andrews could have been prevented would have been to isolate the 22,000 volts. He was asked what the consequences on a person in the situation of Mr Andrews making contact with high voltage wires, and said that the most extreme effect is cardiac arrest or electrocution, which can be fatal. Other effects on the human body include burns and other internal injuries depending on the path it takes through the body and the duration of the contact.

84 That is a summary of the evidence of the witnesses called by the prosecution at trial. As I have said, apart from the tendering of three documentary exhibits, the defence called no evidence.

85 The prosecution case against the applicant essentially was one of failure properly to supervise. The prosecution case was that the crew members were left by the applicant to supervise themselves; or, in the words from a bygone era of the prosecutor "They sent a pack of Indians out without a Chief". More formally, the prosecutor put to the jury:

[20]

86 The defence case was that the applicant had satisfied its obligations under the Act by providing a suitably qualified crew. The defence contended that there was no need to provide a further layer of supervision. The defence also contended that the actions of Mr Kelly which caused the injury to Mr Andrews were not foreseeable.

87 I turn to the submissions on behalf of the applicant.

88 Ground 2 is the failure of the learned trial Judge to give -

(a) an accomplice warning;

(b) an unreliable witness warning;

(c) an indemnified witness warning; or

(d) any other sufficient warning or direction -

with respect to the evidence

(i) Terrence Kelly;

(ii) Dean Alan Hasell; or

(iii) Simon Frederick Cassar.

Although the ground related to the evidence of each of the three named witnesses, before this Court the ground was pursued only in relation to the evidence of Terrence Kelly.

89 At trial, counsel for the applicant sought an accomplice warning or in the alternative a Faure[1] warning. The judge declined to give either warning to the jury. Unfortunately Her Honour did not give extrapolated reasons for her decision. Before this Court, senior counsel for the applicant submitted that the Judge was thereby in error and that a warning was necessary.

90 The submissions before us in support of that contention were as follows. First, the action of Mr Kelly in dropping the switch wire was a substantial cause of Mr Andrews being electrocuted. Secondly, the crux of the prosecution case was the failure to supervise the work performed by Mr Kelly. Thirdly, the prosecution had seen fit to indemnify Mr Kelly.[2] Fourthly, the defence case was that Mr Kelly did not require supervision for the task he was performing, he being a trained and experienced linesman. Fifthly, the defence contended that Mr Kelly failed to perform the relevant job in the manner in which he had been trained (and that this failure led to the electrocution). Thus there was a live issue as to whether Mr Kelly's evidence on critical matters was accurate. Certainly his evidence was adverse to the applicant's case.

91 Senior counsel for the applicant conceded before this Court that because the essence of the prosecution case was a lack of supervision, and the occurrence of the electrocution was simply evidence going to establish lack of supervision, it might be argued that Mr Kelly was not an accomplice in the sense that he was not particeps criminis; and that there are conceptual difficulties in categorising Mr Kelly as an accomplice vis-à-vis a corporation. Counsel contended, however, that there is no need to fit Mr Kelly into an established category of witness before it may be seen that a warning as to his evidence was required in the circumstances of this case. That is because the common law imposes a duty on trial judges to warn of the danger of convicting on evidence which is potentially unreliable. Whether he was an accomplice or not, and whether he fell into any of the specific categories of witnesses which the law recognises as requiring a warning (such as prison informers), Mr Kelly fell into a general class of witnesses about whom a warning should be given to avoid the risk of a miscarriage of justice.[3] The submission continued that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.[4]

92 It was further submitted that in a practical way, the conditions which necessitated an accomplice warning were present. Mr Kelly had very likely breached s.25 of the Act - presumably the genesis of the indemnity. Mr Kelly had a real interest in shifting blame for the electrocution from himself to the applicant. It was clear that he would not agree that the method he used for dropping switch wire was contrary to his training. Further, he was an indemnified witness. Counsel submitted that that fact alone required that the judge give the jury a forceful warning as to the dangers of acting upon his evidence absent corroboration. No warning was given by the judge as to the dangers of acting upon Mr Kelly's evidence. Counsel finally submitted that the circumstances called for a warning to be given and that a miscarriage of justice has flown from the refusal of the trial judge to give the warning requested.

93 I consider that the contentions made on behalf of the applicant as to the necessity for a warning are not sustainable. Mr Kelly was not an accomplice. He was not particeps criminis with his employer. He was not a member of any of the categories, set out above, as to which a warning is required. In the end senior counsel for the applicant fell back upon the general concept of a "direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice". In my view that general principle was not attracted by the evidence of Mr Kelly in this case. Apart from the categorical occasions calling for a warning - which as I have said do not here apply - the need for a warning would arise where the witness may be afflicted by considerations unlikely to be apparent to a jury but known to the law through long experience. Mr Kelly was not such a case. The risk of affliction in his evidence would have been readily apparent to a jury as a matter of ordinary human understanding. More fundamentally, the issue in the case was the question of supervision, not of Mr Kelly's fault. In support of the contention under Ground 2 that a warning ought to have been given concerning the evidence of Mr Kelly, senior counsel for the applicant stated that "Defence counsel attributed blame to Kelly". The submissions on behalf of the applicant reveal a misconception of the operation of s.22 and of the nature and function of the Act. Section 22 and its allied sections are preventative and are directed to the duties of the employer. Mr Kelly's fault if it be such was not the issue. Blaming the worker is as inappropriate in occupational safety as is blaming the victim in crime. In my view this ground fails.

94 I turn to Ground 3.

95 Ground 3 is as follows:

[25]

Counsel submitted that those observations would undoubtedly have been understood by the jury as directions of law: the obligations flowing from s.21(2)(e) seem to be echoed in them.

98 Counsel submitted that whether supervision was required in the circumstances was the central issue in the trial. At the heart of the defence case was the contention that Kelly was in no need of supervision on site. The judge directed the jury in unqualified terms, however, that the applicant's obligation in this case included the supervision of the average linesman (presumably including Kelly), and that the obligation was to maintain the system of supervision and ensure it continued. Counsel submitted that whether supervision was required in the circumstances of this case was, as has previously been observed, a jury question. The judge's directions, however, effectively withdrew that issue (on one view, the only issue) from the jury.

99 Counsel below for the applicant took no exception after the judge's charge. However, before this Court senior counsel contended that given the centrality of the impugned direction, it cannot be said that there has been no substantial miscarriage of justice.

100 In response to the submissions on behalf of the applicant, senior counsel for the respondent submitted that the s.22 offence is a breach of duty of an employer to conduct an undertaking that is as safe as practicable for persons other than employees (as alleged in count 3). It is a parallel and compatible duty with the s.21 duty of an employer to provide a working environment that is as safe as practicable for employees; confirmed by the objects of the Act (s.6). Senior counsel for the respondent submitted that adequate supervision in the undertaking or working environment is but one of the safeguards that may in particular circumstances be practicable. Paragraph (e) of s.21(2) is but one identifiable act or omission which may constitute a breach of the general duty laid down by s.21(1).[5] Similarly, the failure to provide a level of supervision that is practicable in the circumstances may amount to an omission that is a breach of the s.22 duty.

101 Counsel for the respondent submitted that the submissions on behalf of the applicant that the issue in the case was whether any supervision was required as a practicable safeguard are erroneous. At trial it was accepted by both prosecution and defence that the central issue was whether the level (as distinct from existence) of supervision provided by the applicant was sufficient, that is, as safe as practicable. The defence case was that sufficient supervision had been provided in all the circumstances of the case. The written directions provided to the jury by the judge emphasised that the issue in the case was the degree of supervision. Both counsel below expressly adopted these directions as appropriately encapsulating the issue in the case.

102 The passage in the charge complained of by the applicant cited in paragraph 93 above was immediately followed by the following:

[39]

Counsel before this Court accepted that the judge later did refer to some of the evidence and arguments of each side bearing upon the question of practicability, but counsel submitted that the judge did not, however, make it clear that the test of practicability was objective. It was an error to fail to do so.[7]

107 Moreover, counsel submitted that the concentration upon foreseeability was wrong. The judge should have directed the jury to weigh all of the factors set out in the definition of practicable in s.4 of the Act objectively in determining the issue. This she did not do; or, at the least, did not do sufficiently.

108 Counsel further submitted that prejudice to the applicant flowing from the judge's concentration upon foreseeability is borne out by the second jury question posed following retirement and quoted in paragraph 108 below. Counsel submitted that after discussion, the judge in essence directed that the Green Book was "a piece of evidence". The prosecution relied upon it as demonstrating that the applicant should have foreseen the possible danger of electrocution. Since the book was provided to skilled and experienced linesmen, the defence also relied upon it as going to foreseeability. Counsel for the applicant submitted before this Court that the directions on practicability fell far short of what was required. Counsel below did not make exception. However, before this Court counsel for the applicant submitted that, since the adverbial phrase "so far as is practicable" in s.22 is an element of the offence, the misdirection and non-direction set out above cannot be said to be other than material, and that a miscarriage of justice has resulted.

109 In response to the submissions on behalf of the applicant, senior counsel for the respondent submitted that the trial judge repeatedly emphasised the objective nature of the duty, both in the written directions provided to the jury and in various parts of her charge. During final addresses, counsel for each party also repeatedly stated the objective nature of the test. Before this Court counsel for the respondent submitted that the jury were correctly and sufficiently instructed as to the objective nature of the duty.

110 As to the reflection of Harper J in Holmes v. Spence counsel for the respondent submitted that it is frequently adopted by trial judges in charging juries - as was approved in R. v. Australian Char Pty. Ltd.[8] To varying extents it was also quoted by the prosecutor and defence counsel below. It would have been apparent to the jury that Her Honour's use of Harper J's reflection was for the purpose of a general statement as to the nature of the employer's duty and not a specific reference to the circumstances of this case. The use of the reflection was appropriate to instruct the jury as to an essential point in the trial - that the employer's duty is to anticipate human frailty. It was the prosecution case that the provision of adequate supervision was a practicable means of guarding against that human frailty.

111 Counsel for the respondent submitted that the use of the notion of "foreseeability of the risk" may be appropriate to explain the employer's duty.[9] The use of the concept of foreseeability of risk was acceded to by both counsel below as appropriate in this case in the written directions.

112 During deliberations the jury asked a second question. It was (referring to Exhibit C9):

R v Powercor

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Cases Cited (3)