103 It must also be recognised that the nature of the work performed by the employees of the appellant involved the potential for deadly risks to arise in the form of electrocution if the employees were to come into contact with high voltage electricity cables or wires. In such dangerous circumstances, it was of the utmost importance for the appellant to be constantly diligent in searching out and eliminating the possible areas of risk. This includes finding the slightest potential in a system of work whereby employees might become lax through routine and over-familiarity with the work and ensuring that information and instruction, even though it may be clear on its face, is not reasonably capable of being disobeyed or misunderstood when it comes to implementing the information or instruction.
104 Having those considerations in mind, our assessment of the evidence is that the risk was created by failures on the part of the appellant and to a lesser degree, carelessness or inattention on the part of Mr Rogers. The critical failure by the appellant was that the inadequacy of its system of work left scope for its employees on 29 June 2004 to have a proper basis to believe it was safe to work on Pole 49, despite an apparent instruction to the contrary.
Mr Buatava
105 Mr Buatava was the acting team manager on 29 June 2004. He entered an isolation request on 21 June 2004 into the computer system seeking the isolation of feeders 726, NL16 and NL21 from Epping substation to Hornsby substation. This was done by filling in an isolation request form. Mr Buatava did not seek isolation of NS21 because he was not aware of its existence. Mr Buatava also did not enter the Special Instructions on the form generated by the computer because another person had entered these instructions at an earlier time. The Special Instructions stated, inter alia, that all work was to be carried out clear of "RIC HV JOINT USE POLE 49". The form made no mention of NS21. Mr Buatava said he would have expected to be told about any other feeder on Pole 49 that may have been present in addition to 726 and NL16. Mr Buatava understood "joint use" to mean, wrongly, that Pole 49 had two feeders on it, the 33kv feeder (726) and the 2kv feeder (NL16).
106 At [145]-[146] Haylen J considered the evidence about whether any one had indicated to Mr Pedersen that work could commence on Pole 49:
[145] Mr Mortlock's evidence was that, when he arrived, he saw the ladder against Pole 49 and noticed Mr Pedersen putting on his harness. Mr Mortlock had proposed to put on his harness to commence work on Pole 49 but, because Mr Rogers told him Mr Pedersen would be climbing the pole and performing the work, Mr Mortlock removed his harness and put it back on the truck. As he was doing so, he heard Mr Pedersen scream and hit the ground. He was at that point some 20 to 30 metres from the pole and not footing the ladder as Mr Rogers said. When he heard Mr Pedersen scream, he saw Mr Rogers close to the pole observing Mr Pedersen, although Mr Rogers's evidence was that he was at his truck speaking to Mr Buatava. Mr Buatava's evidence was that at the time he was in his car leaving the site when Mr Pedersen fell but just prior to that he had a discussion with Mr Rogers. Mr Pedersen thought that Mr Rogers had directed him to climb Pole 49, although he did not completely recall what had occurred but he remembered being told that the line had proved isolated and that it was "alright" to go up Pole 49. He had asked Mr Rogers if he was to work on Pole 49 which Mr Rogers confirmed - work was to be undertaken on Pole 49 although Mr Pedersen could not recall anything else being said by Mr Rogers about Pole 49.Mr Pedersen had been told by either Mr Buatava or Mr Rogers that the isolation was effective, then Mr Buatava told him that work could commence up the pole. He had been told this before he began to put on his harness and before he had spoken to Mr Rogers. In the conversation with Mr Buatava, he thought Mr Buatava was referring to all the poles being isolated. Mr Buatava, having informed him that the lines were isolated, then said it was "all right" to begin work. Mr Pederson thought that Mr Buatava, Mr Rogers and Mr Mortlock were present as he climbed the pole and that he spoke to Mr Rogers.
[146] Importantly, Mr Mortlock's evidence was not challenged and, given the imperfection of Mr Pederson's memory of the entire incident, nevertheless, his account has some elements of consistency with Mr Mortlock's version of what occurred. On the evidence, I am satisfied that, whatever the precise terms used, Mr Rogers and Mr Buatava gave an indication to Mr Pedersen that work could commence on Pole 49, a pole that was designated in the Commit document as one requiring overhaul work (our emphasis).
107 As the trial judge noted at [89], Mr Buatava was the holder of the WHVI. On the morning of the incident he was required to make sure that the earthing and the switching was carried out. He carried out earthing at a particular pole with Mr Mortlock after having been informed by the electrical systems operator to go ahead and test the line and apply the safety earths on Pole 48 and Pole 51. After receiving the call that the line was isolated, it was tested and the safety was applied on two poles, 48 and 51. Mr Buatava relayed the message to Mr Rogers that he could go ahead to test and supply the safety at those poles. After passing that information to Mr Rogers, he called back and advised that he tested the line and Mr Buatava would relay that message to the electrical systems operators. Mr Buatava then drove Mr Mortlock to Pole 49.
108 Given Mr Buatava's mistaken understanding of what a "joint use" pole was and the absence of any knowledge on his part about the existence of the NS21 feeder on Pole 49, Mr Buatava obviously believed Pole 49 was safe to work on and he indicated that to Mr Rogers and Mr Pedersen. In our opinion, that advice from Mr Buatava to Mr Pedersen and Mr Rogers had a critical influence on their state of mind regarding the condition of Pole 49.
109 Whilst the Special Instruction advised that work was not to be carried out on Pole 49, it gave no reason that Mr Buatava understood as to why this was to be so. Mr Buatava obviously believed that if the two feeders - 726 and NL16 - had been rendered safe there was no reason why work could not be undertaken on Pole 49. If the Special Instruction had indicated the presence of NS21 on Pole 49 Mr Buatava would undoubtedly either have sought its isolation or understood why Pole 49 was not to be worked on. To that extent the appellant's information and instruction to employees was inadequate.
Mr Rogers
110 Mr Rogers was directly responsible for the work to be carried out by his team on 29 June 2004. He had seen, and was familiar with, the Special Instruction and the Permit. He understood completely that the Special Instruction and the Permit (with the stapled attachment) meant that any work was to be carried out clear of Pole 49 because it was not within the prescribed electrically safe work area on the day and any electrical equipment not within that area was to be treated as live.
111 Mr Rogers' evidence was unsatisfactory in that it was difficult to ascertain just what his state of mind was at critical times on 29 June 2004. As the trial judge noted at [133], Mr Rogers was asked to state what the Special Instruction meant to him. He said it was a joint use pole like ones that were in joint use between the appellant and Energy Australia. When asked what importance he attached to those words, he said that he did not attach any importance to them. But as his Honour noted, despite that answer, in cross-examination Mr Rogers readily accepted that the Permit was a control against the hazard of electrocution and that he understood the obligations under the Permit for those who signed that document and that he was to treat all other electrical equipment as alive and outside the electrically safe working area which included treating Pole 49 as alive.
112 Why did Mr Rogers not observe the Special Instruction and the Permit? There were a number of reasons. First, he was either careless, but not deliberately so, or inattentive. The import of these two critical documents did not register with Mr Rogers on 29 June 2004. In his words, he "didn't pick it up", he "didn't sort of absorb", that the Special Instructions required him to stay clear of Pole 49. Secondly, the work commit document, in Mr Rogers' mind, contained nothing to indicate that he should not allow work to be carried out on Pole 49. Indeed, according to Mr Rogers the work commit required that maintenance be undertaken on Pole 49, although it did not necessarily have to be done on 29 June 2004. Thirdly, Mr Rogers gave evidence that one of the two reasons why he considered it safe to work on Pole 49 was Mr Buatava's instruction that "they had clearance from Electrical Trouble that the isolation has been carried out and for us to go ahead and prove dead and if proved dead, apply our earth." The second of his reasons was his understanding of the WHVI (whatever that may have meant). Fourthly, Mr Rogers was not aware of the existence of NS21 on Pole 49. He thought the cable that was, in fact, the NS21 feeder running up Pole 49, was part of NL16. Fifthly, Mr Rogers expected to be specifically advised of any additional feeder on Pole 49 by the attachment of a plate to that effect on the Pole (in the same way as it had been done in respect of 726 and NL16), but was not so advised. As to this last matter, however, there was no evidence that Mr Rogers or any other member of the maintenance team checked the Pole to ascertain whether there were any plates identifying the feeders on it.
113 Whilst we consider Mr Rogers' carelessness or inattention contributed to the risk to health and safety, it is beyond reasonable doubt that the appellant's failures were a substantial cause. That is to say, Mr Rogers' failure to assimilate the Special Instruction about staying clear of Pole 49 may not be regarded as a novus actus interveniens breaking the chain of causation connecting the appellant's failures to the risk. In our opinion, the risk would have been avoided if the appellant had taken the step of making it known that Pole 49 had on it feeder NS21. That is, given the risk to safety there should have been no room whatsoever for any misapprehension to arise or error to occur due to inattention to, or misunderstanding of, instructions. This is more the case given there was a risk of death from electrocution or serious injury. The avoidance of risk could have been achieved by the appellant specifying in direct and unambiguous terms on the WHVI that Pole 49 was a joint use pole that carried feeder NS21 in addition to the other feeders. Mr Buatava could not then have mistaken the import of the term "joint use" pole and undoubtedly he would not have advised Mr Rogers and his team that it was safe to work on Pole 49. It follows that Mr Rogers' lapse in not picking up the Special Instruction would not have occurred.
114 The Special Instruction that Pole 49 was a joint use pole and, therefore, work was to be carried out clear of the Pole, without any specific reference to the feeder that made it a joint use pole, did not convey to the maintenance team the necessary sense of prohibition. Notwithstanding the Special Instruction, each of them (with the possible exception of Mr Ponos) considered it was safe to work on the Pole; in the minds of the maintenance team, the Special Instruction and Permit were not sufficiently informative about the existence of a live feeder - NS21 - to overcome, amongst other factors likely to have influenced them, their acceptance of the advice emanating from Mr Buatava that Pole 49 was safe to work on.
Mr Pedersen
115 Mr Pedersen was a linesman, and an experienced one at that. Mr Pedersen filled out the Permit based on the WHVI and in doing so stated that "It is safe to carry out work between poles 18 and 134 on 726 feeder, NL16 feeder and NL21 feeder." The Permit, itself, did not indicate that Pole 49 was to be treated as an exception. However, it is safe to assume that Mr Pedersen stapled Special Instructions to the Permit in the same terms as those appearing on the WHVI. We note that Mr Pedersen "didn't do permits very often", which may have been a contributing factor to why it was that Mr Pedersen came to work on Pole 49 in contravention of the Special Instruction.
116 Mr Pedersen's memory had been affected by what happened to him on 29 June 2004 and he could not recall aspects of what occurred. But in any event, Mr Pedersen was not asked to explain in his evidence why it was that he did not act on the Special Instruction that work was to be carried out clear of Pole 49. This was notwithstanding that Mr Pedersen understood what the Special Instruction meant, including what was meant by "joint use" pole. It is, therefore, impossible to say why Mr Pedersen disregarded the Special Instruction. But obviously, by his preparedness to climb Pole 49 on 29 June 2004, Mr Pedersen believed that it was safe to do so.
117 For example, it is not known with a proper degree of certainty, whether the failure to follow the Special Instruction resulted from the influence of other factors, perhaps one of them being an unquestioning reliance on Mr Buatava's instruction to the effect that Pole 49 was safe to work on; that instruction not having been contradicted by Mr Rogers as the team was gathered at the base of Pole 49 on 29 June 2004.
118 Whatever led Mr Pedersen to believe that it was safe to work on Pole 49, and thereby become exposed to a serious risk to his health and safety, there is no doubt the appellant's failure to provide adequate information and instruction on the WHVI, or by some other means, about the existence of NS21 and what was required to make it safe, meant that the appellant did not ensure the safety of its employees. If specific information about the existence of NS21 had been provided, it is unimaginable that proper steps would not have been taken to de-energise it in relation to Pole 49 in the same way as action was taken to de-energise feeders 726 and NL16.
Mr Ponos
119 Mr Ponos was an acting linesman general as at 29 June 2004. Mr Ponos conducted the pre-work briefing, a briefing he had not previously undertaken in his nine years with the appellant. The purpose of the briefing was to identify any hazards with the job the maintenance team was to perform and how to control such hazards. Mr Ponos carried out the briefing knowing that the team was to work on high voltage equipment, but what seems to us to be an extraordinary omission, he had no other documents available to him in undertaking the briefing. After carrying out the pre-work briefing on 29 June 2004, Mr Ponos read the WHVI, signed the Permit at Pole 49 then proceeded to earth and test dead at Pole 51. He then undertook pole top maintenance on that Pole using a cherry picker and headed back to Pole 49. As he approached Pole 49 he was advised that Mr Pedersen had fallen.
120 Mr Ponos understood, mistakenly, that the Special Instruction relating to joint use Pole 49 meant that a person was to carry out work only on the "top part of the pole". Mr Ponos understood that "joint use" meant that there could be a different feeder on Pole 49, different to 726 and NL16. He said, however, that if there was a different feeder he expected there to be "labelling".
121 We do not know whether Mr Ponos, because of his understanding of the WHVI, would have, nevertheless, been prepared to work on Pole 49, as was Mr Pedersen. Whilst we note what the trial judge said at [138] that Mr Ponos would have worked on Pole 49 if directed to do so by Mr Rogers, we think that is putting what Mr Ponos said too highly. Mr Ponos said it was his practice to work on poles identified by Mr Rogers and it was not his practice to decide for himself which poles to work on.