The charge as particularised and the evidence
92The analysis of the evidence in the context of the charge as particularised that follows must be seen against the content of particular (1) which describes the risk. The risk is that of Mr Thomas being crushed between the two cassettes whilst he and Messrs Redgrove and Hafey were engaged "in the task of coupling them together."
93As I have already pointed out, the remaining particulars relate to and focus attention on the system of work that is described in particular (3). The evidence that I have earlier described enables me to conclude that the prosecutor has established, to the requisite degree of proof, that particulars (3)(a), (b) and (d) have been established.
94However, the defendant asserts that particular (3)(b) is irrelevant, for reasons that I shall discuss later.
95The provisions of particular (3)(c) are important for the determination of these proceedings. The particular asserts that as part of the task of manually joining the coupling lugs after alignment, which Mr Thomas was to undertake, "he was to hold up the coupling lug on the cassette/sled into which the Juganaut was pushing the other cassette/sled." For this purpose, Mr Thomas stood on cassette 2 as cassette 3 was being pushed towards it.
96I have already discussed the evidence in the proceedings, and in particular the evidence concerning the understanding that both Mr Thomas and Mr Redgrove had about what was to occur at the time that the incident happened. Particular (3)(c), in referring to the part of the task that Mr Thomas was undertaking, asserts that Mr Thomas was to hold up the coupling lug. This must be a reference to Mr Thomas himself personally and physically holding up the coupling lug, which he was endeavouring to do at the time that the incident occurred. However, it was no part of the plan, as he understood it and as Mr Redgrove understood it, that at the time that the incident occurred Mr Thomas was to personally and physically hold up the coupling lug to facilitate final closure. In making this observation, I read particular (3)(c) as referring to final closure, as was asserted by the defendant and conceded by the prosecutor. In contradistinction to the allegation contained in particular (3)(c), at the time of the incident Messrs Redgrove and Thomas were engaged in what was anticipated to be the first stage of the process only. There was no need for the coupling lug to be held up during that process, there was certainly no need for it to be physically lifted up by Mr Thomas and when the process started neither Mr Redgrove nor Mr Thomas anticipated that Mr Thomas would attempt to perform this movement. Accordingly, the prosecutor has failed to prove that the system of work used by Messrs Thomas and Redgrove was that described in the second sentence of particular (3)(c). In the same way, the prosecutor has failed to establish that Mr Thomas stood on cassette 2 as the cassettes were coming together for the purpose of physically lifting up the coupling lug to achieve final closure. That was not to be achieved until stage two.
97As I read the particulars of the charge, they are all predicated on the basis of the system of work that was alleged to have been adopted by Messrs Thomas, Redgrove and Hafey, as described in particular (3). The prosecutor has failed to establish, to the requisite proof, that the system of work alleged in particular (3) was that actually intended to be used by these persons and, accordingly, it may be concluded that the prosecutor has failed to make out his case.
98Counsel for the prosecutor accused the defendant of "rewriting" the prosecution pleadings, "dealing with the artificially created results piecemeal" and claimed that this approach "make no sense in logic or upon the application of ordinary English usage ...".
99In his principal submissions, the prosecutor focussed attention on the fact that what was undertaken by Messrs Redgrove, Thomas and Hafey was inherently unsafe, particularly as Mr Thomas was placed in an unsafe situation by standing on cassette 2 as cassette 3 was being pushed towards it. In oral submissions, made on 5 March 2012, Mr Skinner, counsel for the prosecutor, conceded that Mr Thomas' action in suddenly moving forward, squatting down, leaning forward and attempting to lift up the coupling lug was something that he undertook spontaneously and on the spur of the moment. However, in written submissions, counsel for the prosecutor said:
By virtue of the way that the couplings on each cassette were positioned, it is submitted that there was every likelihood that this diligent but uninformed worker in that position would spontaneously attempt to align his coupling with the other as the cassettes seemed to be coming together perfectly. Thomas was only "trying to get the job done". (This was a reference to Mr Thomas' explanation as to why he behaved in that way at the time of the incident.)
100In making this submission, the prosecutor emphasised that Mr Thomas had received no particular instruction or training in carrying out the task that he was performing at the time of the incident. This submission was repeated by Mr Skinner in dealing with the defendant's argument concerning the proper construction and understanding of particular (3)(c). However, this submission does not deal with the construction and meaning of particular (3)(c) as asserted by the defendant and which I have accepted as being correct. Once the prosecutor has failed to establish a matter which is as significant as the system of work that it alleged was undertaken by these three men, any allegation of a breach of s 8(2) of the Act must be particularised in some other way, presumably by reference to the system of work actually used by these men as found on the evidence. The position taken by the defendant in construing the provisions of particular (3)(c) could not have come as a surprise to the prosecutor, or at least counsel for the prosecutor. This position was made abundantly clear by senior counsel for the defendant in the manner in which he undertook the cross-examination of Messrs Thomas, Redgrove and Hafey, which occurred at a very early stage of the proceedings. The defendant's position was repeated in comprehensive written submissions filed on 21 February 2012. The prosecutor had an opportunity to reply to those submissions in further written submissions filed 28 February 2012. The matter was debated at length in the course of oral submissions on 5 March 2012. On that occasion, I specifically asked Mr Skinner whether the prosecutor wished to amend the particulars of the charge. The Court was told that the prosecutor did not wish to amend the particulars in any way.
101Mr Skinner submitted that in any event the defendant was precluded from relying on what was described as "an overly legalistic approach" to the particulars by reason of the provisions of s 16(2) of the Criminal Procedure Act, and in particular s 16(2)(b). Section 16 of that Act is in the following terms:
16 Certain defects do not affect indictment
(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:
(a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously",
(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,
(c) for want of a proper or perfect venue or a proper or formal conclusion,
(d) for want of any additional accused person or for any imperfection relating to any additional accused person,
(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,
(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,
(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,
(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,
(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions-for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126(2) to sign indictments for and on behalf of the Director.
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a) any alleged defect in it in substance or in form, or
(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.
102In written submission in reply, counsel for the prosecutor said, in part:
The "pleadings points" of the defence, even if accurate (which is strongly contested) are not allowed. ... it is submitted that the wording of subs 16(2)(b) is quite clear and the attack of the defence upon the pleadings is not a debate that it is allowed to be entered into, particularly at this late stage of the proceedings.
103I am somewhat at a loss to understand what is intended by this submission.
104The provisions of s 16 of the Criminal Procedure Act reflect earlier legislation such as the provisions of s 30 of the former Justices Act. The history of provisions of this kind is referred to in the judgment of Mahoney JA (as his Honour then was) in De Romanis v Sibraa (1977) 2 NSWLR 264 commencing at 290. There are many authorities at appellate level that deal with these or similar provisions. In essence, s 16 is intended to avoid criminal proceedings being unduly frustrated by an undue recourse to objections of a technical nature, and to allow the proceedings to be determined by reference to the underlying merits. There are, of course, caveats on this broad statement of principle and certainly, as Basten JA in the New South Wales Court of Appeal observed in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128 at [133], these provisions are not intended to deprive a defendant of a fair trial. The application of these provisions must be attended by considerations of procedural fairness.
105The provisions of s 16 of the Criminal Procedure Act were considered by the New South Wales Court of Criminal Appeal in Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76. The Court (Hunt AJA, Barr and Johnson JJ) examined the history of the provision and its earlier manifestations, commencing at [71]. In the course of doing so, the Court made reference also to the general power of a court to amend and adjourn proceedings. The Court noted that in conjunction with the application of s 16(2), there existed a power of amendment that could be used for the purpose of avoiding any injustice. As the Court noted, "s 16(2) is a 'disregard' provision, and not an amending provision" (at [86]). The Court said that the purpose of s 16, and other complementary provisions, was:
[88] ... amongst other things, to facilitate a fair trial on the merits without the proceedings being defeated by technical points. Although these provisions are now worded in contemporary language and appear in modern form in the Criminal Procedure Act, the rationale for the provisions remains the same as those identified by Jordan CJ in Ex parte McAuley; re Cam (at 259), by Herron J in Parmeter v Proctor (at 49-50) and by Mahoney JA in Boral Gas (at 515-517): see pars [75]-[76] supra.
106There are many cases that deal with the provisions of s 16(2)(a), and they are irrelevant for present purposes. There are surprisingly few cases that deal with s 16(2)(b); perhaps because its application is obvious. One example of circumstances in which the subsection would arguably apply is where, in proceedings alleging that a defendant had stolen certain property, the initiating process had incorrectly named the owner of the property. (See Reg v Justelius (1973) 1 NSWLR 471). In such a case, an application could be made to the Court to amend the proceedings and the defendant could be recharged to reflect the amendment, accompanied with the grant of any adjournment if this was appropriate.
107An example of circumstances where there was a variation between matters alleged in particulars and the evidence tendered before the Court in the context of occupational health and safety legislation is to be found in the decision of the Full Bench of the South Australian Industrial Relations Court in T&R (Murray Bridge) Pty Ltd v Hillman [2011] SAIRC 4; (2011) 203 IR 66. An employee of the defendant injured his finger whilst using a cutter on a slaughter line in an abattoir. The employer was charged with a breach of the South Australian Occupational Health, Safety and Welfare Act. The charge was that the defendant "failed to maintain, so far as was reasonably practicable, plant in a safe condition, in that it failed to adequately guard the plant so as to prevent the employee from making unintentional contact with the shearing blades of the cutter." The prosecutor had asserted that the installation of a particular guard would have prevented the employee from making unintentional contact with the blades. However, the evidence did not establish this. It only established that injury would be prevented provided the employee held the relevant part of the animal in the correct way. Accordingly, on the evidence, the installation of the guard would not have prevented injury, it would have minimised the risk of injury.
108The relevant provisions of the South Australian legislation were similar to, but not identical to, s 16 of the Criminal Procedure Act. However, the approach adopted by the South Australian Industrial Relations Court is, in my opinion, appropriate to be adopted in the context of these proceedings and in the context of s 16(2)(b). The Court said:
[32] In Hayes v Kenning [1992] SASC 3616 Duggan J referred to the importance of particulars in defining the issues and contributing to the fairness of the proceedings. His Honour referred to Godbee v Samuels (1973) 5 SASR 236 at 239 in which Mitchell J said:
if there is any variance between matters alleged in the particulars and the evidence tendered the Special Magistrate should at the time that evidence is tendered consider any prejudice which the
defendant may suffer, and should also have regard to such variance in considering his verdict.
[33] Duggan J drew a distinction between particulars on the face of the complaint which constitute the particular act alleged as the foundation of the charge and particulars provided in addition to the facts contained in the statement of the charge. In that context His Honour said "if a material averment in the complaint itself has not been proved then the prosecution must fail". This position was more recently confirmed in Kyriakopoulos v Police [2006] SASC 71 by White J.
[34] In this instance there was a variance between the material averment that the reasonably practicable measure was the operation of a guard to prevent unintentional contact between the operator's off-hand and the shearing blades of the cutter and the finding that the guard minimises the risk but does not prevent an employee making unintentional contact with the shearing blades.
[35] The Industrial Magistrate correctly found that the charge, as framed, had not been proved beyond reasonable doubt.
109It will be noted that the Court adopted a distinction between a material averment in a complaint, being "particulars on the face of the complaint which constitute the particular act alleged as the foundation of the charge" and particulars provided in addition to those facts. This is a distinction that I accept and adopt, and to which I shall shortly return.
110For completeness, I note that the Court in T&R (Murray Bridge) went on to consider whether the defect was susceptible to amendment and whether the charge should have been amended. The Court was asked, on appeal, to amend the complaint. It chose not to do so, for reasons that it is unnecessary for me to discuss. However, the Court pointed out that in the course of the initial proceedings heard before an industrial magistrate, it was made abundantly clear to the complainant by counsel for the defendant that the defence focussed on the deficiency in the complaint. The particular is that which I have earlier identified. In the course of submissions, the industrial magistrate raised the same matter with counsel for the complainant, who chose to argue that there was no variation between the charge and the evidence and made no application to seek leave to amend.
111During the course of oral submissions, heard on 5 March 2012, I specifically asked Mr Skinner, counsel for the prosecutor, whether the prosecutor proposed to seek any amendment of the proceedings. Mr Skinner stated in unequivocal terms that no amendment was sought. He submitted, however, that the Court could proceed to deal with the matter on the basis of the charge as particularised, notwithstanding any finding that I might make concerning the construction of particular (3)(c).
112The difficulty that I have in applying this approach, as contended for by the prosecutor, is that it is necessary to remove the second sentence from particular (3)(c) and to qualify the first sentence of particular (3)(c). The qualification is necessary because, at the time that the incident occurred, Messrs Thomas, Redgrove and Hafey were engaged on the first stage only of the coupling process. That is, as I have said, Mr Thomas was standing on the deck of cassette 2 as cassette 3 was being pushed towards it in preparation for stage two, where the final adjustment was to be made to allow final manual coupling.
113If particular (3)(c) were to be read in the way contended for by Mr Skinner, it seems to me that this would materially alter the nature of the case that the defendant was required to meet, and did so, in terms of its approach to the evidence adduced by the prosecutor in the proceedings. Whilst the defendant did focus its attention, during the course of the proceedings, on any risk to safety that might be created by Mr Thomas standing on cassette 2 whilst cassette 3 was being pushed towards it, the overwhelming focus of attention by it, and also by the prosecutor, was the circumstances in which Mr Thomas unexpectedly and on the spur of the moment squatted on the edge of the cassette and leaned forward to attempt to physically pick up the coupling lug. This was the context in which the evidence about this particular matter was primarily adduced.
114In written submissions, counsel for the prosecutor attempted to describe the system of work in a manner that, in my opinion, was illogical and inappropriate. The submission said:
The system adopted by the men includes not only what may have been predetermined or premeditated by any of them, to the extent that anything was with any specificity, but also what in fact happened.
I am unable to understand how it can be said that a system that is "adopted" by workmen includes some conduct or activity that was not part of the manner in which they understood the work was to be carried out. What happened on this occasion was unplanned, unexpected by any of them and occurred on the spur of the moment. Conduct and activity will only fall within a system of work where it is consistent with and reasonably able to be understood as an incident or outcome of the plan of action. At the least, what happened would need to be determined, on the evidence, as something reasonably foreseeable arising out of the system of work. It was not.
115I regard the provisions of particular (3)(c) as being fundamental to the prosecution case and of such significance that to omit the second sentence and to qualify the first sentence in the manner that I have described would constitute a variation of a material averment, which is a foundation of the charge as particularised. It would be unfair, in these circumstances, to proceed on the basis that the proceedings could be considered as having been litigated without reference to an allegation that at the time of the incident Mr Thomas was participating in an agreed manoeuvre which was part of a system of work used by Messrs Thomas, Redgrove and Hafey.
116In all the circumstances, if the prosecutor had wished to proceed on any basis requiring an amendment to particular (3)(c) of the kind to which I have referred, the prosecutor should have sought leave to amend the proceedings so as to allow the Court to disregard any variation created by the evidence adduced. The prosecutor having declined to seek leave to amend the proceedings, they should be determined strictly on the basis of the charge as particularised including particular (3)(c) which, as I have found, is fundamental to the totality of the allegations contained within the particulars.
117On this basis, and for the reasons that I have earlier stated, I conclude that the prosecutor has failed to make out a case against the defendant consistent with the charge as particularised against it.
118There are a number of other specific particulars of the charge contained within the application for order that were the subject of contention and that were strongly resisted by the defendant. I mention them for completeness, although, as I have said, they are centred around and are predicated upon the system of work described in particular (3)(c), which the prosecutor has failed to establish.
119Particular (4)(a) asserts that the use of the Juganaut did not provide adequate control of the speed or direction of the movement of cassette 3. This begs the question as to what is meant by the word "adequate". It was the prosecutor's case that at the time that Mr Redgrove was using the Juganaut to push cassette 3 toward cassette 2 it moved unexpectedly quickly and much faster than Mr Thomas anticipated. There is no evidence that it moved unexpectedly quickly. The evidence of Mr Thomas is that cassette 3 was initially moving in a sideways direction but then moved in a forward direction, which he did not anticipate. It was the evidence of Mr Thomas that the speed of the cassette did not allow him time to remove himself before he became caught between the two cassettes. However, this needs to be seen in the context that, at the time that his right leg inadvertently and unexpectedly came in contact with the ground, the cassettes were sufficiently close together to enable him to judge that the coupling lugs on each might be sufficiently aligned. I agree with the defendant's submission that the overall effect of the evidence was that the cassette, having been moved for a few metres only and the Juganaut being in low gear at idling speed, could not be said to be moving in a manner that was inappropriate in all the circumstances. The prosecutor sought to emphasise that whilst the cassette was being pushed by the Juganaut, there were no means of retarding its process and, certainly, no braking system, which made it inherently unsafe. Whether something is or is not unsafe needs to be considered in the context of the prevailing circumstances. One cannot exercise a value judgment about such a matter in a factual vacuum. The prosecution's submission may have some merit in a theoretical sense, but in the context of the evidence given in these proceedings and in the context of my understanding of that evidence in light of the observations that I made during the inspection of the equipment, I conclude that the prosecutor has failed to demonstrate to the requisite standard of proof that the use of the Juganaut to push the cassette created any relevant unsafe situation. I repeat that Mr Thomas' unfortunate injuries and the particular risk to his safety were created solely by the fact that, on the spur of the moment and in disregard of the intended course of action, he determined to squat down, lean forward and physically pick up the coupling lug, overbalancing as he did so.
120Particular (4)(b) asserts that Mr Thomas was in danger of stepping into the pinch point as the cassettes were being brought together. In considering this, I shall disregard the remainder of (4)(b), which is obviously directed at the system of work as described in particular (3)(c), which has not been made out. This needs to be put into perspective. Prior to the actual incident occurring, Mr Thomas was standing on the stationary cassette 2. He was "pretty close to the edge" of the deck, as he said in his evidence. However, it is clear that the deck was quite large, was flat and, on the evidence, on reasonably level ground. I repeat that it was stationary. The prosecutor asserted that there was a risk that whilst cassette 3 was being pushed toward cassette 2, Mr Thomas would step off the edge of the cassette. Common sense dictates that, as the defendant asserted, any such risk would constitute the same risk that any person would have of stepping off a footpath into the path of an oncoming motor vehicle. There was simply no evidence of any risk that whilst standing close to the edge of the deck of the cassette there was a risk that Mr Thomas might overbalance and fall off it into the pinch point. There is no suggestion that Mr Thomas suffered from any physical condition that made him more susceptible than anyone else to losing his balance. I regard the prosecution's submission that there was any such relevant risk created by Mr Thomas standing near the edge of the cassette deck per se as being impractical and bordering on fantasy. It might be assumed that the prosecutor would adopt an ordinary, pragmatic and common sense approach to what constituted a risk of injury that might give rise to culpability on the part of this defendant with a criminal sanction attaching to it.
121In any event, this allegation has no relevance to what in fact occurred and to the incident that is at the heart of these proceedings. Mr Thomas did not overbalance and fall whilst standing close to the edge of the cassette deck. Such a risk, even if established, was not particularised. He overbalanced because of the particular movement that he undertook and that I have now described on a number of occasions.
122Particulars (4)(c) and (4)(d) focus on the fact that Mr Redgrove lost sight of Mr Thomas whilst cassette 3 was being pushed toward cassette 2 and that this was to be accommodated by the use of Mr Hafey as a spotter, with associated deficiencies in this arrangement as alleged in particular (4)(d).
123The prosecutor asserted that, on the evidence, Mr Redgrove could not see Mr Thomas whilst pushing cassette 3 because his vision was obscured by the bucket of the Juganaut. The evidence is to the contrary. In his evidence Mr Redgove said that he could see Mr Thomas' helmet. It was only at the point that Mr Thomas squatted down to commence his spur of the moment and unexpected movement that Mr Redgrove lost sight of him. This was not part of the agreed system of work between them. Furthermore, at that stage Mr Hafey also could not see Mr Thomas.
124There is nothing in the evidence to suggest that the system of signals and other communication between the three persons concerned was inadequate or inappropriate, nor that the system failed. There is no suggestion made by the prosecutor that in some way there should have been some communication of some kind made by Mr Hafey to Mr Redgrove or that, of his own motion, Mr Redgrove should have done something once they both lost sight of Mr Thomas. Presumably, the prosecutor made no such assertion because, on the evidence, within a very short time of them losing sight of Mr Thomas, he had undertaken his unexpected movement, on the spur of the moment, and his right leg came into contact with the ground. In his evidence, Mr Thomas thought that he had been on the ground for three to four seconds. Given all the circumstances in which the incident occurred, the traumatic injury that Mr Thomas suffered, the length of time between the incident and the time when Mr Thomas gave evidence and the time taken for every person to react physically after the brain has received the appropriate stimulus, it would be unsafe to make any conclusion about such a matter, especially as it was not raised by the prosecutor.
125On the evidence, I am unable to conclude that the prosecutor has made out his case to the requisite standard of proof based on particulars (4)(c) and (d).
126Particular (5) focuses attention on failures asserted against the defendant with respect to information, instruction, training and supervision.
127There was no evidence that any of Messrs Thomas, Redgrove or Hafey received any specific information, instruction, training or supervision in connection with the task that they undertook on the day of the incident, either from the defendant or from their employer, UGM. Nor were they supervised when attempting to carry out the task.
128The prosecutor asserted that if information, instruction, training or supervision had been provided to them, and in particular to Mr Thomas, then the risk of injury particularised against the defendant would have been avoided.
129The prosecution case needs to be assessed in the context of the evidence given in the proceedings. Mr Redgrove had undertaken the task of coupling only once before. However, on the evidence, his understanding as to how the task was to be accomplished was in accordance with the procedure adopted by the defendant generally in connection with its operations and adopted by many other mining entities undertaking coalmining, particularly in the Hunter area. There was some evidence about whether or not the Juganaut should have been used for the final coupling stage and whether a block and tackle or some other device should have been used at that time, but this evidence is irrelevant because final coupling was not part of the plan that these men had agreed to undertake at the time that the incident occurred.
130It is true that Mr Thomas had never undertaken this task previously. However, in his evidence he acknowledged that he understood that there was to be a two-stage process and that the final lifting of the coupling lug would be undertaken either by using timber to block it or by using a rope or chain to hold it at the appropriate level. On the evidence, no amount of information, instruction or training would have brought about the use of any other process as contemplated by them.
131Despite the submission of the prosecutor, based on evidence given by a number of persons in the proceedings and based also on my own observation of the procedure when demonstrated, I would not regard the coupling process as being unduly complex. It is a relatively simple process not unlike that involved in coupling a trailer to a motor vehicle. Obviously, there is a difference in the coupling mechanism; the former used two coupling lugs with a pin to be inserted and the latter uses a towbar. There are obvious differences in the manner in which the cassettes are moved into position, namely by being pushed, and the manner in which the vehicle is moved into position, mainly by being reversed near the trailer. The process itself is a simple one. The undertaking of the final coupling requires a degree of precision in the operation of the equipment, but does not create any intellectually challenging process.
132Furthermore, each of Messrs Redgrove and Thomas had received extensive training, instruction and information about pinch points, no go zones and the necessity to undertake a risk assessment for every task in which they were involved. I agree with the defendant's submission that, as at the date of the incident, "the men in fact possessed the information, instruction and training necessary to ensure Mr Thomas' health and safety in doing the job" and that, therefore, "there was no causal connection between the failings of the defendant as alleged and the detriment to health and safety pleaded." On the evidence, each of the men possessed a sufficiently high level of information, instruction and training in the skills required to perform the particular task of coupling the cassettes.
133The defendant complained that the prosecutor had failed to identify the information, instruction and training that was necessary to ensure the health and safety of Mr Thomas. The only specificity is that contained in particular (5)(c) which was directed to the requirement for a no go area around the cassettes as the Juganaut was moving them into position. I have previously dealt with this aspect in connection with other particulars. Mr Thomas, on the evidence, was aware that the area in between the cassettes and around the cassettes was an area where his physical presence was precluded as a matter of safety. Although he did not receive specific instruction with respect to the particular work being undertaken at the time of the incident concerning the no go zone, he was, at all times, as he conceded, aware of the fact that he should not place himself in that area. In these circumstances, it cannot be concluded that the defendant had failed to instruct Mr Thomas in the manner alleged. Whilst I have concentrated on the training, awareness and knowledge of Mr Thomas, as is obvious Mr Redgrove had been informed, instructed and trained in the same manner and was equally aware of this matter at the time of the incident as Mr Thomas. Given the nature of the charge as particularised, and given the circumstances in which the incident occurred, it is only necessary that I focus on Mr Thomas in this regard.
134The matters referred to in particular (5) were complemented by particular (7). The focus of attention on what the prosecutor asserts the defendant should have done in all the circumstances appears to be the establishment of and compliance with a no go zone around the cassettes. For reasons that I have already given, the defendant was not in breach of any of the matters referred to in particular (5). It follows that I conclude that Messrs Thomas and Redgrove did receive sufficient information, instruction and training as would make them properly aware of the risks asserted and the need to establish and comply with a no go zone as described.
135There is no evidence that would allow me to conclude that if the persons concerned had been given information, instruction and training about the particular task of coupling, which they were to undertake on 21 August 2008, this would have precluded Mr Thomas from acting in the way in which he did. His conduct was unexpected, on the spur of the moment and contrary to everything that he had been informed, instructed and trained to do in connection with the safe carrying out of his work. Evidence of this kind would need to have been given by someone with appropriate expertise in the neurosciences or possibly psychology or psychiatry; that is, by an expert in human behaviour and, in particular, aberrant human behaviour of the kind that Mr Thomas engaged in at the time of the incident.
136Particular (6) is the complement to particular (4). Of course, particular (6) is framed in such a way that it is confined to the final closure of the coupling lugs, something which the men were not undertaking at the time that the incident occurred and which was to be carried out as part of the second stage. Leaving this aside, to the extent that this is possible, I have already held that the system which was in fact agreed between Messrs Redgrove and Thomas did not require Mr Thomas to be anywhere near the pinch point between the cassettes. He was standing on the stable, flat and level platform of cassette 2, which was motionless at the time that the incident occurred. The prosecutor has failed to make out any case that, in all the circumstances, the defendant failed to do what was required of it in the circumstances of this incident as set out in particular (6).
137 The final element in particular (5) relates to supervision. Particular (5)(b) asserts that the men were not supervised and then refers to the fact that they were left to their own ad hoc devices. The complementary particular is particular (8) which asserts that the defendant should have ensured supervision "by an experienced person so as to eliminate the risk that an inadequate and dangerous system would be adopted."
138Particulars provided by solicitors for the prosecutor to solicitors for the defendant said that supervision when used in particular (8) referred to supervision "under the direction of a person authorised to give them commands" who was "experienced in the analysis and elimination of at-risk situations such as Mr Thomas was in." Accordingly, the allegation in particular (5)(b) is that the men were not supervised by a person experienced in the analysis and elimination of at-risk situations such as the one Mr Thomas was in but were left to their own ad hoc devices.
139Leaving aside the fact that the system adopted by Messrs Redgrove and Thomas was not the one that Mr Thomas undertook on the spur of the moment and unexpectedly, there is grave doubt that supervision by a person experienced in the analysis and elimination of at-risk situations would have had any impact upon the happening of the incident. Messrs Thomas and Redgrove were fully experienced in the analysis and elimination of at-risk situations. Mr Thomas did not intend that he would act in the manner in which he did, unexpectedly and on the spur of the moment. There is no evidence that any degree of supervision as to the analysis and elimination of the at-risk situation would have had any impact. Furthermore, it cannot be said that the risk of injury that is at the heart of these proceedings was the result of any lack of supervision on the part of the defendant.
140In written submissions, the prosecutor's counsel asserted that:
it is obvious that if one of [a number of named persons in managerial and supervisory functions] or any of the men involved in the coupling exercise in the View had intervened with some supervisory guidance and imposed their preferred system, the risk to Thomas that eventuated in his injury would have been eliminated.
With respect, such a bald assertion needs to be supported by evidence. Leaving aside the fact that the system of work agreed upon between Messrs Redgrove and Thomas was not followed by Mr Thomas, I would need to be satisfied that in some way supervision of this particular task would have eliminated the risk that Mr Thomas would have sustained his injury in the way that he did. Even if someone had been standing nearby, supervising the manner in which the work was to be carried out, there is simply no evidence that such a person would have been able to intervene in some way in circumstances where Mr Thomas squatted down suddenly, unexpectedly and on the spur of the moment to do what he did. There is no evidence that the physical presence of someone nearby may have precluded Mr Thomas from doing what he did. A proposition of this kind was not put to him whilst he was giving evidence; any other evidence would need to be given by someone with the requisite expertise in human behaviour such as a neuroscientist, psychologist or psychiatrist. There is no such evidence.
141In the course of submission for the prosecutor in reply, counsel for the prosecutor made further submissions about supervision. Counsel said:
It is entirely speculative and irrelevant to assert that had Mr Thomas received supervision he would have behaved in a different manner. The issue on supervision is whether in reality on the day a lack of supervision constituted a failure by the defendant to ensure the safety of Mr Thomas in the way pleaded.
The first sentence of this submission is entirely consistent with the conclusion to which I have come. The second sentence is a reference back to the failure as pleaded which must in reality be a reference back to particular (5)(b) and particular (8). If it is "speculative and irrelevant" to consider whether Mr Thomas would have behaved in a different manner if he had been supervised, then I fail to see how the prosecutor can establish the necessary causal nexus between the asserted failure to supervise and the risk to health and safety of Mr Thomas which the defendant is accused of creating. Rather than spend any more time on this particular submission, it seems suffice to leave it on the basis that I adopt it in its entirety and in particular the first sentence.