File No : PE 49377 of 2003, PE 49378 of 2003, PE 49379 of 2003, PE 49380 of 2003, PE 49381 of 2003

Occupational health and safety - Occupational Health and Safety Act - Appeal from Magistrate - Employee or self­employed person - Control of workplace - A person who constructed a building - Failed so far as was practicable - Caused the death of a person - Workplace with multiple contractors and trades - Role of registered builder

A New Tax System (Australian Business Number) Act 1999 (Cth)

A New Tax System (Goods & Services Tax) Act 1999 (Cth)

Builders' Registration Act 1939 (WA)

Criminal Appeals Act 2004 (WA), s 9

Evidence Act 1906 (WA)

Occupational Safety & Health Regulations 1996 (WA)

Sentencing Act 1995 (WA)

1 EM HEENAN J: After a trial in the Magistrates Court at Perth, lasting for 12 days in July and August 2005, and after the learned magistrate had taken time for decision, five charges by the present appellant, Peter John Patrick Reilly, against the respondent, Svein Gerhard Tobiassen, alleging three offences against the provisions of the Occupational Safety and Health Act 1984 (WA) (the Act) and two further offences against the Occupational Safety and Health Regulations 1996 (WA) (the Regulations) made under that Act, were dismissed. The appellant, by leave granted by McKechnie J on 24 November 2005 pursuant to s 9 of the Criminal Appeals Act 2004 (WA), now appeals to this court against the dismissal of each of those charges and submits that the respondent should have been convicted of each charge upon the evidence adduced before the learned magistrate.

2 The events giving rise to these prosecutions involved activity on a construction site at the corner of Norma Road and Leach Highway in Myaree, during August and September 2002, where a large industrial set of showrooms was under construction. On 18 September 2002 an accident at the site caused the tragic death of a worker when part of the construction collapsed. The method of construction being used at the site was then relatively novel; namely, 'concrete tilt-up panel construction'. This involved pre-cast concrete panels being erected to form the walls of a larger building with structural steel rafters fixed to the top of those panels, connecting them, to form the roof of the building.

3 The sequence of construction was that the foundation concrete slab was poured; concrete panels were then cast and positioned in stacks around the slab; and, when each panel was ready to be erected, lifting equipment was then attached to each panel to place it in a vertical position, thereby forming part of a wall of the building. Temporary braces were fixed to each newly-erected panel. Structural steel rafters were then added, spanning the distance between the newly-erected panel and its corresponding panel on the opposite wall.

4 Each of the concrete panels was approximately 10 m in height and 5 m in width. The distance between the panels forming the opposing walls of the construction was approximately 41 m. It follows that the steel rafters affixed to the tops of the panels forming the opposing wall spanned that considerable distance. These steel rafters were in the form of a RSJ or I-beam. In cross-section they were about 60 cm in height. The flanges, the horizontal elements at the top and bottom of the rafters, were about 20 cm in width. They each weighed approximately 5.5 tonnes. An illustration appears as exhibit P44 (Plate 35).

5 As the events so tragically proved, these relatively free-standing steel rafters and panels were, at this point of the construction, quite unstable. The rafters were fixed in position simply by their own weight, with some connection to the adjoining panels and with some angular bracing. The eventual connection of the rafters to the panels forming the opposing walls, followed by cross-bracing to adjoining rafters, would mean that, once the construction process was complete, the building, and in particular the walls and roof, would form a box-like structure, with the rafters and cross-bracing providing mutual strength and support. Until that point of the construction was completed, this cross-bracing and support was either absent, or very minor. Consequently, the prosecution alleged that the construction was dangerous and prone to collapse in the absence of particular precautions being adopted and followed.

6 In the events which happened, a point had been reached where the vertical concrete panels forming the opposing sides of the building had been put into place and the early stages of installing the steel rafters connecting the opposite walls had commenced. One of several such rafters had been placed in position and bolted to the upper levels of the adjoining walls. However, because of the stage of construction, cross-bracing to adjoining rafters was not possible as another adjoining rafter had not yet been installed. The position, therefore, was that this 5.5 tonne rafter, which bridged the 41 m gap between the two opposing walls, was bolted at each end to the concrete of the panels comprising the walls, some 10 m above the concrete foundation of the premises. It was not otherwise supported.

7 At this point of the construction several riggers were actually working on the rafter - that is, sitting astride this rafter some 10 m above the floor. One of these was the deceased, Desmond John Kelsh. The other was his assistant, Peter Dale Hunt. By some process, which is still not fully understood, this steel rafter and two others broke free of their supports to the walls - apparently by some torsional-force phenomenon - and, becoming detached, fell to the ground below. That, in turn, left the concrete wall panels unsupported and some fell inwards onto the wreckage. One end of one of the fallen steel rafters remained attached to its supporting wall, but the mechanism of the collapse caused it to pull the wall inwards so that it, too, was displaced, although not completely collapsed onto the floor. The deceased workman, who had been sitting astride one of these rafters, fell and suffered fatal injuries when a collapsing panel struck him. His assistant rigger, Mr Hunt, also fell but, such are the fortunes of fate, was not seriously injured.

8 An inquiry into the collapse and the ensuing fatality was conducted by WorkSafe and that led to the present charges being preferred against this respondent.

9 As can readily be imagined in a project of this magnitude and complexity, there were a number of contractors and different trades engaged. A company, Glenpoint Nominees Pty Ltd (Glenpoint), was the developer of the site. It had engaged Devcon Australia Pty Ltd (Devcon) to arrange for the supply of labour and materials for the construction at the site. Glenpoint paid for the labour and materials supplied. Devcon was the project manager and responsible for the overall construction at the site. The respondent, Mr Tobiassen, was, at the material time, a registered builder engaged by Devcon to fulfil the role of registered builder for the construction at the site. The proper characterisation of his role and status on this construction site became a matter of controversy and will be the subject of more detailed examination later in these reasons. Devcon also engaged Matthew Stephen Fuller to be the site supervisor.

10 The structural engineering design for the building was performed by ICT Consulting, which is the business name of Mark Raymond Purvey, an engineer. Another company, Tilt Lift Equipment Pty Ltd, employed a structural engineer, Gavin Mark Evans, who designed the lifting points and bracing angles for the erection of the wall panels at the site. Sarich & Sons Pty Ltd (Sarich) was the firm engaged to pour the concrete slab and cast the concrete panels. Colin Henry Peadon was in charge of the Sarich team at the site.

11 Kefo Steel Erection & Fabrication Pty Ltd (Kefo) was the company engaged by Devcon to erect the concrete panels and the structural steel. This was described by the learned magistrate as rigging work. The deceased, Mr Kelsh, was the principal of this company. His second in command, also working for Kefo, was John McGurk.

12 Essentially, but in the broadest terms, the case for the prosecution was that, because of his particular role, Mr Tobiassen was obliged by the Act and the Regulations to take appropriate precautions to see to the safety of fellow workers and employees - and, in particular, the deceased - and that in several different ways he failed to discharge those obligations and as a result the accident and its fatal consequences were caused by his neglect.

13 The particular manner in which it is alleged that the respondent neglected his responsibilities varies from charge to charge. However, again, in broad general terms, the basic allegation is that the method of erecting the wall panels and the connecting steel roof rafters was unsafe without additional bracing to the walls and independent support by a crane or otherwise for the newly-positioned rafters. It was said that such additional support was necessary until the rafter had been firmly fixed in position and had the required stability designed to be achieved by the connection of cross-bracing. In short, the prosecution case was that there was this critical initial phase of the construction during which there was inadequate support for the various structures, thereby rendering them prone to collapse and in need of independent support, and that inadequate measures were taken to see that that these precautions were taken.

14 The area at which the accident occurred was known as 'Unit 3'. The deceased workman, Mr Kelsh, was the senior rigger employed by Kefo. Other Kefo employees were also working at the site. Four of these - Messrs Hunt, McGurk, Toohey and Jurezcko - were referred to in the evidence. Immediately before the accident Mr Kelsh was standing on the top flange of the steel rafter which had been erected on gridline 10 (as shown on Hilltech drawing No 9085-300), at the eastern end of that rafter, near its connection to panels 63 and 64.

15 At approximately 4 pm on Wednesday, 18 September 2002, the Unit 3 construction collapsed. The mechanism of the collapse involved the rafter connections and the cast-in plates to which they had been attached being pulled free at the left edge of panel 63 and right edge of panel 64 and also at the left edge of panel 61 and the right edge of panel 62. The rafter connections and cast-in plates to which they had been attached also pulled free at the right edge of panel 23 and the left edge of panel 24, the right edge of panel 24 and the left edge of panel 25, and the right edge of panel 25 and the left edge of panel 26. Three rafters (erected on gridlines 9, 10 and 11 as indicated on the Hilltech drawing No 9085-300) detached either wholly or in part from the cast-in plates to which they were attached. Both ends of the rafter at gridline 10 (the one on which Mr Kelsh had been standing at the time of the collapse) wholly detached and the rafter fell to the slab. The rafter at gridline 11 wholly detached at its western end and at its eastern end remained precariously attached to the right edge of panel 23. The rafter at gridline 9 wholly detached at its western end and fell to the slab, while the eastern end remained partially attached to the central cast-in plate of panel 65. Panel 64, and panel 4 which had been leaning against its outside (ie eastern face), collapsed and fell inwards onto the Unit 3 slab. Panels 61, 62, 63, 65 and 66 (the other panels on the eastern elevation of Unit 3) did not collapse inwards, but there was some deflection of their braces and leaning inwards. Panels 24 and 25 (on the western elevation of Unit 3) collapsed and fell outwards away from the Unit 3 slab. Panel 26 (also on the western side of Unit 3) collapsed and fell inwards onto the Unit 3 slab.

16 After the collapse, Mr Kelsh was found on the slab of Unit 3, with part of his body trapped under the collapsed panel 64. He died a short time later, life being formally declared extinct at about 5 pm that day.

17 With this introduction it is now appropriate to list the five charges which had been laid against the respondent. They are:

1/5 Between the 19th day of August 2002 and the 19th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a self-employed person, failed so far as was practicable to ensure that the safety of persons not being his employees was not adversely affected as a result of the work in which he was engaged, in contravention of section 21(1) of the Occupational Safety and Health Act 1984 and, by that contravention, caused the death of a person; contrary to s 21(3) of the Act. [Charge No PE 49377/03]

2/5 Between the 19th day of August 2002 and the 19th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a person who constructed a building for use at a workplace, failed so far as was practicable to ensure that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards, in contravention of s 23(3a)(a) of the Occupational Safety and Health Act 1984 and, by that contravention, caused the death of a person; contrary to s 23(5) of the Act. [Charge No PE 49378/043]

3/5 On the 18th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a person who had control of a workplace where persons who were not his employees worked or were likely to be in the course of their work, failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards, in contravention of s 22(1)(a) of the Occupational Safety and Health Act 1984; contrary to s 22(4) of the Act. [Charge No PE 49379/03]

4/5 Between the 19th August 2002 and the 16th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a self-employed person at a construction site where concrete tilt-up panels were to be cast on the site and tilted or lifted into place, failed to ensure that the casting of the panels was in accordance with the requirements of paragraph 6.1 of AS 3850.1 in that he failed to ensure that the elements were manufactured in accordance with the shop drawings; contrary to Regulation 3.88(1)(b) of the Occupational Safety and Health Regulations 1996 made under the Occupational Safety and Health Act 1984. [Charge No PE 49380/03]

5/5 Between the 26th day of August 2002 and the 19th day of September 2002 at Myaree, SVEIN GERHARD TOBIASSEN, being a self-employed person at a construction site where concrete tilt-up panels were to be cast on the site and tilted or lifted into place, failed to ensure that the erection of the panels was in accordance with paragraph 7.6(a) of AS 3850.1 in that he failed to ensure that elements were braced in accordance with shop drawings; contrary to Regulation 3.88(1)(b) of the Occupational Safety and Health Regulations 1996 made under the Occupational Safety and Health Act 1984. [Charge No PE 49381/03]

18 Immediately, it becomes evident that charges 1 and 2 (PE 49377/03 and PE PE 49378/03 respectively) involve a course of continuing conduct between 19 August and 19 September 2002; that charge 3 (PE 49379/03) involves an alleged failure to take necessary measures on 18 September 2002; that charge 4 (PE 49380/03) involves a course of continuing conduct from 19 August to 16 September 2002; and, that the fifth and final charge (PE 49381/03) also involves a course of continuing conduct over the period between 26 August and 19 September 2002.

19 Further, the prosecution delivered five sets of particulars for the five charges. These are extensive and quite technical, including tables showing both the requirements of panel shop drawings and the corresponding (as manufactured) specifications of the various components in the construction. The particulars for charges 1, 2 and 3 run to seven pages each; the particulars for charge 4 run to 11 pages; and, the particulars for charge 5 comprise three pages. It is not practicable or necessary to set out the particulars fully in these reasons, as the issues arising on this appeal for determination do not turn upon them. However, the particulars are another useful source of the narrative which led to this fatal accident.

20 The relationships between the various parties working at the site and the status of Mr Tobiassen himself are of significance because one of the elements of charges 1, 4 and 5 is that the respondent was 'a self-employed person'; and, in regard to charge 2, that he was 'a person who constructed a building for use at a workplace'; and, in relation to charge 3, that he was 'a person who had control of a workplace where persons who were not his employees worked or were likely to be in the course of their work'.

21 The three charges of contraventions of provisions of the Act (charges 1, 2 and 3) alleged that the respondent had, in various respects, failed to take practicable measures to ensure that other persons were not adversely affected as a result of the work in which they were engaged, or were not exposed to hazards, as thereby alleged. A common feature of the allegations against the respondent in this respect was that practical measures could have been taken in relation to a foreseeable hazard; namely, the risk of the collapse of the steel roof rafters and the concrete tilt-up panels, while the building was still in the process of erection. The practicable measures which the prosecution asserted should have been taken, and as found in the particulars to the charges, were that Mr Tobiassen should have ensured that:

(a) there was adequate lateral restraint of the steel roof beams ('rafters') in the Unit 3 area at the [s]ite during, and following, the erection of the rafters; and

(b) the concrete tilt-up panels to which the rafters in the Unit 3 area at the [s]ite were affixed were properly constructed.

Further, in relation to the third charge, the allegation was that it was practicable for Mr Tobiassen to have ensured that:

(c) the bases of the tilt-up panels had been properly secured and braced.

Charges 4 and 5 concerned failures by the respondent to ensure that the concrete panels were properly manufactured and erected.

22 By a 7-page notice of appeal dated 23 November 2005, the appellant sought leave to appeal against the dismissal of all of the five charges on extensive grounds. The grant of leave to appeal allowed all those grounds to be advanced.

23 There are five concurrent appeals, each relating to the decision of the learned magistrate to dismiss one of the five original charges. In addition, the grounds of appeal against each charge are supported by several detailed particulars which, it would seem, account for length of the notice. Rather than set each of these out in full, it seems preferable to concentrate on the substance of the grounds of appeal. I have, therefore, sought to paraphrase those respective grounds, on some occasions incorporating where necessary, some of the particulars in these reformulations. With that reformulation and caution, the grounds of appeal advanced are as follows:

1. The learned magistrate erred in fact and law in determining that the accused was not a 'self-employed person' within the meaning of the Act. The evidence established that the respondent worked under an agreement with Devcon dated 1 July 2002 and the appropriate characterisation of the relationship established by this agreement - and to the extent, if at all, that it was permissible to take into account other evidence - was that of principal and independent contractor.
2. The learned magistrate erred in fact and law in determining that it was not 'as a result of the work in which [the respondent] was engaged' within the meaning of s 21(1)(b) of the Act that the employees of Kefo had their safety adversely affected. The evidence established that the respondent was the registered builder with responsibility for the site, including the construction of Unit 3; that the safety of the Kefo employees was adversely affected as a result of the failure to provide adequate lateral restraint to the rafters in Unit 3; that the respondent had in fact the ability to control the manner in which work was done on the site; and, that the omission by the respondent to take steps to avoid the safety of the Kefo employees being adversely affected was something which occurred in the course of the work in which the respondent was engaged.
3. The learned magistrate erred in fact and law in determining that it would not have been 'practicable' within the meaning of the Act for the respondent to have ensured that the safety of the Kefo employees was not adversely affected. The evidence established that solutions proposed by the expert engineers (Messrs Wanke and Van Der Meer) were 'practicable'; the 'state of knowledge' in relation to the hazard and the means of knowing it which existed prior to the collapse within the industry did in fact exist; and, that the need for lateral restraint for such rafters was known in the industry prior to the collapse.
4. The learned magistrate erred in fact and law in determining that the death of Mr Kelsh was not caused by a contravention by the respondent of s 21(1) of the Act. The evidence established that the collapse resulted from the failure to provide adequate lateral restraint to the rafters in Unit 3; and, that Mr Kelsh died as a result of that collapse. It therefore follows that the death of Mr Kelsh was caused by the failure of the respondent to perform the duty imposed by s 21(1) of the Act.

1. The learned magistrate erred in fact and law in determining that the respondent was not a person who was constructing a building within the meaning of s 23(3a)(a) of the Act. The evidence established that the respondent was the registered builder with responsibility for the project at the site, including the construction of Unit 3. It therefore followed that the respondent was a person who was constructing Unit 3 within the meaning of s 23(3a)(a) of the Act.
2. The learned magistrate erred in fact and law in determining that the provision of adequate lateral restraint to the rafters in Unit 3 was not part of 'the construction of the building' within the meaning of s 23(3a)(a) of the Act. The provision of lateral restraint to those rafters was a necessary step in the safe erection of the steel work in Unit 3; the erection of that steel work was part of the construction of Unit 3; and, any step forming part of the erection of the steel work, including the provision of adequate lateral restraint of that steel work, is therefore a part of the construction.
3. The learned magistrate erred in fact and law in determining that the Kefo employees at the site were not 'properly construct[ing]' the building within the meaning of s 23(3a)(a) of the Act at the relevant time. Section 23(3a) distinguishes between a person responsible for the construction of a building (the respondent) and those who in fact carry out the work which constitutes 'constructing' (the Kefo employees). The subsection places a duty on the 'constructor' to take practicable steps to ensure that the work of 'constructing' is safe. The 'constructor' is only absolved from liability where that which is made safe by his actions becomes unsafe as a result of those 'constructing' not 'properly' implementing that which is required by the 'constructor'. The evidence established that the respondent imposed no requirement on the Kefo employees to provide adequate lateral restraint to the rafters in Unit 3, so there was no basis for concluding that the Kefo employees were not 'properly' implementing the requirements of the respondent.
4. The learned magistrate erred in fact and law in determining that it would not have been 'practicable' within the meaning of the Act for the respondent to have ensured that 'the construction of the building' was such that the Kefo employees were not exposed to a hazard in the course of 'properly construct[ing]' the building. The evidence from the expert engineers (Messrs Wanke and Van Der Meer) established that there were practical solutions available to deal with the hazards produced by the torsional forces operating on the steel rafters. The state of knowledge then existing within the industry and the means of removing it should not have been confined to the actual knowledge possessed by the respondent or to any other narrowly-defined group of persons. The evidence established that the need for lateral restraint for the rafters being erected in Unit 3 was known in the industry prior to the collapse, as were the various means by which the risk of inadequate lateral restraint could be removed.
5. The learned magistrate erred in fact and law in determining that the death of Mr Kelsh was not caused by a contravention by the respondent of s 23(3a)(a) of the Act. The evidence established that Mr Kelsh died as a result of the collapse of the building; that this collapse resulted from the failure to provide adequate lateral restraint to the rafters in Unit 3; and, it therefore followed, that the death was caused by the failure of the respondent to perform the duty imposed on him by s 23(3a)(a).

1. The learned magistrate erred in fact and law in determining that the respondent was not a 'self-employed person' within the meaning of the Act. (The particulars, as described, repeat those already set out in ground 1 relating to the first charge.)
2. The learned magistrate erred in fact and law in determining that the respondent did not relevantly have 'control of [the] workplace' for the purposes of s 22(1) of the Act. The essential question was whether the respondent had control over the provision of adequate lateral restraint to the rafters in Unit 3. This required a determination of whether the respondent had the power to give directions and/or take other action which would have resulted in the provision of adequate lateral restraint. The existence of such a power was established, on the evidence, as a matter of inference from the other evidence which established a power to exercise control by the respondent in relation to other matters on the site - the learned magistrate erred in not drawing that inference. Further, and in particular, the learned magistrate erred by addressing the extent of the subjective knowledge and/or expertise of the respondent and/or the riggers in relation to the recognition of the need for lateral restraint.
3. The learned magistrate erred in fact and law in determining that it would not have been 'practicable' within the meaning of the Act for the respondent to have ensured that 'the workplace' was such that the Kefo employees were not exposed to a hazard. The subscribed particulars in support of this ground refer to the 'practicable' solutions agreed upon by the expert engineers (Messrs Wanke and Van Der Meer), the state of knowledge available in the industry at the time, and the knowledge of the means available to address the risk arising from inadequate lateral restraint as set out in the grounds of appeal to the preceding charges.
4. The learned magistrate erred in fact and law in determining that the death of Mr Kelsh was not caused by a contravention by the respondent of s 22(1)(a) of the Act. (These particulars subscribed to this ground repeat those set out under ground 5 for the second charge above.)

1. The learned magistrate erred in fact and law in determining that the respondent was not a 'self-employed person' within the meaning of the Act and the Regulations. (The particulars subscribed repeat those already set out in ground 1 of the first and third charges above.)
2. The learned magistrate erred in fact and law in determining that the respondent did not relevantly have control over the matter of the failure to use the reinforcing bars in the panels for the purposes of reg 1.5(a) of the Regulations. The relevant issue was whether the respondent had control over the choice and use of the specified reinforcing bars when the concrete tilt-up panels were being manufactured and cast. That issue required a determination of whether the respondent had the power to give directions and/or to take other action which would have resulted in the inclusion of the correct reinforcing bars. The existence of such a power to give directions and/or take other action to that end is established from the other evidence which established that the respondent had the power to exercise control in relation to other matters at the site.

1. The learned magistrate erred in fact and law in determining that the respondent was not a 'self-employed person' within the meaning of the Act and the Regulations. (The particulars subscribed to this charge repeat the particulars provided on this issue under charges 1, 3 and 4 above.)
2. The learned magistrate erred in fact and law in determining that the respondent did not relevantly have control over the matter of the incorrect bracing of the panels for the purposes of reg 1.5(a) of the Regulations. The relevant issue is said to be whether the respondent had control over the provision of bracing for the tilt-up concrete panels. This, it is said, required a determination as to whether the respondent had the power to give directions or take other action which would have resulted in the provision of correct bracing for these panels. The existence of such a power to give directions or take other action to that effect was established from other evidence which established that the respondent had power to exercise control in relation to other matters at the site.

24 These grounds confirm, what is already readily apparent - that there are a number of issues, some of which are common, involved in the appeals from the several orders dismissing the charges; namely:

(a) whether the respondent, Mr Tobiassen, was a self-employed person or whether he was employed by Devcon;

(b) whether the respondent had control of the workplace;

(c) whether the respondent was constructing the building at Unit 3, including the erection of the steel rafters being performed by the riggers;

(d) whether it was practicable for the respondent to implement or require a solution proposed by the expert engineers to avoid or remove the hazards of insufficient lateral support to the steel rafters, having regard to the state of knowledge in the industry available at the time;

(e) whether the death of Mr Kelsh was caused by any one or more of the alleged breaches of duty; and

(f) whether the respondent was responsible for the failure of compliance with the shop drawings in the manufacture and erection of the concrete tilt-up panels.

Although some of these issues arise in slightly different contexts in the several charges, the determination of them for the purposes of these prosecutions and these appeals do not, in my view, differ materially in relation to any one or more of those charges.

25 The Act and Regulations have both been significantly amended since the time of the alleged offences. The material provisions of the Act at the time were as follows:

21 Duties of employers and self-employed persons

(1) An employer or a self-employed person shall -

(a) take reasonable care to ensure his own safety and health at work; and

(b) so far as is practicable, ensure that the safety or health of a person not being his employee is not adversely affected wholly or in part as a result of the work in which he or any of his employees is engaged.

...

(3) A person who contravenes subsection (1) and by that contravention causes the death of, or serious harm to, any person commits an offence and is liable to a fine of $200,000.

...

23 Duties of manufacturers, etc

...

(3a) A person who designs or constructs any building or structure, including a temporary structure, for use at a workplace shall, so far as is practicable ensure that the design and construction of the building or structure is such that -

(a) persons who properly construct, maintain, repair or service the building or structure;

...

(5) A person who contravenes subsection (1), (2), (3) or (3a) and by that contravention causes the death of, or serious harm to, any person commits an offence and is liable to a fine of $200,000.

...

22 Duties of persons who have control of workplaces

(1) A person who has, to any extent, control of -

(a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work;

...

shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.

...

(3) A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).

(4) A person who contravenes subsection (1) commits an offence and is liable to a fine of $100,000.

...

(7) This section does not apply to a person whose duties are set out in section 20.

26 And, further, certain definitions specified by s 3 of the Act dealing with interpretation are also relevant. So far as is applicable, s 3 at the material time provided:

3 Interpretation

In this Act unless the contrary intention appears -

...

'employee' means -

(a) a person by whom work is done under a contract of employment; or

(b) an apprentice or trainee;

'employer' means -

(a) a person by whom an employee is employed under a contract of employment; and

(b) in relation to an apprentice, or industrial trainee, a person by whom the apprentice or industrial trainee is employed under an apprenticeship or industrial training agreement;

...

'hazard', in relation to a person, means anything that may result in -

(a) injury to the person; or

(b) harm to the health of the person;

...

'practicable' means reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

(b) the state of knowledge about -

(i) the injury or harm to health referred to in (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

...

'self-employed person' means a person who works for gain or reward otherwise than under a contract of employment or an apprenticeship or industrial training agreement, whether or not he employs any other person;

...

'workplace' means a place, whether or not in an aircraft, ship, vehicle, building, or other structure, where employees or self-employed persons work or are likely to be in the course of their work.

27 The material provisions of the Regulations are as follows:

Subdivision 1 - tilt-up concrete and precast concrete elements for use in buildings

3.88 Work to be in accordance with Standard

(1) A person who, at a construction site where concrete tilt-up panels are to be cast on the site and tilted or lifted into place, is the main contractor, an employer or a self-employed person must ensure that -

(b) the design, casting and erection of the panels,

are in accordance with the relevant requirements of AS 3850.1 and AS 3850.2.

28 At this point it is also necessary to refer to reg 1.5 which has the effect of qualifying the duties imposed on a self-employed person under reg 3.88(1)(b) and other provisions of the Regulations. As it applied at the material date, that regulation was:

1.5 Responsibilities of self-employed persons

Unless the contrary intention appears, where a self-employed person has a duty under a provision of these regulations to do or not to do something in relation to the workplace, the self-employed person's duty -

(a) relates only to a matter over which, and to the extent to which, the self-employed person has control or can reasonably be expected to have control having regard to the workplace and the work done or caused to be done by the self-employed person; and

(b) is limited to himself or herself and to any other person who may be affected wholly or in part as a result of the work done or caused to be done by the self-employed person.

29 Counsel for the appellant has submitted that certain provisions of Builders' Registration Act 1939 (WA) are also relevant in determining the extent of the responsibility and obligations which actually rested upon the respondent at this construction site. The material provisions are s 10AA and s 10CA which provide:

10AA Management and supervision of building work

Where any building work is carried out by a natural person who is registered under this Act that person shall -

(a) personally manage and supervise the building works; or

(b) ensure that the building work is managed and supervised.

Penalty $250.

...

10CA Standard of management and supervision

The requirement for the management and supervision of any building work prescribed by section 10AA, section 10B and section 10C shall not have been complied with unless it can be shown that the management and supervision was sufficient to ensure that the whole of the building work was carried out in a proficient and workmanlike manner.

30 In disposing of the five charges there were certain issues that were admitted or uncontested and therefore, did not require adjudication by the learned magistrate. Further, certain findings of fact have not subsequently been disputed. These findings of the magistrate are set out below.

31 Before the learned magistrate, the respondent made a formal admission (exhibit P35), pursuant to s 32 of the Evidence Act 1906 (WA); namely, that:

(1) Desmond John KELSH ('KELSH') died on Wednesday, 18 September 2002 at a construction site located at Lot 248 Leach Highway, Myaree (corner of Norma Road and Leach Highway) ('the Site'). KELSH was certified life extinct on that day at about 1700 hrs by Dr James William COOPER as indicated in the attached certificate marked 'A' (albeit that the name of the deceased was there incorrectly recorded). KELSH died as a result of injuries sustained that day at the Site following the 'collapse' as identified in the Particulars relating to Charges 49377-49379/03 (NB: For the avoidance of doubt, it is specifically recorded that the Defendant is not to be taken either expressly or by implication, by this formal admission, to be admitting to have caused, or to have any factual or legal responsibility, for KELSH's death.)

32 Also in evidence, as exhibit P90, were further formal admissions which acknowledge, among other things, that an annexed agreement, dated 1 July 2002, was made between Devcon Australia Pty Ltd, as the company, and S G Tobiassen, as the builder, which recited that the builder would 'personally manage and supervise all building works as requested by the company as required under [the Builders' Registration Act]'. By cl 9, that agreement specified that the relationship between the parties, in carrying out the works, was that the builder shall be acting as an independent builder to the company; and, by cl 2, that the builder should carry out the works for the consideration and on the terms contained in the agreement. Clause 3 specified the work as follows:

3 Work

(a) The Builder is engaged to actively manage, schedule and supervise the building work (including necessary site works and fill) to ensure that all trades carry out their work in the proper sequence as required by the Company during the Term.

(b) The Builder will control the quality of materials in respect to the building work, including the materials and workmanship of all workmen and subcontractors, and shall dismiss all such persons carrying out an unsatisfactory standard of work.

(c) The Builder undertakes that the building work will be completed and maintained to the best of his ability and in accordance with the plans and specifications supplied by the Company's consultants.

(d) The Builder will authorise all suppliers [sic] invoices on behalf of the Company to enable each relevant entity to remit their respective payments of those invoices.

Although not expressly stated or admitted, it was implicit that this agreement related to the engagement of Mr Tobiassen as the builder for the construction of the works on the Myaree site and the proceedings were conducted on that footing. No suggestion was made at the trial or on the appeal to the contrary.

33 In a record of interview (exhibit P65), conducted by WorkSafe Inspector Peter Green and the respondent on 23 January 2003, signed by the respondent and running to 31 typescript pages, Mr Tobiassen stated that he was a registered builder (Registration No 9175) with experience in building supervision from various companies and mining experience since 1965, and with five years' experience with regard to pre-cast and tilt-up panel construction. When asked who was his employer, he answered 'self-employed', and stated that he was a sole trader trading under the name S G Tobiassen. He said that his position with Devcon was that he was contracted as the registered builder responsible for site management and purchasing and that Devcon provided him with detailed invoices fortnightly for his remuneration. With regard to the site at 248 Leach Highway, Myaree, Mr Tobiassen said that he was the registered builder in charge of that site.

34 Mr Tobiassen said in this record of interview that a showroom and warehouse centre was being constructed at the site. He said that Devcon was contracted to Glenpoint but was not carrying out building work at that site. Further, payment for all invoices for works at the site was made by Devcon and by Glenpoint.

35 Mr Tobiassen commenced work at the site on 15 May 2002 and normally attended daily. He said that Mr Fuller was the site supervisor responsible for ensuring that work was done in accordance with the plans and specifications. When asked who had the overall control of construction work at the site, he answered that the 'supervisor would have on the site itself', but that he 'would have in relation to engaging contractors'.

36 When asked who had the responsibility for ensuring that work was carried out in accordance with the Act and the Regulations, he gave the answer 'S G Tobiassen and Devcon Australia Pty Ltd'. Furthermore, when later asked who was responsible for ensuring that the concrete panels were erected and braced in accordance with the erection and design engineer's specifications and pursuant to reg 3.88 of the Regulations, Mr Tobiassen answered that the supervisor on site, he, himself, and subcontractors were responsible.

37 Also in evidence, as exhibit P95, is a building licence granted by the City of Melville, dated 13 August 2002, for the construction of showrooms at 248 Leach Highway, Myaree to a total value of $3.3 million. The licence was granted to S Tobiassen, the respondent, and was given in accordance with the approved drawings and specifications lodged with the application.

38 The learned magistrate found that the first three charges relied on identical facts. This finding was not challenged in any way on the appeal but it is, nevertheless, necessary to acknowledge that his Honour referred to s 55A of the Act (introduced by an amendment to the Act after this accident but before the trial), when noting a submission by counsel for the respondent that this section precluded the bringing of what were, in effect, identical charges arising out of the same omissions. This section, introduced in 2004, provides that a person is not liable to be punished twice under the Act in respect of the same act or omission. His Honour did not find it necessary to decide this point in light of the other conclusions which he reached but, despite not being mentioned in the course of the appeal, it is nevertheless of significance if the appeals are allowed.

39 In my view, s 55A of the Act is of the same character as s 11 of the Sentencing Act 1995 (WA) and the former s 16 of the Criminal Code (WA), which acknowledged that there may be one or more convictions arising from the same act or omission but that the offender could not be twice punished in respect of that act or omission. In such a situation the fact of conviction and the recording of a conviction is not in itself punishment; however, no additional penalty or sanction may be imposed in respect of the second or subsequent conviction arising from the same act or omission: R v Hull (No 2) [1902] St R Qd 53, 57 - 58 (Griffith CJ); Connolly v Meagher [1906] HCA 20; (1906) 3 CLR 682; and R v Kiripatea [1991] 2 Qd R 686. See, also, Phillips v Carbone (No 2) (1992) 10 WAR 169.

40 It follows that it was, in my opinion, correct for the learned magistrate to proceed with the trial of each of the first three charges arising from the same alleged act or omission. Subject to proof of the facts establishing the ingredients of those charges, it would have been open to convict the respondent of one or more of those offences but, having done so, only one penalty or punishment could have been imposed in respect of two or more of them.

Background and basic facts not challenged on appeal

41 Specific findings of fact which were made by the learned magistrate and were not challenged in this appeal include the following. The concrete tilt-up panels which formed the walls of the building and upon which the steel rafters were to be fixed, were not cast in accordance with the shop drawings. The departures from the drawings did not constitute significant factors in the later collapse of the rafter and then the panels, but they constituted breaches of the applicable Regulations. The firm of Sarich & Sons Pty Ltd, responsible for the pouring of the concrete slab and the casting of the concrete panels, was separately prosecuted in this regard, pleaded guilty and was convicted. The specific failures resulting in prosecution and conviction related to using a different through bar to the one which was specified and not putting in sufficient reinforcing bars. The problem was that the 'Y16 mm through bar' which had been specified in the drawings did not fit through the ferrules. After being told of the problem, Mr Tobiassen ordered different through bars, but neither he nor Mr Fuller, the site supervisor, inspected the panels before they were cast.

42 Further, the steel rafters, when in position, were susceptible to lateral torsional buckling. For this to be controlled, lateral restraint was necessary and should have been applied to the upper flanges of the rafter. If such lateral restraint is applied, the twisting forces on the member are reduced. Such restraint is usually provided by purlins and bracing. These particular rafters were very unstable when first placed into position as they were, at that stage, not supported by purlins, bracing or other connections.

43 The expert engineers were agreed, and the learned magistrate accepted, that in that condition, the rafters were highly overstressed and were on the verge of collapse. In the view of the engineers, only a small external force would have been needed to produce a failure. Neither of the expert engineers was able to identify, with any certainty, what was the precipitating event which produced the collapse; however, the weight of the two riggers on this particular rafter could have done so. Further, the weight of purlins, wind loads, thermal effects and the lateral force of another panel which was left improperly leaning against panel 64 (one of the supporting panels for this rafter), would have added to the lateral load, thereby increasing the torsional stresses.

44 The finding then was that the rafters failed and brought the concrete panels down with them. The rafter-panel connections at the top edge of each panel were not designed to resist torsionally applied loads.

45 The mechanism of the collapse proceeded in three phases. First, because of the torsional forces, the rafter began to rotate, producing an inward force leading to detachment at one end from the top of the panel to which it was fixed. This resulted in the cast-in plate being pulled out of the panel at that point and involved shear failures in the concrete above where the rafters were connected. The final phase of the collapse was then the falling inward of the concrete panels.

46 The initial stages of the collapse were evidenced by the purlin attaching the rafter upon which the two men were sitting to an adjoining rafter beginning to bow quite noticeably. This was an indication that the rafter upon which the men were sitting was beginning to twist. The deceased, Mr Kelsh, and his companion, Mr Hunt, who were on the rafter, noticed this and called for other riggers to get the crane and to attach chains to restrict the movement of the rafter. Before that could be done, the rafter began rolling over to one side. As this happened the twisting of the rafter caused it to break the attachment to the cast-in plate at the top of the concrete panels at one end and the collapse began. The rafter then fell, with the men upon it, and, then, concrete panels fell inwards upon the wreckage.

47 Various solutions were suggested by the expert engineer witnesses as to how the erection of these rafters could have been safely performed. The solution preferred by the learned magistrate was the fifth solution proffered by Mr Van Der Meer. This contemplated a fully-braced bay providing a rigid starting point from which to commence construction. The difficulty with this was that it would be necessary to support the rafters with two cranes while the braces were put in. A variation on this proposal was to put a pair of half beams together on the ground, along with the bracing and purlins. Two central scaffolding towers would then be constructed and the two pairs of beams would be lifted onto the scaffolding tower where they would sit until they were spliced together. These solutions would have required additional engineering calculations to assess the loads on the panel walls and the number of braces which would have been needed.

48 Apart from this project at Myaree, Devcon had other construction projects in progress in various parts of the metropolitan area. Mr Tobiassen's role, as the appointed registered builder, was to look after five or six of the Devcon sites at the same time. At each site there was a full-time site supervisor employed by Devcon. Mr Fuller was the site supervisor employed at the Myaree site, but, nevertheless, Mr Tobiassen visited the site regularly on a daily basis.

49 The learned magistrate concluded that there was no evidence to establish that the respondent knew, or should have known, about the inadequate lateral restraint or that he was ever advised of the need for lateral restraint for these rafters during the course of erection. Furthermore, his Honour concluded that Mr Tobiassen had no expertise as a rigger and, because of this, had no effective control over the Kefo team which had adopted inadequate means for applying lateral restraint to the rafters. This in turn led to the conclusion that Mr Tobiassen did not have 'the relevant control of the workplace' in order to direct or control the Kefo team about the procedures to be followed in erecting, restraining or stabilising the rafters. Nevertheless, lateral torsional buckling is a phenomenon well known to a design engineer and a fundamental concept in the design of steel structures. Any engineer or designer of such structures must deal with this phenomenon on a daily basis. In effect, the expert engineers opined, and the learned magistrate accepted, that this was a phenomenon that should have been contemplated and provided for as part of the process of erection. It was further said, and accepted, that a design engineer would not consider it necessary to make specific provision for, or reference to, the phenomenon - anticipating that it would be recognised and accommodated by the procedures adopted by a competent contractor erecting the building.

50 The learned magistrate examined the history of Mr Tobiassen's building experience, beginning with his role as a rigger in 1964 and proceeding with his extensive experience in the construction industry. However, his Honour concluded that he had no understanding of the significance of adequate lateral restraint. This lack of knowledge was regarded by one of the expert engineers as consistent with the typical experience of builders. In his view builders do not have the experience to apply lateral restraint to large structural members such as these steel rafters. Nevertheless, Mr Van Der Meer, whose evidence the magistrate accepted, said that there existed at the time an objective state of knowledge at the level of engineer, builder and rigger of the need for lateral restraint - that is, the need to pay attention to it as an issue requiring due care. He emphasised, however, that while builders and riggers had knowledge of the existence of the need for lateral restraint and the risk associated with its absence, they had little, if any, knowledge of the means necessary to address or to control that risk. On this issue, the decision reached by the learned magistrate (at 54 - 55) was:

It can be readily concluded that Mr Tobiassen could not have been expected to have known that the rafters were inadequately laterally restrained and in danger of collapsing.

Not only was it the case that Mr Tobiassen and Mr Fuller as builders did not know much about rigging matters it was apparent that the actual riggers had inadequate understanding of the need for lateral restraint.

51 Regrettably, the exploration of this issue resulted in a process of analysis and reasoning which led to a conclusion that the obligation to take practical measures to alleviate or avoid the hazard or risk existed only if the person concerned - in this case Mr Tobiassen, the builder - was aware of the particular risk. In other words, ignorance of the risk because of a lack of specialised knowledge or experience would mean that there could be no failure to take practical measures to avoid it. This only has to be stated to reveal how unacceptable both the conclusion and process of reasoning must be.

52 The only restraint upon the obligation of the persons charged with these duties under s 21, s 22 and s 23 of the Act is the practicability of taking the precaution for reducing the hazard or avoiding the risk. The obligation is not conditional upon the state of knowledge of the person charged with the duty. It could hardly be otherwise, because then the duty would expand or contract according to the wisdom or experience of the particular builder or other person charged with the duty. Clearly enough, if the risk or the hazard was not known, or known only at the highest level of engineering, which could not be expected to be accessible at such a workplace, then it would not be practicable to take the precautions necessary to avoid the hazard. But this is not an occasion for the toleration of ignorance. The performance of the role of a builder, or a person in charge of workers, or a self-employed person operating where others are involved, requires him or her to take all objectively practicable measures to avoid or reduce the hazard. Hence, the person charged with the duty must inform himself, or herself, of hazards likely to be encountered and of the means necessary for dealing with them. Mr Tobiassen certainly did not do this.

53 The learned magistrate did, however, proceed to consider whether or not Mr Tobiassen should, in the circumstances, have taken steps to obtain and act on further engineering advice when going about the supervision of the erection of this complicated structure. However, he rejected that issue as being irrelevant to any potential liability of the respondent because, so he concluded, it had not been specifically pleaded or alleged in the particulars supplied by the prosecution and that the prosecution was 'bound by [its] particulars'.

54 This appears to be a conclusion that there was no, or no adequate, allegation that Mr Tobiassen had failed in his duty by not informing himself sufficiently of the risks which existed and of the means by which they might be avoided. However, I do not accept this conclusion because the statutory obligation is to take steps, so far as they are practicable, to avoid or reduce the hazards or the risks, or the exposure of other workmen to them. This is an objective standard, which does not expand or contract according to the subjective knowledge of the individual builder or other person owing the duty. The preferment of a charge in these terms is an allegation that the objective duty was not discharged.

55 In my view, it was quite unnecessary, indeed it would have been superfluous, for the prosecution to allege, whether as part of the charges or in particulars delivered pursuant to them, that the performance of the duty required the builder to seek suitable independent advice about the existence of particular risks and the means of addressing them, and failed to do so, before a breach could be established. The statutory obligation is simply to address and reduce the hazard by any practicable means, and such a supplementary allegation would be to require an additional element in the offence which the statute does not itself provide. Nor, on further reflection, would this be in any way feasible. If the person charged with the duty cannot be found guilty of failing to discharge it if he did not himself know of the existence of the risk or means of combating it, why should it be supposed that he was nevertheless under an obligation to seek expert engineering advice about the presence or absence of a risk about which he was quite ignorant, or about the means of combating it? If that were a requirement for a conviction of an offence charged under these provisions then, in most, if not all, such cases, there could be no liability unless the builder, or other officer, in fact sought supplementary engineering advice and then failed to act on it.

56 The simple answer is provided by the statute which imposes an objective obligation to take practicable measures to avoid hazards. It is no defence to such a charge to claim, however truthfully, that the person owing the duty was ignorant of the hazard if, nevertheless, objectively there were means available for preventing it. The overall result of this may be to require a higher standard of vigilance, and a better standard of knowledge, from the builder, rigger or others frequently engaged in these various aspects of the construction industry, but that is the price demanded for safety. The persons owing the duty are, from the very fact of the duty imposed upon them by parliament, required to be aware of hazards which may be avoided by the use of practicable measures and to adopt them. Their ignorance of these risks will not excuse them for failure to take practicable measures. This may be a powerful inducement for such persons to seek supplementary engineering or other specialised advice as to how they should perform their work, but that does not diminish the fact that this is a personal statutory non-delegable duty which must be performed at an objective standard.

57 The issues which developed in this case over whether or not Mr Tobiassen knew of these risks or of the means of combating them, or could have been expected to know of them, were simply beside the point. The crucial issue for identification was whether or not there were ojectively known practicable measures available to avoid or reduce these hazards and, whether they were taken. Just how Mr Tobiassen, or others in his position, could be expected to become aware of those practicable measures is also beside the point. The law as expressed by parliament expects and requires the performance of that objective knowledge.

Mr Tobiassen: self-employed or employee? charges 1, 4 and 5

58 The first, fourth and fifth charges each alleged, as a component of the offence charged, that the respondent was 'a self-employed person'.

59 Despite his admission in his record of interview that he was a self-employed registered builder (exhibit P65, at 3) - and the terms of the agreement between the respondent and Devcon, dated 1 July 2002 (exhibit P90), which described the respondent as a duly registered builder, engaged to actively manage, schedule and supervise the building work (cl 3.3(c)), and that in doing so he should be acting as an independent builder to the company (cl 9(a)) - the learned magistrate found that Mr Tobiassen was, at all material times, an employee and not a self-employed person.

60 That finding was fatal to the prosecution of the first, fourth and fifth charges. In making that finding, the learned magistrate accepted submissions made on behalf of the respondent, and advanced again on this appeal, that the proper characterisation of the relationship between Devcon and the respondent was a matter of law and could not be determined by the description or appellation given to the relationship by the parties themselves. Hence, so his Honour found, the proper characterisation of the relationship was a matter of substance and not of form. There is ample authority for this approach, which I unhesitatingly accept: R v Foster [1952] HCA 10; (1952) 85 CLR 138, 150 - 151; TNT Worldwide Express (NZ) Ltd v Cunningham (1993) 3 NZLR 681, 692; both of which were cited, with approval, in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 [58]. Compare the decision of the Privy Council in Narich Pty Ltd v Commissioner of Pay-roll Tax (NSW) [1983] 2 NSWLR 597, 606.

61 The respondent also invoked the principle that in characterising the relationship arising between parties from a written contract between them, and in construing the terms of that contract, the aim, object and commercial purpose of the contract may be examined in order to establish the factual matrix in which the parties contracted: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337; Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989, 997.

62 Both of these considerations led the learned magistrate to examine, in detail, the authorities dealing with the issue of whether a particular person or entity is an employee or an independent contractor for the purposes of establishing whether, respectively, the employer or the person or entity who engaged the independent contractor, is vicariously liable for some wrongful act or omission - whether a tort or a breach of a statutory duty - committed by the employee or independent contractor. These included Hollis v Vabu Pty Ltd and Personnel Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] WASCA 312; (2004) 141 IR 31. In particular, the respondent relied on cases which emphasised the importance of the control test to determine whether or not the person or entity concerned was an employee or independent contractor: Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561, 571; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 27, 29. This, in turn, led on to submissions, advanced by counsel for the respondent, that there were many indicia of control which, in the present case, indicated that Devcon had the ability to control or direct, and in fact did direct, the respondent in connection with the construction of the site at Myaree. The submission was that these pointed to the relationship being that of employer and employee, rather than of independent contractor or independent builder and principal.

63 Merging into these submissions - although, also applying to whether or not the precautions alleged by the prosecution as necessary were 'practicable' - were further submissions as to whether or not the duty imposed by the Act was a 'non-delegable' duty and, as such, indicative of a relationship of employer/employee - although, of course, that is not the only relationship which will give rise to a 'non-delegable' duty of care: Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520; Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 332 - 333.

64 Before turning to those submissions and to the authorities, it is necessary to emphasise that, in the present case, there is no question of any kind of the respondent being held vicariously liable for the alleged breaches of the statutory duties imposed under the Act and the Regulations. The prosecutions and this appeal were conducted entirely on the footing that the Act and the Regulations imposed personal obligations upon the respondent and that, by act or omission, he failed to discharge them. In this regard, it is important to accept, as I do, that the Act and the Regulations did impose a personal obligation on Mr Tobiassen to perform the duties which it specified. The fact that the Act and the Regulations also imposed similar, or corresponding, duties upon other persons in relation to their roles, or activities, at the construction site or at the workplace, does not detract from the personal nature of the duty alleged to have been imposed upon the respondent.

65 In this regard, the point is illustrated by the decision in Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26; (1957) 97 CLR 36, where it was held that the obligations created by reg 31 of the Navigation (Loading and Unloading) Regulations were cast upon the person actually exercising control over the unloading operations and did not result in that person's employer being vicariously liable for any breaches of those obligations. That case is not entirely apposite because, as already described, this is not a case about vicarious liability. Further, under this Act and Regulations, similar obligations to those imposed on a self-employed person are also imposed upon the employer or person in charge of operations at a construction site or worksite. Nevertheless, the point about the personal nature of the obligation imposed emerges clearly from Darling Island Stevedoring &Lighterage Co Ltd v Long.

66 At this point, it is necessary to go to the Act and to the Regulations themselves to place the obligations created in their context, which the respondent submits must be considered in resolving the status of Mr Tobiassen. Part 3 of the Act, as it then was, which includes s 21, s 22 and s 23, deals with general provisions relating to occupational safety and health within an Act, the purpose of which is to promote and improve standards for occupational safety and health. By s 19, the Act imposes a series of duties upon employers and, by s 20, a series of obligations upon employees - in each case establishing offences for breach of those duties. Significantly, by s 21, it creates further duties for self-employed persons and also for employers and establishes offences for non-compliance with those duties. Similar duties are also created and extended to persons who have control of workplaces (s 22) and to persons who design, manufacture, import or supply any plant for use at a workplace (s 23).

67 The overall scheme of the Act, therefore, is to impose specified duties for the exercise of care to ensure safety and health at work and, so far as is practicable, to ensure the safety or health of other persons, whether employees or not, who might be adversely affected by work undertaken by the person on whom the duty is cast or by any hazard arising from, or increased by, the work or system of work arising from the activities of the person on whom the duty is cast. Therefore, in marked distinction to the issues which arise in determining whether a particular defendant is vicariously liable for the actions of some third person - the liability existing if the person is an employee but, with some exceptions, not existing if a person is an independent contractor - liability for breach of a duty under this Act can arise for both an employer or an employee and, for that matter, for a self-employed person or a person having control of a workplace.

68 Clearly, the intention of the legislature is to impose duties comprehensively upon all persons at workplaces or construction sites, or persons associated with them, whose actions or activities might affect the health, safety or welfare of others or which might expose others to hazards. Unlike the situation arising in cases of alleged vicarious liability, there is no 'liability-free zone' for different categories of persons associated with a workplace or a construction site whose activities might affect health, safety, welfare or give rise to, or increase the risk of, exposure to hazards, under this legislation.

69 Nevertheless, the distinction between an employer and an employee and between a self-employed person and between a person who may have control of a workplace or a construction site, is maintained by the terms of s 19, s 20, s 21, s 22 and s 23 of the Act. The distinction does not relieve any person within one or more of those categories from potential liability but, rather, identifies different sources of liability for each one or more of those categories. From the viewpoint of the protective purpose of the Act and the Regulations as a whole, this may give the appearance that comprehensive duties are imposed upon all possible categories of persons associated with a workplace or undertaking work activity and, from that perspective, the observation is true. However, when it comes to laying a particular charge for a breach of any one or more of these sections or regulations, the requirement to give particulars necessitates that the charge be laid pursuant to one or more of the specific provisions in the Act.

70 As already remarked, the charges in this case are laid pursuant to singular provisions of the Act and the Regulations. There has been no instance in which any one of the charges was laid pursuant to, for example, s 21 or, alternatively, pursuant to s 20. As that was not attempted, it is inappropriate to consider whether or not that might have been done or, if it had been done, whether it might have withstood a challenge requiring the complainant to elect which provision was relied upon, lest the framing of a charge in that form might be prejudicial. Those are matters which, if they ever require attention at all, must be left for another occasion.

71 What this does mean, however, is that if, as in the present case, the complainant lays charges pursuant to s 21 or reg 3.88(1)(b), the particular charge requires proof that the respondent was 'a self-employed person'. In such an instance, proof that the respondent were not self-employed, but an employee, would lead to the dismissal of the charge, as happened here. That is notwithstanding that the acts or omissions alleged which constitute the charge might also result in the proof of a charge laid under s 20, had that been done. This must be regarded as an inevitable, but incongruous, result of the application of these statutory provisions. Avoiding conviction for the offence charged by establishing that a breach of some different statutory provision occurred might be regarded as an unmeritorious and technical consequence. However, it is a time honoured one. The potential for it occurring under this legislation for charges framed, as these were, undoubtedly exists however unexpected or unintended it might have been in the minds of the legislators. That this is an area which may benefit from statutory reform, or change in the practice of laying such charges, seems to be obvious enough, but I must, and shall, deal with the legislation as it stands and the charges as they have been framed.

72 What this analysis does reveal, however, is that from the point of view of any person contemplating building construction or other activities on a workplace or at a construction site to which this Act applies, there would be little, if any, incentive to select one form of relationship - employer/employee or principal/independent contractor or some other - for the purposes of distinguishing, escaping or reducing the scope of the statutory duties and obligations of care created by this legislation. Although the formulation of the language of the duties for the respective categories of employees, employers, self-employed persons or persons having the control of workplaces varies, there is a very large degree of overlap in the substance of the duties imposed and very little, if anything, to be gained by a particular employer, employee, independent contractor or other seeking to cast the characterisation of his or her status or relationship in one form rather than in another. By contrast, in the realm of vicarious liability, there may be much to be gained by a head contractor seeking to exclude the creation of a relationship of an employer/employee with some other person or contractor engaged to perform limited activities on the worksite. A consequence of this which is material to the present case, therefore, is that there is much less reason to doubt that the parties to the agreement - namely, Devcon and Mr Tobiassen - might distort or misdescribe the nature of their mutual relationship in the formal contractual documents between them or in their voluntary descriptions of their status.

73 Another factor merits initial recognition and location in the specific context of this case. This is the element of control. This case concerns a large construction project involving several contractors, different trades and a variety of responsibilities. Clearly, the different trades, contractors, employees and others were necessarily required to work in a co-ordinated fashion towards the achievement of completing the particular project. Inevitably, this required a hierarchal structure and the engagement of different firms, contractors and employees who were all required to work in a co-ordinated fashion to achieve that result. Near the pinnacle of the hierarchy was the project manager, Devcon, which engaged the respondent as the registered builder responsible for the site. Additionally, Devcon and other contractors engaged individual personnel, independent contractors and specialists, including engineers, riggers, concrete contractors and others, to perform different facets of the work. A site supervisor was appointed and, subject to the overriding authority of the builder, he was also subject to a measure of control by the project manager. Directions and instructions were given to go about the performance of various steps in the works. Because of this hierarchy, the individuals or entities near the top, including Devcon, Mr Tobiassen and the site supervisor, had certain powers and responsibilities to co-ordinate and direct the activities of subordinates or other contractors.

74 There can be no denying the fact that Devcon did issue instructions, directions or requests of one kind or another to Mr Tobiassen and to others about the progress and implementation of various phases of the work and that, to varying degrees, other supplementary or independent instructions were given by Mr Tobiassen, the site supervisor and others, to other contractors, employees and self-employed persons about the co-ordination, progress and performance of the works. However, that does not mean that the entity at or near the top of this hierarchy necessarily had 'control' in the relevant sense which made all of the individuals, contractors or entities to whom its directions were given, its employees. Such a concept, which appears to lie beneath some of the submissions for the respondent, would treat any form of control or direction as equivalent to the control which would establish the person or entity to whom it was directed as an employee. This cannot be accepted. The giving of directions, instructions, or even criticisms in such a hierarchy, is simply an illustration of the functioning and co-ordination of the various trades, contractors, employees and others all engaged in a co-ordinated enterprise. Subordination of this kind, in the sense that it requires certain directions, phasing, staging or levels of performance to be achieved, must not be confused with the direct form of supervision and instruction which is necessary to establish an employer/employee relationship.

75 In such circumstances, where there are a variety of different relationships existing between parties participating in the construction project, the true characterisation of any particular relationship between a set of parties will depend upon the choice made by those parties. There can be no presumption that it will be of one variety rather than another. As emerges from the authorities referred to at [60], the substance of the relationship so created, rather than its form or characterisation by the parties themselves, will determine its true nature. However, the choice made by the parties, unless alleged to be a sham arrangement (not the case here), or unless inconsistent with accepted features of the ascribed character of the relationship, will be an influential factor in the correct classification of the relationship.

76 The Act, by the interpretation provisions in s 3, identifies an employee, among other things, as being 'a person by whom work is done under a contract of employment', and an employer as 'a person by whom an employee is employed under a contract of employment'. It identifies a self-employed person as 'a person who works for reward otherwise than under a contract of employment ... whether or not he employs any other person'. In my opinion, this adopts the classic common law distinction between a contract of service which gives rise to employment and a contract for services which is the hallmark of a relationship of principal and independent contractor. It is the ultimate authority to control, rather than the actual exercise of control, which is the determinant: Zuijs v Wirth Bros Pty Ltd. See, generally, Halsbury's Laws of Australia vol 10, [165-3]. However, this is not always a sufficient or adequate determinant of the relationship and, where it is not, the totality of the relationship needs to be considered: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [81] (Kirby J, citing Hollis v Vabu Pty Ltd [45]).

77 Importantly, the relationship existing between the parties will have important implications for other obligations, including, as in the present case, the ascertainment of which occupational safety and health laws and regulations may apply; the obligation for the deduction of tax from remuneration paid to an employee; correspondingly, the obligation to pay Goods and Services Tax (GST) on the value of services provided by an independent contractor; the obligation to pay compulsory employer superannuation contributions calculated in accordance with the remuneration of an employee; the extent to which the employee may be an agent of the employer; and, whether or not it is recognised by the parties that vicarious liability exists, or does not exist, in respect of the actions or omissions of the person engaged.

78 In the present setting, it is also significant that, by virtue of s 10AA of the Builders' Registration Act, any natural person who is registered under that Act and carries out any building work shall 'personally manage and supervise the building work', an obligation specifically recited in par (B) of the recitals to the agreement between S G Tobiassen and Devcon of 1 July 2002 (part of exhibit P90). That contract was for a fixed term of two years but could be extended at the discretion of Devcon. Payment to S G Tobiassen was at an hourly rate, plus GST, based on hours worked, together with reimbursement of all insurance costs. Such payments were to be made in response to bi-monthly invoices submitted by the builder. Clause 9 of that agreement, which specified the relationship between the parties so that 'the [b]uilder shall be acting as an independent [b]uilder to the [c]ompany', specifically excluded any relationship of agency between the parties and of any fiduciary relationship - both features of the employer/employee relationship. It also specified that neither party should have the authority to act on behalf of the other. Clause 13(d) was a 'whole agreement' clause.

79 In practice, during the material time, Mr Tobiassen did prepare and submit invoices for his remuneration to Devcon, which included GST, and these were paid in accordance with the agreement by Devcon. No tax was withheld from the remuneration paid by Devcon to Mr Tobiassen and no superannuation contributions were made by Devcon to or on behalf of Mr Tobiassen, nor were any sought by the respondent. These are all strong contrary indications of the existence of an employer/employee relationship.

80 It is clear that when interviewed by the appellant on 23 January 2003, that is more than four months after the tragic death of Mr Kelsh, the respondent freely described himself as being a self-employed person. The respondent was operating as a sole trader with a registered business name, 'S G Tobiassen', and the invoices for his remuneration were submitted under that name. He had an Australian Business Number (ABN), which is obtainable by an enterprise carrying on activities in the form of a business or trade which does not include 'occupation as an employee': A New Tax System (Australian Business Number) Act 1999 (Cth), s 3(1), s 3(2), s 8, s 9, s 10, s 41. The GST which was paid in addition to his hourly rates was not payable in respect of an activity performed by an employee: A New Tax System (Goods and Services Tax) Act 1999 (Cth) s 9.5, s 9.10(2), s 9.15(1), s 9.15(2), s 9.20(1), s 9.20(2), s 29.70, s 59.40.

81 The respondent submitted that the following features of the performance of his role with Devcon meant that, despite the terms of the contract of engagement and the other features already described, the true characterisation of the relationship was of employer/employee. In this regard the features relied upon were:

(a) The contract of engagement permitted Devcon to terminate the agreement by written notice at any time during its term if the builder failed to comply with any term of the agreement in the reasonable opinion of the company.

This, it was submitted, created a broad subjective power of dismissal, both characteristic of an employment relationship and indicative of an ample de facto power of control.

(b) The principal of Devcon in practice retained the power to give directions to the respondent as to what should be done, and how it should be done, on the various building sites and exercised that power on various occasions (ts 1339).

The full extent of the amplitude of this power was not, however, explored. Although it is not inconsistent with the requirement under cl 3(a) of the contract of engagement 'to ensure that all trades carry out their work in the proper sequence as required by the company', no point was ever reached in which an issue arose as to whether or not the respondent was bound to comply with any direction, request or requirement of Devcon with which he, the respondent, had disagreed.

(c) The respondent did not have exclusive possession of the building site because of Devcon's overall control. This was consistent with Devcon retaining ultimate control of what happened on each site.

This may be so but, again, it is only indicative of the overall hierarchy established in relation to all the trades and contractors on the site. It could not, for example, be suggested that the rigging contractors or the concrete contractors, who also worked on the site and were subject to this hierarchy, were employees rather than independent contractors.

(d) The contract of engagement precluded the respondent from assigning his services to a third party without the consent of Devcon.

With respect, this does not appear to be an adequate description of the obligations created by cl 11 of the agreement which, by its terms, prohibited the assignment of rights and interests of the builder under the contract and the delegation or sub-contracting of the performance of the builder's obligations, except with prior written approval of the company which could not unreasonably be withheld. If anything, that term appears to confirm, rather than refute, the relationship of principal/independent contractor because it would be inconsistent with the role of an employee for the employee to be able to assign or subcontract the performance of his or her obligations to the employer.

82 Despite the acceptance of the respondent's submissions by the learned magistrate, I consider that the correct classification of the relationship between Devcon and Mr Tobiassen was that of principal and independent contractor and that Mr Tobiassen was, as he himself said, self-employed. It follows that I consider that the learned magistrate was in error in concluding that the respondent was an employee and, therefore, was in error in dismissing the first, fourth and fifth charges on that ground.

Work in which the respondent was engaged: charge 1

83 A further requirement of the first charge was for the prosecution to establish that the safety of persons was adversely affected as a result of work in which the respondent was engaged, 21(1)(b) of the Act. This requires the establishment of some link between the work in which the respondent was engaged which may adversely affect the safety of persons not being his employees. The learned magistrate found that the deceased and his fellow riggers had their safety adversely affected by the exposure to the risk of collapse of the steel rafter structure and the concrete tilt-up panels due to the torsional forces at work and the absence of restraint on those steel members. Nevertheless, his Honour concluded that this exposure did not arise out of the respondent's work as the registered builder for the project. This involved taking a narrow view of the work in which the respondent was engaged, so as to exclude knowledge of, and therefore responsibility for, the risks associated with the lack of lateral restraint on the steel members and the potential for torsional forces acting upon the steel rafters so as to lead to collapse. His Honour accepted, on the expert engineering evidence, that there were practicable means available by which adequate lateral restraint could have been provided, but he concluded that this 'risk did not arise out of Mr Tobiassen's work as the registered builder for the project' (61).

84 In my view, his Honour, with respect, took an unduly narrow view of the scope of responsibility of the builder on the site by limiting this to the avoidance of risks or the taking of precautions in respect of risks of which the builder himself, subjectively, had knowledge. This is also a feature of the learned magistrate's approach to determining whether or not the means of avoidance of the risks, suggested by the expert engineers, were 'practicable' from the viewpoint of the respondent.

85 In reaching this conclusion I am satisfied that his Honour concentrated upon a scrutiny of the events at the worksite which stressed the role of the riggers in dealing with the erection of the steel rafters and the torsional risk emanating from changes in the sequence of construction of Unit 3 made by persons other than the respondent. It is true that the sequence of construction of the units was altered and that, quite possibly, this meant that lateral restraints, which might otherwise have been in place, were not available for these particular rafters when Unit 3 was being constructed. It is also the case that the details and sequence of erection of the steel rafters was left largely to the Kefo team and the direction of the deceased, Mr Kelsh. However, I do not see how any of this detracts from the respondent's overall responsibility to 'carry out the [w]orks with due care, skill and diligence and in accordance with good industry practices', as provided by cl 5(a) of the agreement with Devcon; or 'to actively manage, schedule and supervise the building work ... to ensure that all trades carry out their work in the proper sequence as required by the [c]ompany during the [t]erm'; or to 'control the quality of materials in respect of the building work, including the materials and workmanship of all workman and subcontractors, and [to] dismiss all such persons carrying out an unsatisfactory standard of work', as required of him under cl 3(a) and (b) of that contract; or to perform the overall supervision of all the works, as required of a registered builder under s 10AA(a) of the Builders' Registration Act.

86 Accordingly, I am satisfied that it was an error for his Honour to conclude that Mr Tobiassen was not engaged in work which may adversely affect the safety of persons not being his employees within the meaning of that section. As a consequence, the relevant omission - namely, the failure to ensure that adequate steps were taken to provide lateral support to the steel rafters - was within the scope of the respondent's work on the site.

A person who had control of a workplace: charge 3

87 The learned magistrate decided (at 42 and 43) that the respondent did not have the degree of control over this workplace necessary to render him susceptible to conviction for the offence alleged of failing to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards, pursuant to s 22(1)(a) of the Act. His Honour reached this conclusion after reasoning (at 42) that the necessary degree of control which must exist before such an offence could be established was such as to enable a defendant to ensure safety by 'guaranteeing, securing or making certain' the situation and that this must be a degree of control sufficient to allow the direction of action or the giving of commands associated with an ability to compel corrective action to secure safety.

88 Having analysed the facts, his Honour concluded that while Mr Tobiassen was the builder in charge of the whole site, the particular workplace, for present purposes, was the area at Unit 3 where the tilt-up panel and steel rafter construction was under way. There, in practical terms, the deceased, Mr Kelsh, the senior rigger and principal of Kefo, was in his Honour's view, in all practical senses, in control. Consequently, the respondent did not have the 'relevant control' of the workplace so as to ensure that the Kefo team and others were not exposed to the hazard of the collapse of the rafters and panels because of inadequate lateral restraint of the rafters. This conclusion depended, in part, but not entirely, upon a finding that Mr Tobiassen did not have the technical experience, training or special expertise, which would be expected of an engineer or a rigger, in respect of the risk of torsional forces and collapse of such steel rafters connected to concrete panels. This, so his Honour concluded, detracted from his ability to control that workplace so as to avoid hazards.

89 In concluding that the respondent did not have this degree of control the learned magistrate also concluded that, because he was not personally aware of the risk presented by the absence of that restraint for this steel rafter and, further, because of the division of responsibilities at this worksite between different trades and sub-contractors, this also meant that the respondent was not aware of, nor did he have the power to compel or direct the imposition of work standards or practices which would have avoided or diminished, the risk of this hazard.

90 From this it is evident that the conclusion reached by the learned magistrate involves the combination of at least two different concepts in one practical setting - namely, personal knowledge or acquaintance of the risk or hazard which should be averted or diminished by protective action and, secondly, immediate de facto power to compel and enforce the establishment and maintenance of a system of work which would reduce or eliminate those hazards.

91 The analysis adopted by the learned magistrate proceeds on the footing that there can only be one person in 'control' of the workplace in the relevant sense, and for that control to exist it must contain an element of knowledge, skill and experience and the ability to recognise the need for corrective action and the power to enforce it. No doubt, if all those features existed, it could be rightly said of a person who possessed those attributes, that he or she was in control of the particular situation. However, to conclude this does not exclude the possibility that someone else may also have control, even if it be of broader scope or at a higher level of responsibility. For example, a power to order a subcontractor to cease work or to leave the site or to suspend operations, possessed by a supervisor or, for that matter, by the builder, would be to have control of the workplace because, through the exercise of that power, the conduct - at least the non-conforming conduct - of the contractor or its workers can be controlled.

92 The word 'control' is not specifically defined by the Act but in s 22(3), as it then was, it is provided that:

A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).

93 And by s 22(7), it was provided that s 22 'does not apply to a person whose duties are set out in s 20' - that is, to an employee. My earlier conclusion that Mr Tobiassen was not, despite the learned magistrate's finding to the contrary, an employee, means that he is not excluded from the application of s 22 by virtue of s 22(7), but the question whether or not he had 'control' of the workplace remains.

94 For reasons similar to the conclusions which I have set out below about the practicability of measures available to eliminate such potential hazards as being determined by the objective practicability of such measures within the industry as a whole, rather than from the view-point of the individual defendant, this aspect of his Honour's reasons cannot be accepted.

95 Having regard to the purpose of the Act, which is to 'promote and improve standards for occupational safety and health', I am satisfied that the concept of control of a workplace should be approached in this sense, so that all persons who share in the control of building operations or work at a worksite - even though the areas of control may be overlapping, or may be at different levels in a hierarchy of control - have the obligation to exercise that control by taking practical measures to ensure that the workplace does not expose other persons on site to hazards.

96 It must also be said that the learned magistrate accepted an approach to the interpretation of the word 'control' in s 22(1)(a), advanced by counsel for the respondent; namely, that it is necessary to examine the practical arrangements at the site in order to ascertain who was in 'control' of this particular area - that is, Unit 3 which, so it was submitted, should be regarded as a separate and discrete portion of the overall workplace. In doing so, the submission proceeded to contend that, in practical terms, it was Mr Hodgson of Devcon who was in overall control and that it was the deceased, Mr Kelsh, in charge of the rigging sub-contractors, who was actually in control of the erection process at Unit 3.

97 For reasons already canvassed I consider this is an erroneous approach to the direct interpretation of the provisions of this Act and, in particular, to the concept of 'control' within s 22(1)(a). The policy of the legislation is to establish broad and omnipresent obligations to install, enforce and carry out safe working practices for all persons involved in a workplace where hazardous activities may be involved. The degree of obligation and the nature and extent of the duty will vary according to whether the influence of the particular person who bears the designated duty is greater or less. However, making due allowances for the fact that the nature and extent of such duties may vary as between employers, employees, constructors and others, there is still no reason to approach this legislation on the assumption that there are no concurrent or overlapping duties by the persons or categories of persons upon whom the statute has placed obligations.

98 The fallacy which, with respect, I find in the submissions of the respondent, and their acceptance by the learned magistrate, is the conclusion that in any particular instance it must be possible to establish that it is 'X' who has the control of this workplace or section of the workplace rather than 'Y' or 'Z' and, accordingly, 'Y' cannot be liable under s 22(1)(a) even though he may have some different or smaller degree of control over the workplace than 'X'. There is no reason in logic or in policy why the concept of control should be so limited or be so exclusive. Rather, the policy of the legislation prompts an expansive meaning to be given to that term so that any person whose influence amounts to 'control' has a duty to act, so far as he, she or it can, to ensure safe working practices. Indeed this expansive interpretation is positively signalled by the section itself because s 22(7), already mentioned, expressly excludes an employee from the operation of the section. This signals that, but for that exclusion, an employee who does have a measure of de facto control would otherwise bear the duties which the section imposes. In my view, within the context of s 22(1)(a), 'control' means the ability of any person to whom the section applies (that is, who is constructing the building and who is not an employee) to use the influence associated with that control to install, maintain and enforce appropriate safe working practices and to avoid ascertainable hazards so far as is practicable.

99 The terms of the respondent's employment, his powers and duties under the Builders' Registration Act and his associated ability to give directions, means that this respondent did have control over this workplace to ensure that all others working at the site, including sub-contractors, complied with the terms of their contracts and the statutory and other duties to ensure that safe working measure and precautions were taken in the performance of their work. The respondent had the power to require the riggers to perform work to acceptable standards and could, if he had wished, order a halt or suspension of their operations until they did so. He never attempted to do this. However, it cannot be doubted that he had the power to do so, and that amounts to the influence or 'control' of which the section speaks.

100 Mr Tobiassen visited the site daily, he was able to give directions to the site supervisor of Devcon, Mr Fuller, and it was his role to supervise the overall operations. His power to do this was never contested in the actual conduct of the construction activities at the site and in my view there was no basis for concluding that, in effect, the respondent was powerless to ensure that appropriate safety measure were taken by others on the worksite to see to, so far as was practicable, the elimination of hazards. Furthermore, s 22(1) of the Act imposes such a duty upon any person who has 'to any extent' control, of a workplace, therefore encompassing 'various degrees of control': see Morrison v De Bono [2005] WASC 271; (2005) 147 IR 454 [12] (Le Miere J).

101 These indications are also confirmed by the evidence of what took place on this worksite. The respondent obviously considered that he had the right and responsibility to override Mr Fuller's instructions to sub-contractors (ts 448 - 449 and 1514 - 1515). It was Mr Tobiassen who set the daily programme on the broad scale of the working schedule, and all decisions about who worked on the site were made by the respondent, who then informed Mr Fuller who would be arriving to work and when (ts 452 - 453). In his record of interview, Mr Tobiassen admitted giving Mr Kelsh instructions about his duties and responsibilities and admitted that Mr Kelsh was under his direction (exhibit P65, at 12 - 13). Furthermore, he accepted that if he saw something being done wrongly on the site he would take steps to have it corrected (ts 1515 - 1516).

102 I am satisfied that, within the meaning of s 22(1)(a) of the Act, the respondent did have control of this worksite and that it was a workplace where persons who were not his employees worked or were likely to be in the course of work.

103 Further, in relation to the third charge, the learned magistrate concluded that, being an employee, Mr Tobiassen did not owe any of the duties set out in s 21 of the Act. This is another example of the employer/employee distinction already examined. However, his Honour went on to conclude that even were Mr Tobiassen self-employed, he did not have the relevant control of the workplace for the purposes of s 20. This, again, is an application of the restricted sense of control referred to above.

104 For reasons set out above, I am satisfied that, for the purposes of this legislation, the description of the status of Mr Tobiassen as 'self-employed' is correct and, that the test for control adopted by the learned magistrate was wrongly confined. I am satisfied that, in these circumstances, the proper conclusion of law is that Mr Tobiassen did have control of the workplace and, as a self-employed person, owed the duties alleged in s 21(1) and s 22(1)(a) of the Act.

A person who constructed a building for use at a workplace: charge 2

105 In relation to the second charge, the learned magistrate concluded that Mr Tobiassen was not constructing a building within the meaning of s 23(3a)(a) of the Act, and that the activities of the riggers, including the deceased, Mr Kelsh, were not activities of proper construction of a building. His Honour also concluded that the alleged failure to provide lateral restraint for the steel rafters which, the prosecution alleged, should have been provided, was not 'construction within the meaning of the section'. This conclusion requires some further explanation before its impact can be fully appreciated.

106 Put in the context of the overall findings of the learned magistrate, these conclusions proceed from the view that precautions to prevent or minimise the risk of torsional stress, and subsequent collapse of large steel members such as this rafter, were matters which called for special technical knowledge or experience which might be expected of an engineer or rigger, but not of a builder such as Mr Tobiassen. From that proposition, so the analysis developed, the need for the provision of lateral restraint for the steel rafters during the process of erection and before stabilisation by cross-bracing, was not work in the construction of a building. Furthermore, his Honour held that although such precautions should have been taken by persons who understood and were cognisant of the unusual risks involved, the members of the Kefo team - who should have taken those precautions but did not do so - were not 'persons who properly constructed the building' because of their failure to attend to these necessary precautions.

107 Again, it may be seen that this analysis seeks to divide up the responsibility for the construction of a building into separate independent components, with the result that only a person, who is familiar with or attuned to the special risks associated with a particular component in the overall process, can rightly be said to be 'constructing a building'. With all respect, I find this attempt at subdivision of the concept of 'constructing a building' according to the different work done by different trades or contractors, and the special knowledge associated with each particular trade or phase of construction, incompatible with the general sense of control and responsibility which goes with the conduct and supervision, on a co-ordinated basis, of many separate, but interrelated, activities all directed towards the common end of erecting and completing a building.

108 I do not see how it can rightly be maintained that a builder engaged to construct, say, a domestic house on a suburban block, and who is supervising that work, is not 'constructing a building' because, during the erection phase, a subcontractor electrician is brought in to install electrical connections and, in the process, fails to take some necessary precaution to disconnect the power supply, as a result of which another worker suffers an injury. That injury, by definition, occurs in the workplace; the workplace is a building under construction; the builder is engaged in the process of construction; and, the builder has the responsibility to ensure that the construction is such that the persons on site are not exposed to hazards. In the example postulated, and perhaps even in the case under appeal, it may be that it was not practicable for the builder to ensure that persons working on the site were not exposed to this particular hazard, but that is a separate and different issue.

109 Consequently, I reject the learned magistrate's finding. I am satisfied that the respondent was, within the meaning of s 23(3a)(a) of the Act, a person who constructed a building for use at a workplace.

Failed so far as was practicable: charges 1, 2 and 3

110 A further component of each of the first three charges was that the respondent failed to take certain practicable measures. Charge 1 alleged that the respondent 'failed so far as was practicable to ensure that the safety of persons not being his employer was not adversely affected as a result of the work in which he was engaged'. Charge 2 alleged that the respondent 'failed so far as was practicable to ensure that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards'. Charge 3 alleged that the respondent 'failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards'.

111 In relation to each of these three charges, the learned magistrate concluded that Mr Tobiassen did not fail, so far as was practicable, to ensure that the safety of persons was not adversely affected or that the other identified hazards were avoided.

112 It is necessary to identify how his Honour came to that conclusion. First, his Honour accepted that from the moment the rafters were erected in Unit 3, they were at risk of collapsing, and that with their collapse a consequential collapse of the concrete wall panels was foreseeable. Nevertheless, exposure to that risk, so it was found, did not arise out of the respondent's work as a registered builder for the project because, so it was found, the construction of the panels had no role in causing or preventing the collapse. His Honour found that it was not practicable for Mr Tobiassen to have ensured that there was adequate lateral restraint for the rafters in Unit 3. However, his Honour was satisifed that there was an objective state of knowledge in the relevant industry about the risks to safety associated with the collapse of steel roof structures and concrete tilt-up panels. He was also satisfied that there was a practicable solution available to remove or mitigate the risks posed by unstable rafters and that the solution posed by one of the specialist expert engineering witnesses, Andrew Theodoris Van Der Meer, was such a practicable course.

113 It must be said of this approach to the allegations of failing, so far as was practicable, to ensure the absence of exposure to hazards or other harm, that it proceeds from an erroneous subdivision and compartmentalisation of the duties and responsibilities of the various persons and trades working on this site. In particular, it involves a view that the risk of collapse of the steel rafters due to torsional pressures, was a risk dissociated from the construction of the building. This, in turn, proceeds from a conclusion that the construction of such large steel rafters involved specialised knowledge and experience, which would not be expected of an ordinary builder, and that, this being so, a builder, even a supervising builder, could not be expected to identify practicable measures for limiting or reducing the ensuing hazard.

114 It is essential to have regard to the precautionary measures which, it is alleged, were practicable and which were not taken. The position of the prosecution was that, in relation to charges 1, 2 and 3 the respondent should have ensured that:

(a) there was adequate lateral restraint of the steel beams ('rafters') in the Unit 3 area at the [s]ite during, and following, the erection of the rafters; and

(b) the concrete tilt-up panels to which the beams in the Unit 3 area at the [s]ite were affixed were properly constructed.

Further, in relation to the third charge, the allegation was that it was practicable for the respondent to have ensured that:

(c) the bases of the tilt-up panels had been properly secured and braced.

115 In order for these charges to be proved, it was necessary for the appellant to satisfy the court that there was an objective standard of knowledge in the relevant industry about the risks to safety identified in the particulars to those charges and the means by which that risk could be removed or reduced. However, the critical submission by the respondent at trial, and again on these appeals, and one accepted by the learned magistrate, was that this objective state of knowledge must be shown to be possessed by the respondent or to be expected of a person in his position. For this proposition the respondent relied upon Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 261; Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 [12]; and Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45].

116 The respondent further submitted, and the learned magistrate accepted, that the expert engineering evidence established that engineers were aware of the existence of the risk of such torsional forces upon beams in the position of these rafters, but there was doubt as to whether riggers or registered builders would know of such risks. Having concluded that, at the material time, Mr Tobiassen did not know of this risk and was therefore unaware of the need or the means to address it, it was concluded that it could not be shown that there was the necessary objective knowledge of the risk, and of the need to remove it or deal with it, which rendered the action suggested necessary by the prosecution 'practicable' in the relevant sense.

117 By contrast, the appellant submitted that, on the authority of R v Australian Char Pty Ltd [1999] 3 VR 834, 844, the correct approach to making a finding about the question of the relevant 'state of knowledge' is that:

[T]he issue [is] not to be determined subjectively according to the knowledge and circumstances of the employer; rather, the issue [is] to be determined objectively having regard to knowledge required from all sources including those of the particular trade or industry of the employer.

Therefore, the proper focus of enquiry, it was submitted, is to ascertain whether, and if so to what extent, the 'risk situation' was objectively knowable (as distinct from unknowable in the 'wholly surprising' sense used by Murray J in MacCarron v Coles Supermarkets Australia Pty Ltd [2001] WASCA 61; (2001) 23 WAR 355 [163]).

118 In Chugg v Pacific Dunlop Ltd, special leave to appeal, except in relation to one issue, was ultimately revoked. The High Court proceeded solely to decide that the issue of proving practicability rested upon the prosecution on a charge under equivalent legislation. Nevertheless, there is, in my respectful view, a clear dictum (at 260) in the reasons for decision of Dawson, Toohey and Gaudron JJ that 'overmuch significance' ought not to be given to 'the relative knowledge of an employer or an informant', because in many instances the questions of practicability do not involve special knowledge. Insofar as the reasons of Dawson, Toohey and Gaudron JJ adopted (at 262), with approval, the observations of Lord Upjohn in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107, 125 - 126, it is also apparent that the duty, resting upon the employer or other person obliged to exercise care, is 'with his experts to consider the state of the place of work in all its circumstances and to take whatever steps he could, so far as reasonably practicable, to make it safe'.

119 Far from limiting the objective state of knowledge to the subjective state of knowledge of the particular builder (in the present case) or persons in comparable positions, the legislation, in my view, casts an obligation upon all persons, upon whom comparable duties are imposed, to acquaint themselves with practicable measures existing in the industry for the maintenance of safety and the avoidance of hazard. They will not be excused from a failure to perform this obligation simply because of the limits of their own subjective knowledge, except on occasions where, as Steytler J said in Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998), it is knowledge of a special kind attributable to a specialised contractor and outside the scope of the knowledge to be expected of a builder. I must say, with all respect, that I have hesitations in limiting the scope of practicability even to that extent, because the definition of 'practicable' within s 3 of the Act speaks about 'state of knowledge' in the broad, without limiting the state of knowledge to any particular trade, profession or occupational experience. This is consistent with the policy of the Act which, in my view, is intended to achieve a situation that if, objectively speaking, there is known within an industry that there are hazards of a particular kind which may be injurious to the health and welfare of persons on worksites, and that there are means available of avoiding or reducing those hazards, then, having regard to factors such as the degree of risk, the means of removing or mitigating the risk and the availability, suitability and the cost of the means to reduce the risk, the decision about practicability will then be taken in a balanced and objective fashion.

120 The crucial point of this statutory language, however, is that it lends no support at all to a view of practicability which is associated with a limited knowledge by some person within the industry who, by hypothesis, is oblivious to the existence of objective knowledge within the industry which identifies the risk and suggests means of addressing it. Certainly, there is a balancing judgment to be made, having regard to the degree of risk involved, the means available of reducing the risk and the associated costs, but that balancing exercise needs to be performed once it is established that there is an objective state of knowledge within the industry which exposes the hazard and suggests a means of coping with it. That state of knowledge is not limited to occasions when the risk is known and appreciated at lower levels, or by the individual on whom the duty is cast.

121 As framed, the obligation requires persons on whom such duties are cast to acquaint themselves with the objective state of knowledge within the industry and, as implied by Lord Upjohn in his remarks in Nimmo v Alexander Cowan & Sons Ltd, to take advice from experts and others to supplement his or her own appreciation of the situation. Failure to do that does not displace the existence of an objective state of knowledge or excuse a failure to perform the duty if, otherwise, it were practicable to perform it. This is, if I may say so with respect, the essential error which pervades this aspect of the decision at first instance; namely, to associate the objective state of knowledge with the scope of knowledge actually possessed or to be expected of such a builder. In my view, that significantly understates the extent of the statutory and regulatory duties here under consideration. In Hamersley Iron Pty Ltd v Robertson, Steytler J expressly contemplated that in relation to a personal duty to provide a safe workplace, so far as is practicable, that latter phrase determines the extent of the obligation:

If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should (20).

122 Indeed, it was accepted in Hamersley Iron Pty Ltd v Roberston, as following from Ertech Pty Ltd v Reid (Unreported, WASC, Library No 9174, 6 December 1991), that the state of knowledge which forms part of the component of practicability, is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge in fact possessed by a specific employer in particular circumstances. See, also, Pullin J in Silent Vector Pty Ltd v Shepherd [12].

123 This is entirely consistent with the legislative policy to bring work safety standards into compliance with objective safety criteria known to industry as a whole, rather than to define the duty and measure the obligation with reference to the variable standpoint of an individual self-employed person, employer or employee, or other persons filling those positions who might only have a limited appreciation of the objective standards available within the industry as a whole. Lest this appear too onerous, or indifferent to hitherto prevailing standards of the uninformed, it can be said that it means no more than that a reasonable employer, employee or self-employed person in any of the positions postulated by the Act, will be a person who is informed and cognisant of the objective standards of dealing with hazards existing within the industry in which he or she may be working, even though this may require that person to seek advice from experts or others better informed than himself or herself so as to become acquainted with that objective standard.

124 Consequently, in the present prosecutions, once the learned magistrate was satisfied, as he was, that objective knowledge did exist within this industry about the hazard presented by torsional forces operating on steel rafters without adequate lateral restraint, and that means were available of dealing practicably with that risk, it was wrong to find that the measures which the prosecution asserted should have been taken by the respondent, in the first, second and third charges, were not practicable.

125 I am satisfied that the proper finding in each of those three prosecutions should have been that the appellant had shown that the respondent had failed, so far as was practicable, on the first charge, to ensure that the safety of persons not being his employees was not adversely affected; on the second charge, that he had failed, so far as was practicable, to ensure that the construction of the building was such that persons who properly constructed the building were not in doing so exposed to hazards; and, in relation to the third charge, that the respondent failed to take such measures as were practicable to ensure that the workplace was such that persons who were at the workplace were not exposed to hazards.

Causing the death of Mr Kelsh: charges 1 and 2

126 The learned magistrate concluded that Mr Kelsh died as a result of the collapse of the rafters in Unit 3 of the building, but that his death was not caused by any breach of duty by the respondent because of the findings - made on grounds already examined and rejected - that the respondent had not failed to perform any of the relevant duties.

127 This absence of causation is a finding relating to the allegation of causation contained in the first and second charges. In the context of the reasons given by the learned magistrate, the finding must mean that, in addition to the other relevant findings - that Mr Tobiassen was not a self-employed person nor a person who constructed a building for use at a workplace, and that he did not fail, as far as was practicable, to ensure either that the safety of persons not being his employees was not adversely affected as a result of the work in which he was engaged or that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards - nothing which he did, or omitted to do, caused the collapse of the rafters.

128 In view of the conclusions which I have reached in relation to other aspects of the appeal relating to this charge, it is necessary to consider this finding of his Honour on the basis that Mr Tobiassen was a self-employed person, was also a person who constructed a building for use at a workplace, and that there were measures which were practicable to ensure the safety of persons on the site and to prevent exposing them to hazards.

129 For his Honour's finding to stand, in those circumstances, it could only mean that Mr Tobiassen was not engaged in the work of erecting and bracing the steel rafters and connecting them to the panels forming the opposing concrete walls, or that the collapse of the steel rafter had nothing to do with the construction. It seems likely that the learned magistrate's conclusion was based on the latter alternative - namely, that the collapse of the rafter had nothing to do with the construction of the panels - because that was one of his Honour's specific findings. That, in turn, appears to have flowed from the narrow view which his Honour took of what was involved in the work in which Mr Tobiassen was engaged, effectively excluding from that any responsibility for the safety, stability or preservation of the steel rafters in the course of erection. That, in turn, as already mentioned, appears to flow from his Honour's view that this was an area of specialty for which the Kefo team, and Mr Kelsh particularly, were solely responsible.

130 I have already indicated that, with respect, this is an unduly narrow view of the obligations of a self-employed person in the performance of the work in which he was engaged because, in Mr Tobiassen's case, he was responsible for the supervision of the entire building operations on the site. As there was a practicable measure available for stabilising the steel rafter during the erection phase, as explained by Mr Van Der Meer, and accepted by the learned magistrate, a failure to ensure that such precautions were taken would be a failure by a person responsible for the entire site to ensure that the safety of persons not being his employees was not adversely affected. Similarly, it is a failure by a person who constructed a building for use at a workplace to ensure, as far as was practicable, that the construction of the building was such that persons who properly constructed the building were not, in doing so, exposed to hazards. That, in my view, was the extent of Mr Tobiassen's obligation, although he may not have appreciated it.

131 These failures meant that the steel rafter was not stabilised and, accordingly, the inherent torsional forces were unrestrained. Consequently, when these forces developed, the rafter collapsed, followed by the collapse of the concrete panels, and the death of Mr Kelsh. Accordingly, the conclusion that there was no default by Mr Tobiassen which caused that collapse and the resulting death cannot stand.

132 Once it is concluded, as I have concluded, that the respondent did fail to perform the duties as alleged, it follows that the death of Kelsh which resulted from the ensuing collapse, was caused, in the sense of causation adopted by this legislation, by those breaches of duty, notwithstanding that there may have been, and probably were, other concurrent causes, associated with breaches of other duties by other persons and, possibly, the omission of any erection plans or drawings for this overall project.

The casting of the concrete tilt-up panels: charge 4

133 As well as alleging that Mr Tobiassen was a self-employed person, the fourth charge alleges, essentially, failure by the respondent in respect of the casting of the panels. If I may abbreviate the wording of the charge and its particulars, charge 4 alleges that he failed to ensure that the concrete panels which were cast on the site were manufactured in accordance with the shop drawings - in that incorrect steel through bars were supplied and incorporated in the process of casting. This charge was dismissed.

134 One of the findings of the learned magistrate was that the respondent was actually in default in not ensuring that the concrete panels were manufactured in accordance with the design drawings. His default, in this regard, was limited to authorising the substitution of alternative through bars for the Y16 through bars specified in the drawings. His Honour concluded that the respondent did initially order the alternative through bars, which were subsequently supplied and used, and that in doing so, there was no evidence that the respondent checked which through bars were specified in the drawings to ensure that he was ordering the correct bars. His Honour also concluded that by ordering replacement bars, the respondent would have known that they would then have been used in substitution for the specified bars as, indeed, they were.

135 The evidence established that for the fabrication of the concrete tilt-up panels, the applicable design shop drawings required a Y16 deformed steel bar to be used. Instead, a 10 mm mild steel bar was used as a through bar in the reinforcement of the cast-in plates of the panels. In addition, two Y16 deformed steel bars were used to reinforce the edges of the panel, whereas the drawings required four Y16 bars to be used. Otherwise, the respondent took no steps to involve himself in the fabrication of the panels or to inspect or check them. In evidence Mr Tobiassen accepted that it would have been a simple task to inspect and verify that the panels were being properly fabricated by reference to the design shop drawings which were available to him and which he understood (ts 1470 - 1473, 1486, 1532 - 1533). The respondent's position was that he left that task to Mr Fuller. There was nothing to indicate that he took any steps to check that Mr Fuller was properly performing that obligation.

136 Nevertheless, the learned magistrate concluded that the respondent 'played no role in the failure to use reinforcing bars'. Mr Peadon, the man in charge of the Sarich team of subcontractors engaged to pour the concrete slab and to cast the concrete panels, cast the panels without reference to the drawings. In the learned magistrate's view, the responsibility for supervising the Sarich team of subcontractors rested with Mr Fuller, the site supervisor, also employed by Devcon, so, by implication, excluding any such responsibility by the respondent.

137 Again, with respect, I conclude that this finding by the learned magistrate proceeded from a restricted view of the responsibility of the builder, and from treating the responsibility of the site supervisor, Mr Fuller, as excluding any obligation of the builder in this respect. In my view, whatever may have been the responsibilities of Mr Fuller with respect to the supervision of the casting of the concrete tilt-up panels to ensure that they were in accordance with the shop drawings, the respondent, as the builder responsible for the co-ordination of the entire operations on the site, bore an overlapping responsibility to ensure that this, and other work, was done in accordance with the prescribed drawings. It was Mr Tobiassen's responsibility to ensure that Mr Fuller insisted that the Sarich team construct the panels in accordance with the shop drawings. This he plainly did not discharge.

138 The conclusion that it was Mr Fuller who failed to ensure that the concrete tilt-up panels were cast in accordance with the requisite shop drawings was treated as an exoneration of the failure of the respondent, both positively and by later omission, to ensure that the panels were constructed in accordance with the drawings. That is not a conclusion which can be accepted because, as a self-employed person, that obligation rested upon him personally. The fact that another, to whom the respondent had abandoned that task, failed to perform it is no relief from his own failure to ensure that the panels were cast as the drawings required.

The erection of the concrete tilt-up panels: charge 5

139 A further finding of the learned magistrate, in relation to the fifth charge, was that the evidence had established that the braces were not erected in accordance with the relevant drawings. The practical content of this charge can be found in the particulars delivered in support described earlier in these reasons. These include two tables identifying individual concrete tilt-up panels by number and, in each case, giving the date the particular panel was erected. They also include extracts from the applicable shop drawings showing how each panel was to be braced and giving the dimensions of the braces from the base of the panel both on the left and the right. A further table identifies the individual shop drawings which displayed those requirements.

140 The evidence was that the details of the bracing for the panels was set out in the tilt-lift drawings which had been prepared for the construction. A set of these was in possession of the respondent and he supplied copies of those drawings to the deceased, Mr Kelsh, who was the principal of Kefo, the firm engaged to erect the concrete panels and structural steel. It was the Kefo team who erected the panels and failed to apply a sufficient number of braces, braces at the correct angle or braces with adequate footings. There is no doubt that the braces, as installed, were not in accordance with the drawings. Nevertheless, the finding was that the supervision of the Kefo team on a daily basis was the responsibility of Mr Fuller, the Devcon site supervisor. There is evidence that Mr Fuller supplied a further set of tilt-lift plans to Mr Kelsh, but:

There was no evidence of Mr Tobiassen being made aware, apart from along [with] Mr Kelsh and Mr Fuller being made jointly aware by Mr Reilly [the appellant WorkSafe inspector], that the Kefo team and Mr Fuller were not ensuring that the braces were set out in accordance with the drawings (63).

141 Effectively, this finding means that the responsibility for seeing that the panels, when erected, were braced in accordance with the drawings was delegated to the Kefo team (Mr Kelsh) and that the supervision of this was delegated to Mr Fuller, so discharging the respondent from further responsibility.

142 His Honour found that Mr Hunt (the concrete constructor) did not use the drawings, nor did he see any other member of the Kefo team act in accordance with the drawings. The personnel did not actually check the drawings or measure the dimensions. The location of the braces was simply done by eye. His Honour also accepted the appellant's evidence as providing support for the conclusion that the actual distance of some of the braces was not as specified. There was further evidence that, subsequently, as a result of a visit by the appellant to the site on 3 September 2002, the respondent took remedial steps in respect of defective bracing which had been identified on that visit (ts 695).

143 Again the respondent admitted that he did not check any of the bracing of the panels erected at Unit 3, despite having the applicable panel erection shop drawings available to him and understanding the bracing requirements which they contained (ts 1484 - 1486). In practical terms, the obligation to check the bracing was left by the respondent to Mr Fuller (ts 1330 - 1331). However, the respondent took no steps to check that Mr Fuller was performing this task as required.

144 The decision of the learned magistrate to dismiss this charge proceeded upon his finding that 'the task of ensuring that the setting out of the braces was in accordance with the plans was that of Mr Fuller' (60). In my view, this, again, follows from the view urged upon the learned magistrate on behalf of the respondent that obligations that rested upon Mr Fuller in this regard excluded corresponding obligations resting upon the respondent. There is no basis in law for such a conclusion nor, I am satisfied, was there any such basis on the facts of this case. Mr Tobiassen had the power and the influence to ensure that the construction work was performed in accordance with the applicable drawings and the requisite Australian standards. He was in fact consulted about some aspects of the earlier casting of these panels which was the subject of the fourth charge. He simply failed to perform his obligation or to take any steps to ensure that Mr Fuller, to whom he effectively delegated this obligation, did so. It follows that this element of the fifth charge was established, and the basis relied upon by the learned magistrate for dismissing this charge cannot stand.

145 It follows that the learned magistrate was in error in dismissing this charge and, that on the evidence, the respondent should have been convicted.

Control element required by the Regulations: charges 4 and 5

146 There is one further issue which arises in relation to the fourth and fifth charges which should be mentioned. It arises from the terms of reg 1.5 (see [28]). This provides, in effect, that the duty cast on the respondent by reg 3.88(1)(b) relates only to a matter over which, and to the extent to which, Mr Tobiassen had control or could reasonably be expected to have control over the Myaree site and the casting and erection of the concrete tilt-up panels in the context of the working arrangements on that site. Regulation 1.5 was not expressly relied on by the learned magistrate in his reasons for dismissing the fourth and fifth charges but it is possible that it may have contributed to his Honour's conclusions that the respondent was not liable as charged because, in his Honour's view, it was Mr Fuller who was responsible for the failure in the casting of the panels (fourth charge) and also for the inadequate bracing to support the tilt-up panels once erected (fifth charge).

147 Again, however, the powers which Mr Tobiassen had in relation to the overall workplace and the project operations, which accompanied his role as the designated registered builder responsible for the project, and the manner in which he exercised these powers, already described, leaves no reason for any doubt that he did have the power to ensure that these activities (casting and erecting of the concrete panels) were performed in accordance with the applicable shop drawings and that it was reasonable to expect that he should have insisted that that be done in the absence of some good reason brought to his attention which satisfied him otherwise.

148 For these reasons, I am satisfied that the decisions of the learned magistrate to dismiss each of the five charges against the respondent should all be set aside. No additional evidence or submissions are necessary to conclude that judgments of conviction on each charge should be entered in lieu of the learned magistrate's orders because each of those decisions was based on findings of law which, as I have endeavoured to explain, cannot stand. That leaves for consideration what penalties can or should be imposed for these convictions. This raises an issue mentioned at [39] - [40] of these reasons; namely, the effect of s 11 of the Sentencing Act. As this was not argued at the hearing of the appeal, I consider that I should invite submissions from the parties as to what, if any, effect that provision has and also upon what penalties, and in respect of which charges, further orders should be made. There is one further issue as to whether or not this court should determine what penalties ought be imposed in the light of the convictions, which I am satisfied should be recorded, or whether the case should be remitted to the Magistrates Court for that decision to be made in circumstances where the respondent's right to apply for leave to appeal to this court against any such order would be preserved. That this court has the power to impose such penalties cannot be doubted in view of s 14 of the Criminal Appeals Act 2004. Factors of convenience and economy seem to point in favour of that power being exercised, but again that is a matter upon which I consider I should hear submissions.