SafeWork NSW v Investa Asset Management Pty Ltd

Facts

1. The BMU was manufactured in or about 1999 and commissioned at the building in or about 2000. The BMU was manufactured for the building by Cradle Runways (Aust) Pty Ltd, a company that later changed its name to Building Maintenance Units (Aust) Pty Ltd (BMUA). The BMU was purpose designed for the building to allow it to travel around corners of the building, so that it could be used on each of the three façades of the building. The BMU was installed and serviced by BMUA until about 2003.
2. After that time and until the incident, the BMU was serviced by an unrelated company, Building Maintenance Unit Services Pty Ltd (BMUS). Jim McCallan was the director of BMUS who was responsible for providing quotes to the defendant for work to be done on BMUs in various buildings. Mr McCallan also liaised with various employees of the defendant from time to time as required.
3. On 1 April 2014 the defendant took over management of the building on behalf of its owners. The day-to-day management of the building was handled by a Property Supervisor who worked from an office in the building. The Property Supervisor reported to the Senior Property Supervisor. The Senior Property Supervisor was responsible for the management of a number of buildings and supervising the Property Supervisor at each. Sometime in 2014 the defendant changed those titles, so that a Property Supervisor became a Facilities Manager and a Senior Property Supervisor became a Senior Facilities Manager. I will use these later titles in this judgment. In 2015, at the material times, the Facilities Manager for the building was Zainal Taiyab and the Senior Facilities Manager for the building was Jay O'Neill.
4. BMUS continued to service the BMU. This consisted of quarterly servicing and an annual inspection for the purpose of issuing a certificate of compliance which was used to register the BMU with the regulator. BMUS also attended the building to set-up the BMU for use, induct the workers who would be using it and to pack it away after it was used. On each occasion, BMUS provided to the defendant a written service report. The service report would identify any items of maintenance or repair that were required for the BMU. A copy of the service report would be given to the Facilities Manager and the other copy sent to the office of BMUS. BMUS would then provide a quote for the work involved. If the repair was considered to be critical the service technician or Mr McCallan may also have had a discussion about it with the Facilities Manager.
5. The BMU consisted of two cradles joined in the centre, each capable of supporting a 150kg load (300kg in total). The cradles were where the workers stood in the BMU to undertake their work.
6. The cradles were attached at each end to electric winches holding steel cable to lower and raise the BMU. On top of the winches was mounted a safety device known as a 'skylock'. The skylock was intended to prevent the cradle falling in the event that one or both of the winches failed. The skylock would activate if there was a sudden fall of the cradle, by latching onto the steel cable to stop the momentum of the cradle. The steel cable was attached to two extendable arms that ran on a monorail attached to the building at the level of the twelfth floor. The steel cable then ran through the skylock, the winch and then was stored on a cable drum at the bottom of each side of the cradle.
7. Underneath the winch was a load sensing device (LSD). The LSD was designed to activate a cut-out switch if the cradle was overloaded that would prevent the electric winches from operating.
8. The bottom of the winch was connected to an upper housing which was a cylindrical steel component. At the top, the upper housing had a slit cut into it to take a blade that extended from the bottom of the winch. The upper housing was connected to the winch by two bolts that passed through the upper housing and the blade when it was inserted into the slit in the upper housing.
9. A machined stud inserted into the bottom of the upper housing. The stud was manufactured from 316 marine grade stainless steel. The stud was approximately 150mm long and 20mm in diameter. The stud had a thread cut into its surface at either end. The top of the stud screwed into the upper housing via the thread and was secured in place by a split pin that was inserted through the upper housing and the stud to stop it from coming undone.
10. The lower housing consisted of a five sided box made of heavy gauge metal (the connection box). On the bottom of the connection box was a blade that inserted into the support bracket on the cradle allowing the connection box to be attached to the cradle by two bolts. Inside the connection box, the bottom of the stud passed through 5 pairs of cone springs. The bottom of the stud was fixed in place with a nut screwed onto the thread. The nut was then secured by a grub screw, to prevent it from coming undone.
11. When the cradle was suspended, a tensile load was applied through the cone springs causing them to contract. If the cradle was overloaded, the compression of the cone springs would activate a switch that would cut power to the electric winches and prevent them from working.
12. The studs were a critical part of the LSD and connected the cradle to the winches. When the studs broke in the incident, the cradle was separated from the winches and the skylock and there was nothing preventing the cradle from freefalling. At the time of the incident, a manual turning handle fortuitously became entangled in the steel cable and this slowed the fall of the cradle to some extent.
13. The connection box was enclosed in the ordinary course of operation of the BMU by the attachment of a sheet metal cover on the open face of the box (the cover). The cover was secured in place by 4 pop-rivets, to make the LSD tamper proof. In the course of servicing the BMU over the years, BMUS had never removed the cover from the LSD.
14. Clause 7.3.5 of AS 2550.13-1997 relevantly provided that a BMU must be subjected to a major inspection, 10 years after it was commissioned. A major inspection required a 'strip-down inspection and non-destructive examination' for the purpose of determining the suitability of the BMU for continued safe operation. Non-destructive testing (NDT) was required to be completed by a person accredited by the Australian Institute for Non-destructive Testing (AINDT).
15. On 18 March 2011, AS 2550.1-2011 was published. Clause 7.3.5 of AS 2550.1-2011 included the following: The major inspection shall involve examination of all those critical components identified by the manufacturer, competent person or the assessment conducted in accordance with Section 9. Where necessary, the crane [defined to include a BMU] shall be stripped down and paint, grease and corrosion removed from critical components to allow a complete and thorough inspection. Particular attention shall be given to the following: … (ii) Non-destructive testing of all nominated critical areas for evidence of cracking due to fatigue or excessive stress. …
16. An acceptable alternative to subjecting the studs to NDT was to replace them at the time of the major inspection. The cost of a new stud was approximately $500 and there were two of them used in the BMU.
17. In or about 2015 an investor who owned all or part of a number of properties managed by the defendant decided to sell those properties. The sale of the properties by the investor was known as 'Project Dragon'. In the course of gathering due diligence for Project Dragon, the defendant realised that it did not have documentation supporting the budgeted amounts for servicing and maintaining the various pieces of plant and equipment at each property, by external service providers. The defendant embarked on a process of sending a scope of works to each external service provider and asking them to fill in a template providing a budget for regular maintenance for each piece of plant and equipment that the external service provider was responsible for. The provision of the scope of works was intended to ensure that the quote for work to be done was provided on a basis that the defendant and the service provider understood. The responsibility for designing and implementing this process for Project Dragon fell to the Technical Services Team (TST) of the defendant.
18. On 31 March 2015, Steve Hickey a Facilities Manager for the defendant based in Brisbane, sent an email to Mr McCallan, Geoff King, Cesar Vargas, Sarath Pallawella and an email group described as 'DL-Facilities Management NSW' (the 31 March email). The email provided as follows: Hi Jim, Geoff King and Cesar Vargas have instructed me to obtain information relative to service maintenance currently being carried out to above system by your company. Let us know if you need further clarifications. Attached is the scope of works (SOW) and plant & equipment (P & E) templates you need to provide the following information for all sites you currently provide this service. Confirm scope of works (SOW) covers the maintenance service currently performed in the above system. Please do not change the attached Scope of Works. If there are items to be added, deleted or not applicable in the existing Scope of Works, indicate them in the attached plant & equipment (P & E) template. Insert the change in the bottom (highlighted) section of "Equipment" column below the wording "do not change the Scope of Works". Indicate in the "Yes/No" column of P & E template whether the piece of equipment or group of equipment is/are included in the regular plant annual maintenance and planned contract costs. See notes #1 & #2 below the P & E spread sheet. Indicate in the "Standard" column, Australian/New Zealand standards (AS/NZS # xxxx) to where current maintenance service is performed to. In the "Quantity" provide the number of equipment (asset register list) being maintained/serviced covered in the existing regular maintenance service. Indicate in the "Frequency" column maintenance service per equipment (Monthly, quarterly, 6-monthly, annually). In the "Quantity" provide the number of equipment (asset register list) being maintained/serviced covered in the existing regular maintenance service. Provide the date when the "major inspection-10 yearly" works have been done on the BMU unit and when it's next due. Provide the ad hoc budget cost for any 10-yearly major inspection work on the BMU units. Please provide required info by 3/4/2015. If you need further clarifications please give me a call.
19. The 31 March email attached a document entitled 'BMU Service Maintenance - Scope of Works' (the SOW) and a spreadsheet entitled 'Schedule of BMU Plant & Equipment' (the SOWPE template).
20. The SOW relevantly provided: Planned maintenance and repairs to Building Maintenance Units are a highly specialised area of expertise. The following outcomes based on scope of works (sic) confirms the reliance Investa holds in the provider, our expert suppliers to undertake planned maintenance as described to the required standard at the required frequency… 3. Maintain a register of Major Inspections and critical maintenance activities and alert building operators when these critical activities are to occur… 6. Where faults are identified: that deem the BMU 'not safe for use' that: the BMU is isolated from power and affixed with a 'danger tag' required repair works are identified to the building manager alongside a quote for the repair the maintenance report specifically identifies that the BMU is 'not safe for use' until required repairs are made…
21. The SOWPE template contained the opening words: This equipment schedule or Services Schedule and the attached scope of works form part of the contractual obligation for the Investa Asset Management Pty Ltd Purchase order which references the service contract purchase order ref # above in the special conditions of the included Purchase Order.
22. The SOWPE template required the insertion of information by Mr McCallan in the following fields: Yes/No Equipment Type Standard Frequency Last done Next due Cost estimate 2015 No Major Inspection AS2550.3 & 13 10-yearly

1. Mr King, Mr Vargas and Mr Pallawella were in the TST. The TST was responsible for undertaking projects relating to improving processes used to manage properties in the defendant's portfolio and to run tenders and prepare due diligence information on properties that were to be sold. Mr King was the general manager of the TST and Mr Vargas and Mr Pallawella reported to him. Mr King had trade qualifications as a builder and an electrician. Mr McCallan from time to time at meetings and over the telephone, had discussions with a number of employees of the defendant and in particular Mr Vargas about BMUs at various buildings that demonstrated that those employees had an understanding of the functions performed by a BMU and the maintenance that had to be carried out on them.
2. The 31 March email was drafted by the TST. The SOW was drafted by the TST with input from Shaun Condon, the General Manager of Environment and Safety of the defendant. Mr Hickey had some spare capacity because he was only managing a few buildings at the time and was asked to assist the TST by sending emails attaching SOWs and SOWPE templates to a number of service providers in relation to various plant and equipment.
3. The email group 'DL-Facilities Management NSW' as at 31 March 2015 included the email addresses of Mr O'Neill and Mr Taiyab.
4. The 31 March email was sent out to Mr McCallan at the same time as other Project Dragon sites, notwithstanding that the building was not for sale as part of Project Dragon. The process was later repeated for the remainder of properties managed by the defendant (ie, non-Project Dragon sites) at a later time in an operation known as 'Project SOWPE'.
5. On 2 April 2015 Mr McCallan sent a reply to the 31 March email, to Mr Hickey and Mr Vargas, attaching 12 completed SOWPE templates, including the SOWPE template for the building completed as follows (responses in bold): Yes/No Equipment Type Standard Frequency Last done Next due Cost estimate 2015 No Major Inspection AS2550.3 & 13 10-yearly N/A Now $1,710 + gst

1. On 2 April 2015 both Mr Hickey and Mr Vargas acknowledged receipt of Mr McCallan's reply. Mr Hickey did not look at the content of the template returned by Mr McCallan. It was Mr Vargas' responsibility to save the completed schedule to the K drive on the defendant's computer system.
2. BMUS did not send the completed template to Mr O'Neill or Mr Taiyab. BMUS took no other steps to prompt the defendant to have the major inspection carried out before the incident.
3. On 9 September 2014 BMUS issued a certificate that the BMU was safe for use. The certificate included the words: It is our considered opinion that the BMU described below is safe for use. Provided that the BMU is used and maintained as per the Australian Standard AS2550.13 the WorkCover of NSW Regulations Requirements and the OH&S Regulation 2001.
4. BMUS carried out further services on the BMU on 22 September 2014, 24 February 2015, 18 May 2015 and 19 August 2015. None of the service reports completed after 2 April 2015 referred to the need for the major inspection to be carried out. Mr McCallan did not tell the service technicians who attended the building to service the BMU that he had advised the defendant that the major inspection was due and they did not have any independent knowledge that the major inspection was due.
5. On 19 October 2015, Peter Zirkzee a service technician from BMUS, attended the building, set-up the BMU for use and inducted the window cleaners, Mr Wilson and Mr Castellanos. The window cleaners performed a number of drops. At the end of their day's work, the window cleaners left the BMU on the first floor awning of the building and used a ladder to get to the ground.
6. On 20 October 2015 the window cleaners resumed their work. At about 11.15am when Mr Wilson and Mr Castellanos were cleaning the windows on the twelfth floor of the building, the BMU suddenly fell. The stud in the right hand connection box failed (broke). This caused a sudden weight transfer to the stud in the left hand connection box causing it to fail also. The BMU fell about 25-30m in an uncontrolled manner and hit the first floor awning. Mr Wilson was in the BMU when it hit the awning. Mr Castellanos rolled out of the BMU and went over the awning. He was hanging by his safety harness, face down and unconscious. Both workers sustained serious injuries and required hospitalisation.
7. On 11 December 2015 the BMU was inspected by Dr Robert Casey, a mechanical engineering consultant retained by the prosecutor.
8. Dr Casey examined the right hand stud concluding that it had failed as a result of fatigue. Fatigue is a stepwise crack propagation caused by bending of metal. Each time the metal is bent the crack progresses further until the material that remains cannot support the applied load causing an overload failure. Each time the crack progresses a striation is left on the surface of the metal. The right hand stud demonstrated signs of fatigue on both sides that were opposite one another, indicating the stud had been bent one way and then the other (bi-directional bending). The alignment of the upper housing indicated that the stud had bent in a line that was front to back of the cradle. The failed surface had a narrow line of material, about 1mm to 1.5mm wide that had failed in overload. The crack propagated at each side of the stud over time, nearly meeting in the middle, leaving only a thin band of material to support the weight of the right hand side of the cradle causing an overload failure of the right hand stud.
9. Dr Casey examined the left hand stud and concluded that it also showed signs of fatigue but to a lesser extent. The fatigue was demonstrated on about 30% of the fracture surface and had commenced only on one side of the stud. The alignment of the start of the fracture in the left hand stud was different to the right hand stud. The remainder of the fracture surface was consistent with failure in overload. It had a helical or spiral appearance that was consistent with objects that fall with a combined action of tension and twisting.
10. Dr Casey could not observe any sign of defects in the composition of the metal in either stud.

The elements of the offence

1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and prove it beyond reasonable doubt.
2. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
3. The elements of the section 19 offence are:
4. Element 1 The defendant was conducting a business or undertaking;
5. Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; 1. workers engaged by it or workers whose activities are influenced or directed by the defendant;
6. (ii) while the workers were at work in the business or undertaking;
7. Element 3 The defendant failed to comply with its health and safety duty; and
8. Element 4 The failure exposed an individual to a risk of death or serious injury.
9. The elements of the section 20 offence are:
10. Element 1 The defendant was conducting a business or undertaking involving the management and control of a workplace.
11. Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable that the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person;
12. Element 3 The defendant failed to comply with its health and safety duty; and
13. Element 4 The failure exposed an individual to a risk of death or serious injury.

The relevant law

1. The offences are strict liability offences: section 12A of the Act.
2. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.
3. A duty provided for by the Act is not transferable: section 14 of the Act. More than one person can concurrently have the same duty and each duty holder must comply with that duty to the standard required: section 16 of the Act.
4. The content of the duty is set out in section 19 of the Act, which relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: … (b) the provision of safe plant and structures, and (d) the safe use, handling and storage of plant, structures and substances, and …
5. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.
6. The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
7. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.
8. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].
9. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55 [3]-[6].
10. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it, or minimise it.
11. "Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
12. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity, and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
13. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
14. The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.
15. The section 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68].
16. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
17. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
18. The use of a contractor with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. Where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor's area of expertise, it would not ordinarily be practicable for it to do more, provided that the task undertaken reasonably appeared to have been carefully and safely performed by the contractor: Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998).
19. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
20. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
21. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
22. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
23. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.
24. Section 244(1) of the Act provides: (1) For the purposes of this Act, any conduct engaged in or on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.
25. Section 244(1) is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38 per Lockhart J, and applied by the High Court in Houghton v Arms (2006) 225 CLR 553 at [37]-[38].. The words 'engage in conduct' are defined to include an omission: section 4 of the Act.
26. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
27. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378.
28. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

consideration

1. The particulars of the breach of duty are identical and the issues on causation are the same for each offence. I will deal first with the section 32 offence alleging a breach of section 19(1) of the Act and then, if necessary, the offence alleging a breach of section 20 of the Act.

Issues of credit relating to the lay witnesses

1. The defendant put the credit of Mr McCallan in issue, submitting that his evidence was unreliable. In my view, Mr McCallan was a witness trying to do his best to tell the truth in difficult circumstances. The incident caused BMUS significant reputational damage and as a result, its business failed. During the investigation process Mr McCallan was asked questions by the investigators with a view to the regulator bringing proceedings against BMUS. Mr McCallan did not appear to me to have the technical knowledge that others in BMUS may have had. The issues on which he was challenged and his answers to questions in cross-examination did not cause me to doubt the veracity of his evidence, notwithstanding in some minor respects it may have been inaccurate. I have generally accepted his evidence unless I have expressly stated otherwise.
2. Jonathon Callaghan the Chief Executive Officer of the Investa Property Group, of which the defendant was a part, was called to give evidence about the answers he provided to a notice issued pursuant to section 155 of the Act. Mr Callaghan gave evidence that the provision of the information by Mr McCallan in the completed SOWPE template did not amount to a notification to the defendant that the major inspection was due because that information was not provided to Mr O'Neill or Mr Taiyab. Mr Condon and Mr O'Neill gave similar evidence, to the effect that they would have expected Mr McCallan to notify Mr O'Neill or Mr Taiyab directly with that information, because BMUS was contractually obliged or otherwise expected to do so. For the reasons set out below, it is apparent that I have rejected the evidence of Mr Callaghan, Mr Condon and Mr O'Neill on this point. Part of my reason for doing so was that I got the impression from their demeanour in the witness box that their evidence was being given to suit the case of the defendant. Mr Callaghan was not convincing and appeared uncomfortable giving evidence. Mr Condon was also not confident in his evidence and was hesitant. Mr O'Neill volunteered extraneous information in his evidence in chief that was not responsive to the question that he was asked and was intended to promote the defendant's interests.
3. I have no hesitation in accepting Mr Zirkzee, Mr Jenson, Mr Heard, Mr King and Mr Taiyab as witnesses of truth.

Element 3 - Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [6] of the Summons?

1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].
2. In order to find Element 3 established I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take one of the steps set out in the particulars of breach in 8-(d) of the Summons and that the step was reasonably practicable.
3. I will now turn to deal with the pleaded particulars of breach.

(a) In accordance with AS 2550.13-1997 and AS 2550.1-2011, arrange for a 10-year major inspection of the BMU, including strip-down inspection and non-destructive testing, to be conducted by a competent person for assessment of suitability for continued safe operation.

(b) Implement the recommendation for a 10-year major inspection of the BMU to be conducted when the defendant was notified by Building Maintenance Unit Service Pty Ltd on or around 2 April 2015 that the inspection was due.

(d) Require that documentary evidence verifying that the BMU had undergone and passed 10-yearly non-destructive testing be produced before permitting the BMU to be operated at the premises.

1. It is convenient to deal with these particulars together.
2. Particulars (a), (b) and (d) relate to the conduct of the major inspection. The requirements of the major inspection are set out in the Australian Standards, and I have already set out that it required NDT of critical components of the BMU. The 2011 Standard required a written report to be furnished upon completion of the major inspection. Examples of those reports were in evidence, relating to the BMUs at 126 Phillip Street.
3. The effect of the particulars was to allege that it was reasonably practicable for the defendant to arrange for a competent person to conduct a major inspection in accordance with the requirements of the Australian Standards and to require documentary evidence that the major inspection had been completed.

The risk

1. The particularised risk in [7] of the Summons was the 'risk to the workers…as a result of falling from height while undertaking work in the BMU'. This was clarified in correspondence between the parties to be the risk that manifested in the incident. In other words, the risk was the risk of the BMU falling from height as a result of the failure of critical components of the BMU, namely the initial failure of the right hand stud due to fatigue and the consequent failure of the left hand stud.

The likelihood of the risk occurring

1. The likelihood of the risk that critical components of the BMU could fail was low to moderate. The risk increased over time. The longer the BMU was overdue for a major inspection, the greater the likelihood of the risk occurring.

The degree of harm

1. The degree of harm that could be suffered if the BMU fell was significant. It included a risk of death to the workers using the BMU and possibly also to persons on the street.

The defendant's knowledge of the risk and the ways of eliminating or minimising the risk

1. The defendant's submissions focussed on what it submitted the defendant actually knew about the risk, in the circumstances that existed in 2015. Less attention was paid to what it reasonably ought to have known, which is an essential component of the definition of 'reasonably practicable' contained in section 18 of the Act.
2. The defendant had actual knowledge of the content of the Australian Standards and the requirements of the major inspection. Mr King gave that evidence and it can also be inferred from the content of the 31 March email, the SOW and the SOWPE template. Further, between about 12 March 2015 and 25 April 2015 the defendant was aware that BMUS was conducting major inspections of the BMUs at 126 Phillip Street, Sydney; a building that was managed by the defendant and where it had its head office.
3. The requirements of a major inspection make it clear that the major inspection is intended to identify defects arising from the use of the BMU that could not be identified by a visual inspection or in the course of a quarterly service. The quarterly and annual inspections specified in the Australian Standards, did not require the stripping down of the BMU which would have included the dismantling of the LSD within the connection box to allow visual inspection, replacement or NDT of the studs. The major inspection required the dismantling of the LSD within the connection box.
4. I am satisfied that the defendant knew or ought to have known that the purpose of the major inspection was to identify defects in critical components of a BMU that could cause a catastrophic failure and that conducting a major inspection in accordance with the Australian Standard was a way of eliminating or minimising that risk.

Contractual obligations of BMUS and reliance on it as a specialist contractor

1. The defendant submitted that it relied on the expertise of BMUS as a specialist contractor for all aspects of servicing and maintaining the BMU and that BMUS was contractually obliged to inform the defendant or alternatively that the defendant and BMUS had conducted themselves on the basis of that understanding. I accept that the defendant relied on BMUS as a specialist contractor for servicing, repairing, setting up and packing away the BMU as well as inducting workers on how to use it. The defendant did not have the expertise to do any of those things. I do not accept that BMUS was contractually obliged to inform the defendant of the need for the major inspection or that the defendant was reliant on BMUS to provide that information to it, for the reasons that follow.
2. On 22 April 2010, BMUS entered into an agreement with the former building manager for the provision of quarterly servicing and repairs to the BMU. In that agreement, BMUS was contractually obliged by clause 2 of that agreement to 'report to the owner any items requiring attention'. The agreement was silent on the requirement to inform the owner or building manager of the need for annual or major inspections.
3. On 2 May 2014 BMUS sent a letter to Mr Vargas enclosing an identical agreement to be entered into relating to the maintenance of the BMU at the building. There was no evidence that the agreement was ever signed by the defendant.
4. The defendant's practice when dealing with BMUS before 31 March 2015 was to obtain a quote for any repair work and to issue a purchase order authorising the work described in it for the quoted consideration. On 30 May 2015 the defendant issued a purchase order to BMUS for the quarterly maintenance of the BMU together with a document entitled 'Building Maintenance Unit Service P/L 20 Bridge Street Sydney - Scope of Works for BMU Service'. The relevant terms and conditions of the purchase order provided: 1.2 The Work Order constitutes an offer by Investa to purchase the Goods and/or Services and/or execution of the Works from the Supplier subject to these terms and conditions. If there is any inconsistency between these terms and conditions and any other terms and conditions, the terms and conditions contained in this Work Order will, subject to clause 1.3, prevail. The terms and conditions contained in this Work Order will form the Contract between Investa and the Supplier. 1.3 Notwithstanding clause 1.2, if Investa and the Supplier have separately agreed in writing to other Investa's terms and conditions applying prior to the delivery of this Work Order, in which case those Investa's terms and conditions will prevail over these terms and conditions to the extent of any inconsistency. 1.4 The Supplier is deemed to have accepted the terms and conditions of this Work Order if the Supplier notifies Investa of its acceptance or if the Supplier performs any part of the Contract. 1.5 Where the Supplier issues an invoice or any other documentation which contains terms and conditions other than terms and conditions contained in this Work Order, the Supplier issued terms and conditions will not be of any effect unless both parties accept the Supplier terms and conditions.
5. The Scope of Works document was a modified version of the BMUS agreement sent to the defendant in May 2015. The relevant clauses provided: BMUS shall once every three (3) months attend and undertake the service functions listed in the attached Standard Service Schedule. BMUS shall report to the Owner any items requiring attention ensuring any discrepancies are noted on the Standard Service Schedule as well as documented on the service docket as a recommended repair. BMUS, at the Owner's request, and at the Owner's cost shall undertake any work resulting from the inspections other than that included in the normal service.
6. On one occasion in cross-examination, Mr McCallan accepted that it was part of BMUS's obligations to notify the defendant when a major inspection was due. This contradicted his earlier evidence in cross-examination that BMUS did not maintain a register of major inspections and had incomplete records for the BMU from which to discern when a major inspection would have been due. When asked if the BMU was due for a major inspection in the 31 March email, Mr McCallan examined the records of BMUS and noted that a major inspection had not been carried out in the 10 year period between 2005 and 2015 during which BMUS had been servicing the BMU. I do not accept Mr McCallan's evidence that BMUS was obliged to inform the defendant of the major inspection or that it had a practice of doing so. Further, the terms of the contract between the defendant and BMUS provided only for the regular quarterly servicing of the BMU and did not oblige BMUS to inform the defendant that a major inspection was due.
7. The SOW that accompanied the 31 March email could not be incorporated into the contractual obligations of BMUS in the agreement that already existed between them. The terms of the SOW were capable of being incorporated into future agreements between BMUS and the defendant, but the extent of the resulting contractual obligations is unclear, because the correspondence from the defendant was no more than an offer which was open for acceptance or counteroffer and the terms of the SOW were ambiguous. The SOW used the terms 'Investa', 'building operators', 'building manager' and 'builder manager' (which I interpolate is an erroneous reference to building manager) when referring to the defendant or its employees. Objectively, I would interpret 'Investa' as a reference to the defendant, 'building manager' as a reference to a Facilities Manager (such as Mr Taiyab) and 'building operators' as a reference to either the defendant or the Facilities Management (such as Mr O'Neill and/or Mr Taiyab). On the terms of the SOW, it was reasonable for Mr McCallan to have understood that his reply to the 31 March email to Mr Hickey and Mr Vargas to the effect that the major inspection was due 'Now' was sufficient compliance with any obligation arising from the SOW.
8. Even if BMUS was contractually obliged to notify Mr O'Neill and/or Mr Taiyab of the need for the major inspection, the defendant could not rely on that obligation to discharge it of the duties it owed under the Act.
9. Whilst it was necessary for the defendant to rely on BMUS for its technical expertise in servicing and maintaining the BMU, such expertise was unnecessary to determine if the BMU had undergone a major inspection. This case can be distinguished from the independent contractor cases referred to in [64] above, on that basis.
10. The manufacturer of the BMU was identified on the compliance plate attached to the BMU. The defendant could have made enquiries of the manufacturer as to the age of the BMU and whether the manufacturer had service records relating to it. When the defendant asked BMUS if a major inspection had been undertaken, it was informed that it was due.

The defendant's knowledge of the need for a major inspection of the BMU

1. The defendant submitted that it was not reasonably practicable for it to have been notified that the BMU was due for a major inspection by the return of the completed SOWPE template by Mr McCallan to Mr Vargas, because: 1. the defendant had in place a robust safety system with in-built fail safes relating to the BMU; 2. it was not reasonably foreseeable that the defendant would be notified of the need for a major inspection in that way because the process was undertaken as a procurement exercise; and 3. BMUS by its conduct between 2 April 2015 and 20 October 2015 induced the defendant into the belief that the BMUS was safe to use.
2. BMUS provided service reports to the defendant each time it attended the building to inspect, repair, set-up, induct workers and pack away the BMU. Any required repairs to the BMU were noted on the service report and a copy was given to the Facilities Manager and the office of BMUS. This was done to ensure that the required repairs were quoted for, approved and undertaken. BMUS did not raise in any of the service reports that the major inspection was required or that the BMU was not safe to use. The service reports were filed by the defendant on its computer system. The content of the service reports was also the topic of discussions on several occasions between Mr Taiyab and Mr McCallan or the service technicians from BMUS.
3. The defendant operated a computer based safety system known as 'SASSI'. The system required a contractor to electronically sign into the premises and to fill out details of the work they were doing and the Safe Work Method Statement (SWMS) they were using. In addition, to use or test the BMU, workers were required to be granted a Working at Heights Permit (WAHP). The issue of a WAHP required the completion of a form by the contractor and the verification of its content by Mr Taiyab. The WAHP identified the SWMS that the workers were using and verified that they had been trained in the relevant system of work.
4. At the completion of the work the contractors were required to electronically sign out. The system provided the opportunity for contractors to report anything unusual or safety related that came to their attention during the course of being on site at the building.
5. Mr McCallan did not tell any of the service technicians of BMUS that he had advised Mr Vargas on 2 April 2015 that the BMU was due for a major inspection. The service technicians attended to work involving the BMU on a number of occasions between 2 April 2015 and 20 October 2015.
6. BMUS supplied annual certificates that the BMU was safe for use which were used to register the BMU with the regulator, including one dated 9 September 2014. However, the certificate was clear on its face that it was subject to the proviso that the BMU had been maintained in accordance with the Australian Standard AS2550.13. The BMU had not been so maintained because it had not undergone a major inspection 10 years after the date on which it had been commissioned.
7. The system employed by the defendant to ensure the safe use of the BMU, whilst comprehensive, did not adequately deal with the need to perform major inspections. When the defendant did ask BMUS if a major inspection was due, the information received by it was not acted on.
8. I am satisfied that each of the defendant's employees involved in the process of requesting information about the BMU on 31 March 2015 and receiving the reply on 2 April 2015 were acting within the actual scope of their authority. There was no argument put to the contrary. It follows that the conduct of the employees was conduct of the defendant by operation of section 244(1) of the Act.
9. The evidence was that the process of requesting the information in Project Dragon included the input of the Facilities Managers and Senior Facilities Managers and that this had been discussed with and approved by Mr King's superiors. The 31 March email provided a clear and unambiguous request to '[P]rovide the date when the "major inspection-10 yearly" works have been done on the BMU unit and when it's next due'. Irrespective of the procurement purpose, the request was for important safety related information concerning the BMU. The request for that information was the conduct of the defendant.
10. The answers to those questions were provided by Mr McCallan in the completed SOWPE template as set out in [32] above. Mr McCallan's reply was clear and unambiguous that the major inspection was due 'Now'. The receipt of that information by Mr Hickey and Mr Vargas was the conduct of the defendant. Both Mr Hickey and Mr Vargas had the opportunity to examine the answers provided by Mr McCallan.
11. Mr Hickey gave evidence that he did not look at the completed SOWPE template, because he was not required to and that his involvement was to send emails to a number of parties when he had the time to do so.
12. Mr Vargas was charged with the task of saving the completed SOWPE template to the K drive of the defendant's computer system to create the record required and achieve the purpose of requesting the information. The evidence was that Mr Vargas had a number of dealings with Mr McCallan and with BMUS generally in relation to a number of BMUs. Mr Vargas was not called to give evidence. I am not permitted to speculate about what Mr Vargas may have said if he had been called to give evidence. I am permitted to make findings of fact if they are otherwise available on the evidence, but I am also required to consider if, in the circumstances, I should entertain a reasonable doubt about the defendant's guilt, by reason of the prosecution's failure to call Mr Vargas: Mahmood v Western Australia (2008) 232 CLR 397 at [27].
13. It was a simple matter for Mr Vargas to inform Mr O'Neill or Mr Taiyab of the need for the BMU to undergo the major inspection. It was important safety information that Mr O'Neill expected would have been passed on. The information could have been simply and swiftly provided by email. Mr Vargas' omission to pass on the information to Mr O'Neill or Mr Taiyab was conduct of the defendant.
14. Mr King gave evidence that the process designed by him and approved by his superiors to collect the information in the SOWPE template, envisaged the involvement of the Facilities Managers and/or the Senior Facilities Managers to liaise with the service provider to collect the information required to populate the template. Mr King's evidence was that this requirement had been notified to the Facilities Managers in a series of forums at which he spoke to them. That aspect of the process was important because it incorporated the knowledge of the Facilities Managers into the process, who were the employees of the defendant with actual knowledge of the present cost of the services that were being quoted for. In other words, the input of the Facilities Managers was necessary to ensure that the quotation being provided for future services was accurate and, for example, did not involve a unilateral price hike by the supplier, before the information collected was stored in the defendant's computer system. The implementation of the system to involve the Facilities Managers in the process of collection of the information and the failure of the system to achieve that aim was conduct of Mr King, the TST and also conduct of the defendant.
15. The evidence of Mr O'Neill and Mr Taiyab was that they did not involve themselves in the process because they did not know they had to. However, they had been sent the 31 March email in which Mr Hickey had asked BMUS when the next major inspection for the BMU was due. The email sought important safety information about the BMU that they were responsible for. It would have been a simple matter for either Mr O'Neill or Mr Taiyab to find out the content of Mr McCallan's reply from Mr Hickey, Mr Vargas or Mr McCallan. The omission by Mr O'Neill or Mr Taiyab to do so was conduct of the defendant.
16. I am satisfied that it was reasonably foreseeable that the defendant would be informed of the need for a 10 year inspection by the return of the completed SOWPE template. The template asked the question when was the major inspection 'Next Due'? It was reasonably foreseeable that a possible and necessary response to that question was that it was due immediately. It followed that the defendant would be on notice of the requirement for a major inspection to be done and that information would need to be dealt with. The defendant's system to deal with that information failed to operate to pass it onto Mr O'Neill and/or Mr Taiyab.
17. I am satisfied that the defendant knew by the receipt of the completed SOWPE template on 2 April 2015 that the BMU was due for a major inspection. If I am wrong on this conclusion, I am satisfied that the defendant ought to have known by the receipt of the completed SOWPE template on 2 April 2015 that the BMU was due for a major inspection.

The availability and suitability of ways to eliminate or minimise the risk

1. The Australian Standard provided for the requirements of the major inspection to be undertaken by a competent person as a way to deal with the risk arising from such defects. There were a number of recognised firms that could carry out a major inspection, including BMUS, BMUA and E W Cox. The evidence was that BMUS used a suitably qualified subcontractor to carry out the major inspections of the BMUs at 126 Phillip Street. BMUS was the incumbent service provider for the BMU and it is likely that had the defendant arranged a major inspection of the BMU that it would have asked BMUS to do it.

Was the cost involved disproportionate to the risk?

1. I have already referred to the extent of the risk and the simplicity of the available ways to eliminate or minimise the risk and I will not repeat those matters. The cost associated with arranging for the BMU to undergo a major inspection was not grossly disproportionate to the risk.
2. There was no cost to the defendant associated with the arrangement of the major inspection of the BMU. That was an integral part of the service provided by the defendant as the building manager. The cost of the major inspection itself would have been borne by the owner of the building. It was also part of the service provided by the defendant to obtain competitive quotes for that type of work from reputable service providers.

(c) Refuse to permit the BMU being operated at the premises until the 10-year major inspection, including non-destructive testing was completed.

1. Particular (c) required the 'tagging out' of the BMU until the major inspection had been completed.
2. For the reasons expressed, which I will not repeat, I am satisfied that the defendant knew or ought to have known that the BMU was due for a major inspection and to continue to use it without having the major inspection completed involved a risk of the failure of critical components of the BMU that could cause a catastrophic failure of it.
3. The pleaded particular was a way of eliminating the risk.
4. If it was necessary to take the BMU out of service until the major inspection was completed, this would not have caused any inconvenience to the defendant or the building owner, apart from delaying the window cleaning until the BMU had undergone a major inspection.

Conclusion on Element 3

1. I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to have taken each of the steps particularised in [8(a)-(d)] of the Summons and that the defendant breached the health and safety duty owed by it pursuant to section 19(1) of the Act.
2. I am satisfied beyond reasonable doubt that the prosecution has proved Element 3.

Element 4 - Did the defendant's breach of duty expose Mr Wilson and Mr Castellanos to a risk of death or serious injury?

1. The relevant principles to be applied were not in dispute and are set out at [72]-[74] above.
2. The prosecution contended that the defendant's failure to have a major inspection conducted on the BMU was a substantial or significant cause of Mr Wilson and Mr Castellanos using the BMU on 20 October 2015 when there was a risk that critical components of the BMU could fail. The risk came home when the right hand stud failed causing the BMU to fall approximately 12 storeys. The prosecution accepted that if the defendant had arranged a major inspection to be conducted by a competent person in the period of 2 April 2015 to 20 October 2015, the defendant would not be guilty of an offence.
3. The defendant contended that the pleaded measures had to have some impact on the risk. If a measure had no impact on a risk then the failure to implement that measure could not be said to expose a worker to a risk of death or serious injury. The defendant submitted that the prosecutor was required to prove that a major inspection would have eliminated or minimised the risk of the studs failing. The argument continued that the defendant would have engaged BMUS to conduct the major inspection and on the basis of the evidence of the price quoted for the major inspection and the prior practices of BMUS that the major inspection would have been performed inadequately, without subjecting the studs to NDT. Further, the defendant relied on the evidence of an expert Mr Kirszman to the effect that if a major inspection was performed in the period 2 April 2015 to 20 October 2015 (the period) that the fatigue present in the studs may not have been detectable because it was possible that the fatigue was caused by misuse of the BMU in the period.
4. There are two issues arising from the parties' submissions on causation which I will deal with in turn.

Does the determination of causation involve an analysis of what would have occurred if a major inspection had been carried out?

1. I would answer this question in the negative for the reasons that follow.
2. It is not necessary that there be an accident or that a person is injured, and a distinction must be drawn between the specific risk that manifested in the accident and the general class of risk that the analysis must focus on. Risk is the mere possibility of danger and not necessarily actual danger.
3. In this case, the workers were using a BMU that had not been subjected to a major inspection for defects that could not ordinarily be discovered by quarterly servicing and annual inspections.
4. The BMU was intended to be used at height as a safe means of the workers accessing the façade of the building. It was suspended from the building at varying heights, by a series of critical components.
5. A major inspection was intended to determine if the critical components of the BMU were damaged by visual inspection and if necessary by NDT. NDT would not have been necessary if damage to a critical component was identified on a visual inspection or if the critical component was replaced with a new part as a precautionary alternative.
6. In the absence of a major inspection, there was a risk of a latent defect existing in a critical component of the BMU. The use of the BMU by the workers with that possibility of danger existing was sufficient to satisfy this element of the offence, without the catastrophic failure of the BMU and the injuries to the workers actually occurring.
7. The workers were proximate to the risk by using the BMU and it did not matter how the risk came home.
8. Further, if the defendant had arranged for the BMU to undergo a major inspection by a competent person and/or prevented its use until the major inspection was complete, it could have done no more. Those were the only matters that were within the defendant's power to control, supervise or manage. The arrangement of and submission of the BMU to a major inspection by the defendant would have minimised the risk in so far as was reasonably practicable.
9. I am satisfied beyond reasonable doubt that the defendant's failures were a substantial and significant cause of Mr Wilson and Mr Castellanos being exposed to a risk of serious injury or death.

What was the cause of the failure of the right hand stud and when could it have been noticed?

1. If I am wrong on the conclusion in [140] based on [132]-[139], it is necessary to deal with the defendant's argument, summarised in the question posed in the heading to this section. This largely involves the resolution of the areas of disagreement between Dr Casey, the prosecution's expert, and Mr Kirszman, the defendant's expert. The effect of the defendant's argument is that the prosecution is required to prove beyond reasonable doubt that the incident involving Mr Wilson and Mr Castellanos was caused by the defendant's breach of duty.
2. Whilst for the reasons given, it is wrong in law in my view to consider this argument in determining the guilt of the defendant, it will ultimately determine if the aggravating factor provided for by section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999 is established should that become relevant and the matter has been fully argued, so it is therefore convenient to resolve the argument.
3. But before turning to that, it is necessary to make some other findings of fact, on the premise that I have applied an incorrect test. If the defendant had arranged for the major inspection of the BMU it would have engaged BMUS to do it. BMUS would have engaged a specialist contractor as the competent person to perform the inspection as it did for the BMUs at 126 Phillip Street. The quoted price of $1,710 plus GST covered the cost of the inspection, but not any of the required repairs or NDT, which would have been quoted separately. The NDT would have to have been done by an appropriately qualified specialist contractor. BMUS would have provided a written report of the major inspection as it did for the BMUs at 126 Phillip Street. The connection box would have been dismantled by BMUS in the course of the major inspection or sent to BMUA to do so. The studs would have been visually examined, and if there were signs of fatigue the studs would have been replaced at a cost of $1,000. BMUS would have offered to arrange to have the critical components of the BMU examined by NDT, at a further cost, noting that NDT was required by the Australian Standard, as it did in the reports relating to the major inspections of the BMUs at 126 Phillip Street.
4. The question of whether the signs of fatigue would have been visible or detected at a major inspection depends on the resolution of the issues on which the experts did not agree.

The evidence of Dr Casey

1. Dr Casey is a mechanical engineering consultant. He attained a Bachelor of Engineering in mechanical engineering in 1984 and a Masters of Engineering Science in 1987. He attained a Doctor of Philosophy in 1991 in that field. He worked in the industry for about three years, but has mostly been an academic and has operated his own business in forensic investigation of mechanical engineering issues. Dr Casey has extensive experience in testing failed components of mechanical devices to determine the reason for their failure.
2. Dr Casey had travelled in a BMU on about six occasions for the purpose of investigating incidents relating to them. Dr Casey had not travelled in the BMU.
3. Dr Casey's opinion was that the fatigue in the right hand stud was caused by bi-directional bending of it under tensile load. Dr Casey opined that the cradle rocked in a back to front motion as a result of the transfer of weight in the cradle by the workers moving towards the building and away from the building when they were standing and working in the cradle. This movement caused the stud to bend back and forth and crack in each direction over time, when the cradle was suspended from the steel cable. The alignment of the fatigue observed by Dr Casey was consistent with this opinion, in that he observed marks on the fracture surface indicating that the first signs of fatigue were about 12 o'clock and 6 o'clock, assuming that 12 o'clock was the point of the stud closest to the façade of the building. This was also supported by the narrow line of material on the right hand stud running from about 3 o'clock to 9 o'clock.
4. The rocking movement of the cradle was required to produce the bi-directional bending, because for a crack to propagate, sideways tension is usually required. The rocking of the cradle caused the upper housing to tilt, creating a small angle. The force through the steel cable could only pull vertically upwards and thereby a sideways force was exerted on the stud by the upwards force being applied through the small tilt of the upper housing. It was this sideways force that caused the bi-directional bending of the stud resulting in fatigue and then cracking of the right hand stud.
5. Dr Casey gave evidence that this opinion was supported by the laws of physics. The BMU was supported by one point on either side of the cradle in the balance point of the cradle. Where the cradle was supported by one connection point on either side, if the weight shifted in the cradle to the front or the back, the cradle would have to rock to adjust for the movement. Dr Casey described this as an application of Newton's second law of physics. The movements could be small and the rocking motion would not necessarily be apparent to a person travelling in the BMU. In addition the fact that the stud passed through two horizontal planes at the point of connection to the cradle would have created a leverage effect amplifying the forces in the backwards and forwards direction.
6. Dr Casey observed under magnification a large number of striations on the fracture surface of the right hand stud. This was consistent with the progress of the crack over time, in that each time the crack progresses a striation is left on the surface of the metal. There were a large number (tens or hundreds of thousands) of tightly packed marks on the surface of the fracture, consistent with the bending and crack progression process occurring on a large number of occasions.
7. The appearance of the fatigue on the left hand stud was different in appearance to the fatigue on the right hand stud, but there were some similarities. The similarities were that the crescent shaped fatigue on the left hand bolt appeared in the area of about 11 o'clock to 5 o'clock.
8. The fatigue on the left hand stud followed the thread more closely, which is a common and expected occurrence. The crack follows the thread because there is less metal in the area where the groove has been cut out and this is a point where there is increased stress on a component. Dr Casey explained that fatigue and overload fracturing is stochastic, meaning that the process is to some extent random and each fracture is unique, like a fingerprint. In Dr Casey's experience of testing thousands of bolts to destruction, no two fracture patterns would be identical. The differences could also be explained by differing weights in each cradle, for example if one worker was heavier than the other. Another explanation for the differences between the two bolts is the alignment of the thread inside the housings. For example if the valley of the thread lined up with the horizontal plane where the housings met, that could raise the possibility of stress on the stud at that point, and vice versa if the crest of the thread lined up at that point, it would be less likely to fatigue.
9. Dr Casey opined that if the studs had been inspected that the fatigue cracking would have been evident for a number of years before the incident. Fatigue cracks are first noticeable on the outside surface of a component that is bent because the bending produces the highest stress on the object's periphery and that is the first area to crack. Cracks then propagate inwards towards the component's centre. Initially the cracks would have been small and only detectable under magnification. Over the years as the right hand stud was in service the cracks in it proceeded to occupy most of the cross-section of the stud. At that time the cracks would have been much larger and able to be detected with the naked eye. Dr Casey opined that assuming the BMU was commissioned in 2000 that by about 2005, or one third of its total time in service, the cracks would have been easily detectable. It followed that the cracks would have been easily detectable in the 18 month period prior to the incident. Dr Casey opined that the cracks on the left hand stud may have also been detectable. Dr Casey opined that the crack in the right hand stud would have been detectable in the 18 month period prior to the incident by visual inspection alone, but also by NDT.
10. Dr Casey accepted in cross-examination that the cradle of the BMU would swing in and out like a pendulum, but that did not affect his evidence that there would have been also a rocking movement in the BMU. The crucial point being that there was only one connection point of the steel cable to the BMU. Dr Casey had experienced the rocking motion of the cradle in one of the six BMUs he had travelled in. Dr Casey gave evidence that his opinion was based on the law of physics and only to a very minor extent his experience of travelling in a BMU.
11. In cross-examination, Dr Casey was asked to assume that a non-routine event, such as a collision between the BMU and the façade of the building, was the source of the fatigue in the right hand bolt. Dr Casey pointed out that the fatigue started on both sides of the bolt so the non-routine event had to cause bi-directional bending and that whatever forces were applied to the stud after that time propagated a fracture pattern and that was consistent with further bi-directional bending. Even if a non-routine event was the source of the fatigue, further substantial bi-directional bending was required to continue and propagate the cracks.
12. Dr Casey opined that Mr Kirszman's later examination of the bolts in other BMUs was unhelpful. In order to compare damage between the bolts on different BMUs it would be necessary to know that they were identical, that is, that they were of the same metal composition and thread type, and that the threads were in the same position and of the same length.
13. Dr Casey in cross-examination did not accept that the propagation of the cracks could have been of an exponential nature, based on his observations of the multiple concentric marks on the surface of the fracture site. Dr Casey gave evidence that every time the crack came to a stop, it left a mark. If the propagation of the crack became faster the gaps between those marks would have been bigger than what Dr Casey observed. In this case, the gaps were so tightly packed that it made it extremely hard to differentiate one mark from the other, such that the appearance of the fracture surface did not support the view that the cracks became appreciably faster, but it was possible that the cracking process may have sped up, but not to any significant extent.
14. Dr Casey gave evidence that his estimation of the crack being visible after one third of the service time of the BMU was designed to allow significant margin for error. If his estimation was out by 100% then the crack would have been visible to the naked eye in or about 2010.

The evidence of Mr Kirszman

1. Osvaldo Kirszman is a consulting engineer. He attained a Bachelor of Electro-Mechanical Engineering (Honours) in 1982. He attained a post graduate degree in Occupational Health and Safety (OH&S) in 1988. After graduating from that degree he was appointed to a panel of court-appointed OH&S Experts and thereafter requested to provide reports and to give evidence in relation to health and safety incidents at work places in Argentina.
2. Between 1976 and 1990 Mr Kirszman was employed by manufacturers and installers of lift equipment. Between 1991 and 1996 he was employed as a consulting engineer in Sydney with his duties covering all aspects of lift consultancy. Between 1996 and 1997 he became a partner of a firm as a lift consultant.
3. In September 1997 he founded IntegraLift, a consultant engineering firm specialising in vertical transportation including lifts and BMUs. Currently IntegraLift has 13 employees, 10 of whom are engineering consultants. Five of those employees who are supervised by Mr Kirszman are directly involved with BMUs on a day-to-day basis. IntegraLift is most often asked to inspect BMUs, assess their condition, evaluate the standard of maintenance delivered by other service providers and advise in relation to the installation and upgrade of BMUs. Mr Kirszman's experience includes inspecting BMUs and their components, overseeing and auditing inspections carried out by third party BMU service providers, advising clients on installation and upgrades of BMUs, assessing and advising on repairs and maintenance, monitoring construction and installation of BMUs, preparing maintenance programs and scopes of work for BMU maintenance and supervising IntegraLift employees in carrying out that work. Mr Kirszman has inspected approximately 150 different BMUs and supervised employees who have inspected approximately another 150 BMUs. BMUs can differ markedly from each other as many units are designed or adapted to suit a particular building. Mr Kirszman's experience included examining broken metal components in lifts and BMUs, on some occasions for the purpose of determining the cause of the breakage. He has examined and researched causes for component failure in approximately 40 to 50 cases involving rigid metal parts. He has considered hundreds of cases of component failure and deterioration of steel hoisting ropes used in lifts and BMUs. Mr Kirszman has had experience of professional dealings with BMUS from about the early 2000s. BMUS had a good reputation within the industry and to Mr Kirszman's observation were servicing about 30% of the BMUs in New South Wales at the time of the incident.
4. Mr Kirszman had travelled in a BMU on hundreds of occasions in the course of his work. Mr Kirszman had not travelled in the BMU.
5. Mr Kirszman's opinion was that the BMU would swing like a pendulum and that whilst a rocking motion was possible, it was a rare occurrence. The normal movement of the BMU would be to swing away from and towards the building in response to the movement of the window cleaners in the cradle. Mr Kirszman opined that the movement of the cradle would be a rotation from the top of the building where the steel cable was attached, in this case from the extendable davit arms that were attached to the monorail. The movement would be at the hitch point at the top of the building and not at the connection point of the upper housing. Mr Kirszman opined that the cradle would not rock unless there was some "inappropriate" movement in the cradle. It would be uncomfortable for the operators if the cradle was to rock. The swinging motion of the BMU was consistent with Mr Kirszman's experience of travelling in many BMUs.
6. Mr Kirszman agreed with Dr Casey about the process of fatigue in the right hand stud and that it had been caused by bi-directional bending. He agreed that the pattern of bi-directional bending was in accordance with Dr Casey's evidence.
7. Mr Kirszman did not agree with Dr Casey that the rocking motion of the cradle was the cause of the fatigue in the right hand stud because rocking was not a normal sensation in a BMU and if that was the cause of the fatigue in the right hand stud he would have expected the left hand stud to have been damaged in the same way. Mr Kirszman was also of the view that the regular pendulum swinging action was unlikely to cause fatigue in either of the studs.
8. On that basis, Mr Kirszman opined that the right hand bolt fractured, or the process of fatigue started by a non-routine or unusual event such as the collision of the BMU with the building. Mr Kirszman described a number of setbacks and voids in the façade of the building that were potential places where a collision could have occurred. That collision could have involved the cradle or one of the winches hitting a ledge that extended outwards from the façade of the building. Mr Kirszman opined that such a collision could have initiated the fatigue process. Once that damage had occurred the cracking of the stud would proceed inwards in the direction from the initial point of the damage towards the centre of the stud.
9. Mr Kirszman opined that it was reasonably possible that an unreported high stress event occurred in one of the previous uses of the BMU. Mr Kirszman did not believe that all of the damage was caused in October 2015 but it was possible that it occurred in one of the previous uses of the BMU. Mr Kirszman identified on the left hand stud that the fatigue damage commenced at about 2 o'clock. He relied on that as proof to demonstrate that the rocking motion of the cradle alleged by Dr Casey was not affecting the studs.
10. In cross-examination Mr Kirszman gave evidence that if the cradle had collided with the façade that was likely to cause bending in one direction but not bi-directional bending. In the event of a collision between the cradle and the building Mr Kirszman could not say how long before the incident that may have occurred. He accepted it could be more or less than six months but he was unable to say one way or the other. Mr Kirszman did not agree that the collision between the cradle and the building would necessarily result in any damage to either the BMU or the building.
11. Mr Kirszman opined that if the fatigue was initiated through a non-routine event this would have resulted in a weakening of the stud that could have progressed through the ordinary operation of the BMU.
12. After the incident, Mr Kirszman's firm were asked to inspect a number of units manufactured by BMUA with particular focus on the close inspection of the studs and replacement of them. Mr Kirszman's observations of those components was that there was no fatigue damage evident.
13. Mr Kirszman agreed with Dr Casey that he would expect randomness in the fatigue pattern of the two different studs but would expect the differences to be less significant. Of the BMUs inspected after the incident three or four had one connection point into the cradle. Mr Kirszman could not be certain about the material of the other studs that he examined but thought they were approximately the same size in diameter. He was unaware of their metallic composition.
14. Mr Kirszman thought that the damage evident in the right stud could have occurred over a period of three to four days. His opinion was that there was progression in damage that would take some time to develop which would initially be slow and then much faster at the end.

Consideration

1. The experts called had different areas of expertise. Mr Kirszman was an expert in the operation, repair, design and installation of BMUs. Dr Casey was an expert in forensic mechanical engineering and the investigation of the failure of mechanical components. There were large areas of agreement between them and for the most part Mr Kirszman accepted the opinion of Dr Casey on the cause of the fatigue and the propagation of the cracking.
2. Dr Casey was a very impressive witness and was undoubtedly trying to do his best to assist the Court. He was articulate and demonstrated concepts using simple props and examples to convey his evidence in a manner that could be easily understood. I formed the impression that Dr Casey was in command of the concepts that he gave opinion evidence about. His conclusions were drawn from a number of identifiable facts and inferences and he took into account and could explain the matters that were adverse to his opinion. In cross-examination he made appropriate concessions.
3. Mr Kirszman was a good witness who I accept was doing his best to assist the Court as an expert. I formed the impression that he was out of his depth on some of the issues relating to fatigue and the cracking process, that were clearly within the expertise of Dr Casey. In the end, his particular expertise was of considerably less utility in determining the issues between the experts.
4. I accept Dr Casey's evidence that the fatigue to the right hand stud was caused by the bi-directional bending of it by the cradle rocking back and forth towards the building. This opinion was supported by the pattern of the fatigue and cracking on the right hand stud and the laws of physics. Mr Kirszman did not exclude the possibility that the cradle could have a rocking motion, but said that it would be unusual. His evidence did not deal with Dr Casey's opinion that the laws of physics required the cradle to rock and that the forces applied could have been small so as to be undetectable if you were travelling in a BMU. In his view, the BMU would have swung like a pendulum, but in my view the rocking motion described by Dr Casey and the swinging motion described by Mr Kirszman were not mutually exclusive and Dr Casey accepted that to be correct.
5. Dr Casey's opinion as to the rocking of the cradle was also supported by the evidence of Mark Fawcett, a lay witness whose evidence was not raised when the experts gave evidence. His statement was tendered and he was not required for cross-examination. Mr Fawcett was employed by BMUA between about 1989 and 2015, first as a leading hand and then as a foreman. Mr Fawcett was involved with the manufacture of the BMU for the building. Mr Fawcett had been in the BMU many times. In his statement, Mr Fawcett stated: 15. At the time of the incident, the pick-up components of the BMU snapped and the internal bolts broke. The pick-up components of the BMU were 24 or 34mm solid steel round bars which contained the bolts. The company had made the bolts so that they were very similar to the shafts used for BMU cradles that weigh 2.5 tonnes. While in operation for window cleaning, the BMU would have wobbled on the side of the building like most other BMUs. That is, the BMU would have rocked in a backward and forward motion, depending on the movement of the window cleaners and the…speed and direction of the wind. 40. When the workers were in the cradle of the BMU at 20 Bridge Street, they were about 500mm from the façade of the building. So they did not lean out of the cradle to clean the windows. (sic) Workers might have moved a little as they cleaned the windows. The BMU pivoted from the top. The ropes attached to the main frame of the BMU pivoted around via a snap hook, so the BMU swung from the top, not the winch. The ropes attached to the BMU moved sideways. 41. When the BMU was situated at the top of the building being readied to move around one of the corners, the rocking of the cradle would be most evident at that time. This included movement or bending of the pick-up components, because the ropes of the BMU were not out when the BMU was close to the top of the building. Rocking would help get the BMU around a corner. The BMU would always rock or sway a bit.
6. I am satisfied beyond reasonable doubt that the fatigue in the right hand stud was caused by the bi-directional bending of the stud resulting from the cradle rocking backwards and forwards during the operation of the BMU.
7. The different fatigue pattern present on the left hand stud does not cause me a reasonable doubt about that conclusion because it can be explained by the stochastic nature of fractures, the uneven distribution of weight in the two cradles and/or the relative positioning of the thread of each stud in the upper housings.
8. The pattern of closely packed striations on the fracture surface of the right hand stud is consistent with the bi-directional forces being applied to it over a period of time. I accept Dr Casey's evidence and I am satisfied beyond reasonable doubt that the cracking of the right hand stud would have been observable by the naked eye in the 18 months prior to the incident.
9. I accept that it was possible that the fatigue process started as a result of a non-routine event such as a collision between the BMU and a ledge of the building. However, there is no evidence that there was such a collision in the period close to the incident or earlier. Whilst it could be speculated that the operators of a BMU may not wish to report a non-routine event such as a collision, it is equally likely that they may do so out of concern for their future safe use of the BMU or because they were prompted to do so by the defendant's 'SASSI' system. These speculative possibilities do not cause me to have a reasonable doubt about the opinion expressed by Dr Casey on this point.
10. I also accept the evidence of Mr McCallan, Mr Jenson and Mr Fawcett that it would have been prudent to replace the studs at a major inspection without subjecting them to NDT and irrespective of their condition.
11. For these reasons I am satisfied beyond reasonable doubt that had a major inspection have been carried out in the period, that the fatigue and cracking in the right hand bolt would have been visible to the naked eye and that the studs would have been replaced with a new part, irrespective of their condition and without subjecting them to NDT.

Conclusion on Element 4

1. I am satisfied beyond reasonable doubt that there was a causal relationship between the defendant's failures and the pleaded risk to which Mr Wilson and Mr Castellanos were exposed.
2. I am satisfied beyond reasonable doubt that the prosecution has established Element 4.

Conclusion

1. The elements of the section 32 offence by the defendant's breach of section 19(1) of the Act have been proved beyond reasonable doubt.
2. I find the defendant guilty of that offence.
3. It is unnecessary to make any findings as to the section 32 offence alleging a breach of section 20 of the Act because it was an alternative charge.
4. I will list the matter for a sentence hearing at a date convenient to the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2019