SafeWork NSW v K & R Fabrications

The Relevant Law

1. The objects clause in s 3 of the Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by: (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."
2. The offence is one of strict liability: s 12A of the Act.
3. The content of the duty is set out in s 19 of the Act that 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. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of 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: (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
4. The meaning of "worker" is dealt with by s 7(1) of the Act which provides: "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: (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) …"
5. Section 16 of the Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person: (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
6. Section 17 of the Act deals with management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
7. The word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury - s 32(c).
8. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course 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.
9. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
10. "Reasonably practicable" is defined in s 18 of the Act which provides: "In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including: (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
11. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
12. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (Slivak) at [37] per Gleeson CJ, Gummow and Hayne JJ.
13. The s 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].
14. 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.
15. The words "reasonably practicable" indicate that the duty does not require a defendant 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 employer 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 Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
16. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
17. A defendant must have regard not only for the ideal worker but for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
18. The prosecution must prove that 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].
19. 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] HCA 27; (1991) 172 CLR 378.
20. 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 death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga Underground at [130].
21. Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in 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."

The Amended Summons

1. The first page of the Amended Summons particularises the date of the offence as 23 January 2016 and the place of the offence as 1 Maldon Bridge Road at Maldon NSW. Paragraphs 18-21 of annexure "A" are as follows: "Particulars of the risk to the workers (18) The risk was the risk of workers, in particular Mr Garbutt, Mr Hogan and/or Mr Conkey, when working in proximity to heavy machinery, in particular, the Symetro Gearbox, suffering serious injury or death as a result of being struck and/or crushed by the unexpected movement of the machinery and/or parts thereof, in particular unrestrained and/or unsupported parts of the machinery that may move and/or become dislodged and/or fall, including but not limited to the intermediate bearing housings of the Symetro gearbox. Particulars of the defendant's failure to comply with the duty under section 19(1) of the Act (19) The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Garbutt, Mr Hogan and/or Mr Conkey, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers: (a) Conducting and documenting a proper risk assessment in the form of a Take 5, Safe Work Method Statement (SWMS) or Standard Operating Procedure (SOP), or, in the alternative, ensuring as far as was reasonably practicable that such a proper risk assessment was undertaken and documented, in relation to all aspects of the work associated with the overhaul of the Symetro Gearbox and then, implementing appropriate risk controls. A proper risk assessment would have identified and documented the hazard that, upon the removal of the backing plates, an intermediate bearing housing could be dislodged from and/or fall off the intermediate shaft of the Symetro Gearbox. (b) Updating the applicable risk assessment or, in the alternative, ensuring as far as was reasonably practicable that the applicable risk assessment is updated when changes to the relevant tasks, hazards or risks arise. A proper update of the applicable risk assessment would have identified and documented the hazard that, upon removal of the backing plates, an intermediate bearing housing could be dislodged from and/or fall off the intermediate shaft of the Symetro Gearbox. (c) Ensuring as far as was reasonably practicable that, when working on or in proximity to heavy machinery, the possibility of workers being struck and/or crushed by an unexpected movement of the machinery, and/or parts of the machinery, is minimised before work is carried out, for example by securing or restraining parts of the machinery which may move and/or become dislodged and/or fall during the works and/or by ensuring that as far as was reasonably practicable workers remain out of the 'line of fire'. (d) Prior to the removal of backing plates from an intermediate bearing housing, implementing or ensuring as far as was reasonably practicable the implementation of one or more of the following controls or work steps: (i) Rigging the bearing housing to a crane, before removing the backing plates; (ii) Placing and/or supporting the bearing housing on a frame or jack before removing the plates; (iii) Making up "dummy bars" to sit across the opening of the bearing housing to prevent it from slipping past the bearing; (iv) Removing the backing plates one half at a time; and leaving the other half in place, to retain the bearing housing [on the end of the intermediate shaft]. (e) Providing adequate supervision for workers engaged in works relating to the Symetro Gearbox Project so as to ensure as far as was reasonably practicable that the correct procedure for removal of the backing plates from an intermediate bearing housing was followed. (f) Ensuring as far as was reasonably practicable that workers who performed work in relation to the Symetro Gearbox Project were provided with adequate information concerning the tasks to which they were assigned and/or directed to perform and in particular, information concerning one or more of the following: (i) that, upon removal of the backing plate(s) from an intermediate bearing housing, the housing may move axially on the outer race of the bearing on which it is mounted; (ii) that, upon removal of the backing plate(s) from an intermediate bearing housing, the housing is not restrained and may fall off the bearing on which it is mounted; (iii) that, prior to the removal of the backing plate(s) from an intermediate bearing housing, the bearing housing should be supported or otherwise restrained so as to prevent the bearing housing from falling off the bearing on which it is mounted. (g) Ensuring as far as was reasonably practicable that workers who performed work relating to the Symetro Gearbox Project were trained and competent in the relevant tasks, in particular, the removal of the backing plates from the intermediate bearing housings. (20) As a result of the defendant's failures, workers were exposed to a risk of death or serious injury whilst at work in the defendant's business undertaking. (21) The serious injuries sustained by Mr Garbutt on 23 January 2016 were a manifestation of the risk."

Agreed Statement of Facts

1. The parties presented an Agreed Statement of Facts which became Exhibit PX 1. The agreed facts were as follows: "Authority to bring Proceedings 1. SafeWork NSW being the regulator as defined by section 4 of the Work Health and Safety Act 2011 (the Act), is empowered under section 230(1)(a) of the Act to institute proceedings in this matter. Background Boral Cement Limited ACN 008 528 523 2. Boral Cement Limited ACN 008 528 523 ('Boral Cement') is and was, at all relevant times, a corporation. 3. Boral Cement maintains its registered office at Level 3, 40 Mount Street, North Sydney in the State of New South Wales. 4. Boral Cement is and was, at all relevant times, a wholly owned subsidiary of Boral Limited and a member of the Boral Group of companies. 5. At all relevant times, Boral Cement carried on a business or undertaking as a manufacturer and supplier of cement. 6. At all relevant times, Boral Cement owned and operated cement works located at 1 Maldon Bridge Road, Maldon in the State of New South Wales ('the cement works'). 7. At all relevant times, there was located at the cement works a cement mill known as "Cement Mill No 3". The Boral Shutdown 8. At all relevant times the cement works were in shutdown mode. 9. At all relevant times Boral Cement was conducting various maintenance, repair and replacement jobs whilst the cement works were in shutdown mode ("the shutdown jobs"). The Symetro Gearbox Project 10. At all relevant times. Cement Mill No 3 comprised a gearbox drive system, to drive the mill, which was located in the Cement Mill No 3 motor room and incorporated a Symetro CM3 Gearbox ('the Symetro Gearbox'). 11. At all relevant times, Boral Cement was planning and then undertaking an overhaul of the gearbox drive system, including the Symetro Gearbox ('the Project'). 12. The Project included the dis-assembly of the Symetro Gearbox; dis-assembly of the rotating parts; replacement of rotating parts; replacement of the membranes; and the re-assembly of the gearbox; together with associated routine maintenance of the gearbox and drive system. 13. Boral Cement commenced pre-planning for the project, including the identification and ordering of components for the Project, in 2012; and installation planning for the Project commenced in or about September 2015. The Symetro Gearbox, the FLSmidth Group of companies and the Symetro Gear Specialist 14. The Symetro Gearbox was manufactured in Poland by FLSmidth MAAG Gear Sp. z.o.o. ('FLSmidth MAAG'), a specialist gear company that is a part of the FLSmidth group of companies. 15. Boral Cement placed its order for new rotating parts for the Symetro Gearbox with FLSmidth MAAG via FLSmidth Pty Ltd (ABN 85 000 221 590) ('FLSmidth Pty Ltd'), an Australian company that is part of the FLSmidth group of companies. 16. At all relevant times, the warranty provided by the FLSmidth group of companies in relation to the Symetro Gearbox required correct installation of the new rotating parts ordered by Boral Cement from FLSmidth MAAG via FLSmidth Pty Ltd, under the supervision of an "FLSmidth MAAG Gear service engineer" or by an appropriately trained technical personnel authorised by FLSmidth MAAG, the manufacturer of the Symetro Gearbox. 17. On 3 September 2015 FLSmidth MAAG Gear AG, a member of the FLSmidth group based in Switzerland, provided FLSmidth Pty Ltd with a proposal in relation to the supervision of the change of the rotating parts and both membranes in the Symetro Gearbox "by 1 FLSmidth MAAG Gear AG specialist" and, also, the provision of an FLSmidth Final Report. 18. On 8 September 2015 FLSmidth Pty Ltd provided Boral Cement with a quotation. Quotation Number AMI 529", for the provision of the services of a Symetro Specialist to supervise "changing of Rotating parts & both Membranes" and the provision of an FLSmidth Final Report in relation to the changing of the rotating parts and both membranes. 19. On 15 October 2015 Boral Cement placed a purchase order. No: Ml 16080, with FLSmidth Pty Ltd in relation to "FLS supervision of gear change CMS Maldon works"... "as per FLSmidth reference: AM5129 dated 8/9/15"; and, in turn, FLSmidth Pty Ltd placed a purchase order, PO Number 264528, with FLSmidth MAAG Gear AG in relation to the provision of "Symetro Supervision Site (sic) & Travel Days" and an FLSmidth Report. 20. The cost to Boral of purchase order No. Ml 16080 exceeded $107,000. 21. Witold Kidawa was the "Symetro Specialist" provided by FLSmidth MAAG Gear AG, via FLSmidth Pty Ltd, to undertake the supervision of the Project. 22. Mr Kidawa is and was, at all relevant times, a qualified engineer who had been working for FLSmidth MAAG as a service engineer since 2006; and who was experienced in the servicing of industrial gearboxes including, in particular, Symetro gearboxes. 23. At all relevant times, in relation to the Project, Mr Kidawa's main responsibilities were as follows: a. the provision of technical advice concerning the proper refurbishment and/or change out of the rotating parts of the gearbox; b. giving directions as to the day-to-day work to be performed in the Symetro Gearbox Project to Jeff Northey of Boral and to Graham Hogan and other employees and labour hire workers engaged by the defendant to work on the overhaul of the Symetro gearbox; c. the checking, adjustment and confirmation of the proper operating parameter of the gearbox; and d. the provision of a report to Boral Cement in relation to the installation of the new rotating parts, the new mill membrane and the new oil station confirming, for the purposes of the manufacturer's warranty, proper installation of the new parts, the new membrane and the new oil station and, also, the operating parameters of the refurbished gearbox. K&R Fabrications (W'gong) Pty Ltd ACN 002 396 849 24. K&R Fabrications (W'gong) Pty Ltd ACN 002 396 849 (K&R) is and was at all relevant times a corporation. 25. K&R maintains its registered office located at 46 Doyle Avenue, Unanderra in the State of New South Wales. 26. At all relevant times, K&R carried on a business or undertaking as a fabricator, supplier and installer of structural steelwork and, also, as a provider of diversified industrial maintenance services, including onsite maintenance and repair services and the provision of shutdown maintenance services during the shutdown of industrial undertakings. 27. At all relevant times, as part of its diversified industrial business or undertaking, K&R provided industrial shutdown services both as a principal contractor and, also, as an industrial shutdown service provider working under the direction of a principal contractor. 28. Notwithstanding that at all relevant times K&R Fabrications provided industrial shutdown services as a principal contractor, during the period of the 2016 Boral shutdown K&R: (i) did not supply services as a principal contractor to Boral; and (ii) supplied 'schedule of rates services' to Boral. 29. At all relevant times, K&R was an approved "Boral service provider" that had been providing contract maintenance and fabrication services to Boral Cement for more than 20 years. 30. On 31 July 2014, K&R and Boral Shared Services Pty Ltd, a member of the Boral Group of companies, executed a two-year Procurement Agreement, Contract # BOR - K&R - 140731 dated 31 July 2014, ('Procurement Agreement') under which Boral Cement could request that K&R Fabrications perform mechanical and civil engineering services on an as-needed basis for the term of the agreement. 31. At all relevant times, the defendant was engaged by Boral to supply labour, materials and specified cranage services for the various shutdown jobs, which included the Symetro Gearbox Project, pursuant to the Procurement Agreement. 32. At all relevant times, the work performed by K&R's workers in the course of the Project was to be performed at Boral's cement works under a Boral Cement Authority to Work Permit, Permit No 00033042, in accordance with the Boral FISEQ system. How the project was progressed 33. Boral Cement developed a GANT chart prior to commencing the work of overhauling the Symetro Gearbox. 34. FLSmidth developed a "typical schedule" for planning schedule which required, inter alia, that the FLSmidth supervisor must be present all the time. 35. A comprehensive risk assessment was not undertaken by Boral in relation the tasks to be performed as part of the Symetro Gearbox Project prior to the commencement of the works. 36. A comprehensive set of Safe Work Method Statements ('SWMS') was not developed by Boral in relation to the works to be performed by K&R Fabrications' workers as part of the Symetro Gearbox Project prior to the commencement of the works. 37. Once work on the Symetro Gearbox Project commenced, a Job Safety Analysis ('JSA') was to be undertaken, including a risk assessment, as each new task was allocated to K&R Fabrications' workers. Where there were changes in scope of works, or changes in the risks or hazards, the applicable JSA was to be updated, including the performance of a fresh risk assessment or a 'Take 5' prior to the commencement of the work or task. 38. Boral undertook regular audits of the JSAs from the commencement of the shutdown. 39. At all relevant times, Mr Northey was employed by Boral Cement as a Senior Project Engineer. 40. At all relevant times, Mr Northey held a Craftsman's certificate in fitting and machining, certificate of proficiency in mechanical engineering, a certificate of proficiency in structural engineering and a degree in Information Technology. 41. At all relevant times the workers provided by K&R to work on the Symetro Gearbox Project were to work as directed by Mr Northey and Mr Kidawa. 42. At all relevant times, Mr Northey and Mr Kidawa worked only on day shift. 43. At all relevant times, Mr Northey's duties in relation to the Symetro Gearbox Project included project engineering, planning for the installation of the rotating parts and membranes, coordinating and supporting the activities of 'FLSmidth' and other stakeholders in the Project, as well as ensuring compliance with Boral Cement's HSEQ system. In particular, Mr Northey's duties included checking that safety documentation, such as risk assessments, JSA's and 'Take Fives', were kept up to date with the work being done on any given day. 44. Prior to the commencement of the work in relation to the servicing and replacement of parts within the Symetro Gearbox, Boral Cement provided K&R Fabrications with a copy of the Instruction Manuals for the TSFP-1800BC Symetro Gearbox. 45. At all relevant times, at the direction of Boral Cement, the workers provided by K&R to work on the Symetro Gearbox Project were to follow the technical and other instructions provided by the Symetro Specialist, Mr Kidawa, in relation to the overhaul of the gearbox. 46. Initially, Boral Cement estimated that, working day-shift only, the physical works involved in the project would take about 1 month. 47. Commencing on or about 11 December 2015 K&R Fabrications supplied labour to perform works preparatory to the refurbishment of the gearbox. On or about 4 January 2016, K&R Fabrications commenced supplying labour for the overhaul of the Symetro gearbox. 48. Following commencement of the work, on a daily basis tasks were allocated, verbally, by Mr Northey and Mr Kidawa, to the K&R Leading Hand and Mr Kidawa provided ad hoc instructions, verbally, to the K&R Leading Hand and work crew. 49. On occasions in the period between 4 January 2016 and 23 January 2016 Mr Kidawa also provided written instructions in the form of Task Lists, photographs and diagrams, such as the Task List, photograph and diagram which were provided to the K&R Night Shift Work Crew on 22 January 2016. 50. Until on or about 19 January 2016 workers worked day shift at the Boral site. 51. On or about 19 January 2016 Boral decided that the work was to be performed on both a day shift and a night shift and advised K&R of the need to provide workers across both shifts. 52. K&R supplied workers to Boral Cement as required for both day and night shifts. 53. FLSmidth offered Boral a second supervisor to work on night shift. Boral declined the offer. 54. Boral determined that the following steps were to take place at each shift changeover: (a) night shift task list was to be prepared by Mr Northey and Mr Kidawa in relation to the work to be performed by K&R Fabrications' workers working on night shift; (b) a night shift handover meeting was to be held at which the work to be performed by K&R Fabrications' workers on night shift was to be discussed; (c) the night shift handover meeting was to be attended by Mr Northey, Mr Kidawa and all of K&R Fabrications' workers working on night shift; and 55. a day shift handover meeting was to be held between the K&R Night Shift Leading Hand and the K&R Day Shift Leading Hand at which the work which had been completed on night shift was to be discussed. 56. At all relevant times, K&R Fabrications employed Robert Ashton, and had done so since 1986, and since approximately 2007 had employed him as a supervisor. 57. At all relevant times, Mr Ashton was working at the site as K&R Fabrications' supervisor in respect of all K&R workers who were working on the shutdown. 58. At all relevant times, Mr Ashton worked on the Day Shift. 59. At all relevant times, Mr Ashton's principal concern was the annual shutdown. In relation to the annual shutdown, Mr Ashton was responsible for supervising a K&R Fabrications work crew consisting of approximately 20 men. 60. At all relevant times, K&R Fabrications employed Graham Hogan. 61. At all relevant times, Mr Hogan was a trade qualified fitter and turner who obtained his Certificate of Proficiency on 3 February 1997. 62. Mr Hogan had been working for K&R Fabrications since 2001 and as a leading hand since 2013. 63. At all relevant times, Mr Hogan was working at the site as K&R Fabrications' Leading Hand on day shift in relation to the Symetro Gearbox overhaul. 64. After night shift was introduced in relation to the Symetro Gearbox overhaul, Mr Hogan continued working on the Project as K&R Fabrications' Leading Hand on day shift. 65. At all relevant times, K&R Fabrications employed Dean Conkey, and had done so since 2006. 66. At all relevant times, Mr Conkey was a fitter and turner. Mr Conkey obtained his Certificate in Mechanical Engineering (Trade) in July 1996. 67. At relevant times, Joshua Garbutt was employed by Interstate Pty Ltd ACN 095 986 605 trading as Tecside Group. 68. Mr Garbutt was employed as a fitter machinist. Mr Garbutt obtained his Certificate of Proficiency on 25 October 2010. The design of the Intermediate Shaft Roller Bearings and the Intermediate Shaft Bearing Housings 69. In the course of the Symetro Gearbox Project, the intermediate bearing housings, marked respectively "A", "B", "C" and "D", fitted to the roller bearings on the intermediate shaft assemblies of the Symetro Gearbox, had to be dismounted, cleaned and remounted back on to the relevant spherical roller bearings attached at each end of the two intermediate shaft assemblies. 70. The Symetro gearbox was situated on a platform approximately 3 metres above ground level in Cement Mill No. 3. 71. The Symetro gearbox was attached to the milling machinery through an internal wall. 72. The Symetro gearbox comprised, inter alia, two intermediate shafts with gears spaced on the shafts, a bearing on each end of each intermediate shaft, and an intermediate bearing housing over each bearing. 73. Each bearing comprised an outer race, bearing rollers, and an inner race. 74. Each intermediate bearing housing was secured at its base to the gearbox cradle. 75. Each bearing housing had front ("outer") and back ("inner") cover plates that were circular with a hole in the centre, and which were bolted to the bearing housing. Mounting the Intermediate Bearing Housings on the new bearings 76. Peter Skelton was a fitter and turner and had worked for K&R since about 2002. 77. At the Night Shift Toolbox meeting on 22 January 2016, a K&R Fabrications JSAform and a K&R Fabrications Site Job Check Sheet were completed. 78. When installing the inner cover plates to each of the four (4) bearing housings, the K&R Fabrications Night Shift work crew (i) did not apply silastic to the bottom plates; (ii) did not apply Loctite to each of the bolts used to secure the plates in situ; and (iii) did not tighten the bolts other than to hand-tighten them as the Task List did not include the torque for each bolt as they had not been instructed to do so. 79. On the morning of 23 January 2016, during the course of the Shift Handover Meeting, Mr Skelton reported to Mr Hogan the matters set out in the previous paragraph. Mr Skelton also reported that one upper half cover plate had two bolt holes that were misaligned. 80. Following discussions between Mr Hogan, Mr Northey and Mr Kidawa, in accordance with the advice of Mr Kidawa, Mr Northey directed Mr Hogan to carry out the following works: (i) apply Loctite to each of the bolts on the inner and outer cover plates, replace the bolts, and tighten the bolts, to a predetermined tension, with a torque wrench; (ii) apply silastic so as to seal the bottom half of each inner and outer cover plates on the bearing housing; and (iii) remove the top half plate from the bearing housing so that the misaligned bolt holes could be drilled out and aligned. The Incident 81. At about 11:30am, the top semi-circular inner cover plate had been removed and taken away to have new holes drilled that aligned with the bolt holes in the bearing housing. 82. Mr Hogan, Mr Conkey and Mr Garbutt were in the process of removing the bottom semi-circular inner cover plate split backing plates from the same bearing housing. 83. When Mr Hogan and Mr Garbutt were removing the semi-circular cover plates from the bearing housing, the weight of the housing was being borne by the outer race of the bearing. 84. At the time of the incident, Mr Hogan was to one side of the bearing housing with a podge bar in place to retain the bottom half plate in-situ and Mr Dean Conkey was on the opposite side of the housing also with a podge bar in place to retain the bottom half plate in-situ. Mr Garbutt, who had positioned himself adjacent to Mr Hogan, was bending down and leaning in towards the bottom of the half backing plate and the base of the bearing housing. 85. As the final two bolts were removed from the bottom semi-circular inner cover plate and the bottom half of the backing plate was being prised away from the bearing housing, the bearing housing moved axially on the outer race of the bearing and the housing slid off the outer race of the bearing. 86. As the bearing housing tilted Mr Garbutt was in front of the bearing housing. 87. As the bearing housing tilted through a 90 degree arc as it fell off the outer race of the bearing, Mr Garbutt maneuvered the top half of his body through the opening in the housing but the housing hit, trapped and pinned each of his legs. 88. The intermediate bearing housing involved in the incident weighed approximately 1.3 tonnes. Systems of work before the incident Boral Cement 89. Boral Cement had a site-specific induction system in place. 90. Inductions for K&R workers working on the site remained current for two years. 91. In this instance, Mr Garbutt was inducted onto the site in December 2014 and his induction was current at the time of the incident. 92. Boral also had a safe work system in place on the site with the following features: a. Weekly toolbox talks. b. An Authority to Work System. c. An Isolation system. d. High risk work permits. e. "Takes" safety reviews. f. auditing work methods. 93. Boral did not request that the FLSmidth group of companies provide an "end to end" installation service in relation to the Symetro Gearbox Project. 94. Boral did not conduct and/or document a comprehensive risk assessment in relation to the Symetro Project prior to the commencement of the works, or prior to the incident. 95. Boral did not require K&R Fabrications to conduct and undertake a comprehensive risk assessment prior to the commencement of the works. K&R Fabrications K&R had a safe work system in place with the following elements: a. An online induction system b. Daily update or development of JSA for each particular task, c. Daily toolbox talks. d. Daily site job checks. e. Twice-daily handovers between day and night shifts f. At least weekly safety meetings with an WHS K&R employee g. Open communication between workers and the leading hands and personnel supervisor. h. Open communication between the leadings hands and personnel supervisor Mr Ashton, and Mr Northey and/or Mr Kidawa. 97. The K&R Fabrications Day Shift work crew completed a K&R Fabrications Site Job Check List dated 23 January 2016 and the K&R Fabrications Day Shift work crew had the K&R Fabrications JSA dated 22 January 2016 which had been completed by the K&R Night Shift work crew at its toolbox meeting on the evening of 22 January 2016. The JSA did not identify a risk of the bearing housing falling off the intermediate shaft."

What happened in the accident?

1. While the Agreed Statement of Facts provides a verbal description, what happened in the accident can best be understood from evidence in the form of photographs and a graphical representation. In the expert report of Mr Carolan (PX 15) he provides in Figures 18-24 inclusive a pictorial representation of the likely sequence of events. There was no submission that this depiction was inaccurate.
2. Photographs taken after the event by an inspector from SafeWork also assist in understanding how the accident occurred. Photograph no. 10 behind Tab 5 in PX 3 shows (at F7) the outer race of the bearing tilted forward. In that same photograph the intermediate bearing housing which fell onto Mr Garbutt is seen in the bottom left quadrant. It is attached to two slings. These were used to lift the housing after the event, but were not attached to the housing at the time the incident occurred.
3. In the report of Dr Casey dated 29 December 2017 (PX 16), Figure 2 shows a photograph of a spherical roller bearing. This was also referred to in the evidence as a "floating" bearing. Consideration of this Figure leads to an understanding of how it is that the outer race of the bearing can tilt.
4. Figure 7 in the report of Mr Carolan (PX 15) shows that the outer race of the spherical roller bearing can tilt by 23.5 degrees. Figure 3 in the report of Dr Casey dated 29 December 2017 (PX 16) is another photograph, taken after the accident, showing the outer race of the bearing. The description under Figure 3 describes the roller bearing as "heavily tilted", which appears from the photograph to be an accurate description.
5. From the Agreed Statement of Facts and the above material, there is only one way that the intermediate bearing housing fell off and onto Mr Garbutt. I find that while the housing was sitting unrestrained on top of the spherical roller bearing, the housing moved axially, the outer race of the bearing tilted forward and the housing slid forward and off the bearing, striking Mr Garbutt. That part of the mechanics of the accident is not in contest.

The night shift on 22 January 2016

1. Mr Peter Skelton was the leading hand on the night shift on 22 January 2016. He was employed by the defendant. His evidence was contained in a Record of Interview (Tab 4 in PX 2). For each night shift, the crew was given a task list by Mr Northey. The crew would discuss with the day shift what jobs had to be done by the incoming night crew. The night crew would then go through the tasks and write a JSA to set out how they were going to safely perform the tasks (A126). Mr Skelton said that his crew was required by the task list to install the bearing housing on the intermediate shafts. They had to clean the bearing, the inner rollers and the outer race. They had to add oil to the bearing internals. They were instructed to use a piece of wood to hold the bearings in position. Mr Skelton was also instructed to place a small amount of Loctite to the lower half of the edge of the outer race of the bearing. He was given a photograph with an indication where the Loctite should be placed.
2. Mr Skelton was also involved in the creation of a 12-page document titled "Job Safety Analysis Worksheet" dated 22 January 2016 for the work of overhauling the no. 3 gearbox. This document was referred to through the evidence as a JSA. It was a pro forma document of the defendant which was filled in by workers on the job. A number of possible job steps or hazards were pre-filled on the document. In handwriting, one of the job steps was "mount bearing housings". It identified that hazards for this job were "pinch points" and "lifting". There was no mention in the JSA of the risk of the bearing housing slipping along and off the spherical roller bearing.
3. In his Record of Interview Mr Skelton said (A212) that the riggers lifted the bearing housing with the overhead crane and lifting gear. His crew mounted two bearing housings at the fixed bearing ends of the two intermediate shafts, and the two bearing housings over the floating bearings on the two intermediate shafts. The crane was used for the mounting of each of those four housings.
4. In his Record of Interview Mr Skelton said (A249) that when his crew finished the night shift he explained to Mr Hogan what they had done. Mr Hogan asked if the crew had applied Loctite to the bolts holding the end covers on. Mr Skelton said that they had not, as there were no instructions for that on the task list. He also explained that there were no torque settings for the bolts so the crew had just hand-tightened them.
5. The following appeared in Mr Skelton's Record of Interview: "Q254. Whose responsibility was it to identify risk associated with tasks in the project? A254. Everybody involved with the task. Q255. Who [sic] responsibility was it to identify and allocate resources such as the overhead crane and lifting equipment for tasks in the project? A255. The person partaking in the task. That's what the JSA is for. That's why we talk about the job. I guess all people involved in the task process."
6. Mr Jason Williams was employed by the defendant as a rigger. He worked on the night shift on 22 January 2016, under Mr Skelton as the leading hand. In his Record of Interview (Tab 5 in PX 2), he said that everybody was responsible for developing the JSA (A121) and that the defendant had their own and Boral had their own (A122). He said that Boral had an input into the defendant's JSA (A125), and that the JSAs were created by discussion in the workgroup and by what could be seen. If there was something not written down on the JSA, then Boral was happy for the defendant to update its JSA to suit (A126). Risk assessments were conducted for tasks in the project, as this was part of the JSA (A127).
7. In his Record of Interview Mr Williams was shown the 12-page Job Safety Analysis Worksheet, which is referred to above. He said that this document was the defendant's Safe Work Method Statement (A211).
8. Mr Williams described how he used the overhead crane and the lifting gear to mount the bearing housings as follows (A227): "The bearing housings were slung up with the chain block off the hook to control the load, and I also had another chain block with a sling off it to balance the load. The load was lifted up, I used the chain block to get the final alignment and then just slid it over the top of the bearing. I left the crane attached to the bearing housing while we tightened everything up and made it secure."
9. He also said (A241): "I wrapped the slings around the footings of the bearing housing and attached it to a chain block that was attached to the hook of the crane. Then I had a separate sling and chain block attached from the crane hook to the eye bolt just for stability so that it wouldn't rock and fall over while I was installing it."
10. Mr Williams said that in his opinion the overhead crane and the lifting gear could have been used to secure the bearing housing while the day shift crew worked on the housing at the time of the incident (A274).
11. The Record of Interview contains the following: "Q281. Were you aware that the bearing housings on the intermediate shafts would become unstable if the cover and backing plates were removed? A281. Yeah. Q282. What can you tell me about this? A282. We were told to make sure they were tightened up before we let go of it with the crane. Q283. Who told you this? A283. Tony and Peter. Q284. When were you given this information? A284. At the start of the shift on Friday."
12. In A283, Tony is Mr Jacobs and Peter is Mr Skelton.
13. Mr Anthony Jacobs gave his evidence-in-chief by a witness statement (PX 14). He was employed by Boral as a mechanical fitter. On 22 January 2016 his job was to deliver to the night shift crew instructions from Mr Northey, who was the Boral engineer in charge of the gearbox refurbishment, at the beginning of the night shift. He then worked on the night shift, and his job was to be a "runner" organising the supplies and equipment that the crew needed to do the work given to them by Mr Northey (paragraph 9 of PX 14).
14. Mr Jacobs was around when the work was done on the bearing housings, although he was not hands on. He said in paragraphs 45-49 of PX 14: "45. The K&R Night Shift crew used the overhead crane to lift the floating bearing housing into position just to the north of Layshaft A and I saw that the bearing housing was slung from the crane hook using a sling and lifting eye which had been fitted into the top of the bearing housing. 46. When the K&R Night Shift crew were actually mounting the floating bearing housing on Layshaft A, I saw that the housing just slipped easily onto the outer race of the bearing and I remember, Peter Skelton saying words to the effect that this bearing housing, the floating bearing housing fitted to the bearing on Layshaft A, slipped on easily. 47. As at 22 January 2016, as a consequence of my training and my work experience as a mechanical fitter, I was aware that the outer race of the bearing on Layshaft A could tilt forward. 48. As a consequence of my training and experience as a mechanical fitter, I was also aware that, once the bearing housing was mounted onto the outer race of the bearing, the backing or 'keeper' plates needed to be fitted and secured in place to retain the bearing housing in position on the outer race of the bearing. 49. When the K&R Night Shift were mounting the floating bearing housing on the northern end of the Layshaft A, I saw that the crew kept the bearing housing attached to the overhead crane until the backing or 'keeper' plates were fitted and secured in place."
15. The Records of Interview of Mr Skelton and Mr Williams went into evidence without either man being required to attend to give oral evidence or be cross-examined. The witness statement of Mr Jacobs went into evidence without objection, and he attended to give oral evidence and be cross-examined. There was no cross-examination directed towards paragraphs 45-49 of his witness statement, reproduced above. I accept as accurate all of the evidence of Mr Skelton, Mr Williams and Mr Jacobs, summarised above.
16. I make the following findings of fact. The night shift was using the crane to sling the bearing housings of necessity. The night shift was lifting the bearing housings up from ground level to the height of the intermediate shaft, and then sliding the bearing housings onto the spherical roller bearings on the floating end of each intermediate shaft. Since each housing weighed 1.3 tonnes, the crane was being used to do the lift. However, the crane was also used to hold the weight of the bearing housing while it was fitted over the bearing. Further, the crane stayed attached to the bearing housing until the rear cover plates were attached to the bearing housing. Once the rear cover plates were attached, they retained the bearing housing on the intermediate shaft. The crane was then no longer necessary and the slings were removed. The bearing housings fitted by these means slid easily over the bearings. While the night shift crew did not document the risk of the bearing housing sliding along and off the bearings, they obviously recognised the risk, as they kept the crane and the slings attached to the bearing housing even after it had been lifted up to the intermediate shaft and onto and over the bearing, until the rear cover plates were bolted on.

The day shift on 23 January 2016

1. Mr Graham Hogan, an employee of the defendant, was the leading hand on the day shift. His evidence-in-chief was contained in a Record of Interview (PX 7), as well as his oral evidence. He was cross-examined. While he was working on the project he reported to Mr Northey and Mr Kidawa (A61). There were weekly safety meetings run by Mr Robert Ashton, a supervisor employed by the defendant (A85). Mr Hogan had worked at the Boral premises on every shutdown since 2006 (A88).
2. Mr Hogan said that a JSA was developed for each task and each step. Earlier JSAs were revisited and the crew wrote down extra job hazards or steps as the job progressed. He said "It's a live document that we keep adding to" (A91, A94 and A95).
3. On the day of the incident Mr Hogan and his crew started work at about 6.30am. Mr Jacobs, the Boral night shift supervisor, had already left the job site before Mr Hogan got there. Mr Hogan asked the night shift crew if they put Silastic and Loctite onto the "keeper plates". They told him that they had not been told anything about that, and if they had been told, they would have done it (A117).
4. At about 7.30am Mr Hogan spoke to Mr Northey and told him that on the top rear cover plate, the holes did not line up with the bearing housing. Mr Northey said that the crew would have to take the plates off and apply the Silastic and Loctite as required (A117).
5. The crew proceeded to put Silastic and Loctite on the cover plate on the fixed bearing. Mr Hogan helped them. They then started to do the other backing plates (A117). Mr Hogan described the accident in the following terms (at A117): "The remaining crew undone the top half of the keeper plate and removed it, we got the pencil grinder and opened up the holes that were misaligned. Then we started removing the bolts from the bottom half of the keeper plate and put the podgy bars in the bolt holes to hold the weight of the bottom plate so Josh could get the screwdriver and pry the keeper plate off the lip of the housing. Dean and myself had the weight of the plate. Josh was on the left-hand side of me. The keeper plate was now free and the bearing housing fell. Josh ended up in front of the housing. The next minute it was on top of him. I called the control room and got the emergency procedure activated." The reference to Josh is a reference to Mr Garbutt and the reference to Dean is a reference to Mr Conkey. Mr Hogan was obviously describing the work done on the floating bearing end of the intermediate shaft.
6. In his Record of Interview Mr Hogan said that Mr Northey instructed the crew verbally that the top and bottom keeper plates on the bearing housings had to come off (A141-143). Mr Hogan said that his crew had done this work before "when we took the old bearing housings off we undid and removed the keeper plates" (A144). He was not provided with any specific information or instructions as to how to remove the plates (A145).
7. In his Record of Interview Mr Hogan was shown the one-page task list for the night crew, but said that he had not seen it. There was no similar task list for the day crew. He acknowledged that the JSA did not cover the tasks that had been allocated to be carried out by his crew on the day of the incident (A175). He thought that there should be other JSAs (A181). The 12-page Job Safety Analysis Worksheet, referred to above, was shown to him. He said that it was for a different job, not the job allocated to him on 23 January 2016.
8. Mr Hogan said that Mr Garbutt had not done this job before (A185). Mr Hogan was not provided with any instructions in relation to secure the housing while the cover and the backing plates were being removed (A201). He said that with hindsight, the eye bolt could have been used (together with the crane) to secure or restrain the bearing housing while removing the backing plates (A219).
9. Mr Hogan said that the bearing housing had been secured or restrained when removing the cover and backing plates previously (A255). This was when the cover plates were undone because the crew was going to remove the bearing housing (A266). He was asked why the crane and the lifting equipment was not used to secure the bearing housing at the time of the incident and he said "because we didn't think we would need it" (A277).
10. Mr Hogan acknowledged that it was the task of everybody involved in the job to identify risks involved with tasks in the project (A229). He said that the risk of the bearing housing falling was not identified in the JSA or the risk assessment "but it should have been" (A230). Mr Hogan said that he did not think the bearing housing would be unstable once the keeper plates were removed (A235). None of the Boral representatives raised the risk with him or his crew (A236). None of the Boral representatives were involved in the JSA or the risk assessment process (A237).
11. Mr Hogan said that consultation and communication for the project was not adequate (A252). He said at A254: "On such a big job there should have been a step-by-step because this job had never been done except for when they installed it. They should have had the specialist and went through and identified all the hazards and how to actually do the job."
12. In his oral evidence Mr Hogan said that a "step-by-step" was a Safe Work Method Statement which identified each task and set out how it should be done. The reference to "the specialist" is a reference to Mr Kidawa.
13. When the work was eventually re-done, the bearing housing was slung up on the crane while the rear cover plates were installed (A253).
14. In his oral evidence-in-chief Mr Hogan said the following (at T42/30): "Q. At the time that you were doing the work on the morning of 23 January 2016, did you know that the bearing housing shown in photograph no. 6 was a floating bearing housing? A. Yes, but I didn't think the bearing would move under its own weight when it was sitting there on top of the housing."
15. This answer is confusing, as the bearing was sitting within the housing, not on it. Further, it was the bearing housing which moved when it was sitting over the bearing, not the other way around. In any event, later evidence was directed towards the knowledge which Mr Hogan had on the morning of the incident as to the risk.
16. At T52/10, Mr Hogan said that the old keeper plate, which was removed and discarded, was a one-piece unit, in that it looked like a donut. The new keeper plates were a two-piece unit, each being shaped like "a half-moon". Apart from the change in design, he did not observe any difference in function between the old single plate and the new half plates (T52/25). However, it was plain from a series of questions and answers that, on the day of the incident, Mr Hogan did not realise that the rear half-moon plates performed the function of keeping the housing from sliding off the bearing. He gained that knowledge as result of, and thus after, the incident.
17. The evidence is (T52/32-43): "Q. And apart from that did they have any other function in terms of keeping or retaining? A. Well, in hindsight, yeah, when you look at it, they did. But at the time I didn't pick up and - - Q. And what was it you say that you now understand they did as keeper plates? A. They stopped the housing from sliding off the bearing. Q. Can you tell his Honour how they did that? A. Because they were bolted onto the housing and the inside diameter was smaller than the opening of the bearing which in turn stopped it from falling off."
18. As counsel for the defendant put it, in taking an objection, Mr Hogan "indicated earlier in his evidence that he was unaware of the secondary function of the cover plates" (T54/21). This was a reference to counsel's characterisation of the function of the plates - it was submitted that the primary function of the plates was to provide an oil sump for the bearing, and the secondary function was to retain the bearing housing upon the intermediate shaft.
19. Mr Hogan said that neither he nor any JSA identified the keeper function of the plates (T55/28).
20. Mr Hogan was taken to a manual for the gearbox, which had been given to him prior to the commencement of the project (Tab 86 in PX 5). He acknowledged that the manual stated: "Normally it would be quite easy to push the bearing housings over the bearings by hand" (T78/30).
21. Mr Dean Conkey was a mechanical tradesperson employed by the defendant. His evidence was his Record of Interview (Tab 3 in PX 2). He did not give oral evidence and he was not cross-examined. He had 22 years experience as a fitter. Mr Northey generally gave instructions to Mr Hogan, delegating tasks for the day (A67). Most instructions were mainly verbal (A70). Mr Kidawa also provided verbal instructions to the work crews (A73). There was no specific training provided for the work or tasks which Mr Conkey was required to carry out on the project (A85). When a new task came up the crew would talk about it with Mr Hogan and discuss what needed to happen. There would then be changes made to the defendant's JSA (A101). Boral had no input into the defendant's JSAs (A131). Mr Conkey had been trained on how to complete JSAs. He said: "Have a look at the task and what you are doing and what could go wrong and how to eliminate that and use the risk matrix to make the job safe" (A133).
22. On the morning of 23 January 2016 Mr Conkey remembered some controversy about whether the night shift had applied Silastic and Loctite to the bearing housing. Mr Conkey had been working upstairs on a different part of the project. He came down to the ground level and was asked by Mr Hogan to give him a hand with getting the cover plates off the bearing housing. He said that the bolts were taken out to the stage where there were only one or two bolts left in. Mr Hogan and Mr Conkey were then using pinch bars and "giving it a bit of a jiggle to get the last bolts out". As they took the backing ring off, Mr Conkey saw "the actual bearing housing come flying over the top of Josh and squashing him to the ground" (A150).
23. Mr Conkey had never worked on this task prior to the morning of the incident (A176). There was no new JSA created for the tasks allocated to the day shift crew on the day of the incident (A188). The task of removing the cover and backing plates from the bearing housing was not identified as a job step in a JSA (A190).
24. Mr Conkey said that he had no way of knowing that the bearing housing could slip off (A234) and no Boral representative raised that risk with him or his crew (A235). He acknowledged that the overhead crane could have been used to secure the bearing housing at the time of the incident (A236).
25. When asked whose responsibility it was to identify risks associated with tasks in the project, he said that everyone was responsible. When the defendant did a JSA, everyone was more than welcome to contribute input and that's why the crew sat down and did it as a group (A242). The risk of the bearing housing falling was not identified in any of the defendant's JSAs or risk assessments (A243).
26. Mr Joshua Garbutt was the worker who was injured in the incident. He provided a Record of Interview (Tab 1 in PX 2). That Record of Interview formed his evidence-in-chief. He did not give oral evidence and he was not required for cross-examination. Mr Garbutt was a labour hire worker, provided by Interstate Enterprises Pty Ltd to work for the defendant on the Boral job. The day of the incident was the first time he worked in that section on that machine (A32). He spent a lot of his time cleaning parts on the site (A38). He was not given any training for the work which was allocated to him in Cement Mill 3 (A65).
27. He said that there was no risk assessment done to identify the bearing housing falling in the way it did. The JSA did not state that the bearing housing could fall off the bearing (A85).
28. As to the incident itself, Mr Garbutt said (A99): "Graham Hogan asked me to assist with putting on and removing cover plates from the bearing housings. I [did] one on the first gear unit and then he asked me to help removing the backing plate off the second gear unit. I was kneeling down on the ground reaching forward to assist lowering the backing plate and while Graham and Dean removed all the bolts, all the bolts had been removed then out of the corner of my eye I seen Graham's left arm either lean or push against the bearing housing, either to remove his podger bar and without warning the bearing housing fell over the top of me. I was pinned under the bearing housing."
29. In his Record of Interview Mr Garbutt was asked about the instructions given to him by Mr Hogan, the leading hand. He said: "Q107. What instructions did Graham Hogan give you when he asked you to assist with the cover plates? A106. [sic] Well I only put one cover plate on, so put cover plate and tighten up bolts. And after I was in the process of completing that, that's when he asked me to help get the backing plate off? Q108. Did he give you any specific instructions about how to get the backing plate off? A107. [sic] No. I said 'How do you want me to help?' and he said 'Just f'ing help me get it off'. That's just the type of guy he is."
30. I accept as accurate the evidence of Mr Hogan, Mr Conkey and Mr Garbutt, summarised above.

After the accident

1. After the accident Boral and the defendant and their employees had a meeting and created a Safe Work Method Statement (SWMS) for the work activity of installing the gears in the gearbox in Cement Mill 3. On page 4 of that document, one of the steps listed was: "Install bearing housing on intermediate shaft (Southern). Bearing needs securing. Fit inside and outside bearing plates, Loctite required."
2. For this step, the hazards included: "Housing falling off bearing".
3. For this step, the controls included use of the crane, and: "Keeper plates and housing covers to be installed before removing lifting gear."
4. Mr Hogan gave evidence that this SWMS was a "step-by-step risk analysis and Safe Work Method Statement for all the steps for the completion of the job" - PX 7, Q&A 253 and Q&A 256.
5. I find that had such a document been in existence before the accident, and had it been followed, the risk would have been eliminated, or at the very least, minimised, by the use of the crane and the requirement to install the keeper plates and housing covers before removing the lifting gear. Even if the bearing housing had moved, once the rear backing plates were removed, the bearing housing would not have fallen forward over the spherical bearing, as its movement would have been restrained by the crane and the lifting gear.
6. In due course the job was done in accordance with this SWMS, without incident.

Reasonable Practicability

1. During the course of the trial, counsel for the defendant submitted as follows (T174/27-175/2): "The defendant accepts that the intermediate bearing housing or the bearing housing on the intermediate shaft for the two floating bearings was capable of unexpected movement by way of slipping off the bearing in circumstances where both cover plates had been removed and where the intermediate bearing housing was not supported by means of a crane or otherwise restrained. In other words, we accept at face value the risk that existed. We further accept that the job safety analysis work sheet did not address that risk, although in saying that we don't concede that the JSA was deficient. If the prosecutor is tendering Dr Casey's reports in order to establish those two propositions, that is in respect of the risk and in respect of the JSA, then this objection doesn't arise, but the onus is on the prosecution to prove, as an element of its prosecution, that the defendant had failed so far as is reasonably practicable to ensure the health and safety of its workers while engaged in the work. The defendant does not admit that it knew or ought reasonably to have known of the risk in all of the circumstances. Therefore the question of whether the defendant's actions were reasonable practicable will require factual findings in relation to the likelihood of the risk, and what the defendant knew or ought reasonably have to have known. These matters in practical terms constitute ultimate facts in issue in these proceedings, and are matters that will have to be resolved on the criminal standard. It would have to be resolved adversely to the defendant in order for the prosecution to succeed."
2. In a written outline of submissions, counsel for the defendant submitted as follows (MFI 5, paragraphs 2-8): "2. The standard of proof applicable to these proceedings is the criminal standard of beyond reasonable doubt. 3. The prosecution is required to demonstrate, as an element of the offence, that it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. 4. In determining the question of whether it was [sic] duty as particularised by the prosecution was "reasonably practicable", the court must consider inter alia what the defendant knows, or ought reasonably know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk. 5. The defence has expressly put in issue the defendant's knowledge of the risk as particularised, and whether the defendant ought reasonably have known of that risk at or immediately prior to the accident. 6. If the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event. See for instance Jayne v National Coal Board [1963] 3 All ER 200 at 224, and WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381. 7 The prosecution, in order to secure a conviction, must therefore prove that the defendant either knew or ought reasonably to have known of the risk as particularised. It must establish either of these facts to the criminal standard. 8 As to whether the defendant ought reasonably have known of the risk, the relevant test has been variously described as whether persons generally who are engaged in the relevant field of activity or a reasonable employer or principal in [the defendant's] position would have known of the risk. To the extent that those tests differ materially, it is the defendant's position that the latter test is correct by reference to the statutory language used in the Act."
3. In Slivak, a worker was injured when he fell during the construction of a fume extraction system. He sued the designer of the system. The evidence was that the design of the system was adequate, but that the tower which formed the key part of the system had been built out of square. A cell plate fell, causing the plaintiff to fall and be injured.
4. Section 24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA) provided that: "The person who designs the structure must ensure so far as is reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health."
5. While under s 24(1) of that Act, a person who designs any plant for use at work has to ensure so far as is reasonably practicable that the plant is designed and constructed so as to be safe, the High Court said at [37] the requirement is one of ensuring safety: "… so far as is reasonably practicable. The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction."
6. In Baiada, a company carrying on the business of processing poultry also transported the poultry from its suppliers to its plant. It engaged an independent contractor to catch the chickens and another independent contractor to transport the crates of poultry. While an employee of the chicken catcher was driving the forklift which was being used to load the modules of crates, one of the modules fell onto and killed an employee of the transport contractor. The company was prosecuted under s 21(1) of the Occupational Health and Safety Act 2004 (Vic) for failing, as an employer, so far as was reasonably practicable, to provide and maintain for employees a working environment that was safe.
7. At trial Baiada submitted that it did not have any right to control how the forklift was used at the farm. It argued that the control of the forklift was within the control of the contractor. A second submission was that Baiada was entitled to rely on competent and experience sub-contractors in order to carry out the work that they could not do themselves. Again it was said that the contractor, not Baiada, had had control over the use and operation of the forklift.
8. Baiada submitted at trial that a "practicable method" for Baiada to perform its duties under s 21 of the Act would have been to rely on the experience of its sub-contractors. Paragraph [15] of the judgment says: "15. All elements of the statutory description of the duty were important. The words 'so far as is reasonably practicable' direct attention to the extent of the duty. The words 'reasonably practicable' indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment."
9. Paragraphs [33] and [34] say: "33. As the reasons of the majority in the Court of Appeal reveal by their reference to Baiada checking compliance with directions it gave to DMP and Azzopardi Haulage, the question presented by the statutory duty 'so far as is reasonably practicable' to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada's obligation 'so far as is reasonably practicable' to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done. 34. As earlier explained, the jury's guilty verdict told the Court of Appeal nothing about the issue of whether Baiada was bound to give directions or give directions and take steps to procure compliance with them. The jury had not been required to consider either issue. Reference by the majority in the Court of Appeal to the jury's verdict was therefore irrelevant to the majority's consideration of whether the evidence at trial showed beyond reasonable doubt that it was reasonably practicable for Baiada to have given directions to DMP about how to operate the forklift and to have checked that the instructions were observed."

Factual findings - likelihood of the risk

1. The intermediate bearing housing which had been installed by the night shift on 22 January 2016 slipped easily over the spherical roller bearing.
2. If unrestrained in any fashion (whether by slings and a crane, or by the rear cover plates being bolted to the bearing housing), there was a risk that the bearing housing, if force were applied to it, would slide along the bearing and off it as the spherical bearing tilted.
3. The manual for the gearbox, which was available to the defendant, stated that normally it would be quite easy to push the bearing housings over the bearings by hand.
4. The night shift on 22 January 2016 had observed, and indeed commented upon, the ease with which the bearing housing slid over the bearings.
5. The possibility of this occurring increased when, on the day shift, the last bolts were taken out of the lower backing plate, and Mr Hogan and Mr Conkey were using pinch bars and "giving it a bit of a jiggle to get the last bolts out".
6. At that point the 1.3 tonne mass of the bearing housing was sitting on the outer race of the bearing, simply held in place by gravity. On the evidence of Mr Conkey, which I have accepted, the bearing housing slid forward and over Mr Garbutt straight away when the last bolts were removed and the pinch bars had been used to get the backing plate off the bearing housing.
7. I find that there was a significant risk that in the circumstances the bearing housing would slide forward on the bearing and over it, as the spherical bearing tilted.

Factual findings - what the defendant knew of the risk

1. The defendant through its employees had at an earlier stage disassembled the floating end of the intermediate shafts, which involved taking the one piece donut shaped backing plate off the bearing housing, at which point the housing could be moved forward off the bearing, using the crane. While the one piece cover plate was different to the later half-moon shaped cover plates, it would have been obvious to a trained fitter that both styles of cover plates had a role to play in retaining the bearing housing on the intermediate shaft.
2. In performing that operation the weight of the bearing housing was taken by the crane and slings, as part of disassembling the floating end of the intermediate shaft was removal of the bearing housings themselves.
3. The night shift on 22 January 2016 were aware that the bearing housing had to be restrained in some fashion, if the rear backing plate had not yet been bolted onto the bearing housing. Mr Williams, who worked on the night shift under the supervision of Mr Skelton, was aware that the bearing housings on the intermediate shafts would become unstable if the backing plates were removed.
4. Mr Williams was told by Mr Skelton (an employee of the defendant) and Mr Jacobs (an employee of Boral) to make sure that the cover plates were tightened up before the crane let go of the bearing housings.
5. Based on the above findings, I find that the defendant had actual knowledge of the risk that the bearing housing could slide forward and off the bearing, once the rear backing plate was removed.

Factual findings - what the defendant ought reasonably to have known

1. Counsel for the defendant submitted that the prosecution was requiring the defendant to be imputed with the specialist knowledge of expert witnesses (MFI 5, para 13). Counsel submitted that such knowledge included the friction co-efficient of metal on metal, and that dynamic friction values are significantly lower than static values (MFI 5, para 14). Counsel also submitted that the expert Mr Carolan opined that 225 kg of force was required to cause the housing to slide and fall (MFI 5, para 20).
2. I do not accept these submissions. As set out below, I find that the defendant, through its employees who were experienced fitters, ought reasonably to have known of the risk. Recognition of the risk did not require engineering expertise or any particular mathematics. It simply required the defendant to pause, look at the machinery, reflect on the task at hand, identify the risks, and take reasonably practicable steps to eliminate or minimise those risks.
3. Mr Carolan did not simply say that a force of 225 kg was required to slide the bearing housing along the bearing. He said (PX 15, p 22): "Given the friction force of 2.2 kN (225 kg) external forces alone are unlikely to have initiated the sliding of the bearing towards the outboard position. It would seem more likely that some leverage may have been applied to rotate the bearing with the applied force depending on the lever arm length. The magnitude of external force required to overcome rolling friction in the bearing is much lower and therefore external forces causing a slight rotation of the bearing around the shaft access may have been a contributor. It is likely that a combination of a small (and therefore unnoticeable) housing offset position and an externally applied force could initiate sliding because the co-efficient of friction would be reduced from a static to a dynamic range. Any force that may cause some tilting or sliding motion (including rotation around the access of the shaft) of the housing may have contributed to initiate the motion."
4. There was of course evidence of an external force being applied, which was Mr Hogan and Mr Conkey using the bars to prise the backing cover off the bearing housing. Mr Carolan (and also Dr Casey) were trying to explain the physics and engineering involved in how the bearing housing slid along and off the bearing and the intermediate shaft. However, given that the defendant, through its employees, had knowledge of the behaviour of spherical roller bearings, and the sliding of the bearing housing along such bearing, it was foreseeable by a fitter (who did not need to be an engineer or mathematician) that the bearing housing, if unrestrained, could slide along and off the bearing and the shaft.
5. Having been involved earlier with the disassembly of the floating end of the intermediate shafts, the defendant ought to have known that cover plates (whether they were full circle or half-moon plates) bolted onto the bearing housings and retained the housing on the shaft.
6. The employees of the defendant on the day shift on 23 January 2016 ought to have known, as Mr Skelton and Mr Williams knew on the night before, that the rear backing plates retained the bearing housing upon the shaft, and that the housing could move and slide off the bearing, if the backing plates were removed while the bearing housing was otherwise unrestrained.
7. Further, Mr Jacobs (a Boral employee) who worked on the night shift on 22 January 2016 said, in unchallenged evidence, that as a consequence of his training and his work as a fitter, he was aware that the outer race of the bearing could tilt forward, and he was aware that once the bearing housing was mounted onto the outer race of the bearing, the backing plates needed to be fitted and secured in place to retain the bearing housing in position on the outer race of the bearing.
8. Mr Jacobs had similar qualifications and experience to the employees of the defendant, both on the night shift and the day shift. The defendant's employees ought to have known what Mr Jacobs knew from his training and experience.
9. There was no suggestion by Mr Hogan, nor was there any submission by counsel for the defendant, that somehow the appearance of the bearing housing, the bearing and the backing plates led Mr Hogan to reasonably believe that even with the removal of the backing plates, the bearing housing would somehow be retained on the shaft, by means other than gravity.
10. Nor did Mr Hogan say that he thought at the time that the sheer weight of the bearing housing would have been sufficient to retain the bearing housing upon the bearing. He had no particular belief, knowledge or understanding of what was going to retain the bearing housing in place, once the backing plate was removed, as he did not turn his mind to this issue.
11. Mr Hogan did not realise the risk at the time, but no-one from the defendant asked themselves on the day shift on 23 January 2016 the crucial question, being: "If I remove the lower backing plate, what is to stop the possibility of this bearing housing sliding along the bearing and falling off the shaft?"
12. An appropriate JSA prepared by the defendant for the work to be done by the day shift on 23 January 2016 would have identified this risk, at which point consideration could have been given to the simple practicable steps which would have guarded against the risk. The creation of a JSA was not a complicated process. As Mr Conkey said: ""Have a look at the task and what you are doing and what could go wrong and how to eliminate that and use the risk matrix to make the job safe."
13. Counsel for the defendant submitted (MFI 5, para 25) that the court can draw the inference, from the fact that the defendant did not identify the risk on 23 January 2016, that it was less likely that the risk was reasonably knowable. I do not accept this submission. The night shift on 22 January 2016 knew of and realised the risk. Further, the fresh SWMS created after the accident, from a meeting involving employees of the defendant as well as from Boral, had no trouble coming up with identification of the risk and identification of the reasonably practicable means of eliminating or minimising the risk. While the SWMS was created with the benefit of hindsight, if the crucial question set out above had been asked, then the risk, and the means of obviating the risk, would have been identified before the task was undertaken.
14. Counsel for the defendant also submitted that an "overarching" Safework Method Statement developed some time ahead of 23 January 2016 would not have identified the risk. I accept that submission. However, the unique task assigned to the day shift on 23 January 2016 called for a bespoke JSA, not reference to any prior general or overarching document. As the employees of the defendant all said, it was the responsibility of everybody to identify risks and record means of eliminating or minimising those risks, by constantly updating the JSA.
15. I find that the defendant ought reasonably to have known of the risk.

Consideration of Element 1 - whether the defendant owed a duty

1. It was not in contest that the defendant was a person conducting a business or undertaking, which owed a health and safety duty under s 19(1) of the Act to Mr Hogan, Mr Conkey and/or Mr Garbutt.
2. I am satisfied beyond reasonable doubt that the defendant owed a health and safety duty to Mr Hogan, Mr Conkey and/or Mr Garbutt.

Consideration of Element 2 - whether the defendant failed to comply with the health and safety duty

1. I find that the defendant failed to ensure so far as was reasonably practicable, the health and safety of workers, in particular Mr Hogan, Mr Conkey and/or Mr Garbutt, in that the defendant failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers: 1. Conducting and creating a property written risk assessment in the form of a SWMS or a JSA to identify the hazard that, upon the removal of the backing plates, the intermediate bearing housing could be dislodged from and fall off the intermediate shaft - particular 19(a) in the Amended Summons; 2. Updating the applicable JSA to take account of the tasks, hazards and risks faced by the day shift on 23 January 2016 - particular 19(b) in the Amended Summons; 3. Restraining the bearing housing to prevent it becoming dislodged or falling, by the use of the available crane and slings to secure the bearing housing while the rear backing plate was being removed - particular 19(c) in the Amended Summons; 4. Prior to removal of the backing plates, rigging the bearing housing to a crane - particular 19(d)(i) in the Amended Summons; 5. Providing adequate supervision for the workers engaged to ensure that the correct and safe procedure for removal of the backing plates was followed - particular 19(e) of the Amended Summons; 6. Ensuring that the workers who performed the work were provided with adequate information concerning the tasks to which they are assigned, in particular, that the removal of the backing plate from the bearing housing could lead to the bearing housing moving axially on the outer race of the bearing - particular 19(f) in the Amended Summons; 7. Ensuring that workers who performed work were trained and competent in the removal of the backing plates from the bearing housing - particular 19(g) in the Amended Summons.
2. I am satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty, within the meaning of s 32 of the Act.

Consideration of Element 3 - whether the failure exposed workers to a risk of death or serious injury

1. The relevant question on causation is not whether the failures of the defendant were the cause of the injury to Mr Garbutt, but whether the act or omission of the defendant was a substantial or significant cause of Mr Garbutt (and Mr Hogan and Mr Conkey) being exposed to the risk of injury - Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127], [130].
2. That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers - Bulga Underground Operations v Nash at [129-130].
3. The fact that a third party (in this case Boral and/or Mr Kidawa) missed an opportunity to eliminate the risk in question does not mean the court is precluded from finding that the defendant's failure substantially contributed to the risk - Simpson Design & Associates Pty Ltd v Industrial Court of NSW [2011] NSWCA 316 at [117].
4. Counsel for the defendant submitted (MFI 5, para 23) that the defendant's workers took direct instruction from the expert retained by Boral (Mr Kidawa) "to remove both cover plates, in full sight of the housing and the fact that it was not hooked up to a crane". Counsel submitted that it was not reasonable to attribute to the defendant a higher standard in relation to what the defendant ought to have known, than what was actually known by the expert.
5. Firstly, the evidence does not rise as high as was put by way of submission. Mr Northey and Mr Kidawa indicated the job that should be done, but then departed and left it to the defendant to do the job as it saw fit (Evidence of Mr Northey: PX13, A252). Even if both Boral and Mr Kidawa had observed the job being done without the bearing housing being supported by a crane and thus they missed the opportunity to eliminate the risk, the court would still find that the defendant's failure substantially contributed to the risk.
6. I find that Mr Hogan, Mr Conkey and/or Mr Garbutt were exposed to a risk of death or serious injury from the time when the rear lower backing plate was removed from the intermediate bearing housing, at which point the bearing housing was free to slide along the spherical bearing and off the intermediate shaft.
7. I find that the risk would have been eliminated if the bearing housing had been suspended and restrained by an overhead crane and slings, which were available for use.
8. I find that the risk would have been eliminated, or at the very least minimised, if a proper approach had been taken by the defendant to thinking about and creating an appropriate SWMS or JSA.
9. I am satisfied beyond reasonable doubt that the failure by the defendant to comply with its duty exposed Mr Hogan, Mr Conkey and/or Mr Garbutt to a risk of death or serious injury.

Conclusion

1. I find that the defendant committed a Category 2 offence pursuant to s 32 of the Work Health and Safety Act 2011 because: 1. The defendant had a health and safety duty to Mr Hogan, Mr Conkey and/or Mr Garbutt; and 2. The defendant failed to comply with that duty; and 3. The failure exposed Mr Hogan, Mr Conkey and/or Mr Garbutt to a risk of death or serious injury.
2. I find the offence set out in the Amended Summons proved beyond reasonable doubt.
3. I will hear the parties on sentence.

Orders

1. My orders are: 1. The elements of the offence set out in the Amended Summons filed on 10 April 2019 have been proved beyond a reasonable doubt. 2. I find K & R Fabrications (W'Gong) Pty Ltd guilty of the offence. 3. I will list the matter for a sentencing hearing on a date convenient to the parties.

Postscript concerning the conduct of the trial

1. I wish to record my appreciation for the way in which both counsel, and their instructing solicitors, conducted this trial. The matter was allocated seven days for hearing and finished just within time. Obviously much work was put into preparation on both sides before the commencement of the trial. This enabled the court to receive and deal with six large lever-arch folders of documents, many other documentary exhibits and a transcript of 282 pages. The court was assisted by both counsel providing a written outline of submissions (which dealt comprehensively with the law and the facts), as well as oral submissions which expanded upon key points to be made, rather than simply reiterating what was in the written submissions.
2. I compliment Mr Cahill for his fair, measured and thorough approach to presentation of the prosecution case. I compliment Ms Lowson upon having and pursuing a plan of attack upon the prosecution case, which she was willing to articulate very early on. Such an approach greatly assisted the court to focus upon the real issues in the case. When counsel were granted time out of court to discuss matters, including the reception of documents which could go into evidence without elaboration or challenge, that time was usefully spent. In the best traditions of the NSW Bar, the case was hard-fought on both sides, but conducted with an exemplary level of civility and skill.
3. Of course, the endeavours of the lawyers which produced the detailed Agreed Statement of Facts, greatly reduced the burden upon the court and enabled it to focus upon legal and the factual issues genuinely in dispute.

Amendments 29 August 2019 - Corrected typographical error 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: 29 August 2019