Simpson Design Associates Pty Ltd v Inspector Ching

Industrial Relations Commission (NSW)|2010-11-05|Before: Boland P, Marks J, Kavanagh J, Haylen J, Boland J

Background facts 8Haylen J set out the facts of the matter at [6] noting that they were substantially agreed. The appellant also helpfully submitted a summary of the facts. It is unnecessary to repeat all of those facts so, at this stage, we shall only refer to those that are necessary to understand the context in which this appeal is taking place: (a) Hannas Civil Engineering Pty Ltd (" Hannas ") was appointed as the project manager for the construction of the concrete batching plant. Mr Peter Twomey was the project manager from August 2001 onwards. Mr Twomey was employed by LSM Projects Pty Ltd (" LSM" ), but in practice represented Hannas as a result of a contract between LSM and Hannas under which LSM contracted with Hannas to provide services to Hannas to enable it to carry out its construction management role. (b) The construction of the plant included three sets of bi-sliding metal gates on Coward Street: one on the eastern side, one on the western side and a centre gate in the middle between the east gate and the west gate ("the gates"). Part of Hannas' duties included acting as the project manager for the design, construction and installation of the steel gates located on Coward Street. (c) Each set of gates consisted of two gate leaves that opened in opposite directions along a track through the tunnel of the support portals. The gates were fitted with motorised driving units with switches to open and close the gates. The gates could also be operated manually. The west gate was the largest of the three gates and each gate leaf of the west gate weighed approximately 1340 kilograms. The appellant notes that the gates were not constructed to be operated manually and were locked in position once the motor was installed, although the motor could be disengaged for manual operation. (d) The brief from Hy-Tec in accordance with condition 102 of the Development Consent was: "Provide a steel bi-fold gate system that can be opened and closed via digital key pads adjacent to the gate or overridden from the control room together with electronic eyes for closure". (e) By letter dated 23 March 2001 the appellant originally tendered to Hannas to provide structural design engineering services for the concrete batching plant. The gates were not part of the initial work for which the appellant was contracted as set out in the letter dated 23 March 2001. (f) Damian Hadley, an associate director of the appellant, was employed by the appellant as a structural engineer to perform structural design and to co-ordinate the day-to-day activities of the appellant. Mr Hadley was a chartered professional engineer. Mr Hadley was answerable to Andrew Simpson a director of the appellant. Mr Hadley was the structural engineer who did most of the initial work. (g) The structural design for the steel gates and steel frames that supported the gate was carried out later pursuant to an oral brief together with some drawings and written instructions from Mr Twomey. Mr Twomey says the design brief was for the design to be in accordance with the DA conditions and to do the structural design for an electrically operated gate system. Mr Hadley said that the design brief was to provide structural engineering services for the design and documentation of the gates. There was no specific brief to the appellant for manual operation, a backup system or stops. Mr Hadley said that the brief did not include the mode of operation of the gate. However there was no express prohibition on operating the gates manually. (h) On 3 September 2001 SDA issued a further "fee proposal" for additional works at the concrete batching plant, including "structural steel gate design". On about 12 November 2001, shortly after another meeting on 9 November 2001 at which the gates had been discussed, Mr Hadley sent a fax to Mr Twomey in which he stated, in part: With this in mind I propose to proceed with the structural design and specify the track and rollers as proprietary items. (i) Mr Hadley provided his first sketch of the structural elements of the gates on 13 November 2001. Following a further sketch and comments from Mr Twomey, Revision A of the 'Miscellaneous Steelwork drawings' was issued to Mr Twomey on about 19 December 2001. That drawing showed, in addition to some steelwork unrelated to the gates, the structural elements of the gates. (j) Thereafter Mr Hadley provided further revisions of the same "Miscellaneous Steelwork drawings", including Revisions D and E, which were the focus of the charge. Each revision of the drawing included the same structural elements of the gates. Mr Hadley supervised, approved and checked the drawings. Mr Twomey provided some comments and alterations in respect of SDA's drawings. Revision E was issued to Mr Twomey on about 24 June 2002, that being the end of the period to which the charge related. These structural drawings contain the design that it is alleged was unsafe. (k) Gate stops were not incorporated in those drawings. No provision was made in the design for the gates to be operated manually or in the case of mechanical failure. The design shown on SDA's Miscellaneous Steelwork drawings does not address the issue of mode of operation of the gates. The only reference to the mode of operation of the gates is the note on the drawings, which refers to the need for coordination with the manufacturer of the gate motor. (l) The design and construction of the gates ultimately involved the work of a number of separate entities, appointed and acting under the coordination and direction of Hannas and in particular Mr Twomey. The following entities were responsible for the design, supply and installation of the major components of the gates: (i) SDA provided the structural design. (ii) Lejah trading as Sunstate Consulting & Engineering (" Sunstate "), the company which designed and supplied the mechanical equipment for the concrete batching plant generally, designed the wheels and rollers for the gates, prepared the fabrication drawings for the gates and supplied, delivered and at least partly installed the gate steelwork. (iii) Magic Door Industries Pty Ltd (" MDI ") supplied and installed the operating equipment for the gates, including determining the particular motor and other operating equipment to be used. (iv) Roofacade Pty Ltd (" Roofacade ") supplied and installed the cladding, which was placed on the gate leaves. (m) The fabrication drawings for the gates were completed by Sunstate by about 8 August 2002. Sunstate's fabrication drawings showed the specification of the type of wheels and type of rollers to be used in constructing the gates, the number and positioning of the wheels and rollers and the design of the brackets for each of the wheels and the rollers. Sunstate's fabrication drawings did not provided for gate stops. Sunstate followed the appellant's design in this respect. The appellant noted that Keith Rowe, the Estimator for Sunstate stated that SDA's Miscellaneous Steelwork drawings did not refer to stops, and Mr Rowe never discussed that matter with Mr Twomey. Mr Rowe refers to those drawings as only "structural" outline drawings. There was no evidence that Mr Rowe was required to follow SDA's Miscellaneous Steelwork drawings in this respect. (n) Sunstate then arranged for the fabrication of the steelwork for the gates, and for it to be delivered to the Mascot site. During October and November 2002 the gate steelwork was installed. (o) MDI commenced installing the gate operating equipment on 12 November 2002. On the afternoon of 12 November 2002 one of the gate leaves of the centre gate moved through its portal and fell, narrowly missing one of MDI's installers. (p) As a result of that incident it became apparent to Sunstate and Mr Twomey that physical stops were required on the gates. MDI said that they would not go back to the site until adequate stops were installed on the gate leaves. (q) On 14 November 2002, and again on 16 December 2002, MDI sent Mr Twomey a facsimile strongly recommending that physical stops be installed, on both occasions expressly referring to the possibility of a fatality if that did not occur. (r) Shortly after the near miss on 12 November 2002 some stops were fixed to some of the gate leaves, including apparently the bolted stop, which was on the western leaf of the west gate when it fell on 14 October 2003. SDA was not asked to, and accordingly did not, play any part in the specification, design or installation of the bolted stop. (s) By December 2002 the construction of the concrete batching plant was substantially finished and Hy-Tec had entered into possession of the premises. After this time the gates had to be operated manually at times. Throughout 2003, failures in the automatic electronic functioning of all the gates, but most frequently, the west gate, were a regular occurrence. Hy-Tec employees closed the gates manually frequently and this required more than one employee as the west gate in particular was heavy. The usual practice with the west gate was to close the eastern leaf first. (t) On 14 October 2003 a tragic incident occurred in which one of the gates fell on Melissa Maybury resulting in her death (fatal incident). Jason Sheath was the last employee of Hy-Tec present at the site and was responsible for closing the gates to the site. His friend Ms Maybury arrived at the concrete batching plant by car to transport him home. She had done this on previous occasions. (u) Mr Sheath was attempting to close the bi-sliding metal gate on the western side of the premises. Mr Sheath was initially attempting to close the west gate electronically. The electronic system used to close the gates failed. Mr Sheath rang his supervisor Mr Hanna to ask him for the pin code for the drivers' room because the drivers had forgotten to close the room gate and told Mr Hanna he was having problems closing the gate and that he would get back to Mr Hanna with how he went with closing the gate. (v) Mr Sheath disengaged the motor and commenced to close it manually. Mr Sheath initially tried to close the western leaf of the west gate. He experienced difficulty in moving the western leaf by himself. Mr Sheath had previously had assistance in closing the gate manually. Ms Maybury came to the assistance of Mr Sheath in manually closing the gates. (w) At the time that Mr Sheath was attempting to close the western leaf of the west gate, the eastern leaf was still in the open position. While Mr Sheath and Ms Maybury were attempting to close the western leaf manually, as they manoeuvred the western leaf, the front edge of the gate leaf passed the midpoint of the driveway. It moved out of the supporting portals and fell onto Ms Maybury and caused her fatal injuries. (x) The only available inference from the evidence is that there were only ever three stops attached to the six leaves of the gates at the concrete batching plant. The factual inspections made after the fatal incident show that no further stops were installed after November 2002 and that the western leaf of the west gate still had the bolted stop installed in November 2002. The bolted stop was grossly inadequate and incapable of providing the mechanical strength required to limit the travel of the gate, whether that travel was driven by the normal power system, electric motor and gear box that drove the gate, or through the manual operation of the gate leaf. (y) Subsequent to the fatal incident, Mr Hadley on behalf of SDA designed gate stops, which were approved by Andrew Simpson. The design drawings were forwarded to Mr Proctor of Hy-Tec by Mr Hadley from the appellant on 15 October 2003. The entire work of designing, fabricating and installing stops in both the opening and closing positions took just one day. Inspector Ching photographed these stops on 24 October 2003. The appellant noted that there was no evidence of how long was required for those stops to be fabricated and installed. (z) In designing the stops after the fatal incident, Mr Hadley was able to undertake relevant calculations to undertake the task such as the calculation of the load. As the gates could be operated manually as well as electronically, Mr Hadley determined the load that someone could push on the door manually and from that he allocated the velocity and calculated an impact load.

First instance decision 9In Simpson (No 1), Haylen J first considered the construction of s 11 of the OHS Act and in doing so relied on the judgment of the Full Bench in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 and the judgment of the High Court in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304. His Honour found Arbor Products instructive (at [39]): On the approach dictated by the Full Bench in Arbor Products , the design of the core components of the gate had to be safe (in the sense that safety was assured) for the operation of the gate by the time the defendant had issued the plans for construction. Mr Hadley's evidence was that he had not turned his mind to what use the gate would be put; he knew it would be operated by motor but even then his task was to be undertaken without regard to the motor. On these bare facts and applying Arbor Products , the design was unsafe because of the possibility, not considered or addressed by the defendant, that the gate leaves could be manually moved beyond the support of the portal and could fall. The mere fact that it was contemplated that the gate would be motorised did not, without more, eliminate the real possibility that the gate would also be manually operated and could fall when manually operated. Applying Arbor Products leads to the conclusion that the defendant was guilty of a breach of s 11(1) of the Act. 10In relation to Slivak, his Honour's referred to the majority judgment of Gleeson CJ, Gummow and Hayne JJ (at [37]) where it was stated: The appellants stressed the presence of the term "must ensure". However, 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. 11In Simpson (No 1) at [17] Haylen J observed: Nevertheless, in Slivak, the High Court stated that it was within the power of the designer to perform certain tasks in ensuring safety such as ascertaining the use of the structure, what loads it would experience when being built and the nature of the location in which it was to be erected - the designer would not be required to take into account factors outside the power of the designer to control, supervise or manage such procedures to be adopted during construction. It is unnecessary for the purposes of the present case to establish the outer limits of the operation of s 11 but it may be said that the limited duties of the designer under the South Australian Act [ Occupational Health Safety and Welfare Act 1986) would also apply under s 11. 12The findings of the primary judge may be summarised in the following way: (a) in designing the structural elements of the gate, the appellant was designing 'plant' for use by people at work (at [18]); (b) the appellant was involved in the engineering design of plant, namely, the gates (at [19]); (c) the gate plant was designed in the course of trade, business or other undertakings by the appellant (at [19]); (d) the appellant knew the weight of the gates in their proposed design and knew that those gates would run on wheels within tracks to be laid by others. The appellant knew the gate would be operated by an electric/electronic motor and had information available as to the mode of operation of at least one brand of such a motor. Mr Hadley had inspected gates and motors at other premises (at [27]); (e) in relation to the question whether the appellant could ignore the use to be made of the gates and its method of operation and simply rely upon its perceived limited role as the structural engineering designer of the structural elements of the gates, leaving it to others to consider how the gate may be safely operated, the answer lies in the obligations imposed upon the appellant as a designer of the gate or a core component of the gate (namely, its structural elements) by the Occupational Health and Safety Regulation (at [28]); (f) in relation to the operation of cl 86 of the Regulation, s 11(2)(c) of the OHS Act makes it clear that the duties under s 11 extend to the design of components or any plant for use by people at work. To the extent that it may be said that the structural engineering elements of the gate were not the whole gate, those structural elements were a significant component of these gates and indeed, were a core component of the gate plant. The other components were primarily directed to the metal sheeting covering the steel framework of the gate and other components essential for the operation of the gates such as wheels, rails and other running gear, including the motor (at [29]); (g) under cl 86, the appellant designer had to identify any foreseeable hazard arising from the design of the plant that had the potential to harm the health or safety of any person during the use of the plant. This provision would then require the appellant to satisfy itself as to the motorised operation of the plant and whether it was capable of permanently locking or stopping the gate plant so that each leaf could not pass beyond the supporting portal and thereby become unsupported and likely to fall, causing serious injury to any person in the vicinity (at [30]); (h) that the motor operating the gates might fail, was a foreseeable hazard and the simple remedial step to guard against the leaves of the gates being manually operated and pulled beyond the support of the portals was to install stop devices. It was within the professional structural engineering capacity of the appellant to design such stops so that they would be effective and as it turned out, that is precisely what the appellant did after the event in relation to these gates (at [31]); (i) the appellant's obligation as the designer of the core component of the gate was extended by cl 87 of the Regulation. The appellant, as designer of the core component of the gate plant, had to undertake a risk assessment if its investigations indicated the possibility, from time-to-time, of manual operation of the gates. The gates needed support to prevent them from falling: the appellant regarded it as part of its professional practice as structural engineers to design the portals to support the leaves of the gate while they moved back and forth. It was a short step further to consider what support was available for the gates should they be inadvertently, carelessly or deliberately manually operated. A risk assessment conducted in those circumstances again would yield the simple solution of installing stop points to prevent the gates from being drawn beyond the support of their portal. Considering the size of the gates any such risk assessment would readily come to the conclusion that, if the leaves of the gate did travel beyond the support of the portal (the hazard), they were likely to fall and anybody in the vicinity of the fall area (such as a person manually operating the gate) would be likely to suffer serious, if not fatal, injuries (the risk) (at [32]); (j) clause 89(1) of the Regulation imposes a duty upon a designer of plant to design that plant so that risks associated with the use of the plant are eliminated and if not reasonably practicable to eliminate those risks, to ensure those risks are controlled. In designing these gates and the portals to support them, the designer also had to consider what support would be present for the gates if, from time-to-time, the motor or power supply failed or for any other reason, manual operation was possible. Once manual operation of the gates was possible because of the range of movements permitted by the motor, then the designer had to give consideration to how the gates were to be supported or how to prevent them from travelling beyond the support of their portals. Any such risk had to be eliminated or, if not able to be eliminated, had to be controlled (at [33]); (k) clause 95 of the Regulation requires a designer of plant to specify systems of work if they are necessary for the safe use of the plant. Under this clause it was open to the designer to specify that a motor was to be used that did not allow for manual operation or, if a motor was chosen that allowed for manual operation, then to specify a system of work that would allow for the safe operation of the gates. It is likely that, had the appellant given consideration to cl 95 of the Regulation, it would not have ventured into the area of laying down a safe system of work for the operation of the gates by specifying the minimum number of persons required to support the gate during manual operation but rather, having considered the terms of cl 95, would revert to including an instruction with the drawings that if manual operation was to be allowed, then stops would have to be included for the gate leaves (at [34]); (l) the appellant failed to act in accordance with the obligations imposed upon it as a designer by the various provisions of the Regulation that have been identified. These clauses of the Regulation identify the many ways in which the obligation in s 11(1) of the OHS Act can be met. To the extent that s 11(2)(c) extends the duty under s 11(1) to the design of components for any plant for use by people at work, cl 7(2) of the Regulation provides that ss 11(2) and (3) of the OHS Act apply to the duties under the Regulation of designers of plant for use by people at work. The appellant also failed to take the steps referred to in the evidence of Mr Simpson and Mr Garg. In these various ways the appellant is in breach of s 11(1) as particularised by the respondent (at [37]); (m) the appellant had contended that because Mr Simpson was not a structural engineer but a mechanical engineer, he could not give evidence as to the scope of duties and responsibilities of a structural engineer. Haylen J found Mr Simpson did not give his opinion based solely on his specialist knowledge as a mechanical engineer but spoke of his knowledge of the work of professional engineers generally and in particular, in relation to his specialised field of study in aspects of design and risk assessment in the engineering field. Mr Hadley was described as a "chartered professional engineer" as well as being a "structural engineer". It was in this context that Mr Simpson expressed the view that, in effect, in providing the drawings to Hannas the appellant had to undertake a "what if?" assessment having regard to the fact that the motor and the nature of the motor to be used to operate the gate had not been identified on the plans and were to be externally provided. That "what if?" analysis had to take into account the possibility that the operation of machines or electricity supply could be interrupted and the gates would have to be manually operated. If that occurred there was nothing to stop the leaves of the gate travelling beyond the support of the portal and the simplest and most straightforward solution was to specify in the plans a requirement to install suitable stops. Mr Simpson's "what if?" analysis is, in effect, another name for a risk analysis, something that the clauses of the Regulation contemplated should take place in the design of plant for use at work (at [42], [43]); (n) the appellant had contended that a person who designs plant cannot be said to have failed to ensure the plant is safe for use within the meaning of s 11(1)(a) of the OHS Act until the last opportunity for it to do so had passed. In this case, when the charge period had expired, the appellant expected to have an opportunity to complete its work and had no reason to suspect that it would not be given that opportunity. The respondent had submitted it mattered not that the charge period ended before the final design of the gates was settled, as designs by their very nature may be preliminary. The respondent referred to dictionary definitions of "design" to include the preparation of preliminary sketch plans. It was submitted that, to the extent the appellant's design was preliminary in the sense that other work had to follow, it nevertheless set the parameters for all the work that followed. Mr Simpson's evidence was that the design and drawings had been created for the purpose of the eventual fabrication and erection of the gates and the basic design drawings represented what was eventually made. Indeed, the scope of works given to Sunstate and MDI required those contractors to follow the drawings, which were those issued by the appellant. Significantly, the respondent pointed out that the appellant's final drawing carried the notation "issued for construction". Mr Hadley's evidence was that notation meant that the drawings "were appropriate for construction of the project". This was consistent with Mr Simpson's evidence that, except for the detail, the notation displayed an intention that the design was complete. The force of the submissions made by the respondent are accepted in relation to this aspect of the case and the appellant's submission that, on this basis, the charge be dismissed, is rejected (at [46]-[49]); (o) the appellant had submitted that the risk of the west gate falling on a person or employee whenever the gate was manually used because a substantial travel limiting device was not installed did not exist until the period when the gates were in use up to and including the accident in mid-October 2003. During that period the actual risk was that the gates would fall because the stop that had been installed immediately before the gates were commissioned for use was inadequate. The appellant had submitted it had absolutely no part in the design of that stop and there was no suggestion that the appellant's design had any causal connection with the inadequacy of that stop. Accordingly, there was no connection between the risk that actually existed up to and on 14 October 2003 and the appellant's design. The charge under s 11 centres upon its design and the omission of such a travel limiting stop. In answer to this submission, Haylen J found that the risk to health and safety followed from adopting this design in the fabrication and installation of the gates. In relation to the designer's duty it mattered not that someone else designed and installed an inadequate stop after the appellant's plans were issued for construction. That event merely gave rise to the possibility of a breach by another entity. In addition, his Honour observed that the respondent pointed out that the inadequate stop that had been installed was a consequence of the omission in the appellant's design and its failure to specify an appropriate travel-limiting device such as a stop. If such a device had been included in the design prepared by the appellant, then the occasion for the installation of an inadequate travel-limiting device by others would not have arisen. It was submitted that this failure was a substantial or significant cause and/or materially contributed to the risk of injury to persons at work. On either approach, his Honour held the appellant did not establish a case why the charge should be dismissed. The appellant's argument in relation to this matter also ignores the different period particularised in the charge and the nature of the charge particularised (at [50]-[51]); (p) the s 28(a) defence is not established (at [52]); (q) the s 28(b) defence is not established (at [53]). 13In relation to sentencing, in Simpson (No 2) , Haylen J considered not only SDA, but also Hy-Tec and Lejah (or Sunstate). The latter two defendants had entered pleas of guilty. In relation to SDA his Honour said at [45]: [45] These submissions for SDA pay insufficient attention to the kernel of the Court's liability judgment that, despite SDA's practice or wider industry practice, it could not go about the task of designing the structural steel elements of the gate without considering the use to which the gate would be put and that clauses of the Regulation required the designer to identify foreseeable hazards that may arise from the design of the plant in, amongst other things, its use. Although SDA has placed a large amount of evidence before the Court on the question of sentence, no explanation has been proffered as to how SDA overlooked the requirements of the Regulation. It was an agreed fact and it was Mr Hadley's evidence that he had attended another premises to investigate the operation of a large sliding gate including conducting an examination of a motor, noting that it was electronically driven. That action by Mr Hadley shows that he was not oblivious to the use to be made of the gate of which his structural steel design was an integral part. While Mr Hadley understood that a motor would control the operation of the gates, Mr Hadley had a document in his brief showing that MDI motors allowed manual operation and in May 2002, before SDA had completed the design, MDI was given the contract to provide the motor. No enquiry was made by or on behalf of SDA about the final motor or the motor options that were available from MDI and evidence from MDI's installation manager was that the motors always allowed for manual release. While SDA has strongly contended that its culpability is at a relatively low level compared to others with duties in relation to the design, manufacture and operation of these gates (matters to which the Court will turn in due course), the circumstances of the matter require a finding that, in the case of SDA, this was a serious breach. 14His Honour addressed the principle of parity in considering the relative culpability of the defendants. At [77] his Honour stated: [77] What then can then be said about the relative culpability of the three defendants? Firstly, Hy-Tec is charged under a different provision and the circumstances relating to the charges of SDA and Lejah focus on different periods. In SDA's case the charge is in relation to design and in Lejah's case, in relation to manufacture and the provision of information. The common thread is that they all had an obligation to consider the manual operation of the gates and the risk that might attend such an occurrence. The Court is unable to accept the submission for SDA that, because it was at the beginning of the process, others behind it should have picked up the risk associated with manual operation: similarly, neither can Hy-Tec make good its position that it came at the end of the line and many others before it should have identified the risk associated with manual operation. All defendants owed a similar obligation to protect against the identified risk. These circumstances do not persuade the Court that, as a result, the culpability of SDA and Lejah are reduced. As previously commented upon, neither SDA nor Lejah have explained how it was that they failed to consider the operation of the gate as required by the Regulation. Hy-Tec had the operation of the gate plant after it was commissioned and was aware that the motor was failing on a regular basis and that manual operation was necessary: it was aware that temporary stops had been installed but caused no investigation of their adequacy. When these matters are considered, the Court is unable to detect any appreciable difference in the culpability of any of the defendants. 15Haylen J then proceeded to consider the subjective factors relevant to each of the defendants and also victim impact statements tendered in the SDA proceedings. As we earlier noted, SDA was fined an amount of $185,000 plus costs. Having regard to, inter alia , the principle of totality and the pleas of guilty, his Honour fined Hy-Tec $67,500 for each of two offences under s 8(1) and s 8(2) of the OHS Act and Lejah was fined $77,500 for each of two offences under s 11(1)(a) and s 11(1)(b) of the OHS Act.

Grounds of appeal 16The grounds of appeal were as follows: In relation to liability:

The primary judge erroneously admitted the opinion evidence of Mr Colin Simpson (" Simpson ") as to what the appellant, as a professional engineer and/or a structural engineer, could and should have done to comply with the duty imposed by s.11(1)(a) of the Act, in that (a) insofar as Simpson's opinion evidence related to professional engineering, it was irrelevant, and (b) insofar as it related to structural engineering, Simpson was not qualified to give it.
In the alternative to 1, the primary judge erred in giving any significant weight to Simpson's opinion evidence in determining what the appellant, as a professional engineer and/or a structural engineer, could and should have done to comply with the duty imposed by s.11(1)(a) of the Act.
The primary judge erred in giving any significant weight to Mr Raj Garg's opinion evidence in determining what the appellant, as a professional engineer and/or a structural engineer, could and should have done to comply with the duty imposed by s.11(1)(a) of the Act.
The primary judge erroneously used obligations imposed by the Regulations to ascertain and determine the nature and content of the duty imposed on the appellant by s.11(1)(a) of the Act, and whether the appellant had failed to comply with that duty, particularly when the appellant had not been charged with having failed to comply with the Regulations.
The primary judge erroneously treated the appellant as though it was a designer of plant for the purposes of s.11(1)(a) of the Act, when it (a) was charged as, and (b) on the evidence was in fact, only a designer of particular components for plant for a particular, and limited, purpose.
Further to 5, the primary judge erroneously treated the appellant as though it had designed the whole of the gate referred to in the charge, when, as the uncontested evidence showed, the appellant had been retained to, and did, perform only the structural steel design for the gate.
Further to 5 and 6, the primary judge erroneously failed to have any, or sufficient, regard to, or give effect to, the limits of the design that the appellant was retained to, and on the evidence did in fact, undertake as a structural engineer.
The primary judge erroneously found that the appellant had failed to ensure that the so-called "gate plant" that it designed during the period to which the charge related (" the charge period ") was safe for use when, as the evidence showed, as at the end of the charge period the appellant contemplated that it would have the opportunity to make further contributions to the design of the "gate plant", but was denied the opportunity to do so by no fault of its own.
In the alternative to 5, 6, 7 and 8, the primary judge erroneously failed to find that the circumstances referred to in 5, 6, 7 and 8 gave rise to a defence under s.28 of the Act.
His Honour erred in finding the offence as charged made out in circumstances where, contrary to the particulars of the charge, the risk alleged as part of that charge did not exist on 14 October 2003, or at any other material time. In relation to sentence:
The primary judge erroneously failed to have any or sufficient regard in determining the appropriate penalty to (a) the effect on the objective seriousness of the appellant's offence of the contribution made by other entities to the relevant risk; and (b) the justifiable sense of injustice that the appellant was entitled to feel in circumstances where other entities which were found to bear significant culpability for the risk to which its charge related were not prosecuted.
The primary judge erroneously failed to have any or sufficient regard in determining the appropriate penalty to the evidence which demonstrated that, in acting in the manner found in the liability judgment as giving rise to an offence, the appellant was acting in a manner consistent with the usual practice of structural engineers operating as part of a multi-disciplinary design team.

CONSIDERATION 17We shall address the grounds of appeal in the order in which the appellant chose to address them.

Grounds 5 and 6 - the primary judge erred in treating SDA as the designer of plant, rather than a component of plant, and as the designer of the whole of the gate 18The appellant submitted that in reaching his conclusion that SDA was in breach of the duty imposed on it by s 11(1)(a) the primary judge had conflated SDA's structural design of the gate with the design of the gate as a whole. As a result, it was submitted, the primary judge erred in proceeding on the basis that SDA's design extended beyond the charge, and beyond what it was required to, and did, design. In particular, the requirement for, and design of, stops was not part of the component that SDA was required to design. 19The appellant accepted that the primary judge correctly described SDA as "designing the structural elements of the gate'" and referred to "the structural elements of the gate with which the defendant was concerned". However, it was submitted that for the purpose of considering the duty imposed on SDA by s 11(1)(a), Haylen J then proceeded on the basis that SDA was the designer of the gate, including the designer of the way in which the gate operated. This was apparent, it was submitted, because the primary judge referred to SDA as "a designer of the gate or a core component of the gate (namely its structural elements)" and thereafter his Honour referred on a number of occasions to SDA as the designer of "the core component of the gate", as though that was synonymous with "the basic design of the gate as a whole". 20The appellant referred to: (a) the evidence that SDA was engaged to provide the structural design for the gates; (b) the evidence that SDA's engagement was consistent with the usual and expected role of a structural engineer and, in particular, the evidence of Mr Hadley and Mr Twomey that: (i) the work of structural engineers was concerned with determining a structural system and structural elements of that system that will withstand the forces or loads that will be applied to the proposed structure; (ii) the problem which structural engineers set out to solve is the problem posed by loads on structures; and (iii) in particular structural engineers determine the most onerous load case and design the structure to resist that load. (c) the evidence that the design SDA provided accorded with the task it was required to perform. It was submitted: The Miscellaneous Steelwork drawings showed the structural elements for the gates, and the structural system that SDA had designed for the gates. Mr Hadley's evidence was that those elements were the gate frames, the portals, the holding down bolts and the concrete foundations. To the extent that other components were shown on those drawings, it was because they were indicative, or because Mr Twomey expressly requested that they be included. Accordingly, the task that Mr Hadley performed in designing the "gate plant" shown on SDA's Miscellaneous Steelwork drawings accorded precisely with both the task that SDA had been asked to perform, and with the role that would usually be expected of a structural engineer. (d) the evidence of Mr Hadley that SDA's design task was independent of the operation of the gate. 21The primary judge described the appellant as the designer of the "core component of the gate": see Simpson (No 1) at [28], [29], [32] and [39]. His Honour was undoubtedly correct in this description. His Honour did not find that the appellant designed the gate as a whole. The question is whether the appellant, in designing the "core component" (described in the charge as the "gate plant"), failed to ensure its safety when properly used. 22The appellant submitted that it had no responsibility beyond ensuring that the gate plant was sufficiently structurally sound to bear the probable loads to which it would be subjected, that load primarily being the force of wind on it. In other words, the only use to which the portals and structural steel frame of the gate were to be put was load bearing and the designer was not required to turn its mind to anything other than the load bearing capacity of these structures. 23The appellant's proposition simply cannot be right. The frame and portals constituted the main elements of the gate. The motor, cladding, rollers, track and wheels were merely ancillary equipment. It was known to the appellant that the structural steel frame, once mounted on wheels and placed on a track, would run into and out of the portals on either side. Whilst under the control of the motor there was no risk of a leaf of the gate running too far out of one portal and crashing to the ground. But if the motor became unserviceable and in the absence of some device to stop a leaf of the gate coming free of a portal, a very serious risk would materialise, as demonstrated by what occurred on 12 November 2002 when one gate leaf of the centre gate slid out of its portal and fell during installation of gate motors by MDI . 24Human experience and common sense dictate that an electric motor might break down or be affected by a power shortage, thereby requiring the gate to be opened and/or closed manually. Here was a gate where human and vehicular traffic needed access to and egress from a concrete batching plant each working day. It was completely foreseeable that the electric motor might fail for any number of reasons, in which case it was imperative to be able to open and close the gate manually, but in doing so to also have a means of ensuring the gate leaves did not come free of the portals. 25The requirement in s 11(1)(a) to ensure that the plant is safe and without risks to health when properly used requires the designer to turn its mind to the use to which the plant is to be put and to ensure that when the plant is put to its proper use, it will be safe. The use to which the gate plant was to be put, apart from its load bearing purpose, was to constitute the major and substantial elements of a gate consisting of two gate leaves that opened in opposite directions along a track through the tunnel of the support portals. In order for the gate leaves to run on the track and freely within the portals there had to be fitted wheels to the frame of the gate leaves and rollers to the inside of the portals. The gates, constituted mainly by the structural steel frames, were to be fitted with motorised driving units with switches to open and close the gates. The appellant knew all this. 26In considering the use to which the gate plant was to be put, given the appellant was required to ensure safety, it was its duty, and within its power, to check whether the gates would be capable of manual use and to consider whether this had implications for the safe use of the gates. In this respect, we note Mr Hadley's evidence that he had received as part of the brief for the gates, a document showing the style of motor MDI proposed to be used. Further, MDI was given the contract in May 2002, which was before the appellant completed the design. As the respondent submitted, it would have been a simple matter for the appellant to make inquiries about the motor from MDI. Mr Dark, who worked for MDI, gave evidence that such motors always allowed manual release. 27The appellant, however, did not do so on the artificially narrow basis that its role in designing mere components of the gate was entirely independent of the operation of the gate. We note that in his recorded interview on 19 July 2004 by the respondent, Mr Hadley said he did not make provision for the gates to be operated manually because he never thought the gates would be operated manually and that the reason why no gate stops were incorporated in the drawings was because his understanding of the gates' operation was that they would be controlled by motors. That is quite a different reason to the one adopted at the trial. But neither reason is exculpatory. 28In Slivak the High Court was concerned with s 24 of the Occupational Health Safety and Welfare Act 1986 (SA) ("the South Australian Act"). Sub-sections (1) and (2a)(a) of s 24 provide: (1) A person who designs, manufactures, imports or supplies any plant for use at work shall - (a) ensure so far as is reasonably practicable that the plant is designed and constructed so as to be safe - (i) when properly used and maintained; and (ii) when subjected to reasonably foreseeable forms of misuse; (b) ensure so far as is reasonably practicable that the plant is designed and constructed so that people who might use, clean or maintain the plant are, in doing so, safe from injury and risks to health; (c) take such steps to test or examine, or arrange for the testing or examination of, the plant as are reasonably necessary to ensure compliance with paragraphs (a) and (b) ; (d) ensure that the plant complies in all respects with prescribed requirements (if any) applicable to it; and (e) ensure so far as is reasonably practicable that adequate information about any conditions necessary to ensure the safe installation, use and maintenance of the plant is supplied with the plant. Penalty: Division 2 fine. ... (2a) Without derogating from the operation of subsections (1) and (2), where any structure is to be erected in the course of any work - (a) 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; ... 29As we noted earlier, the majority (Gleeson CJ, Gummow and Hayne JJ) said at [37]: The appellants stressed the presence of the term "must ensure". However, 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. 30As the majority stated, the requirement under the South Australian Act to ensure the design is safe when properly used is qualified by "so far as is reasonably practicable". There is no such qualification in s 11(1)(a) of the OHS Act. It is, therefore, a fortiori that the appellant had a duty to ascertain what use the gate plant would be put to and to take steps within its power as a designer to ensure safety. There can be no doubt that the appellant had the power and the ability, in designing the gate plant, to design stops and to incorporate those in the design drawings. Mr Twomey said that he could have gone to the appellant to design stops after the November incident. Mr Twomey said that a physical stop was a structural component to arrest the gate movement and that a structural engineer can design and has the expertise to do this. The appellant, in fact, designed stops after the fatal incident. 31Mr Simpson gave evidence that the appellant should have undertaken a risk analysis including a "what if?" analysis. The appellant contended that Haylen J erred in admitting Mr Simpson's opinion evidence as to what the appellant, as a professional engineer and/or a structural engineer, could and should have done to comply with the duty imposed by s 11(1)(a) of the OHS Act. It was also contended that his Honour erred in giving any significant weight to Mr Raj Garg's opinion evidence in determining what the appellant, as a professional engineer and/or a structural engineer, could and should have done to comply with the duty imposed by s 11(1)(a) of the OHS Act. We shall deal later with these appeal grounds, but it will be seen that we consider his Honour did not err in either respect. 32Mr Simpson's evidence, based on his expertise as a professional engineer, was that a "what if?" analysis should be undertaken by any professional engineer and its required use was not dependent upon the particular type of engineering being practised. Mr Simpson also gave evidence that the appellant, as a professional engineer, should have been aware of the risk arising from manual operation of the gates. In particular he said: (a) Reliance cannot be solely placed upon an electronic or electrically operated system for the gates and an alternative system must also be available. (b) A simple risk analysis of the gate design had not been carried out at any stage and had the appellant followed the most basic of design principles incorporating a basic risk analysis for the design then such an analysis would readily identify that the electrical operation of the gates would, from time to time, fail and thus necessitate manual operation of the gates. 33Mr Garg gave evidence that, whether the brief of the gate was for a motorised gate or a manually operated gate, he would have expected the design of a structural design engineer to have devices both on the ground to stop the wheels and on top of the gates, where the gates were hitting the stationary portals in this case. 34Haylen J relied on the evidence of these engineers at [22] in rejecting the argument of the appellant that, because the design of adequate devices to prevent the gate falling was not part of the express brief of the appellant, there was no obligation on the appellant, as a structural engineer, to include such devices in its design. There was no error by his Honour in this respect.

Ground 7 - the primary judge erred by failing to have regard to the limits of the design task that SDA undertook 35We have essentially dealt with this ground under the previous heading. The appellant submitted that where a designer had designed a component for plant, then the duty under s 11(1)(a) must be correspondingly limited to that component, and the question of whether the duty has been discharged must be determined against the criteria pertaining to that component. 36It was submitted the correct inquiry in these proceedings was not whether the gates as a whole were safe for use on 14 October 2003. The correct question was whether the fact that the gates were not then safe for use was a consequence of SDA's design of the structure of the gates, that being the only task that it was required to perform. In this case, it was submitted, the purpose for which SDA's design was required was limited to ensuring the structural integrity of the gates under load. The appellant submitted it was uncontroversial that SDA's design achieved this purpose. In other words, SDA's design made the contribution towards the safe use of the gates that it was required to make. 37As we stated earlier, this approach is too narrow. The gate plant constituted the main components of the gate, that is, the structural steel frame and the portals. The appellant was not entitled to ignore the fact that the frame would run on wheels along a track and slide into and out of the portals on each side. That was the use to which the frame and portals were to be put; that is how they were to be properly used. Given that was so, the appellant was bound to consider whether its design was safe. The design was not safe because it did not make provision for the frame constituting the gate leaves to be prevented from sliding out of the portals holding up the leaves in order to prevent the gate leaves from crashing to the ground.

Ground 1 - the evidence of Mr Simpson was wrongly admitted 38The appellant submitted the evidence of Mr Simpson was wrongly admitted on three grounds: (a) Mr Simpson did not have specialist knowledge that allowed him to express an opinion about structural engineering design; (b) Mr Simpson's evidence as a professional engineer was irrelevant; and (c) Mr Simpson did not sufficiently identify the specialist knowledge on which his opinions were based. 39As to the first ground, Mr Simpson gave opinions to the effect that, as part of its design process, SDA should have recognised the possibility or need for the gates to be manually operated, and should have provided for that possibility or need by including stops in its design. The appellant reminded the Full Bench that SDA had been engaged in its capacity as structural engineers to provide the structural design of the gates. 40The appellant submitted Mr Simpson did not have any specialised knowledge in structural engineering. He had never practised as a structural engineer, and agreed that he was not qualified to hold himself out to be a structural engineer. It was submitted that Mr Simpson had no personal experience of working as a structural engineer performing structural engineering work, and he had never studied the way that a structural engineer should perform structural engineering work. Further, the opinions in his reports were not based on any literature or other materials other than those referred to in his reports, which did not refer to any literature relevant to the way in which structural engineers undertake their work. 41As to the second ground the appellant observed that in admitting Mr Simpson's reports the primary judge focused on the fact that Mr Simpson was a professional engineer, and expressed his opinions in terms of the way in which a professional engineer should have approached the design process. 42However, it was submitted, Mr Simpson's evidence could only have been relevant to the extent to which the evidence related to the design process which SDA should have undertaken in the circumstances of their engagement as structural engineers . The appellant submitted: In order to admissibly or usefully say that structural engineers should follow a particular approach because (a) structural engineers are professional engineers, and (b) all professional engineers would and should follow that approach, it would have been necessary for Mr Simpson to support (b) by demonstrating that he had sufficient specialised knowledge of the approach taken by structural engineers to their task to be able to identify the respects in which the approach of structural engineers was the same as that of other professional engineers. To do so he would need to have given evidence of his training and experience in relation to the design processes used by structural engineers, and the overlap between those processes and the design processes of professional engineers more generally. Of course, he could not give any such evidence because of his lack of relevant training and experience. 43As to the third ground, it was submitted there were two possibilities in relation to Mr Simpson's opinions about the design process which SDA should have undertaken: (a) One possibility was that his opinions, or some of them, were based on his specialised knowledge in mechanical engineering, in which case his opinions were irrelevant within the meaning of ss 55(1) and 56(2) of the Evidence Act . (b) The second possibility was that his opinions, or some of them, extended beyond, or went outside, his specialised knowledge in mechanical engineering, in which case they did not satisfy s 79 of the Evidence Act . 44The appellant submitted that opinions in the first category necessarily involved an examination of what SDA should have done as a structural engineer from the perspective of a mechanical engineer. The premises, paradigms and purposes of the two branches of professional engineering were different, it was submitted. Senior counsel for the appellant submitted: It is impossible to know how the differences between the two branches of the profession infected Mr Simpson's opinions in the first category. The danger that this posed was a further ground to reject those opinions under s 137 of the Evidence Act . Section 137 requires balancing the probative value of the evidence against the danger of unfair prejudice to the defendant. If the former is outweighed by the latter 'there is no residual discretion. The evidence must be rejected.' 45In dealing with each of these submissions, first we doubt the need for expert evidence to prove that SDA should have undertaken a risk assessment and thereby recognised the possibility or need for the gates to be manually operated and should have provided for that possibility or need by including stops in its design. It was not essential to the making out of the charge that there be evidence of the need to carry out a risk assessment. We think it follows from the proper construction of s 11(1)(a) of the OHS Act that a designer in designing any plant is required to turn its mind to the use to which the plant is to be put in order to be able to fulfil its duty of ensuring safety. It is inherent in s 11(1)(a) that a risk assessment is required to be carried out. 46Nevertheless, Haylen J relied on the evidence of Mr Simpson and we consider he was entitled to do so. The expert evidence of Mr Simpson stood for the propositions that the appellant, through its professional engineers, had a duty to carry out a risk assessment as to the ultimate use that would be made of its design, should have been aware of the risk of manual operation and should have included travel-limiting devices in the design. 47Mr Simpson had expertise in the body of specialised knowledge common to professional engineers. He was qualified to give that evidence. Not only did he possess a Bachelor of Engineering degree but he also has a postgraduate qualification as a Master in Safety Science, which included postgraduate risk analysis with regard to the design process . He had also been taught the design process in both undergraduate and postgraduate training. The opinions expressed by Mr Simpson in his evidence were substantially based on his expertise as a professional engineer and safety expert. 48The opinion evidence of Mr Simpson on the question of whether the appellant should have recognised the possibility or need for the gates to be manually operated, was based on Mr Simpson's expertise as a professional engineer. As the trial judge said in the interlocutory judgment on this matter: His evidence as a professional engineer, it seems to me, hinges not on what a structural engineer would do in designing a gate but the basic safety and risk analysis which should accompany such an exercise, be it conducted by a professional engineer or any class of engineer, including people who design and install motors for the operation of a gate. 49The appellant sought to make the issues: (i) that as Mr Simpson was a mechanical engineer, he had no specialised knowledge that allowed him to express an opinion about the design process undertaken by structural engineers; and (ii) there was no evidence of a body of knowledge common to all professional engineers that included the 'what if? question in the particular terms postulated by Mr Simpson. 50The appellant overlooks the full extent of Mr Simpson's expertise. He was a professional engineer with postgraduate qualifications in safety science and as a consulting engineer in the field of industrial safety since 1982. The proposition that he was not qualified to offer an expert opinion on whether another class of professional engineer should have carried out a risk assessment is not sustainable. As Haylen J opined, the issue about which Mr Simpson gave evidence was more to do with basic safety and risk analysis than what was involved in designing a gate. 51We see no error in Haylen J admitting Mr Simpson's evidence and relying upon it.

Ground 2 - the primary judge erred in giving any significant weight to Mr Simpson' evidence 52This ground was submitted in the alternative to ground 1. The appellant submitted that even if it were accepted that Mr Simpson was qualified as a professional engineer to give evidence about the design process which SDA should have undertaken in their engagement as structural engineers, such evidence should carry little weight in the light of Mr Simpson's lack of any training or experience in the performance of structural engineering work. 53It was further submitted there were two additional reasons why Mr Simpson's opinions as to the design process which SDA should have undertaken did not support a finding that SDA failed to ensure safety in the design of the 'gate plant' with which the charge is concerned. The first was Mr Simpson approached the design of the gate as a whole and as an operating machine, rather than in relation to the structural design of the gate. The second was Mr Simpson's opinion that the risk assessment, and consequent identification of the need for physical stops, should have been done at a time later than the charge period. 54As to the first matter, we accept that the appellant did not design every single element of the gate as a whole and did not design the operating system for the gate. However, we note Mr Simpson's evidence to the following effect: (a) the design of the appellant as evident from its drawings includes: what material the gate sections were to be fabricated from; how they were to be finished; the specifications for galvanising; the specifications for painting; the layout in end elevation for the erection of the gate within the portals; the masonry to which some of the portals are attached and the footings and a number of notes with regard to instructions in reading the drawings and the use of the drawings; (b) the drawings by the appellant show the material from which the gates are to be manufactured and provide for the basic design to be followed for the eventual fabrication and erection of the gates; (c) the general layout and generalised gate design was carried out by the appellant with the design forming part of the "miscellaneous steel work" as shown in drawing M1047-S4.00; (d) the design of the appellant was not confined to designing the structural steel. The design included details of the steel sections from which each of the gate leaves were to be fabricated; the vertical supports for the sliding gates, the vertical guide supports within the fixed vertical guides; (e) these details were "overall the total design aspect for the gate". 55We also observe the design shown in the drawings had been created for the purposes of the eventual fabrication and erection of the gates and the basic design as it appeared in the drawings is what was eventually made. This was demonstrated by the fact that the scope of works given to both Sunstate and MDI required those contractors to follow the drawings M1047-S4.00, which were those issued by the appellant. Mr Rowe gave evidence that Sunstate was given the drawings M1047-S4.00 Revision D and Revision E, which were treated as drawings and specifications and used to prepare the workshop drawings. 56The fact is that the appellant did the great bulk of the design work for the gate and, in any event, as we have already sought to make clear, it does not follow that the appellant did not need to consider how the components it designed were to operate as the major components of the gates; the structural steel frame was to run on a track and the portals held up the gate leaves. A failure to design a mechanism to ensure the frames constituting the gate leaves did not escape from the portals when the gate leaves were operated manually represented a serious risk to safety. 57As to the second reason, it was submitted for the appellant that even if Mr Simpson's opinion as a professional engineer about the need for the particular "what if?" risk analysis was able to be applied to SDA's design work, the primary judge should not have relied on that evidence to find that SDA failed to ensure safety because, on Mr Simpson's own evidence, such an analysis was not required until the design process for the gates as a whole was completed. That did not occur it was submitted, until, at the earliest, Mr Twomey approved the fabrication drawings. That point in time was after the period with which the charge is concerned. 58Whilst Mr Simpson did give evidence that a risk assessment, and consequent identification of the need for physical stops, should have been carried out at later stages by other entities, he also gave evidence that a risk assessment should have been carried out earlier by the appellant during the period to which the charge relates. In his report Mr Simpson discussed the need for a risk analysis that would have enabled the designer to identify the risk and as a consequence incorporate into the design a mechanism "so as to be capable of reliably bringing the gate length to a stop over a predetermined length of travel ..."

Ground 3 - the primary judge erred in giving any significant weight to Mr Garg's evidence 59At [22] of Simpson (No 1) , Haylen J referred to Mr Garg's evidence: [22] Mr Garg was a WorkCover Inspector when he prepared an engineering report in relation to this incident. Mr Garg held a tertiary qualification in mechanical engineering, holding a degree of Bachelor of Engineering (Mechanical) and later attaining a Masters Degree in Engineering from Sydney University. Part of his studies involved structural engineering but he did not specialise in that field. After graduating Mr Garg said he practiced as a professional engineer. He was ultimately admitted as a member of the Institute of Engineers qualifying for membership by way of being a professional engineer. Somewhat curiously, although not called as an expert witness by the prosecutor, the defendant qualified Mr Garg as an expert witness in the field of mechanical engineering and was permitted to ask a number of questions based upon Mr Garg's expertise. Mr Garg was asked by the prosecutor what would be his expectations of a structural design engineer in putting forward designs for this form of gate, whether it was motorised or manually operated. Mr Garg referred to comments he had made in his report and stated that he would expect "something on the ground also to stop the wheels and another one on top of the gates also, where they are hitting the stationary portals in this case". ... 60The appellant submitted there was no evidence to suggest that Mr Garg was qualified to give expert evidence in any other field or to indicate that his expectations of an engineer practising in another field could be relevant. The primary judge's statement that "Part of his studies involved structural engineering but he did specialise in that field" suggests some structural engineering expertise; however, although part of Mr Garg's graduate degree had involved structural engineering he gave evidence that he did not have any specific experience or expertise in structural design. 61It was submitted that Mr Garg's training, study or experience did not allow him to express any admissible or useful opinion as to the "expectations of a structural design engineer in putting forward a design for this form of gate". 62The appellant further submitted that the primary judge appeared to have relied on the fact that Mr Garg was a professional engineer. According to the appellant there was no evidence of any body of knowledge common to professional engineers that allowed the primary judge to accept that any opinion about the design process that Mr Garg expressed as a professional engineer was relevant to the design process that SDA could properly have been expected to undertake. Accordingly, his opinion as a professional engineer was irrelevant, it was submitted. 63Further, senior counsel submitted it was not clear whether Mr Garg was expressing his relevant opinion as a professional engineer, or as a mechanical engineer, or what specialised knowledge (if any) he was relying on in expressing that opinion. The evidence was simply not elicited from him in a form that allowed for any link to be made between his specialised knowledge and the opinion being expressed. Accordingly, Mr Garg's evidence was prejudicial to the appellant and should not have been relied upon, it was submitted. 64The respondent submitted: [I]t is clear that the Appellant sought successfully to elicit expert opinion evidence in cross examination from each engineer who appeared in this case. Once that had been done, it was inevitable that those witnesses were open to giving expert opinion evidence in re-examination by the Respondent. This occurred without objection during the whole trial at first instance, including submissions, because these witnesses had already been qualified as experts by the Appellant. It is submitted that the trial having been conducted in this way, there has been no error by the trial judge in relying on the opinions given by Mr Garg or any other engineer in re-examination. 65Mr Garg was entitled to offer an expert opinion regarding matters falling within his expertise, namely, mechanical engineering. He was also entitled to give expert evidence as to his vocation of professional engineer. The question is whether he was entitled to offer an expert opinion as to what could be expected of a structural engineer in putting forward designs for a gate, whether motorised or manually controlled. 66In re-examination of Mr Garg by the respondent, the following question and answer was given: Q. Whether the brief of the gate was for a motorised gate or a manually operated gate, what would be your expectation of a structural design engineer in putting forward designs for this form of gate? A. As I mentioned in the report, like, I would expect something on the ground also to stop the wheels and another one on top of the gates also, where they are hitting the stationary portals in this case . 67Mr Garg is a professional engineer. In our opinion, a question to a professional engineer specialising in mechanical engineering about whether he would have expected a structural engineer to include in the design of a gate devices to limit the amount of travel of the gate was a legitimate question and one that Mr Garg would normally be qualified to answer. 68However, the question to Mr Garg related to a gate and not the components of a gate designed by the appellant. The question should have been whether he would have expected a structural engineer commissioned to design the portals and the structural steel frame of the gate to have incorporated stop mechanisms in the design of those components. To accept Mr Garg's evidence as to whether he would have expected a structural engineer to include in the design of a gate devices to limit the amount of travel of the gate we think was unfair to the appellant when what the appellant designed were gate components. Mr Garg had only seen the engineering design drawings and not the appellant's design. We consider Haylen J erred in accepting this aspect of Mr Garg's evidence.

Ground 4 - the primary judged erred by relying on obligations imposed by the Regulations to interpret the Act 69The appellant submitted it was apparent from both the liability judgment and the sentencing judgment that the primary judge had regard to the Occupational Health and Safety Regulation 2001 to determine the nature and scope of the duty imposed on SDA by s 11(1)(a) of the OHS Act. This was exemplified, the appellant contended, by the primary judge stating that the answer to the question of whether SDA could as a designer ignore the use to be made of the gates and their method of operation, lay in the obligations imposed by the Regulation, and then expressly referred to the obligations imposed on a designer of plant, and/or SDA, by each of cll 84, 86, 87, 89, 95, 96 and 97 of the Regulation. 70Senior counsel submitted it was a well established principle that regulations cannot be used to construe and/or alter provisions of the Act which created them: Fogarty v Brown (1989) 17 NSWLR 21 at 24 per Carruthers J; Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234 at 244 per Mason CJ and Gaudron J; Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 at [21]. In this respect, the appellant is entirely correct. The question is whether Haylen J used the Regulation in the way contended for by the appellant. 71At [28] of Simpson (No 1) Haylen J stated: [28] Having regard to these matters, could the defendant ignore the use to be made of the gates and its method of operation and simply rely upon its perceived limited role as the structural engineering designer of the structural elements of the gates, leaving it to others to consider how the gate may be safely operated? The answer to that question does not necessarily lie in the boundaries of what may be considered the technical professional duties of a structural engineer or by any professional practice in that regard (if indeed there is such a practice). The answer to this question, at least, lies in the obligations imposed upon the defendant as a designer of the gate or a core component of the gate (namely, its structural elements) by the Occupational Health and Safety Regulation . 72After reviewing the provisions of cll 84, 86, 87, 89, 95, 96 and 97 of the Regulation, his Honour said at [37]: [37] There is no evidence, however, to support a finding that the defendant considered any of the matters referred to in the Regulation - indeed, it was asserted on its behalf that, by reference to the nature of the task performed by structural engineers, it was no part of their function to give consideration to the actual operation of the gate and/or its use. In taking that approach the defendant failed to act in accordance with the obligations imposed upon it as a designer by the various provisions of the Regulation that have been identified. These clauses of the Regulation identify the many ways in which the obligation in s 11(1) of the Act can be met. To the extent that s 11(2)(c) extends the duty under s 11(1) to the design of components for any plant for use by people at work, cl 7(2) of the Regulation provides that ss 11(2) and (3) of the Act apply to the duties under the Regulation of designers of plant for use by people at work. The defendant also failed to take the steps referred to in the evidence of Mr Simpson and Mr Garg. In these various ways the defendant is in breach of s 11(1) as particularised by the prosecutor. 73His Honour's reference to the Regulation would appear to have been triggered by the appellant's submission at first instance that its construction of s 11(1)(a) was "consistent with the language of regulations 86, 87 and 88" of the Regulation. However, it is apparent that his Honour went further than merely addressing whether the appellant's acts or omissions were consistent with the relevant provisions of the Regulation and in addressing whether there had been a contravention of s 11(1) of the OHS Act, suggested the answer to the question whether the appellant could ignore the use to be made of the gates and its method of operation lay in the obligations imposed upon the appellant by the Regulation. His Honour found that the appellant failed to act in accordance with the obligations imposed by the Regulation, which identified "the many ways in which the obligation in s 11(1) of the Act can be met". Implicit in that finding is that because the appellant failed to act in accordance with the Regulation, it contravened s 11(1). 74We consider Haylen J erred in relying on the Regulation to determine whether the appellant contravened the OHS Act. The appellant submitted the consequence of this error was that the appeal should succeed. We do not agree. It was unnecessary for the primary judge to refer to and rely upon the Regulation in order to determine whether there had been a contravention of s 11(1). As we earlier noted, it is inherent in s 11(1)(a) that a risk assessment is required in order that hazards might be identified and risks assessed. It follows any risk that is identified would need to be controlled. In any event, the primary judge at [37] also relied, as he was entitled to, on the failure of the appellant to take the steps referred to in the evidence of Mr Simpson and Mr Garg.

Ground 8 - the primary judge erred by finding that SDA failed to ensure safety during the charge period 75It was contended the primary judge erred in not taking into account that the appellant was not given the opportunity that it sought to make further contribution to the design. It was submitted that Mr Twomey approved the fabrication drawings prepared by Sunstate without reference to SDA and gave approval in circumstances where SDA had expressly stated in a note on each issue of its Miscellaneous Steelwork drawings that "[F]abrication shall not commence until all approvals have been given". 76In addressing this submission, Haylen J stated at [46]-[49] of Simpson (No 1): [46] It was submitted that, as a matter of logic, a person who designs plant cannot be said to have failed to ensure the plant is safe for use within the meaning of s 11(1)(a) until the last opportunity for it to do so had passed. In this case, when the charge period had expired, the defendant expected to have an opportunity to complete its work and had no reason to suspect that it would not be given that opportunity. [47] This submission represents an interesting departure from the defendant's previous position. Throughout its written submissions and in the running of the case, the defendant emphasised that it was not responsible for the whole gate but only the core structural elements as components of the whole gate, including the running gear. The present submission seems to accept some ongoing role and a role in the design of the whole of the gate and being denied that opportunity. The defendant, nevertheless, strongly argued that stops were never part of its task and it was not required to bear them in mind in its design. It follows that the defendant would never have considered stops before fabrication unless asked to by Hannas and/or Mr Twomey. [48] The prosecutor's submissions in reply on this aspect argue that it mattered not that the charge period ended before the final design of the gates was settled as designs by their very nature may be preliminary. The prosecutor referred to dictionary definitions of "design" to include the preparation of preliminary sketch plans. It was submitted that, to the extent the defendant's design was preliminary in the sense that other work had to follow, it nevertheless set the parameters for all the work that followed. Mr Simpson's evidence was that the design and drawings had been created for the purpose of the eventual fabrication and erection of the gates and the basic design drawings represented what was eventually made. Indeed, the scope of works given to Sunstate and MDI required those contractors to follow the drawings which were those issued by the defendant. Significantly, the prosecutor pointed out that the defendant's final drawing carried the notation "issued for construction". Mr Hadley's evidence was that notation meant that the drawings "were appropriate for construction of the project". This was consistent with Mr Simpson's evidence that, except for the detail, the notation displayed an intention that the design was complete. [49] The Court accepts the force of the submissions made by the prosecutor in relation to this aspect of the case and rejects the defendant's submission that, on this basis, the charge be dismissed. 77As the respondent submitted, this ground of appeal is "opportunistic". As Haylen J observed, the appellant's whole case was that stops were never part of its task and it was not required to bear them in mind in its design. Yet it now contends under this ground of appeal it was not given an opportunity to complete its design work and, therefore, reasonable doubt exists as to whether it may have included a stop if it had been given the opportunity. 78The appellant referred to the note on the design drawing that "Fabrication should not commence until all approvals have been obtained". That note was preceded by the note 'The contractor shall prepare and submit five (5) copies of all workshop drawings to the superintendent for approval'. It was Mr Twomey's evidence that the "contractor was 'the manufacturer or fabricator of the structural steel elements of the gate" and he was the "superintendent". Mr Twomey said in his evidence when he was taken to this issue a second time in cross-examination that the note "Fabrication should not commence until all approvals have been obtained" appeared to be referring to the note "The contractor shall prepare and submit five (5) copies of all workshop drawings to the superintendent for approval", but then accepted, when pressed under cross-examination, that the note "Fabrication should not commence until all approvals have been obtained" meant that fabrication was not to commence until SDA's approval had been obtained. This was evidence he gave earlier in his cross-examination, but his answer was in response to the question: Q. May his Honour take it by the third note ['Fabrication should not commence until all approvals have been obtained'] you understood that Simpson Design Associates was stipulating that the manufacturer of the structural elements of the gate should not commence until Simpson Design Associates had given its approval? A. Yes 79We find that evidence difficult to accept. Mr Twomey was the superintendent and was required to be provided with copies of workshop drawings for his approval. Yet he said in response to a question that clearly suggested the answer that fabrication was not to commence until all approvals had been obtained by SDA. Mr Twomey, however, did not submit the workshop drawings to SDA for such approval. The reason, we think, is that the only approval required was that of Mr Twomey. SDA's involvement with the design ended when it submitted the final design drawings in Revisions D and E, which contained the notation "issued for construction". It was Mr Hadley's evidence that notation meant that the drawings "were appropriate for construction of the project". Mr Simpson's evidence was that except for the detail, the notation displayed an intention that the design was complete. 80In any event, the charge related to the design of the gate plant contained in Drawing No 1047-S4.00 Revisions D and E. The approvals referred to in the notations related to workshop drawings by Sunstate. 81There is no doubt that SDA had finished with the design with Revisions D and E. Despite the opportunity of doing so at no time did SDA ask to see the workshop drawings nor did it suggest that any further revisions of its own design drawing was required. There was no error by the primary judge.

Ground 10 - the primary judge erred by finding the offence established in circumstances where the risk alleged did not exist at the time particularised or any other material time 82The appellant submitted that at the time of the accident on 14 October 2003, and at all times during the period that the gate was in use up to that accident, the risk of the gate falling on either Mr Sheath or Ms Maybury was not a risk occasioned by the absence of a stop, but was rather a risk occasioned by the inadequacy in the specification, design and installation of the bolted stop. 83Senior counsel submitted that once Mr Twomey became aware of the need for physical stops on or shortly after 12 November 2002, he commissioned Sunstate to design and install stops. His evidence was that he could have gone to SDA or he could have gone to Sunstate to do that task, and he went to Sunstate. He did so because he understood them to have expertise relevant to that work, bearing in mind that he considered Sunstate to be the mechanical engineers on the project. 84It was further submitted: Where at least two people profess qualifications to design a stop, and could do so if asked, and one of them, upon being asked to design a stop does so inadequately so as to contravene s 11(1)(a), then the other person cannot be liable for the inadequacy in that design unless by act or omission they made some contribution to its inadequacy. In this case it was common ground that SDA had absolutely no part in the design of the bolted stop and there was no suggestion that SDA's design had any causal connection with its inadequacy. Accordingly, there was no connection between the risk that actually existed up to and on 14 October 2003 and SDA's design. 85The primary judge addressed this issue at [50]-[51] of Simpson (No 1) : [50] The defendant then proffered another reason why the charge should be dismissed noting that the risk on which the prosecutor relied was the risk of the western gate falling on a person or employee whenever the gate was manually used because a substantial travel limiting device was not installed. The defendant suggests that risk did not exist until the period when the gates were in use up to and including the accident in mid-October 2003. During that period the actual risk was that the gates would fall because the stop that had been installed immediately before the gates were commissioned for use was inadequate. The defendant had absolutely no part in the design of that stop and there was no suggestion that the defendant's design had any causal connection with the inadequacy of that stop. Accordingly, there was no connection between the risk that actually existed up to and on 14 October 2003 and the defendant's design. [51] It was common ground that the defendant did not include a stop in its design and strenuously asserted the appropriateness of not doing so having regard to what it submitted was its limited role as the structural engineer. The charge under s 11 centres upon its design and the omission of such a travel limiting stop. The risk to health and safety followed from adopting this design in the fabrication and installation of the gates. In relation to the designer's duty it mattered not that someone else designed and installed an inadequate stop after the defendant's plans were issued for construction. That event merely gave rise to the possibility of a breach by another entity. In addition, the prosecutor points out that the inadequate stop that had been installed was a consequence of the omission in the defendant's design and its failure to specify an appropriate travel limiting device such as a stop. If such a device had been included in the design prepared by the defendant, then the occasion for the installation of an inadequate travel limiting device by others would not have arisen. It was submitted that this failure was a substantial or significant cause and/or materially contributed to the risk of injury to persons at work. On either approach, this further submission for the defendant does not establish a case why the charge should be dismissed. The defendant's argument in relation to this matter also ignores the different period particularised in the charge and the nature of the charge particularised. 86The respondent submitted on appeal: (a) whilst the offence period against the appellant was determined by the time at which the relevant design took place the evidence of the risk arising from the design could include evidence of what occurred after that time. In particular, in this case there was evidence of the risk arising: during November 2002, when a gate failed because of the lack of adequate devices; after the plant commenced operation when the gates were used manually on a number of occasions; and on 14 October 2003 when the west gate was being used manually which led to the fatal incident; (b) the prosecution only has to prove that there was a potential danger, not an actual incident causing an injury. It is open to find that the charges are made out in relation to a potential danger without finding a causal connection with the actual incident causing an injury (as occurred in Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 at [49]-[50] and [63]-[69]; Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253; WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211 per Boland J); (c) the appellant suggests that the risk arose because the stop that had been installed was inadequate. However, this cause of the risk was in turn a consequence of the design of the appellant not including or specifying an adequate device. If an adequate device had been included in the appellant's design, the circumstance of the installation of an inadequate device would not have arisen. As found by the trial judge this failure was a substantial or significant cause of the risk of injury to persons at work and/or materially contributed to that risk: see Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 at [49] applying Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 per Gaudron J at [7] and McHugh J at [27]; (d) the appellant points to other persons who could have later taken action to ensure the safety of the gate plant during manual operation. However the culpability of one person does not mean there is no breach of the OHS Act by the appellant. See WorkCover Authority of NSW (Inspector Farrell) v Morrison [2001] NSWIRComm 325 at [45]. 87The parties later elaborated on this ground of appeal in writing. In those written submissions the respondent: (a) referred to Royall v R [1991] HCA 27; (1991) 172 CLR 378 at 440 per McHugh J where his Honour said at [23] and [24]: [23] ... In criminal cases, the common law has also refused to apply the "but for" test as the sole test of causation. Nevertheless, the "but for" test is a useful tool in criminal law for determining whether a causal link existed between an accused's act or omission and the relevant injury or damage. ... [24] ... To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong: Pagett , at p 290 ... (b) contended the appellant was put on notice that the respondent alleged that the relevant risk was caused whenever persons were operating the west gate manually by particular 15 of the charge; (c) contended there was evidence of manual gate operation on occasions earlier than 14 October 2003; (d) referred to his submissions at first instance as to the risk arising earlier than 14 October 2003, as follows: In particular, in this case there is evidence of the risk arising during the November 2002 incident (when a gate failed because of the lack of adequate devices), after the plant commenced operation when the gates were used manually on a number of occasions; and on 14 October 2003 when the western gate was being used manually which led to the fatal incident. (e) referred to his response to the appellant's submissions at first instance that the foregoing evidence was irrelevant, that response being: The Defendant ... maintains an objection to evidence relevant to the use of the gates. The Defendant misapprehends the relevance of the evidence. This evidence is not relevant to the failure of the Defendant which it is accepted is confined to the period from 3 September 2001 to 24 June 2002. It is relevant to the risk created by that failure, namely the risk of the western gate falling on a person or employee, whenever the gate was being used manually, because a substantial travel limiting device was never installed ... 88In its written reply, the appellant sought to deal with the causation issue. In that respect the appellant closely analysed the various authorities regarding causation, in particular, Royall . The appellant submitted the chain of causation was broken by the design and installation of the failed stop by an "unknown designer". The appellant submitted: (a) The unknown designer(s) and their design were entirely independent of SDA and its design. (b) The acts and omissions of the unknown designer(s) when designing and installing the failed stop were entirely voluntary, in that they were free, deliberate and informed, and were entirely extraneous or extrinsic to SDA or anything that it had or had not done. (c) It is accepted that SDA had nothing to do with the design executed by the unknown designer(s). (d) It is also accepted that nothing that SDA had done or not done imposed any constraint or pressure on the unknown designer(s), or in any way constrained, inhibited or prevented the unknown designer(s) from designing a stop that would not have failed. No feature of the design of the failed stop was caused by, or was otherwise in any way the product of, anything that SDA had or had not done. The unknown designer(s) were in precisely the same position as SDA to design a stop that would not fail. Their failure to do was entirely on their account. (e) Accordingly, the failed [sic] stop failed, and thereby constituted the risk identified in the charge - that is, that the gate would fall on Mr Sheath or Ms Maybury on 14 October 2003 - for reasons with which SDA had nothing to do; they were the result of the independent acts or omissions of the unknown designer(s). (f) By the time at which that risk occurred - that is, as at 14 October 2003 - the fact that a stop had not been included in SDA's design had ceased to have any operative effect; SDA's design in that respect had been overtaken by the design of the unknown designer(s).... (g) In the event, the act or omission of SDA, although a causa sine qua non of the risk identified in the charge, and part of its setting and history, was not its real cause for the purpose of fixing SDA with criminal responsibility for that risk. The chain of causation had been broken by the intervention of the unknown designer(s) and their design. In the result, an essential element of the charge was not made out (see, for example, Cahill v State of New South Wales [2005] NSWIRComm 33 at [45]) and SDA could not, therefore, lawfully be convicted. 89The appellant also submitted that there was no evidence of manual operation of the west gate before the installation of the inadequate stop and that, contrary to what was put by the respondent, the trial judge at [40] did not admit the evidence that the relevant risk was caused whenever persons were operating the west gate manually. 90The respondent eventually accepted, and properly so, the appellant's submission summarised in the immediately preceding paragraph. It follows that the question of causation in the appeal should be decided on the basis of whether the trial judge was correct in finding a causal connection between the appellant's acts or omissions and the risk to Ms Maybury and Mr Sheath of being injured (including fatally injured) whilst they were operating the west gate manually on 14 October 2003. 91The principles applicable to causation were summarised in Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 by the majority (Walton J, Vice-President and Boland J; Marks J not dissenting on this point) as follows: [301] As foreshadowed at the beginning of our discussion of failures, the parties made submissions concerning the relevant principles governing causation. The principles relating to causation in this jurisdiction are well settled: WorkCover v Kellogg (Aust) at 253; The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 at [41]-[51]; and State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [25]-[33]. In summary: (a) As we noted above at [213], the Court held in WorkCover v Kellogg (Aust) (No 1) at 253 that it is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees. It is not necessary to demonstrate a causal connection between the conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. (b) It is inappropriate to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation ( WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited and Anor at [133]; see, for example, Haynes v C I & D Manufacturing Pty Ltd at 156-7). See also The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [32]-[40]. (c) The fact that a risk was not created by, or under the control of, a defendant is not to the point: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [42] and [44]. An employer cannot escape liability by contending simply that it did not create the risk. (d) Causation has to be viewed in a common sense and practical way and is not decided as a philosophical or scientific question; see State of New South Wales (NSW Police) v Inspector Covi at [25] and The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [45]. (e) It is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way" see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]-[50]. (f) A risk to safety that exists independently of the defendant (such as a violent criminal) may increase or become more serious as a consequence of the employer's acts or omissions. In that way, the defendant's failure may materially contribute to the risk: see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]. 92The issue here is whether the chain of causation between the appellant's acts or omissions and the risk to Ms Maybury and Mr Sheath whilst they were operating the west gate manually on 14 October 2003 had been broken by the intervention of the person who bolted a stop on the western leaf of the west gate. It will be recalled that on 12 or 13 November 2002 a leaf of the centre gate fell missing a subcontractor who had been installing operating equipment for the east gate. Mr Twomey was notified by MDI of the danger of a fatality in manual operation of the gates if physical stops were not installed on the gates. In the days after the November 2002 incident some metal stops were installed on the gates. Three stops altogether were installed including two stops attached to the west gate on both gate leaves. While the stop on the eastern leaf of the west gate was welded, the stop on the western leaf of the west gate was only bolted. The gate stops were made of steel. There was no cogent evidence as to who installed the stops. 93The appellant relied in particular on Royall, which appears to be the leading authority on causation principles in the criminal context. In Royall the defendant was charged with the murder of a woman who died having fallen from the bathroom window of her sixth floor flat. The Crown alleged that the defendant had brought about the death of the victim in one of three ways. First, that he had pushed her out of the window. Secondly, that he attacked her, causing her to fall from the window as she avoided his attack. Thirdly, that the victim had a well founded and reasonable apprehension that if she remained in the bathroom she would be subjected to further violence which caused her to jump out of the window to escape the violence. 94The members of the High Court divided over the test of causation that should be applied. A majority of the High Court favoured a direction to the jury that asked whether the death was a natural consequence of the defendant's conduct (Mason CJ, Deane and Dawson JJ). Toohey and Gaudron JJ held that the question for the jury was whether the defendant's conduct substantially contributed to the victim's death. Brennan and McHugh JJ, in separate judgments, favoured a reasonable foreseeability test, that is, whether the death was a reasonably foreseeable consequence of the defendant's conduct. 95However, in Royall , Mason CJ, Deane, Dawson, Toohey and Gaudron JJ approved what was stated by Burt CJ in Campbell v R [1981] WAR 286 at 290; (1980) 2 A Crim R 157 at 161 in relation to common sense, namely, that it is: [E]nough if juries (are) told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter. 96McHugh J in Royall agreed that, ordinarily, the application of the common sense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her "causally responsible" for the event or occurrence in question: at 441. But his Honour noted there were two cases where the invocation of common sense principles of causation often provided little assistance to the jury. The first was the case where an accused's act would not have brought about the event or occurrence without the intervention of a subsequent act of the victim or a third party. The second is not relevant. His Honour continued: In these cases, common law judges have sought to use more specific tests for determining whether "but for" acts or omissions of the accused were "causally responsible" for the event or occurrence. The common law judges have used at least four tests for this purpose. They are: (1) the operating and substantial cause test; (2) the natural consequence test; (3) the reasonable foresight of the consequences test; and (4) the novus actus interveniens test, which is used sometimes in conjunction with and sometimes independently of one of the other three tests. Unfortunately, the cases show no consistent pattern in applying these tests. 97McHugh J concluded at 449 that the preferable approach where issues of causation arise in a criminal case was that: [I]n a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a 'but for' sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. It goes almost without saying, however, that a person should be held liable for harm which is causally linked with his or her conduct and which he or she intended should be brought about by that conduct. 98In relying on the judgment of McHugh J, the appellant submitted the relevant principle to be applied in the present case was encapsulated in the following passage from the judgment of his Honour at 448-449: The novus actus interveniens doctrine has been used to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for damage when a fully-informed actor, not acting under constraint or pressure flowing from the tortfeasor's actions, has intervened and produced that damage even though it would not have occurred but for the tortfeasor's act or omission. For the same reasons, in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a "but for" sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission (emphasis added by appellant). 99In the present case, the appellant failed to incorporate in its design of the gate plant, travel limiting devices that would avoid the risk of the gates coming free of the portals. An unknown person bolted a stop to the western leaf of the west gate and that stop failed when the gate was manually operated. Putting aside for the moment the intervention of the unknown person, if one were to apply the common sense test one would inevitably come to the conclusion that the appellant's failure to incorporate stops caused the risk. Under the "but for" test one would come to the same conclusion: but for the appellant's omission the risk would not have arisen. Further, if one were to apply the substantial cause test, or even the reasonable foreseeability test, the same conclusion would result. 100Having regard then to the intervention of the unknown person bolting in place a stop that failed, it seems to us that common sense would suggest that the appellant's omission in failing to incorporate in the design the necessary travel limiting devices remained a substantial cause of the risk. As Haylen J correctly observed: In relation to the designer's duty it mattered not that someone else designed and installed an inadequate stop after the defendant's plans were issued for construction. That event merely gave rise to the possibility of a breach by another entity. In addition, the prosecutor points out that the inadequate stop that had been installed was a consequence of the omission in the defendant's design and its failure to specify an appropriate travel limiting device such as a stop. If such a device had been included in the design prepared by the defendant, then the occasion for the installation of an inadequate travel limiting device by others would not have arisen. 101Even though it might be contended that the act of the unknown person in bolting an inadequate stop to the western leaf of the west gate was a cause of the risk, the appellant's omission was a substantial factor in causing that risk to materialise. This was a circumstance where either one, that is, either the unknown person or the appellant would have caused the risk anyway. It could not be said that the risk would never have eventuated if it had not been for the actions of the unknown person or that the actions of the unknown person were the sole cause of the risk. Moreover, if one were to apply the natural consequence test or the reasonable foresight of the consequences test it is apparent that the legal responsibility for creating the risk lay with the appellant. 102That more than one person may have contributed to the creation of a risk is supported by what Mason CJ said in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. His Honour discussed at length the law relating to causation in the context of a negligence case and whilst we are dealing with a criminal matter, we consider March is, nevertheless, relevant in terms of the principles to be applied. 103His Honour observed at 512 that: [T]he courts are no longer as constrained as they were to find a single cause for a consequence and to adopt the "effective cause" formula. These days courts readily recognize that there are concurrent and successive causes of damage on the footing that liability will be apportioned as between the wrongdoers. 104Mason CJ referred to what Lord du Parcq said in his speech in Grant v Sun Shipping Co Ltd [1948] AC 549 at 563: If the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame, yet but for the negligence of a third person the injured man would not have suffered the damage of which he complains. There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender. 105Similarly, Deane J referred to and applied the observations of Lord Reid in Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 at 681: The question (of 'what caused an accident from the point of view of legal liability') must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally. 106At 517 Mason CJ discussed novus actus interveniens and gave an example as follows: Many examples may be given of a negligent act by A which sets the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, though it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. 107If one considers what his Honour said in that example in the context of what occurred in the present proceedings, the unknown person's act in bolting a stop to the gate did not transform the appellant's conduct in failing to design a stop "into something of far greater consequence". Nor was the consequence not readily foreseeable by the appellant. It was always foreseeable that in the absence of stops being designed in the first place, no stops would be affixed to the gate thereby creating a risk of the gate coming out of its portals and causing injury. 108There can be no doubt that the appellant's failure in respect of the design of the gate plant created a risk to health and safety. The risk was present on 14 October 2003. It makes no sense that the appellant could be permitted to escape liability by contending that the risk it caused was negatived or nullified by a person fixing a faulty stop to the gate when the reason why it became necessary to install that stop was because of the appellant's omission in the first place. 109If a builder erected an unsafe wall and a contractor was engaged to brace the wall because it was unsafe, but the brace failed to prevent the wall toppling over and injuring someone, it seems to us that both the builder and the contractor would be culpable. We do not see it being any different in this case.

Ground 9 - his Honour erroneously failed to find that the circumstances gave rise to a defence under s 28 of the OHS Act 110Haylen J addressed the defences at [52]-[53] of Simpson (No 1) . There his Honour stated: [52] The arguments for the defendant are then repeated in relation to the s 28 defences and thereby face the same fundamental difficulties. Under s 28(a) a defence is provided if a defendant proves that it was not reasonably practicable for it to comply with the provision. There was no evidence that it was not reasonably practicable for the defendant to insert in its drawings a provision for stops and the design of stops is accepted by the defendant as part of the work of a structural engineer. As discussed in Slivak, it was open to the defendant to make enquiries about the use of the gate and how it would operate, including the motor to be used in the gate opening operation. It was open to the defendant to seek information about the motor to be used and whether there could be manual operation of the gate. No evidence was adduced as to why the requirements of s 11(1) and/or clauses of the Regulation were such that it was not reasonably practicable for the defendant to comply with those provisions. The s 28(a) defence is not established. [53] Section 28(b) requires the defendant to prove that the commission of the offence was due to causes over which it had no control and against the happening of which it was impracticable for the person to make provision. There was no such evidence. The same comments made in relation to s 28(a) might be made in relation to the s 28(b) defence. The s 28(b) defence is not established. 111In the appeal, in the context of the defences available under s 28 of the OHS Act, the appellant raised no issues that we have not already addressed. We agree with the primary judge that there was no evidence that it was not reasonably practicable for the appellant to insert in its drawings a provision for stops and the design of stops is accepted by the appellant as part of the work of a structural engineer. Further, there was no evidence that the commission of the offence was due to causes over which the appellant had no control and against the happening of which it was impracticable for it to make provision.

Ground 11 - his Honour erred in determining penalty by failing to have sufficient regard to the culpability of other entities, and SDA's justifiable sense of injustice arising from other culpable entities not being prosecuted 112In considering the matters raised under this appeal ground, it is well to keep in mind the following relevant principles: (a) the court should not assess whether a prosecution should have been continued [or commenced] against the other entity WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd [2000] NSWIRComm 1123; (2000) 95 IR 383 at 437; Department of Mineral Resources (Chief Inspector McKensey) v Berrima Coal Pty Ltd [2001] NSWIRComm 130; (2001) 105 IR 348 at [193]; (b) it was not held in Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 that the failure to prosecute a defendant which was otherwise appropriate to be prosecuted was a matter which, of itself, would mitigate the penalty. Rather, what the Full Bench decided was that in a situation where there had been a failure, in assessing a defendant's relative culpability, to consider the inter-related culpability of another party which had not been prosecuted, and that failure resulted in an inappropriate penalty being imposed, that situation itself engendered an appropriately based sense of grievance which was in turn emphasised by the failure to prosecute the other potential defendant: WorkCover New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [31]; (c) the significance of the failure to prosecute, or to continue the prosecution of the other potential defendants, is not that fact but rather the fact that any assessment of the role of the present defendants must be considered in the light of the consideration that the criminality for the breach of occupational health and safety was one which did not fall solely on the shoulders of these defendants. That fact, of itself, involves consideration of matters which may mitigate the conclusion as to the objective seriousness of the offences committed and thus the penalty which should be imposed in relation to them: Walco Hoists at [34]; (d) the court should not embark upon an inquiry in sentence hearings which require the court to make specific findings of culpability of the other entity: McDonald's at 437; (e) the absence of prosecution of another entity merely serves to emphasise the unfairness that may be occasioned to a defendant in the assessment of the objective seriousness of an offence if a proper assessment of their contribution to an accident is not undertaken: McDonald's at 437; (f) the focus of the court in assessing the objective seriousness of the offence is the nature of the detriment to safety and the contribution of the defendant to the detriment; the relevance of the conduct of the other entity is that it may cast light on the level of culpability of the defendant: McDonald's at 437. 113The appellant submitted the primary judge erred by failing to have sufficient regard to the contribution made by other entities to the relevant risk when determining the objective seriousness of SDA's offence and that the primary judge: [F]ailed to have any regard to the "justifiable sense of injustice" that SDA must necessarily feel as a result of the fact that Hannas, an entity with a more significant level of culpability for the relevant risk, was not charged with any offence under the Act. 114We do not consider Haylen J erred in the manner contended for by the appellant. It is apparent from Simpson (No 2) that the primary judge had particular regard to the contribution of Hannas. In particular, at [50] the primary judge said: [50] In this context the prosecutor acknowledged that Hannas, as the project manager for the construction of the gates, "could have acted more safely by carrying out a risk analysis of the drawings received from SDA and Sunstate (Lejah) and by ensuring that gate stops were welded on all gate frames, particularly after the incident in November 2002". His Honour made a similar observation at [72] in the context of considering the relative culpability of the participants. 115After outlining other matters relevant, the primary judge concluded at [74]: [74] While these matters are not spelt out in detail, they present a picture of Hannas as construction manager/project manager being responsible for occupational health and safety in an overall sense and being responsible for the co-ordination of the design team and drawings and addressing issues as to what might be appropriately and practically added to those drawings. Having regard to that material, broad and imprecise as it is, had Hannas been charged with a breach of the Occupational Health and Safety Act in relation to the fatal accident that occurred in October 2003 at the Mascot site and had either been found guilty or pleaded guilty to that offence, then it is quite possible that Hannas may have been found culpable to a level somewhat above the level of culpability of the other defendants. In the circumstances little more than that can be properly said. 116Further, his Honour considered Sunstate's role and concluded at [77] that all of the defendants owed a similar obligation to protect against the identified risk and that the circumstances of the appellant and Sunstate did not persuade the Court that as a result their culpability was reduced. 117In the course of the hearing of the appeal, the Full Bench raised with the parties the issue of whether in his Honour's penalty judgment the primary judge took into account the contribution to the risk of the unknown person that installed the inadequate stop. 118The appellant had submitted at first instance that the unknown person who designed and installed the inadequate bolted stop made a more substantial contribution to the risk for the obvious reason that it was the installation of that stop which was, from that point onwards, the real and effective cause of any risk of the western leaf of the west gate falling. In the sentencing judgment, it was submitted, the primary judge gave no consideration at all to the culpability of this person or how that culpability affected the seriousness of SDA's offence. The appellant submitted: For the purpose of considering the objective seriousness of a defendant's offence, it is clear that regard can be had to the contribution made by other entities to the relevant risk, including entities which have not been charged with any offence. ... There is no reason why this principle would not be applied even if the actual identity of a particular contributing entity is not known. In failing to have any or sufficient regard in determining SDA's penalty to the effect on the objective seriousness of its offence resulting from the contribution made by other entities to the relevant risk, the primary judge erred. 119The respondent, on the other hand, submitted that the primary judge had accepted that part of the culpability of Hannas included its responsibility for the installation of the inadequate stop: see Simpson (No 2) at [50] and [72]. The respondent submitted: Although in his conclusion on relative culpability the trial judge did not expressly refer to the contribution to the risk by the entity which installed the stops, it is clear that he attributed responsibility for this to Hannas. In these circumstances, it is submitted that the absence of an express reference to the contribution to the risk by the installer of the stops does not result in error or in the necessity for the appeal bench to intervene. The relevance of the contribution to the risk by the installer of the inadequate stop, in the context of determining sentence is that it may reflect on the culpability of the Appellant. The culpability of the installer of the stops, over and above the culpability of Hannas, in the absence of any detail of the identity of that entity or the circumstances in which it undertook that task, did not assist in determining the culpability of the Appellant. The trial judge did take into account the culpability of Hannas and the other defendants Hy-Tec and Sunstate in determining the objective seriousness of the Appellant's offence and this culpability included the finding not challenged that "all defendants owed a similar obligation to protect against the identified risk". There was no error on behalf of the trial judge. 120Notwithstanding the consideration by the primary judge regarding the culpability of Hannas, including its failure to ensure that gate stops were welded on all gate frames, an unknown person bolted an inadequate stop to the western leaf of the west gate and that act, as we have found, caused the risk. The primary judge did not have regard to this fact. 121However, the position is unlike that in Nesmat. There the Department of Public Works, on whom the appellant relied for information about whether the substation was live, was not prosecuted. The Full Bench in Nesmat stated at 322-323: However, in our opinion, there are other very relevant factors which were not adverted to by his Honour when determining the penalty, or if adverted to, were rejected by him as not being relevant and/or mitigating ones. These include:

The primary cause of the risk and the detriment to safety was that the substation was not de-energised by the appropriate authority/ies at the time it was decommissioned or, at any time, prior to the letting of the contract to the appellant. The risk and detriment to safety was compounded by the further failure of Public Works, which was advised as early as 12 November 1993 that the substation was live, to specify in the contract that the job included the removal of equipment in the live electrical substation. On appeal, we were advised that the prosecution which had been commenced against a member of the staff of Public Works had been withdrawn, and that Public Works was never prosecuted in relation to the tragic accident despite what was, on the evidence, the instrumental part played by it. The absence of prosecution of other parties, on whom the appellant had reasonably relied, underlines the cogency of argument presented on appeal that the sentence gave rise to a justifiable sense of injustice.
The appellant and in particular Mr Farrugia were misled. They were induced to believe the substation was not live and were lulled into a false sense of security by the failure of Public Works to specify and warn, orally and/or in writing in the tender/contract documentation, that the substation was live. The foregoing failures were further compounded by Public Works then actually advising and authorising Mr Farrugia to break into the substation in order to gain access. That authorisation was given in a situation where Public Works as far as the appellant was advised had sole occupation and control of the site and well knew the sub-station was live. ... 122In the present case the act of the unknown person in bolting an inadequate stop on the gate was quite independent of the appellant's failure to include in the design any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. As we earlier stated, this was a circumstance where either the acts of the unknown person or the omissions of the appellant would have caused the risk. We do not understand how there could have been a justifiable sense of grievance in circumstances where, as the primary judge found, the appellant's omissions were a substantial cause of the risk and where those omissions operated independently of the inadequate bolted stop to create a risk to health and safety. 123We do not consider there is any basis to conclude that, because an unknown person's acts quite independently created a risk of the gate falling and which did not constitute a novus actus and did not constitute a contribution to the risk created by the appellant, we should reduce the sentence imposed on the appellant. It was a serious risk, manifested by the death of Ms Maybury. 124Finally, could we make the following observations. These unfortunate proceedings illustrate the necessity for anyone whose business operations come within the provisions of the OHS Act to have regard to those obligations and responsibilities that are imposed by the Act upon them. In particular, these proceedings illustrate that there may not be an exact correlation between the task to be performed by the business and the responsibilities and obligations imposed upon it by the Act. The appellant gave no thought to the inclusion within its design of any stopping mechanism to ensure that the gate leaves did not come out of the portals that supported them. Yet this is precisely what s 11 of the OHS Act required it to do. It is imperative, in our opinion, that any business undertaking whose operations are governed by the provisions of the Act is conscious at all times of the obligations and responsibilities imposed by the Act. This is particularly so when work is carried out or goods are supplied under a contract. The contractual terms may not create obligations that are co-extensive with those created by the OHS Act. 125We ask that these comments be drawn to the attention of the responsible officer within the WorkCover Authority of New South Wales to ascertain what steps might be taken to create awareness within industry of the fact that business operations, in particular involving the design, manufacture or supply of plant or substances for use by people at work, must comply with the provisions of s 11 of the OHS Act. Of course, at law one cannot contract out of obligations imposed by the Act. 126We would dismiss the appeal.

JUDGMENT OF MARKS J 127The factual matrix against which these proceedings were conducted has been fully developed in the judgment of Boland J, President and Kavanagh J and it is unnecessary for me to refer to it in any detail. 128In essence, the charge brought against the defendant under s 11 of the Occupational Health and Safety Act 2000 ("the Act") is that it designed plant for use by people at work and failed to ensure that the plant was safe and without risks to health when properly used. 129The particulars of the charge, which are set out in [7] of the majority judgment, focussed on the circumstances that occurred on 14 October 2003. In essence, the appellant had designed a gate structure without regard for any means that would preclude the western leaf passing through the midpoint of the gate opening and out of its portal which had supported it, thus allowing the leaf to fall and fatally injure Ms Maybury who was assisting an employee to close the gates manually. 130The particulars of the charge include, specifically, the following: [7] ... (9) At the close of business on 14 October 2003, Mr Sheath attempted to close the western leaf of the west gate. The electronic system to close the west gate failed to operate and Mr Sheath began to close the western leaf of the west gate manually. (10) Mr Sheath was assisted in closing the western leaf of the west gate manually by Ms Melissa Maybury. (11) Whilst Mr Sheath and Ms Maybury were trying to close the western leaf of the west gate manually, the western leaf passed through the midpoint of the gate opening and out of its portal, falling on Ms Maybury and causing her fatal injuries. (12) There was a risk of the western leaf of the west gate falling on either Mr Sheath or Ms Maybury. (13) The gate plant was not safe and without risks to health when properly used. (14) The defendant failed to include in the design any or any adequate devices to prevent the western leaf of the west gate falling during manual operation. (15) By reason of the defendant's omissions, persons were at risk of being injured (including fatally injured) whilst they were operating the west gate manually. (16) On 14 October 2003 Melissa Maybury was fatally injured and Jason Sheath was placed at risk of injury as a result of the defendant's omissions.

The significance of particulars 131The particularisation of the charge brought against the appellant is, in my opinion, of fundamental significance in determining these appeal proceedings. I discussed the question of particularisation in the context of proceedings under the Act in Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153. My judgment in those proceedings was in dissent. However, the judgment of the Full Bench in those proceedings was quashed by the New South Wales Court of Appeal by consent of the parties, including, obviously, the respondent prosecutor by consent order made by the Registrar on 19 April 2010 in Matter No 40417/09. Accordingly, I consider myself at liberty to rely on my dissenting judgment in those proceedings. I refer, without repeating them, to [98] to [108] of that judgment. 132Although not all of the particulars of an offence with which the appellant was charged may represent essential elements or ingredients of the offence, nevertheless it is essential that the prosecution establish those particulars of the offence with which the appellant was charged that are sufficient to make good the charge. 133I would apprehend that this approach is consistent with that adopted by the High Court of Australia in Kirk v Industrial Court (NSW) (2010) 239 CLR 531. 134In the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, their Honours said as [26]: [26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge ( Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J; [1937] HCA 77). In John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed ( John L Pty Ltd at 519). In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet ( John L Pty Ltd at 519). The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence" ( John L Pty Ltd at 520). These facts need not be as extensive as those which a defendant might obtain on an application for particulars ( De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, referred to in John L Pty Ltd at 520). In Johnson v Miller , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions" (at 486). McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged" (at 501; and see Smith v Moody [1903] 1 KB 56 at 60). 135Accordingly, the charge brought against the appellant as particularised was confined to what occurred on 14 October 2003. The failure to design the structure so as to ensure that it was safe and without risks to health when properly used consisted of the failure "to include in the design any or any adequate devices to prevent the western leaf of the west gate falling during manual operation." The unsafe nature of the plant and the risks to health, which are at the heart of s 11 of the Act, were confined to what happened on 14 October 2003. As at that date, there had been installed by someone, whose identity is apparently unknown, at the instigation of the project manager for the construction of the concrete batching plant, some stops that had been fixed to some of the gate leaves. These included a bolted stop that had been affixed to the western leaf, the subject of the charge as particularised. That bolted stop failed to preclude the western leaf passing through the midpoint of the gate opening and out of its portal. The bolted stop was found by the trial judge to have been "grossly inadequate and incapable of providing the mechanical strength required to limit the travel of the gate ... ". I add for completeness that the bolted stop and its method of attachment to the western leaf were not designed by the appellant. 136The fundamental question for determination in these proceedings is whether or not the installation by someone else of a grossly inadequate bolted stop was exculpatory of the appellant so as to require that the proceedings brought against it under s 11 of the Act should have been dismissed. 137For the purpose of the discussion which follows I shall assume, as found by the majority judgment, that the appellant in designing the gate structure was required by the provisions of s 11 of the Act to have ensured that the design included some mechanism to preclude the western leaf from passing through the portal when the gate was required to be operated manually. In this regard I agree generally with the majority judgment.

Causation 138As is pointed out commencing at [91] of the majority judgment, there must be established a causal connection between the conduct of the appellant and the risk to safety as particularised in the charge brought against the appellant. 139An appropriate starting point for a discussion of causation in the context of assessing legal responsibility is the judgment of Mason CJ in the High Court of Australia in March v Stramare (E&MH) Pty Ltd [1991] HCA 12; (1990-1991) 171 CLR 506. At [5] his Honour said, in a passage that has been universally cited with approval: [5] It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because "questions of cause and consequence are not the same for law as for philosophy and science", as Windeyer J. pointed out in The National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569, at p 591. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v. Bell (1932) 147 LT 262, per Lord Wright at p 264; Sherman v. Nymboida Collieries Pty. Ltd. (1963) 109 CLR 580, per Windeyer J. at pp 590-591. 140The Courts have readily acknowledged the difficulty of propounding principles to assist in the establishment of a relevant causal connection at law. See, for example, the comments of Kirby J in the High Court of Australia in Chappel v Hart (1998) 195 CLR 232 at 264 and following. 141The contemporary statement of principle in the High Court of Australia is that of Mason CJ in March . His Honour's approach and reasoning has been accepted and adopted throughout Australia. See, for example, the several judgments of the members of the High Court in Chappel . 142The primary test, described as the "but for" test, asks whether or not something would have happened but for a particular act or omission of someone else. This is described as a "negative" test (see, for example, Mason CJ in March at [20]). It is said to have the effect of "screening out and eliminating from further consideration factors which made no difference to the outcome." (See " Chance Would be a Fine Thing: Proof of Causation and Quantum in an Unpredictable World " Melbourne University Law Review, 23 Melb.U.L.REV. 557 by Professor David Hamer.) 143However, it is also widely recognised and accepted that the "but for" test is not to be used exclusively in determining whether there is an appropriate causal connection at law. This is particularly in circumstances where a particular incident may have resulted from more than one cause or a complex chain of circumstances. So much was stated by Mason CJ in March at [22] and following. The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations. (At [22]). 144Furthermore, the attribution of liability will involve questions of policy in the context of the particular legal framework in which the proceedings are being considered. In Chappel , Gummow J illustrated the problem by reference to an example given in a judgment in the House of Lords. A decorator working alone in a house went out to buy wallpaper, left the front door unlocked, a thief entered and stole certain items. Obviously, the thief would be criminally liable for the theft. However, the decorator was held liable in negligence because he breached his duty to take reasonable care to guard against thieves entering the premises. 145Both in March and in Chappel , the High Court of Australia has emphasised the need to take into account considerations of policy and values and to approach the matter based on notions of "common sense" which are to be applied to the facts of the case in determining what was described by Mason CJ as "a question of fact". ( March at [17] and [18]) 146The seminal consideration of causation in the context of criminal proceedings is often considered to be the judgment of the High Court of Australia in Royall v the Queen [1991] CHA 27; (1991) 172 CLR 378. The judgments of the members of the High Court must be seen, however, in the context of the factual circumstances that gave rise to those proceedings and, importantly, the fact that three alternative scenarios were left to the jury for its consideration. The accused had been involved in a violent argument with a woman in her apartment on the sixth floor of a building. There was evidence that he had assaulted her. There was evidence of a forcible entry into a bathroom and of a struggle in the bathroom, including evidence of blood marks and the like. The woman had fallen from the bathroom window and had died. Three alternative factual scenarios were put to the jury by the trial judge. The accused was convicted and the appeal to the High Court concerned the adequacy and the appropriateness of the directions given. 147Mason CJ held that the culpability of the accused was not in any way diminished because the woman's death may have occurred because she fell or escaped from the window instead of a direct result of the assault. 148Brennan J said that the accused's conduct, whether by act or omission must contribute significantly to the death of the victim .... It need not be the sole, direct or immediate cause of death. However, when the death is not caused directly by the conduct of the accused but by something done by the victim or by a third person in response to the conduct of the accused, there is a question whether the chain of causation has been broken. (At 398). 149Deane and Dawson JJ spoke of the accused's conduct being "a substantial or significant cause of death". (At 411). 150McHugh J thought that it was appropriate that the High Court should engage in a comprehensive review of the principles of causation in the context of the criminal law. His Honour's judgment, commencing at p 441, contains an interesting and comprehensive discussion of the principles of causation. 151There are a number of English authorities that deal with statutory offences framed in terms of strict liability and which involve a consideration of questions of causation. For the purpose of these reasons for judgment, I shall deal only with one of these cases, a decision of the House of Lords in Alphacell Ltd v Woodward [1972] 2 All ER 475; (1972) AC 824, (1972) 2 WLR 1320. I should add for completeness that there are a number of other more recent authorities, some of which are collected in the article " Clean Water and Muddy Causation: Is Causation a Question of Law or Fact, or Just a Way of Allocating Blame? " by Nicole Pasfield published in Crim.L.R.1995, Sep, 683-694. 152Part of Alphacell's operations included the use of settling tanks. Pumps that were attached to the tanks, which prevented them overflowing into a river, failed because they became blocked with vegetable matter. This occurred notwithstanding regular inspections by Alphacell's employees. Alphacell was charged with causing pollution to the river and convicted. It contended on appeal, ultimately to the House of Lords, that the overflow had taken place without its knowledge and without any negligence on its part. The House of Lords held that in construing the legislation questions of whether Alphacell had knowledge or had acted negligently were irrelevant because of the strict nature of the legislation. There are several observations in the speeches of the Law Lords that touch upon the question of causation. 153Lord Wilberforce, in discussing earlier authority dealing with a case where an unauthorised person had opened the valve for purposes unconnected with the defendant's business and in which it had been concluded that "the opening of the valve was of so powerful a nature that the conduct of the appellant was not a cause of the flow of oil" said: I do not desire to question this conclusion, but it should not be regarded as a decision that in every case the act of a third person necessarily interrupts the chain of causation initiated by the person who owns or operates the installation or plant from which the flow took place. The answer to such questions is one of degree and depends upon a proper attribution of responsibility for the flow of the polluting matter. ([1972] 2 All ER 475 at 479). 154Lord Pearson referred to earlier authority that includes passages that I regard as relevant to the determination of these proceedings. His Lordship said: The appellants' other contention is that they did not cause the polluted water to flow into the river. I think that their main grounds for this contention are that they did not intend the polluted water to flow into the river, they did not know it was happening and (according to the assumption that has been made) it did not happen by reason of any negligence on their part. On the general question of causation there is an illuminating passage in the speech of Lord Shaw of Dunfermline in Leyland Shipping Co v Norwich Union Fire Insurance Society ([1918] AC 350 at 369, [1918-19] All ER Rep 433 at 453). He said: "To treat proxima causa as the cause which is nearest in time is out of the question. Causes are spoken of as if they were as distinct from one another as beads in a row or links in a chain, but-if this metaphysical topic has to be referred to-it is not wholly so. The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meet; and the radiation from each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause." This passage may have been partly inspired by the argument of R A Wright KC ([1918] AC at 352, 353). In Yorkshire Dale Steamship Co Ltd v Minister of War Transport, The Coxwold ([1942] 2 All ER 6 at 9, [1942] AC 691 at 698), Viscount Simon LC said: "The interpretation to be applied does not involve any metaphysical or scientific view of causation. Most results are brought about by a combination of causes, and a search for 'the cause' involves a selection of the governing explanation in each case". Lord Wright said ([1942] 2 All ER at 15, [1942] AC at 706): "This choice of the real or efficient cause from out of the whole complex of the facts must be made by applying commonsense standards." In Cork v Kirby Maclean Ltd ([1952] 2 All ER 402 at 407) Denning LJ said: "It is always a matter of seeing whether the particular event was sufficiently powerful a factor in bringing about the result as to be properly regarded by the law as a cause of it ... " ([1972] 2 All ER 475 at 487-8) 155Lord Salmon said: It seems plain to me that the appellants caused the pollution by the active operation of their plant. They certainly did not intend to cause pollution but they intended to do the acts which caused it. What they did was something different in kind from the passive storing of effluent which could not discharge into the river save by an act of God or, as in Impress (Worcester) Ltd v Rees [1971] 2 All ER 357, by the active intervention of a stranger, the risk of which could not reasonably have been foreseen. ([1972] 2 All ER 475 at 490). 156The absence of criminal intent will, to some extent, impact upon a consideration of some of the authorities.

The novus actus interveniens principle 157Stated in its simplest form, a novus actus interveniens is something that will break or interfere with a chain of causation to such an extent that it will have an exculpatory effect. Cases involving a consideration of the application of this principle will involve circumstances such as incorrect or inappropriate medical treatment or a failure to give medical treatment to someone who has been injured, to rescue cases where a third party is injured while attempting to rescue someone who has been wrongly put at risk, and circumstances generally where there are two or more causes of injury or where there are unintended consequences. In this latter regard, cases include a person who had been assaulted, left by the seashore and drowned in a rising tide. Accordingly, in the context of these proceedings the question is whether or not the fact that the inadequate and inappropriately fixed bolted stop undertaken by someone else intervened so that it cannot be said that the appellant's failure to include within the design a stopping mechanism relevantly caused the tragic circumstances which occurred on 14 October 2003. In dealing with the authorities that have considered the novus actus interveniens principle, it will be necessary to bear in mind that these proceedings do not involve any criminal act that includes any element of mens rea. Although the High Court of Australia seems to have eschewed any notion of absolute liability (see [18] in Kirk ), the offences created by the Act, and in particular that under s 11, should be seen as offences in the nature of strict liability not involving any consideration of criminal intent. 158In March , McHugh J discussed briefly the principle of novus actus interveniens. Significantly, his Honour said: The novus actus interveniens doctrine has been used to limit the liability of a tortfeasor because he or she is perceived as having no moral responsibility for damage when a fully-informed actor, not acting under constraint or pressure flowing from the tortfeasor's actions, has intervened and produced that damage even though it would not have occurred but for the tortfeasor's act or omission. For the same reasons, in a criminal case, a person should not be held liable for a wrongful act or omission which has caused harm in a "but for" sense if that harm was the product of a novus actus interveniens or was not a reasonably foreseeable consequence of the act or omission. (At 448-9). 159There is a discussion of the concept of novus actus interveniens in the judgment of Mason CJ in March commencing at 517. Mason CJ gives as an example: a negligent act by A which set the scene for a deliberate wrongful act by B who, fortuitously and on the spur of the moment, irresponsibly does something which transforms the outcome of A's conduct into something of far greater consequence, a consequence not readily foreseeable by A. In such a situation, A's act is not a cause of that consequence, although it was an essential condition of it. No doubt the explanation is that the voluntary intervention of B is, in the ultimate analysis, the true cause, A's act being no more than an antecedent condition not amounting to a cause. (At 517). 160There is a similar observation in the judgment of Windeyer J in Faulkner v Keffalinos (1971) 45 ALJR 80 at 85. His Honour said: There is I think a critical distinction between a supervening happening that prevents a particular damage occurring as a result of the tort and a supervening happening that causes the harm caused by the tort to have added gravity. In the first class of case the supervening event diminishes the damages which flow from the tort: in the second class it merely adds to them, so that the tortfeasor responsible for the first accident remains liable for the harm he caused, which is not merged in the combined result of his wrongdoing and the later event. The distinction is not always either easily made or preserved. 161In March , Deane J did not have occasion to deal specifically with the concept of novus actus interveniens. However, his Honour applied observations of Lord Reid in Stapley v Gypsum Mines Limited (1953) AC 663 at 681, which directed attention in the case of several possible causes to the need to "discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally." 162There are English authorities that use language to similar effect. One, which is often cited, is Regina v Smith (1959) 2 QB 35, a decision of the Courts-Martial Appeal Court. The judgment of the Court was by Lord Parker CJ. A soldier had been stabbed during a fight in a barrack room. Immediately after being stabbed, the soldier was dropped twice whilst being carried to the medical reception station for treatment. At the reception station, he was given treatment that was incorrect. The soldier, who had been charged with his murder sought to argue that the incidents that occurred after the stabbing, namely the fact that the deceased soldier had been dropped and that he had been given inappropriate medical attention, constituted a novus actus interveniens so as to exclude guilt. This submission was rejected by the Court. Lord Parker CJ said in part: It seems to the Court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound. 163I observed that this reference to a first incident being merely part of the history is in terms similar to that of an antecedent condition not amounting to a cause described by Mason CJ in March v Stramare , formerly referred to. 164Reg v Cheshire [1991] 3 All ER 670; (1991) 1 WLR 844 is a decision of the Court of Appeal, England that considered the application of the novus actus interveniens principle in the context of criminal proceedings. The defendant had shot a person during the course of an argument. The victim underwent surgery in hospital where a tracheotomy tube was inserted into his windpipe. Some weeks later, his condition deteriorated and he died two months after the incident. The victim's windpipe was found on post mortem examination to have become obstructed because of narrowing near the site of the tracheotomy scar. Evidence was given in the proceedings that there had been a failure on the part of the treating doctors to have diagnosed and appropriately treated the victim's deteriorating condition. The defendant was found guilty of murder and appealed. 165The substantive question for determination was whether or not there was the necessary causal relationship between the shooting of the victim by the defendant and the victim's ultimate death so as to found a conviction for murder. 166The principal judgment was delivered by Beldam LJ. At pp 4-5 his Lordship said: In the criminal law, and in particular in the law of homicide, whether the death of a deceased was the result of the accused's criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge. We think the matter cannot be better put than it was by Robert Goff LJ in R v Pagett (1983) 76 Cr App R 279 at 288, where he said: "In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim's death. But how the victim came by his death is usually not in dispute. What is in dispute is more likely to be some other matter: for example, the identity of the person who committed the act which indisputably caused the victim's death; or whether the accused had the necessary intent; or whether the accused acted in self-defence, or was provoked. Even where it is necessary to direct the jury's minds to the question of causation, it is usually enough to direct them simply that in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation, on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused's act did in this sense cause the victim's death. Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim's death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim's death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use the Latin term." 167Beldam LJ sought to differentiate the consideration of questions of causation in criminal matters from the principles established in connection with civil proceedings. In this latter regard, his Lordship noted the tendency to refine and distinguish varying degrees of blameworthiness that was not appropriate to be undertaken in the context of the criminal law, particularly when considering the impact of medical treatment and the acts or omissions of medical practitioners when determining whether the required causal nexus has been established. After considering a number of authorities including a decision of the Supreme Court of Victoria ( Reg v Evans and Gardiner (No 2) [1976] VR 523), his Lordship said: Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously elusive. In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased, adding that the accused's acts need not be the sole cause or even the main cause of death, it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused's acts can fairly be said to have made a significant contribution to the victim's death. We think the word "significant" conveys the necessary substance of a contribution made to the death which is more than negligible. (At p 7) 168There is another decision of the English Court of Appeal to which it is useful to refer, Knightley v Johns [1982] 1 All ER 851; (1982) 1 WLR 349. These were civil proceedings in which a plaintiff police officer claimed damages arising out of a motor accident. A motor vehicle, which had been driven negligently, overturned in a tunnel. A police inspector who had arrived at the scene of the accident omitted to close the tunnel to traffic and ordered the plaintiff police officer to drive a motorcycle against the flow of the traffic in order to block further traffic entering the tunnel. In doing so he was struck by a motor vehicle and injured. A question for determination on appeal was whether or not the plaintiff's injuries were caused relevantly by the motorist who had overturned in the tunnel or by the police inspector who had failed to ensure that the tunnel had been closed. 169The principal judgment in the Court of Appeal was given by Stephenson LJ. In determining the matter, his Lordship said in part: The question to be asked is accordingly whether that whole sequence of events is a natural and probable consequence of Mr Johns's negligence and a reasonably foreseeable result of it. In answering the question it is helpful but not decisive to consider which of these events were deliberate choices to do positive acts and which were mere omissions of failures to act; which acts and omissions were innocent mistakes or miscalculations and which were negligent having regard to the pressures and the gravity of the emergency and the need to act quickly. Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction. Mistakes and mischances are to be expected when human beings, however well trained, have to cope with a crisis; what exactly they will be cannot be predicted, but if those which occur are natural the wrongdoer cannot, I think, escape responsibility for them and their consequences simply by calling them improbable or unforeseeable. He must accept the risk of some unexpected mischances: see Ward v TE Hopkins & Son Ltd [1959] 3 All ER 225 at 244, [1959] 1 WLR 966 at 984 per Willmer LJ and Chadwick's case [1967] 2 All ER 945 at 952, [1967] 1 WLR 912 at 921 per Waller J. But what mischances? The answer to this difficult question must be dictated by common sense rather than logic on the facts and circumstances of each case. In this case it must be answered in the light of the true view to be taken of the events leading up to Inspector Sommerville's acts, or rather his act and omission, and the plaintiff's, and PC Easthope's, acts. I have expressed my view of all these links in the chain leading from Mr Johns's negligence to the plaintiff's collision with Mr Cotton. I have decided, respectfully disagreeing with the judge, that the inspector was negligent in failing to close the tunnel and, respectfully agreeing with the judge, that the plaintiff was not negligent in riding the wrong way after being ordered to do so by the inspector or in deciding on the spur of the moment to ride his motor cycle close to the wall in lane 1. I am also of the opinion that the inspector's negligence was not a concurrent cause running with Mr Johns's negligence, but a new cause disturbing the sequence of events leading from Mr Johns's overturning of his car to the plaintiff's accident and interrupting the effect of it. This would, I think, have been so had the inspector's negligence stood alone. Coming as it did on top of the muddle and misunderstanding of Mr Williams's telephone call and followed by the inspector's order to remedy his own negligence by a dangerous manoeuvre, it was the real cause of the plaintiff's injury and made that injury too remote from Mr Johns's wrongdoing to be a consequence of it. (At 865-6) 170Although these were civil proceedings involving a claim for damages and although questions of remoteness were inherently involved in the approach of Stephenson LJ, I am attracted by his Lordship's consideration of whether the "whole sequence of events is a natural and probable consequence" of the negligence of the first defendant and his Lordship's observations that positive acts would more easily break the chain of causation than inaction. Finally, there is the reference to whether or not there are concurrent causes, as opposed to a "new cause disturbing the sequence of events". 171For reasons that I shall shortly state, these are matters that I regard as being of significance in determining these proceedings. 172The manner in which the Courts have endeavoured to express the circumstances in which an intervening act will have the effect of precluding criminal liability as described in cases such as Cheshire has been the subject of criticism. For example, Alan Brudner, Professor of Law at the University of Toronto, writing in the Canadian Journal of Law and Jurisprudence ( Owning Outcomes: On Intervening Causes, Thin Skulls, and Fault-undifferentiated Crimes - 11 Can.J.L & Juris 89), described the language used by Lord Beldam in Cheshire and similar language used by other judges as being "notorious for its imprecision". Professor Brudner cites descriptions of causes couched in terms of "so independent of [the accused's] acts, and in itself so potent in causing death, that [the jury] regard the contribution made by his acts as insignificant." He asserts that it is not clear what Lord Beldam had in mind when he used the words "independent" and "potent", particularly against a background of assessing whether or not these words were used in the context of outcomes that might be seen to be foreseeable. One of the applications of the novus actus principle as formulated by Professor Brudner is directed to circumstances where the outcome of certain action is rendered unforeseeable by the intervening cause. The other application, which I apprehend to be more relevant to these proceedings, is where it is said that "the novus actus ... cancels the agent's responsibility, becoming itself exclusively responsible for the outcome." 173Notwithstanding these criticisms it seems to me that I must proceed on the basis of the approach utilised by relevant authorities and endeavour to apply those approaches within my understanding of the language used to the circumstances of these proceedings. 174Before concluding my review of some aspects of the novus actus principle, it is necessary to return again to the distinction that was made by Professor Brudner in his article to two of the circumstances in which the principle operates, namely a consideration of whether or not the outcome is foreseeably created by the accused or whether the novus actus operates to exclude responsibility for the outcome. An example of the former as given by Professor Brudner is circumstances where A knocks B unconscious on the seashore, where he is later killed by a bolt of lightning. The reasonably circumspect person would foresee death by drowning as likely but not death by lightning, and so A is not responsible for the specific death that occurred. Professor Brudner describes the novus actus as precluding liability because "it renders the outcome unforeseeable" and thus excludes the initial cause as being the proximate cause of death. 175In an article also published in the same issue of the Canadian Journal of Law and Jurisprudence, Professor Dennis Klimchuck analyses these two approaches to the principle: " Causation, Thin Skulls and Equality " (11 Can.J.L. & Juris 115). In referring to the reasonable foreseeability test, Professor Klimchuck noted that it is to be applied on a "retrospectively prospective" basis. The test involved a consideration of whether the accused knew or expected or should have known or expected that what occurred subsequent to his or her conduct was reasonably foreseeable. 176For reasons that I have earlier stated I do not regard the factual circumstances that apply in these proceedings as falling within a consideration of whether or not what occurred was reasonably foreseeable by the appellant. Those circumstances are more appropriate to that which occurred in R v Knutsen (1963) QdR 157 where the accused assaulted his victim, left her on the road and she was subsequently run over by a vehicle, suffering serious injuries. The accused was held legally liable for those injuries because they were reasonably foreseeable in all the circumstances. 177In describing the other approach, which he called the "substantial operating cause test", Professor Klimchuck said that in considering what was involved the question is whether the contribution of the accused's action to the injury for which his actions were a cause-in-fact was of some degree sufficiently greater than merely being a cause sine qua non as to fairly hold him answerable for that injury." After discussing relevant authorities, Professor Klimchuck concluded that: whether the facts of the case invite reference to substantial or operative causation, the test attempts to mark out from the list of causes sine qua non those that in some way stand out in the causal history of the event in question. There are two important features of this test which, as we will see, highlight its differences with the reasonably foreseeability test. The first is that ... it is retrospective, starting with the event in question and looking back through its causal history to see which causative factors made the most important contribution to its eventual occurrence. The second is that the question of whether A caused some event is here answered independently of what the accused knew or expected, or should have known or expected.

Application of the principles to the circumstances of these proceedings 178Having regard to the general discussion of the principles attaching to causation in criminal law and the novus actus interveniens principle, I now turn to consider the circumstances of these proceedings. 179I proceed firstly on the basis that the Court is only concerned with the charge levelled against the appellant as particularised. It is confined to what occurred on 14 October 2003. On that occasion, the fatal injury was caused by the fact that the western leaf of the west gate fell when it came clear of the portal which supported it. That leaf had a bolted stop affixed to it. The reason why the leaf fell was that the bolted stop which had been affixed to it was "grossly inadequate and incapable of providing the mechanical strength required to limit the travel of the gate ...". That is, the only reason why the leaf fell was because the bolt failed. The bolt was not designed by the appellant nor was its specification or attachment undertaken in any way either directly or indirectly by the appellant. 180If the bolt had been appropriately designed and fixed to the leaf, it would not have fallen. In stating this conclusion, I readily acknowledge that prior to the bolt having been affixed to the leaf, there was no stopping mechanism at all in place, a matter that is derived from the failure of the appellant to comply with its obligations under s 11 of the Act. 181In reviewing the various statements of principle contained within the authorities to which I have referred, I am conscious that it is easy to "cherry pick" those statements that support a particular conclusion and that there are other statements of principle that might be used to support the opposite conclusion. I am also conscious that the process upon which I am required to embark involves an intuitive approach in applying the relevant principles to the particular circumstances of these proceedings. 182In considering this matter, I have striven to utilise some other factual situation, which has been the subject of authoritative determination by a Court, in order to derive some assistance by way of analogy. On the one hand, one might consider the circumstances that had been confronted by the Courts in a number of cases where a victim is wounded, and the wound has been treated negligently. To some extent it might be said that this is the case here. There was a defective design perpetrated by the appellant. A third party sought to rectify that situation. In such a case, cases such as Cheshire , to which I have previously referred, would require that the question be asked whether the grossly inadequate bolt affixed some considerable time after the original design had been completed made such a significant contribution to the incident that occurred so as to relieve the appellant of culpability. In so determining, it would be necessary to conclude that any such significant contribution made by the third party would result in the conduct of the appellant as being able to be characterised as insignificant in all of the circumstances. 183Another factual situation that may be considered by way of analogy is that dealt with by the Western Australian Court of Appeal in Krakouer v the State of Western Australia [2006] WASCA 81. A victim had been inflicted with a wound that would have brought about his death. Whilst he lay on the ground, the accused struck him on the back of the head with a post and fractured the victim's skull. There was medical evidence that although the victim would die from the first wound, the blow struck by the accused was also sufficient to have brought about his death. 184The judgment of Steytler P contains a comprehensive review of many of the authorities on the question of causation. 185His Honour held that the act of the accused made "a significant contribution to the death of the victim, whether by accelerating the victim's death or otherwise, and that it is for the jury to decide whether or not the connection is sufficiently substantial." (At [39]). His Honour concluded that there was sufficient medical evidence to entitle the jury to have so found. 186On one view, this is not a case of combined and concurrent causes of the incident as dealt with in Krakouer . The deficiency in design at the hands of the appellant was to be remedied by the third party, which presumably designed as well as affixed the bolt to the western leaf. As is obvious, if the job had been attended to correctly, the incident would not have occurred and the defective design would have been rectified. On the other hand, the third party failed to affix an appropriate bolt in an appropriate manner. As a matter of fact, it might be said that on this basis the deficiency created by the appellant continued to subsist. In such a situation, it would then be necessary, applying the same approach as was adopted in Krakouer, to determine whether there was a sufficiently substantial connection between the defect in design undertaken by the appellant and the incident that occurred on 14 October 2003, having regard to all of the factual circumstances. As is clear from the authorities, this is a matter which is to be determined having regard to the facts and enquiring whether, as a matter of common sense, an ordinary person would hold the original defect in the design to be a cause of the incident. In so determining, "it is irrelevant that it was causa sine qua non of that event or occurrence" (per McHugh J in Royall at 441-442). Put another way, it must be concluded that there was a "sufficiently substantial [causal connection] to enable responsibility for the crime to be attributed to [the appellant]." (Per Deane and Dawson JJ in Royall at 412). The reference to "the crime" is, of course, a reference to the particular incident that occurred on 14 October 2003. Put yet another way, what was the substantial or significant cause of that incident at the time and the place that it occurred? 187In determining this matter and in particular in considering whether or not the affixing of the defective bolt was a novus actus interveniens and was effective in breaking the chain of causation so as to exculpate the appellant from a breach of s 11 of the Act, I take into account the following matters:

As is clear from the factual circumstances described in the majority judgment, the appellant had completed its design work well prior to 14 October 2003. The deficiency in its design had been recognised by the ultimate client and an attempt was made with the services of a third party to affix a bolted stop to the western leaf.
The evidence is to the effect that the fatal injury that occurred on 14 October 2003 was caused by the failure of the grossly inadequate bolted stop which had been affixed to the leaf.
The failure to affix the bolted stop in an appropriate manner was conduct of a kind different to that which had been undertaken, or more correctly failed to have been undertaken, by the appellant. The appellant's conduct consisted of an omission to provide any appropriate stopping mechanism.
Accordingly, the inappropriate affixing of an inappropriate bolt operated independently of the situation created by the omission of the appellant.
This intervening factor was due solely to the conduct of the third party which was obviously grossly negligent, as found by the trial judge.
In the circumstances, the substantial or significant cause of the incident was the failure of the bolt which had been affixed to the western leaf. 188An alternative consideration of the matter would take into account the following:
The inappropriate fixing of the bolt to the western leaf did not transform the failure of the appellant to adequately design the structure as required by s 11 of the Act into something of any greater consequence being something not readily foreseeable as being the result of that failure.
The failure of the appellant in carrying out its design remained an operating cause of the incident, which arguably contributed significantly to what occurred. 189Having considered all of these matters and having weighed the competing considerations as best I can, I conclude that:
In all the circumstances, it is not appropriate to apply the "but for" test exclusively to determine the outcome of these proceedings, for the reasons set out in the several judgments of the High Court of Australia in March .
The grossly negligent affixing of the bolt was, in the circumstances, so independent of the omission of the appellant and so potent in causing the incident that occurred that it rendered any contribution made by the appellant to what occurred as being relevantly insignificant for the purpose of assigning culpability under the Act.
The failure on the part of the appellant was in the nature of an antecedent condition, and part of the surrounding circumstances upon which the gross negligence of the third party operated so as to bring about the incident on 14 October 2003. 190In all the circumstances, I would conclude that the prosecution has not established that the conduct, whether by way of act or omission of the appellant, was a sufficient cause in law of the incident of 14 October 2003 and that the prosecution brought against it should have been dismissed. I would uphold the appeal accordingly.

ORDERS 191The Full Bench makes the following orders: (1) The appeal is dismissed and the orders made by Haylen J on 9 June 2010 are confirmed. (2) The stay orders made by Boland J, President on 19 July 2010 in Simpson Design Associates Pty Ltd v Inspector Ching [2010] NSWIRComm 98 are dissolved. (3) The appellant shall pay the respondent's costs of the appeal as agreed or assessed.

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: 25 February 2011

Occupational Health Safety and Welfare Act 1986(SA)

Associates Pty Ltd [2009] NSWIRComm 213 Inspector Ching v Hy-Tec Industries Pty Ltd [2010] NSWIRComm 73 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Knightley v Johns [1982] 1 All ER 851; (1982) 1 WLR 349 Krakouer v the State of Western Australia [2006] WASCA 81 March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 Nesmat Pty Ltd v WorkCover Authority of New South Wales (1998) 87 IR 312 Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 Reg v Cheshire [1991] 3 All ER 670; (1991) 1 WLR 844 Reg v Evans and Gardiner (No 2) [1976] VR 523 R v Knutsen (1963) QdR 157 Regina v Smith (1959) 2 QB 35 Royall v R [1991] HCA 27; (1991) 172 CLR 378 Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6 Stapley v Gypsum Mines Ltd [1953] UKHL 4; [1953] AC 663 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9; (2010) 240 CLR 444 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd [2000] NSWIRComm 1123; (2000) 95 IR 383 WorkCover Authority of NSW (Inspector Farrell) v Morrison [2001] NSWIRComm 325 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50; (2001) 105 IR 81 WorkCover New South Wales (Inspector Page) v Walco Hoist Rentals Pty Limited (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211 Texts Cited: "Chance Would be a Fine Thing: Proof of Causation and Quantum in an Unpredictable World" Melbourne University Law Review, 23 Melb.U.L.REV. 557 by Professor David Hamer "Clean Water and Muddy Causation: Is Causation a Question of Law or Fact, or Just a Way of Allocating Blame?" by Nicole Pasfield published in Crim.L.R.1995, Sep, 683-694 Owning Outcomes: On Intervening Causes, Thin Skulls, and Fault-undifferentiated Crimes - 11 Can.J.L & Juris 89 "Causation, Thin Skulls and Equality" (11 Can.J.L. & Juris 115 Category: Principal judgment Parties: Simpson Design Associates Pty Ltd (Appellant) Inspector Barnabas Ching (Respondent) Representation: COUNSEL: Mr I M Neil SC with Mr P C Moorhouse of counsel (Appellant) Mr S Crawshaw SC with Ms P McDonald SC (Respondent) SOLICITORS: Kennedys Lawyers (Appellant) WorkCover Authority of New South Wales (Respondent) File Number(s): IRC 503 of 2010

[2000] NSWIRComm 1123

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