St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW

Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED: Evidence Act 1995 s 38 Industrial Relations Act 1996 ss 188, 197 Occupational Health and Safety Act 2000 ss 8, 28, 105

Bultitude v Grice Constructions Pty Limited (2002) 115 IR 59 Community Association DP270212 and Others v Registrar General for the State of New South Wales and Another (2004) 62 NSWLR 25 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 Haynes v CI & D Manufacturing (1995) 60 IR 149 Inspector Stuart Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247 Inspector Vierow v Ridge Consolidated Pty Ltd [2002] NSWIRComm 254 The King v Goldie and Another; Ex parte Picklum (1937) 59 CLR 254 Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 McMartin v BHP (1988) 100 IR 241 CASES CITED: Morrison v Powercoal Pty Limited (2004) 137 IR 253 O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 128 IR 158 Rodney Dale Morrison v Coal Operations Australia Limited [2004] NSWIRComm 239 Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 Stead v State Government Insurance Commission (1986) 161 CLR 141 T & M Industries (Aust) Pty Ltd and Anor v Inspector Sequeira [2006] NSWIRComm 25 Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (No 1) (1999) 91 IR 119

HEARING DATES: 6 November 2006; 7 November 2006

APPELLANT: Mr A A Henskens of counsel SOLICITORS: Colin Biggers & Paisley

RESPONDENT: Mr S Crawshaw SC Mr D O'Neil of counsel SOLICITORS: Carroll & O'Dea

CORAM: Wright J, President Walton J, Vice-President Boland J

ST HILLIERS CONTRACTING PTY LTD v WORKCOVER AUTHORITY OF NSW

Application by St Hilliers Contracting Pty Ltd for leave to appeal and appeal against a decision of Industrial Magistrate Reiss given on 30.01.2006 and orders made on 10 March 2006, both given in matter no. CIM 20159326/03

1 This matter concerns an amended application pursuant to s105(3) of the Occupational Health and Safety Act 2000 ("the Act") and s197 of the Industrial Relations Act 1996 by St Hilliers Contracting Pty Ltd ("St Hilliers") seeking leave to appeal, and if granted, to appeal the decision of Industrial Magistrate Reiss of 30 January 2006 and orders made on 10 March 2006. 2 During 2002, St Hilliers was the principal contractor on a building project at 2 - 8 McPherson Street, Banksmeadow ("the site") involving the construction of a warehouse and associated offices on the site. On 26 July 2002, Mr John Openshaw, a contractor not employed by St Hilliers, drove a concrete mixer truck into a concrete portal just inside the driveway to the site. The barrier fell forward, crushing the cabin of the truck, and Mr Openshaw sustained minor injuries. St Hilliers was charged with breaching s 8(2) of the Act by failing to provide and maintain safe systems of work to ensure safe access to the site. 3 At first instance, Industrial Magistrate Reiss found St Hilliers guilty and in orders handed down on 10 March 2006 entered a conviction against the defendant, imposed a penalty of $25,000 and made other, incidental, orders. Background 4 The factual background to this matter is set out in considerable detail in Magistrate Reiss' decision and, as the following factual findings are not in dispute, they can be relevantly summarised from the Magistrate's decision as follows: (a) prior to the project commencing there was an existing entrance to the property on Stevens Road ("the Stevens Road entrance"). The Development Application for the project included a condition that prohibited the use of Stevens Road for vehicle access onto the site during the project; (b) the main entrance for the project was located on McPherson Street and the site offices for St Hilliers were located inside the property near that entrance. The Stevens Road entrance could not be seen from the site offices;

(c) there was a pre-existing gate and fence at the Stevens Road entrance, some of the fence being retained during the majority of the project and remained in place at the time of the incident;

(d) during the project the Stevens Road entrance was usually blocked off by the old existing gate on the right side (when facing towards the site) and to the left by a number of sections of temporary fencing supplied by Australian Temporary Fencing Pty Ltd;

(e) one of the sections of the temporary fencing was being used as a makeshift gate section, which was attached on its left side by six 1.5 to 2 mm tie-wire points rather than any bolted-on brackets;

(f) when closed, the makeshift gate and old gate section ("the Stevens Road gate") was secured in the middle around the respective adjacent upright posts by a chain and padlock;

(g) there were 4 or 5 persons on the site who held a key for the padlock for the Stevens Road gate, being Mr Broome, Mr Isaac, Mr Hughes, a "Joseph" who worked for an excavation contractor and perhaps a further employee of St Hilliers, Mr Greg Sutton;

(h) for a 4 to 5 week period, which ended about one week before the incident, the Stevens Road entrance was used as the primary access point for the project whilst the McPherson Street entrance was closed, during which time the gate was opened in the morning, remained open all day and was closed in the afternoon;

(i) the general procedure put in place by St Hilliers prior to and after the abovementioned 4 to 5 week period was that the Stevens Road gate remained closed. If access was required through that entrance, contact would have to be made with one of the St Hilliers' employees with a key who would unlock the padlock, open the gate, let the vehicle in and then lock the gate up again;

(j) 3 or 4 days prior to the incident concrete footings for the portal were poured a short distance inside the boundary of the property on either side of the internal road leading from the Stevens Road entrance. The details as to how this was done and how the concrete trucks involved gained access to the site was not before the court;

(k) on 23 or 24 July 2002 the concrete portal was erected on the footings. It comprised two upright columns, one on each side of the driveway, and a concrete beam from the top of one column to the top of the other. It had a low clearance and was designed to prevent trucks from proceeding down the driveway beyond that point for the completed project;

(l) there were standard building-site signs on the gate/fences across the Stevens Road entrance at the time of the incident including one stating that all visitors must go to the site office. There were no signs indicating that the entrance was not to be used, how to gain access to the key or any warning concerning the portal;

(m) on 26 July 2002 - the day of the incident - the evidence points to both sections of the Stevens Road gate being pushed to the right hand side. The chain and lock holding together the two sections of the gate appear to have remained in place;

(n) there was no direct evidence as to who opened the Stevens Road gate on the morning of the incident or exactly how this was achieved;

(o) the Stevens Road entrance was opened on the morning of the incident at some time after 6:15 am and before 8:00 am and St Hilliers' employees only became aware of the gate being open after the incident when some of its employees responded to the incident;

(p) on the day of the incident, a carpet company trading under the name "Master Carpets" was engaged to supply and lay carpets in Building A on the site. In order to carry out that task they needed vehicular access to that part of the site which could only be gained on the day in question through the Stevens Road entrance; the McPherson Street entrance was inaccessible due to work on an internal driveway. There was no evidence of any prior arrangement with St Hilliers to facilitate this access;

(q) on the day of the incident at some time between 7:00 am and 7:45 am 3 carpet layers and 3 associated workers drove 2 trucks, a Manitou Forklift and a utility through the opened Stevens Road entrance and parked their vehicles just inside and to one side of the Stevens Road entrance. They were in the process of unloading carpet from their trucks when the incident occurred;

(r) Mr Openshaw was at the relevant time a contractor engaged by Boral Construction Materials ("Boral"), a concrete supply company, to deliver concrete in a mixer truck to various locations, including to the site. There were many other drivers similarly engaged by Boral and who had delivered concrete to the site on previous occasions;

(s) the delivery docket that Mr Openshaw received from Boral indicated that the entrance for the delivery he was making on the day of the incident was to be via Stevens Road;

(t) prior to 26 July 2002 Mr Openshaw had delivered concrete to the site using both the Stevens Road and McPherson Street entrances;

(u) on the previous 10 to 12 times he had driven his truck onto the site Mr Openshaw had gained access using the Stevens Road entrance and most recently had done so 7 to 10 days prior to the incident;

(v) in the period prior to the incident Mr Openshaw received no direct or indirect communication from St Hilliers or anyone else of the closure of the Stevens Road entrance or of the erection of the portal;

(w) Mr Openshaw proceeded to the site on the day of the incident at approximately 8:00 am and as he approached he saw that the entrance was giving a gap of approximately 3 metres. He drove in at about 5 kilometres per hour. As he drove in he saw a tabletop truck being unloaded by a forklift and then he heard a slight bump. The cabin of his truck was then crushed and he was pushed on to the floor of the cabin. With the assistance of workmen on the site he was able to get out through the passenger side window;

(x) there were no occasions when Mr Openshaw received a docket from Boral that stated that the entrance was to the Stevens Road entrance and he arrived to find that gate closed; and

(y) no additional safety system or arrangements were put in place to secure the Stevens Road entrance subsequent to erection of the portal and prior to the time of the incident; and

(z) at a later stage as a part of completing the project the portal was painted and had warning and clearance information signs attached to and/or near it. 5 Magistrate Reiss accepted the evidence of Mr Openshaw that: he did not see the portal as he drove onto the site; his vision to the crossbeam of the portal was blocked by his truck's sun visor; the side mirrors of his truck blocked his vision to the columns; and if the gate had been closed when he arrived he would have contacted the concrete batching plant and gone to the McPherson Street entrance. 6 St Hilliers has not directly challenged these factual matters, although in oral submissions Mr A Henskens of counsel, who appeared on behalf of St Hilliers, submitted that: there was more precise evidence concerning the time in which the gate was opened on the day of the accident; and the evidence showed that "throughout the course of his eight hour day" Mr Isaacs checked the gate and the perimeter fencing. As we discuss below, these contentions were disputed by WorkCover. In addition, St Hilliers challenged certain of the Magistrate's findings which we will discuss below. The Matter Below 7 Mr Rodney DuBois, an inspector with WorkCover, commenced proceedings against St Hilliers alleging a breach of s8(2) of the Act in the following terms: The Defendant, being an employer at 2-8 McPherson Street, Banksmeadow in the State of New South Wales ("the site") on 26 July 2002 at approximately 8:00 am did fail to ensure that people (other than employees of the Defendant) in particular, John Openshaw were not exposed to risks to their health or safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work. 8 The "Short Particulars" as set out in the Court Attendance Notice were as follows: In particular, the Defendant:- (a) Failed to provide and maintain safe systems of work to ensure that access to the construction site was safe and without risks to health and safety, by: (i) maintain the closure of the Steven Road entrance to the construction site; (ii) inform Openshaw not to use the Steven Road entrance. 9 His Honour made the following findings in addition to the factual findings summarised earlier: (a) the system maintained by St Hilliers to secure the Stevens Road entrance "did not of itself cause the incident and that matters outside of the system impacted upon the occurrence of the incident";

(b) actions of others clearly contributed to the incident, including whoever opened the entrance and failed to close it and indeed Mr Openshaw himself in failing to keep adequate lookout;

(c) it is not simply a question of who was primarily or most directly responsible for the incident or whether its occurrence was directly due to factors outside the system;

(d) the issues are, first, what if any were the risks to safety; secondly, was the system that was in place adequate to deal with those risks (or was the system inadequate in the manner alleged by the prosecution); and thirdly, was there a causal connection between the alleged failures and the risk;

(e) the system that St Hilliers maintained for the securing of the Stevens Road gate was not adequate in the circumstances. While those arrangements may have been adequate prior to the erection of the portal, once the portal was in place there was a need to reassess and upgrade the arrangements to deal with the new risk;

(f) St Hilliers was not sufficiently proactive in securing the site against the risk in question and upgrading its system, noting that: I do not accept the defence submission that there was no need for further or back-up systems or measures. The temporary fencing and makeshift gate was not a sufficient barrier of itself to maintain the closure of the entrance as the evidence and circumstances of the incident shows. Further where there is a risk a multileveled and comprehensive approach should be taken. It is the totality of arrangements that are often important. Good materials (locks, chains and brackets), signs and verbal and/or written communications can all combine to provide an effective system to guard against the risk. More regular checks could have been made to ensure the gate was closed, particularly in circumstances where the gate could not be seen from the site office or by Mr. Isaac when carrying out other duties. It would also have been easy, inexpensive and appropriate to have viable barriers across the portal itself. All these aspects were absent in the system in place at the time of the incident.

(g) there was a clear causal connection between the risk (trucks hitting the portal and resultant injury to drivers or others) and the failure to adequately secure the entrance and to pass on proper information and warnings. His Honour stated: As the prosecution correctly submitted the offence arises from the circumstances of the erection of the portal and the poor communication and poor securing of the gate/fence and not the accident or the cutting of the fence. Irrespective of intervention, indeed immediately prior to that intervention, the arrangements were not safe. The cutting/opening of the fence/gate lead to the accident and not the offence. The defendant had control over that, even though it had no control over the intervention.

(h) the risk of a truck hitting the portal was not "impossible to anticipate". Nor is the risk "entirely speculative". His Honour observed: It is not difficult to see a range of circumstances where the entrance could come to be open and persons be exposed to that risk. It [is] not impossible or speculative, even without applying the wisdom of hindsight, to anticipate the exact kind of actions involved in the specific incident that occurred here - that is, someone cutting a small number of tie wires instead of getting the key and then leaving the entrance open.

(i) it was reasonably foreseeable that the fence would be breached. Specifically, his Honour found: It is reasonably foreseeable that a number of subcontractors could arrive at the job at the Stevens Road gate and if unable to immediately find who had the keys would simply and relatively innocently cut the ties so as to gain access. This is particularly so w[h]ere there were no signs directing people to the key holders and the site office and the alternative entrance could not be seen from the Stevens Road gate. The action of cutting 6 thin ties is not dramatic, did not in itself cause great damage and could easily have been restored. It is reasonably foreseeable that such action could result in the entrance being open and would therefore result in trucks being exposed to the risk of collision with the portal. It is also reasonably foreseeable that a failure to maintain the closure of the gate and in the absence of signs, barriers and communications that a collision could occur with the new portal. It is reasonably foreseeable that a driver who has entered through that gate before and comes across the gate open again would drive in and would not be expecting the new partial obstacle. 10 In conclusion, Magistrate Reiss found that St Hilliers had breached s8(2) of the Act concluding in the following terms: As already canvassed above there were a number of additional arrangements the defendant could have easily and inexpensively put in place when the portal was erected. A proper system of signage, direct communications to potential visitors to the site and additional bunting and barricades could have been adopted. A more substantial type gate, additional chains and locks may well have deterred unauthorised access. A full time gate person or guard was not required. It was not impracticable for the defendant to put in place such arrangements to guard against the risk. 11 Subsequent to finding the offence proven, his Honour made orders for the entering of a conviction against St Hilliers, the payment of a penalty of $25,000, a moiety to WorkCover and other incidental orders. The Appeal

12 St Hilliers seeks leave to appeal Industrial Magistrate Reiss' decision on a number of grounds which may be summarised as follows: (a) the Court erred in failing to consider and give reasons for accepting or rejecting the submissions of St Hilliers that it was entitled to succeed under s28(a) of the Act, including by reference to the offence charged and found;

(b) the Court erred because it should have held that there was no causal nexus between any breach of duty by St Hilliers and the pleaded risk to health and safety;

(c) the Court erred in finding a breach of s8(2) of the Act (and not dismissing the Court Attendance Notice) after finding that St Hilliers' system "did not of itself cause the incident and that matters outside of the system impacted upon the occurrence of the incident";

(d) the Court wrongly identified the relevant risk to health and safety as being "trucks hitting the portal and relevant injury to drivers or others" when the Court Attendance Notice does not refer at all to the portal or impact by vehicles with it;

(e) the Court should have accepted that the risk which was created by third parties cutting open the gate was not reasonably foreseeable and that it was not reasonably practicable for St Hilliers to comply with the Act;

(f) the Court should have held that the commission of the offence was due to causes over which St Hilliers had no control and against the happening of which it was impracticable for St Hilliers to make provision;

(g) the Court incorrectly dealt with the evidence of Mr Hughes and Mr Broome;

(h) the Court failed to have regard to the total absence of an affirmative case by the prosecutor to demonstrate some other measures available and reasonably practicable for St Hilliers to adopt which would have obviated the risk of the site being broken into; and

(i) the Court erred in allowing prosecution witnesses to be cross- examined without a proper foundation being established under s38(1) of the Evidence Act and allowing the cross-examination to be unlimited rather than limiting it to the matters the subject of the leave.

13 At the close of St Hilliers' oral submissions the court granted leave to amend the notice of appeal in accordance with the amended notice filed on 7 November 2006. 14 Although there have been several recent discussions by the Full Bench as to whether or not in cases of this nature the appellant has a right of appeal, both parties proceeded on the basis that leave was required. Given the lack of argument on the matter and the common position of the parties, we approach this matter on the basis that leave is required. We consider that leave ought to be granted in relation to the availability of defences under s28, particularly subsection (b) but not otherwise. We do not consider that the other matters raised should attract leave to appeal. In any event, we do not consider they are matters that would or could succeed on their merits. 15 On the issue of leave to appeal, St Hilliers contended that the appeal raised:

(a) an important issue in prosecutions under the Act as to the causal nexus between the breach of duty and the risk to health and safety in the context of the actions of a third party;

(b) the availability of statutory defences under the Act which, it submitted, has been an area where there is surprisingly little discussion of the principles relevant to s28(a) of the Act;

(c) an important matter of procedure in the context of prosecutions under the Act as to whether it is procedurally fair for a prosecutor to be allowed to cross-examine witnesses called in the prosecution case generally when an inadequate foundation was established under s38(1) of the Evidence Act ; and

(d) whether St Hillier's duty under the Act extends to protecting contractors against unduly remote risks which, it submitted, is an area of law not yet crystallised. 16 St Hilliers further submitted that the decision below was made in error and the justice of the case supports the granting of leave to appeal. Further, unless leave is granted, St Hilliers' prior unblemished record of no convictions under the Act would not be retained and this matter weighs heavily in support of a grant of leave to appeal. 17 WorkCover submitted that there was no basis for granting leave to appeal. WorkCover contended that the s28(a) defence issues have been judicially considered; that the law on causation is clear and was applied properly; that the issue of unduly remote risks was referred to in Morrison v Powercoal and that the risk of collision was not, in any event, unduly remote; that no error is revealed in the decision below; and St Hillier's position on risk is totally different to its position on risk at trial, which was submitted to be a significant factor against the grant of leave. 18 Although WorkCover conceded that the magistrate did not expressly consider St Hilliers' argument concerning s28(a), it submitted that an analysis of the decision, in the context of the argument put, demonstrates that his Honour did, in fact, deal with the argument. Having dealt with the issue of reasonable foreseeability in relation to s28(b), his Honour effectively dealt with s28(a). WorkCover relied upon Stead v State Government Insurance Commission (1986) 161 CLR 141 to submit that, even if Magistrate Reiss did fail to consider s28(a), this lack of procedural fairness made no difference to the outcome of the case and should not form the basis of granting leave to appeal. 19 Other than the question of defences, we do not consider that there is any basis to grant leave to appeal in relation to liability. We agree with the submissions of St Hilliers that the relevant risk was the risk of unsafe access to the construction site but we do not agree with the submission that this risk begins and ends at the perimeter point, as contended by Mr Henskens. Unsafe access to a construction site comprehends uncontrolled access to a construction site. There can be no doubt that potential collision with the newly-constructed portal was but one possible manifestation of this risk. Indeed, there is a persuasive argument that the portal itself - whose very purpose was to stop certain vehicles accessing the site - formed part of the access to the site. Not only was it reasonably open to the magistrate, on the evidence, to find that St Hilliers had failed to maintain the closure of the Stevens Road entrance and failed to inform Mr Openshaw not to use that entrance; in our view, these findings were compelling. Nor can we see any error in his Honour's conclusion that there was the requisite causal connection between these failures and the relevant risk. Uncontrolled access to a building site - a place of many and varied hazards - gives rise to risks to health and safety. A finding that St Hilliers' system "did not of itself cause the incident and that matters outside of the system impacted upon the occurrence of the incident" does not negate a finding that St Hilliers' proven failures caused the risk of uncontrolled access to the site. 20 Contrary to the submissions of St Hilliers, given the evidence that on four or five previous occasions unknown persons had breached the perimeter fencing in order to gain access to the site, we do not consider that this is a case where the risk could be described as unduly remote or speculative thus warranting consideration by the Full Bench of the approach of the Vice President in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 at [134]-[137]. We might add, however, that we agree with the decision of the majority in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 452 that the concept of "reasonable foreseeability" - a subject which occupied a significant proportion of the appellant's submissions concerning liability - is not relevant to the duties owed under the Act (although it can be relevant to the defences under the Act). 21 Similarly, we do not consider that there is any proper basis to challenge the Industrial Magistrate's decision to grant the prosecutor leave to cross-examine a witness called by the prosecution. Section 38(1) of the Evidence Act 1995 empowers the court to grant leave to allow cross-examination of that nature and there is no suggestion that his Honour exercised his discretion unlawfully. We do not consider that the exercise of the Magistrate's discretion, in this respect, miscarried. 22 However, we agree that Magistrate Reiss did not give proper consideration to St Hilliers' submissions concerning the availability of defences under both limbs of s28 and grant leave to appeal on this ground only. We do not agree with the submission of WorkCover based on Stead v State Government Insurance Commission (1986) 161 CLR 141 that this error could be described as a lack of procedural fairness which made no difference to the outcome of the case. The defences afforded by s28 are vital to balance the absolute criminal liability created by the Act and their significance should not be undervalued. They must be given due consideration, and, should the court come to the view that they do not apply, adequate reasons must be given. 23 Given the uncontentious nature of the factual findings at first instance, we are satisfied that, in accordance with the appellant's preference, the Full Bench is in a position to determine the availability of a defence under ss28(a) or (b) without recourse to a retrial. Although we note that there is some doubt as to who cut the gate open (Magistrate Reiss found that there was no direct evidence as to who opened the gate or how it was achieved) we do not consider that this is relevant, for the reasons we shall explain. Consideration - Defences

Section 28(a) 24 St Hilliers submitted that his Honour did not acknowledge its case under s28(a) of the Act in his reasons and that the failure of the Court to consider the defence amounted to a denial of procedural fairness. As discussed above in the context of leave, we agree, and now turn to consider the merits of St Hilliers' argument that a defence under s28(a) is available. 25 Section 28(a) provides that: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision 26 Contrary to the submissions of St Hilliers that there is surprisingly little authority on s28(a), the defence was considered at length in Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at 204ff. That decision has been followed and applied by the Full Bench in many subsequent decisions, including Morrison v Powercoal Pty Limited (2004) 137 IR 253 at [121], [147], [151]; Bultitude v Grice Constructions Pty Limited (2002) 115 IR 59 at [66]-[72]; Inspector Vierow v Ridge Consolidated Pty Ltd [2002] NSWIRComm 254 at [8]; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited (2002) 123 IR 121 at [83] to [86]; and Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [38]. 27 We agree that the key principles are those set out in Cleary Bros at [87]-[88] as follows:

[87] It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been known to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle. [88] At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor. 28 It is important to note from this extract that different factors will assume greater or lesser significance in the balancing exercise depending upon their magnitude in the circumstances of each particular case. For example, if there is the potential for serious injury, this factor becomes of greater weight and significance; on the other hand, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event. 29 First, we propose to focus on the nature, likelihood and gravity of the risk to safety occasioning the offence. According to St Hilliers, it was not reasonably foreseeable that the risk as formulated by Magistrate Reiss would materialise as it was necessary to foresee that:

(a) the gate would be cut open so as to expose a risk which had been completely neutralised by the gate being locked;

(b) the persons entering the site after such event would then leave the gate open; and

(c) a truck driver would then fail to observe a massive structure in the context that the driver was approaching the massive structure for the purpose of moving his vehicle underneath it. 30 WorkCover made two submissions concerning St Hillier's analysis of whether the risk was reasonably foreseeable. First, WorkCover submitted that his Honour correctly identified the risk of collision as foreseeable and that, in any event, the question of foreseeability of the risk of the gate being cut open (as distinct from the risk of collision) is relevant to s28(b) issues, not s28(a). Secondly, and in the alternative, WorkCover submitted that one must consider the cutting of the gate in context. The gate had, only a short time before the date of the offence, not only been opened on a regular basis; for a number of weeks it was the only access to the site. Further, the gate did not present as a permanent gate which had been locked; it was a temporary gate with six ties which were, in the prosecutor's submission, "flimsy". 31 In response, St Hilliers submitted that (a) the previous use of the Stevens Road entrance was of limited relevance because there was no evidence that the carpet layers had ever used that entrance on a previous occasion (or indeed attended the site before) and (b) the presentation of the gate as temporary was not relevant, given that it was secured by a chain and padlock and in light of the evidence that it would take a similar period of time to dismantle this device and a locked, permanent gate and that temporary fencing of this kind was common industry practice on Sydney building sites. We consider that St Hilliers' submission that the carpet layers had not used the entrance before to be irrelevant, given the finding at first instance that there was no direct evidence as to who opened the gate on the morning of the incident or exactly how this was achieved. 32 The variance between these submissions - and the dispute as to what is or is not relevant - underline the importance of correctly identifying the nature of the risk to safety under consideration. As we noted earlier in the context of leave to appeal, that risk was the risk of unsafe access to the construction site (by unauthorised or uncontrolled access to a dangerous environment). This necessarily points to the methods used to secure the gate: for if the gate was impassable (or secured and presented in a way to prevent unauthorised entry) it could be said that St Hilliers had ensured that risk would not materialise. 33 WorkCover was correct to submit that reasonable foreseeability must be considered in context. That context includes numerous relevant matters (which we list below), but in our view three matters are particularly significant: the Stevens Road entrance had been the sole entrance to the site for a period of four to five weeks and Mr Openshaw had used it on the previous 10-12 occasions; since then, the portal had been constructed (thus adding to the depiction of the Stevens Road entrance as an entrance currently in use and, at the same time, increasing the danger of using it) but no additional warning signs or precautions had been taken; and on the day of the accident the McPherson St entrance was again inaccessible due to the construction of a new driveway. The evidence established that the carpet layers - whose contract commenced on the day of the incident - needed vehicular access to Building A on the site which could only be gained through the Stevens Road entrance. 34 In addition, on four or five previous occasions unknown persons had breached the perimeter fencing in order to gain access to the site; although there were the standard building site signs across the Stevens Road gate including a direction that visitors must report to the site office there were no signs indicating that the entrance was not to be used, how to gain access to the key or any warning concerning the portal; in the period prior to the incident Mr Openshaw received no direct or indirect communication from St Hilliers or anyone else of the closure of the Stevens Road entrance or of the erection of the portal; on the day of the accident Mr Openshaw's delivery docket instructed him to use the Stevens Road entrance; prior to the date of the accident Mr Openshaw had delivered concrete to the site using both the Stevens Road and McPherson Street entrances; on the previous 10 to 12 times he had driven his truck onto the site Mr Openshaw had gained access using the Stevens Road entrance and most recently had done so 7 to 10 days prior to the incident; there were no previous occasions when Mr Openshaw received a docket from Boral that stated that the entrance was to the Stevens Road entrance and he arrived to find that gate closed; and the gate, secured by a padlock and chain, presented as temporary fencing although this was common on Sydney building sites and Messrs Broome and Hughes gave evidence that in 42 years' combined experience in the building industry they had never heard of a padlock to a building site being cut when they could have come and got the key. 35 Taking all those matters into consideration, the question which falls to us to determine is whether, in that context - particularly the context of the Stevens Road entrance being the only possible entrance on that particular day given that McPherson St was unusable and unavailable - it was reasonably foreseeable that a subcontractor (who may or may not have used the Stevens Road entrance on a previous occasion) who needed vehicular access to the site may, if unable to find someone with keys quickly, and in the absence of specific warning signs, cut the tie-wires to gain such access in order to begin work and fail to close the gate behind them. In our view, this sequence of events was not reasonably foreseeable, particularly in light of the evidence of Messrs Broome and Hughes. 36 As already mentioned, Messrs Broome and Hughes attested that in their combined 42 years experience in the building industry they had never heard of a gate being cut when a key was available. In light of this uncontested evidence, we accept the submissions of St Hilliers that it was not reasonably foreseeable that someone would cut the tie-wires in order to gain access to it. While an employer's duty under the Act extends to the behaviour of a disobedient employee or contractor (see, for example Kirk), we consider that the present situation falls into the category mentioned in Kirk, namely that the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against. 37 Although it is not necessary, in this matter, to elaborate upon other factors which may be relevant to a defence under s28(a), both because of the finding we have made as to foreseeability and because we would answer the question against WorkCover, we shall do so for completeness and because the parties made submissions about these other factors.. The second aspect of making out a defence under s28(a) is to consider whether it was reasonably practicable to make provision against the happening of the event - in this case, the cutting of the fence ties to gain access to the site. A A finding that the happening of an event was not reasonably foreseeable will generally lead to a finding that it will not be reasonably practicable to make provision against that event. That has been the outcome in this case in respect of the cutting of the fence ties. HoweverNevertheless, where the happening of an event is obvious or reasonably foreseeable, in considering a defence under s28(a) it is necessary to consider the costs, difficulty and trouble necessary to avert the risk.

38 The submissions of the parties pertaining to the costs, difficulty and trouble necessary to avert the risk centred around two proposals: first, the possibility of a full-time employee manning the gate; and secondly, additional warning signs or barriers. St Hilliers submitted that the only way to secure the gate was to have a person manning the gate permanently over the years of work at the site at an estimated annual cost of approximately $50,000, which would be "completely disproportionate" given the unlikelihood of the risk. There was no evidence concerning the derivation of this figure, or any other aspect of this proposal. 39 St Hilliers did not attempt to suggest that it would not have been reasonably practicable to put in place some additional form of barrier or warning sign and indeed Mr Hughes gave the following evidence: that once the portal was re-erected after the incident, St Hilliers "barricaded the area with some bunting"; "bunting is a hazard warning, probably more than a tape 3 foot wide, 100mm, bright colour"; and "it can have a purpose as a hazard warning". Rather, St Hilliers submitted that a locked gate should have been sufficient; according to St Hilliers, if someone was prepared to cut a lock, it is unlikely that a simple barrier or flag would stop them. Alternatively, WorkCover suggested that St Hilliers could have used bollards to prevent access through the gate, which would have been neither expensive nor impracticable. However, WorkCover did not expand on how this would have thwarted a person's efforts to cut the fence ties to gain access to the site or as to other measures of practicability. 40 We find that it was not reasonably practicable to take additional measures to guard against someone unlawfully gaining access to the gate. In this regard, we consider that this case falls into the category such as Cleary Bros, where there is an absence of an affirmative case by the prosecutor counteracting the defendant's submissions to demonstrate that some other measures were available that were reasonably practicable for St Hilliers to adopt and that would have addressed the risk of unlawful access to the site. 41 We next consider s28(a) in the context of the second particularised failure - the failure of St Hilliers to inform Mr Openshaw not to use the entrance. This raises quite distinct issues from whether St Hilliers could have done more to thwart someone cutting the fence ties to gain access to the site. There are several important points to make at the outset of this discussion. First, notwithstanding the submissions on the part of St Hilliers that it did inform its subcontractors, De Martini and Gasparini, the week before the incident that the Stevens Road gate was closed, there was nothing in its amended application for leave to appeal and appeal to suggest that it intended to challenge his Honour's findings concerning liability on the ground that this failure had not been established to the requisite standard of proof. Secondly, we are satisfied (in conformity with his Honour's decision) that the failure was established beyond reasonable doubt. Accordingly, it is necessary to consider whether a defence under s28(a) is also available in respect of the second particularised failure. Our earlier finding that it was not reasonably foreseeable that someone would cut the fence ties does not address this question as it raises a quite distinct issue relating to whether St Hilliers' communications to Mr Openshaw not to use the gate were sufficient. 42 We do not accept St Hilliers' contention that a locked gate was sufficient communication to Mr Openshaw not to use the gate, particularly in circumstances where his delivery docket expressly directed him to use the gate; where the other entrance was impassable; where the locked gate had been breached; and in view of Mr Openshaw's previous experience with access through the Stevens Road gate (including that he had used it on a number of occasions and that the gate had always been open when he was to use that gate). Thirdly, St Hilliers' submissions concerning impracticability in relation to this particular amounted to nothing more than a contention that the risk was not reasonably foreseeable and a contention that it was impracticable to inform Mr Openshaw because St Hilliers never knew which drivers would be allocated to deliver concrete on any particular day. 43 We have already canvassed the nature, likelihood and gravity of the risk to safety occasioning the offence. Against that, in the context of this particular, must be weighed the costs, difficulty and trouble necessary to inform Mr Openshaw not to use the Stevens Road entrance; for we have no doubt that, on the evidence, had Mr Openshaw been so informed directly or through Boral, he would not have used the entrance. In our view, it is not possible to sustain an argument that it was not reasonably practicable to inform Mr Openshaw not to use the entrance, particularly in light of the gravity of the potential consequences and the fact that the concrete portal had just been completed and represented a distinct change to the situation that the concrete suppliers would have been familiar with. A written direction to De Martini and Gasparini that all concrete suppliers used by it must henceforth use the McPherson St entrance would have been sufficient, in the light of the persuasive evidence of Mr Ryan, who controlled batch allocations for Boral. Mr Ryan stated in evidence that if he had been told that the Stevens gate entrance was no longer to be used he would have changed the details on the delivery dockets; he'd always been "pretty spot on in his dealings and I can't believe I would have left it on there". 44 In conclusion, given the gravity of the potential consequences, the fact that the portal presented as a newly changed circumstance and despite the fact that the risk of unlawful access by cutting the fence ties was not reasonably foreseeable, we do not consider that St Hilliers has established, on the balance of probabilities, that it was not reasonably practicable to inform Mr Openshaw not to use the Stevens Road entrance. Accordingly, we do not consider that a defence under s28(a) of the Act is available in respect of the second particularised failure. We are satisfied that it was reasonably practicable for St Hilliers to have done more to have inform Mr Openshaw not to use the Stevens Road gate and of the new circumstances at that entrance. Section 28(b) 45 Section 28(b) provides that: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable to make provision. 46 St Hilliers drew the following distinctions between ss28(a) and (b): first, St Hilliers contended that unlike s28(a), s28(b) does not speak of risk, or compliance with the provisions of the Act; it looks at the causes of the commission of the offence. Secondly, St Hilliers noted that s28(a) speaks about reasonable practicability, but (b) speaks about impracticability with no qualification of reasonableness which suggests there is an important difference. While we agree with the second observation, for the reasons we shall give, the first distinction is a distinction without substance given the proper interpretation of the phrase "commission of the offence". 47 St Hilliers submitted that his Honour failed to properly consider the availability of the statutory defence under s28(b) of the Act and we have already found that the magistrate did not give proper consideration to St Hilliers' submissions. As to the availability of the defence, St Hilliers submitted that: (a) the commission of the offence was due to a cause over which his Honour found St Hilliers had no control (the gate being cut) and that if the gate had not been cut, there would have been no detriment to health and safety. No other back-up measures were necessary; closure of the gate completely obviated the risk; (b) it had no control over whether the carpet layers cut open the Stevens Road gate. Nor did it have any control over another causative factor: the fact that Mr Openshaw did not keep a proper lookout; (c) the statutory requirement for the employer to show the impracticability of making provision in s28(b) relates to the causative facts which are contained within the meaning of "commission of the offence": McMartin v BHP (1988) 100 IR 241 at 246;

(d) the Magistrate rejected this analysis essentially on the basis that even if the gate had been closed, there was still a risk to safety by reason of the inadequacies in St Hilliers' systems to secure the fencing and provide signs and communication. Even if the Magistrate was correct in this matter, he was directing himself to matters relevant to s28(a) (such as risk, or compliance with the provisions of the Act), rather than considering the distinctive way s28(b) operates;

(e) in relation to impracticability, it was significant that there was an absence of an affirmative case by the prosecutor to demonstrate measures which were available and practicable for St Hilliers to adopt: see Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182. Further, none of the matters identified by the prosecutor were the subject of evidence nor would have obviated the risk. 48 In contending that the defence under s28(b) was not available, WorkCover submitted:

(a) in order to establish a defence under s28(b), St Hilliers must establish 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 to make provision;

(b) if the actions were foreseeable, the fact that those actions were outside the control of St Hilliers does not of itself ground a defence under s28(b);

(c) s28(b) concerns causation between the failures pleaded and the risk that was pleaded and argued, not causation of the actual incident (such as St Hilliers' submissions about Mr Openshaw not keeping a proper lookout). In any event, the duty is owed to careless, inadvertent employees or contractors; and

(d) the prevailing circumstances made the opening of the Stevens Road gate clearly foreseeable and it was at all times open to St Hilliers to make provision against the foreseeable act of the gate being opened, notwithstanding that it may have been a criminal act for the gate to have been opened in the manner in which it was. St Hilliers was incorrect to assert that the prosecutor had to demonstrate measures which were available and practicable for St Hilliers to adopt. 49 As we have already mentioned, there is very little authority on the proper interpretation of s28(b). Given the way in which these proceedings have developed and that we have found that a defence under s28(a) is not available in respect of the second particularised failure, it is necessary to consider the availability of this defence.

(b) was due to causes over which the person [against whom proceedings have been brought] had no control; and

(c) against the happening of which it was impracticable to make provision. 51 The defence under the 1983 statute was considered in detail by Grove J in McMartin v BHP (1988) 100 IR 241 at 245-246 (which was approved by the Full Bench in Rodney Dale Morrison v Coal Operations Australia Limited [2004] NSWIRComm 239): I encounter some difficulty in the terminology of s 53(b). In order to ascertain its application one is invited to consider first that the commission of the offence was due to causes over which the employer had no control yet if those are the circumstances (conjoined with the second requirement of the subsection) then no offence is committed hence in this context the expression "commission of the offence" must have a particular meaning. An offence can be seen to be committed after proof of guilt, not before. I construe the phrase as connoting those facts which would create an offence unless the circumstances fall within the scope of a defence. The facts in the present case necessary to found an offence must include the multiple opening of valves so as to release gas to atmosphere by Mr Marjanovic, without which events the probabilities are that there would have been no detriment to health, safety or welfare. The employer had, in my view, no control over that causal and casual action. It was completely unforewarned and there was no indication of its imminence. Before the defence is made out the defendant must combine his proof that the facts giving rise to what would be an offence occurred due to causes over which he had no control with a demonstration that it was impracticable for him to make provision against the happening "of which". Ordinary grammar would suggest in the wording of s 53(b) that the "happening of which" relates back to the expression "commission of the offence" rather than to the "causes". Nevertheless, bearing in mind the necessary construction of the expression "commission of the offence" to which I have referred it seems to me that the happening against which the employer must show the impracticability of making provision relates to the causative facts which are contained within the meaning of "commission of the offence" in this context. Accordingly I turn to consider whether it is demonstrated to be impracticable to make provision against the essential repetitive acts of Mr Marjanovic in opening 18 valves of pressured gas to atmosphere. I must needs consider the meaning herein of impracticable. It is the converse of practicable which itself is defined ( Macquarie Dictionary ) as "capable of being put into practice, done, or effected, especially with the available means or with reason or prudence". 52 We consider that Grove J was correct in concluding that the question of the availability of a statutory defence will only arise where there is a primary finding that a person has committed an offence under the Act, or in other words, liability has been found under the Act. The identification of this offence or liability is the first element of the defence - that is, an identification of the commission of the offence. 53 The phrase "commission of the offence" is used in many other statutory contexts yet the meaning of the exact phrase has, for the most part, received little judicial consideration. Indeed, we postulate that there has not been any contest that it means anything other than the occurrence of the breach of the relevant provision - that is, that an offence has been committed. The phrase was considered by the High Court in The King v Goldie and Another; Ex parte Picklum (1937) 59 CLR 254 in the context of an aiding and abetting charge where the relevant question was whether the accused was knowingly concerned in the commission of an offence against a law of the Commonwealth. Starke J (in dissent on the ultimate conclusion) approached the question in the following way: The section is an aiding and abetting section and it was necessary first that the commission of the principal offence should be established and next that the appellant was knowingly concerned in the commission of that offence. 54 We consider our approach is consistent with this authority. Further we observe that identifying the "commission of the offence" requires no further analysis beyond that which would have already been undertaken to determine whether a person should be convicted of the charges brought against them - that is, whether they have committed the offence in respect of which proceedings have been brought. 55 St Hilliers submitted that the s28(b) defence does not speak of risk or compliance with the provisions of the Act. While superficially this is true, we consider that it does not affect the proper interpretation of s28(b). In the context of the Act, an offence will only be committed where a provision of the Act (or regulations) is not complied with and that non-compliance and a finding of it provides the commission of the offence. 56 As to the relevance of risk, the identification of the risk or risks to health and safety will necessarily be undertaken in determining whether a person has committed an offence under the Act. As has been stated many times by this Court, the general duties created by the Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: Haynes v CI & D Manufacturing (1995) 60 IR 149 at 158-159; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 at 452 - 454; Morrison v Powercoal Pty Limited and Another (2004) 137 IR 253 at 271 - 272. 57 In conclusion, when seen in the context of the Act as a whole it is not appropriate to say that risk and compliance with the provisions of the Act are not relevant to the proper interpretation of s28(b). "Commission of the offence" necessarily involves consideration of compliance with a provision of the Act - since an offence will only be committed if a provision is not complied with - and further that will necessarily give rise to a consideration of risks to the health, safety and welfare of persons in the workplace. 58 In the context of the present proceedings, the commission of the offence is the findings of the magistrate, which we have already agreed with, that St Hilliers committed an offence in two respects:

(a) by failing to properly secure the Stevens Road gate; and

(b) by failing to pass on proper information and warnings. 59 With that in mind, the task is then to consider the causes of that commission of the offence and assess whether the person against whom charges have been brought had control over them. Put simply, if the person did, then the defence fails at that point. 60 On the other hand, if the causes were outside the control of the person who committed the offence, the question is then whether it was impracticable for the person to have made provision for those causes not to have arisen or not to have occurred. 61 Groves J approached the identification of causes in two ways. First, he considered that on the ordinary grammar of the wording of the provision "the happening of which" related only to the phrase "commission of the offence". However, he found that in the context of the provision the relevant causes were the "causative facts" which are contained within the meaning of "commission of the offence". While we agree with his ultimate conclusion, we consider that the ordinary grammar of the wording of the provision requires that the "happening of which" relate to the causes of the commission of the offence rather than just to the expression "commission of the offence". We observe also that this interpretation sits comfortably with the notion that a person will only be found to have committed an offence if there is the relevant causal nexus between the alleged failures and the risk to health, safety and welfare. 62 As to impracticability, Groves J considered the meaning of "impracticable" by reference to the converse of the ordinary meaning of "practicable", which was defined (Macquarie Dictionary) as "capable of being put into practice, done, or effected, especially with the available means or with reason or prudence". 63 "Impracticable" is relevantly defined in the online Macquarie Dictionary as: impracticable 1 not practicable; that cannot be put into practice with means: an impracticable plan. 2 unsuitable for practical use or purposes, as a device, material 64 The phrase "impracticable" appears in many statutory contexts and we consider it is instructive to have regard to the interpretation given to the phrase in other contexts. 65 Palmer J considered the meaning of the phrase "impracticable" in Community Association DP270212 and Others v Registrar General for the State of New South Wales and Another (2004) 62 NSWLR 25 (in the context of the termination of a community scheme) in the following way: In my opinion, s 70(1) does not require the applicant for termination of a scheme to prove that continuation of the scheme is impracticable in the sense of being totally impossible; rather, the applicant must show that in the particular circumstances of the case the scheme cannot continue as a matter of practicality. There is well established authority for construing "impracticable" in this way. In Re El Sombrero Ltd [1958] 1 Ch 900, the applicant sought an order convening a meeting of a company under a provision of the Companies Act 1948 (UK) which enabled the court to make such an order "if for any reason it is impracticable to call a meeting of the company in any manner in which meetings of that company may be called". Wynn-Parry J said (at 904): "... The question then arises, what is the scope of the word 'impracticable'? It is conceded that the word 'impracticable' is not synonymous with the word 'impossible'; and it appears to me that the question necessarily raised by the introduction of that word 'impracticable' is merely this: examine the circumstances of the particular case and answer the question whether, as a practical matter, the desired meeting of the company can be conducted ... ." In Thornley v Heffernan (McLelland J, 12 September 1995, unreported) McLelland J had to consider the meaning of a clause in the constitution of the Liberal Party of Australia which provided for what could be done "if ... time or circumstance ... make it impracticable to hold a meeting". His Honour, referring to Re El Sombrero Ltd, said (at 8): "The expression 'impracticable' in [the relevant clause] does not mean 'impossible'. It directs attention to considerations of a practical rather than a theoretical nature arising out of the particular circumstances ... ". See also Re South British Insurance Co Ltd (1980) CLC (34,419) ¶940-664. 66 We consider that the task in determining whether actions were impracticable requires consideration of the surrounding circumstances in the particular case and assessing whether it was feasible or practical, in those circumstances, to have taken further action to ward against the occurrence of the causes of the commission of the offence. 67 In this regard, we agree with the observations of St Hilliers that the notion of "impracticable" is distinct from "reasonably practicable" found in s28(a) and consider that it imposes a higher standard. It requires the person seeking to rely on the defence to show that, in the particular circumstances of the offence, it was not practical to have made provision - or taken action - to avert the causes of the commission of the offence. This is not to be judged by reference to an objective reasonableness notion but rather whether in the circumstances of the particular case it was practical to have done more. 68 Nevertheless, the approach to this question will in some respects be similar to the approach taken in determining whether it was reasonably practicable for a person to comply with a provision of the Act under s28(a) as it will involve a balancing of considerations of what more the person could have done to avert the prospect of the cause occurring against the effort, trouble, cost and difficulty that would have been required to have taken that action. However, given the omission of the reference to "reasonable", we consider that less focus is required on the cost of the additional measures and more on whether, in the circumstances, it was feasible that further action could have been taken. The critical question is whether, in the circumstances, it was practical to take those additional measures. 69 Turning then to consider the facts of this particular case. We have already found that the magistrate was correct in concluding that St Hilliers committed an offence in two respects:

(a) St Hilliers failed to properly secure the Stevens Road gate; and

(b) St Hilliers failed to pass on proper information and warnings. 70 The question is then whether the causes of those offences were within the control of St Hilliers. Given our conclusion regarding the availability of a defence under s28(a) for the failure to properly secure the Stevens Road gate, it is necessary only to consider the availability of a defence under s28(b) in respect of the second particularised failure, namely the failure to pass on proper information and warnings. 71 St Hilliers submitted that the commission of the offence was due to causes over which it had no control - namely the unlawful cutting of the gate ties and Mr Openshaw failing to keep a proper lookout. At the outset, we observe that this submission fails to recognise all of the causes identified by the magistrate in finding that St Hilliers committed an offence. Further, it fails to recognise that the failure to keep a proper lookout was a cause of the accident but was not a cause of the commission of the offence - namely failing to properly secure the Stevens road gate and failing to provide proper information and warnings. It is trite law to say that the focus of liability under the Act is the risk to health, safety and welfare rather than the risk of an accident. In this regard, we agree with the submissions of WorkCover that s28(b) concerns causation between the failures pleaded and the risk that was pleaded and argued and not causation of the actual accident. 72 We note that St Hilliers submitted that taking into account that there was still a risk to safety by reason of the inadequacies in St Hilliers' systems to secure the fencing and provide signs and communications incorrectly focuses attention on matters relevant to s28(a) rather than considering the distinctive way s28(b) operates. We reject this submission. 73 As already mentioned, we consider that the focus in s28(b) is assessing the causes of the commission of the offence which involves consideration of the causation between the failures pleaded and the risks pleaded. Section 28(a), on the other hand, involves a wider enquiry as to whether it was not reasonably practicable to comply with the provision. There will necessarily be some overlap in assessing this in particular instances and in respect of particular provisions. 74 We find that the causes of the second offence - namely the failure to pass on proper information and warnings - were clearly within the control of St Hilliers and we do not consider St Hilliers' submissions seek to contend otherwise. 75 We therefore find that St Hilliers has not established, on the balance of probabilities, that it has made out a defence under s28(b) for either of the offences the magistrate found it committed. We, therefore, consider that, as concerns the second particularised offence (short particulars (a)(ii)), the appellant was properly found guilty and convicted by the Industrial Magistrate albeit upon the different bases we have discussed. The appeal on this basis is accordingly dismissed. 76 Having regard to the success of the appellant with respect of the first particularised offence (short particulars (a)(i)), there is a real question in these circumstances whether the appeal should be upheld and the related question as to whether, if the appeal is upheld, any re-sentencing is required. We consider that the interests of justice in these circumstances dictate that we uphold the appeal for the purposes of re-sentencing St Hilliers because the basis of the conviction being entered is now substantially different to that originally found. We intend therefore to list the matter in due course to hear from the parties as to whether there should be any alteration of sentence.

(1) Leave to appeal is granted in relation to the availability of defences under s28 of the Act, but otherwise refused.

(2) The appeal is allowed to the extent set out in these reasons.

(3) These proceedings are to be listed before a Member of the Full Bench at 9.30 am on Wednesday 9 May 2007 for the fixing of a date for the hearing of submissions as to sentence and costs. ___________________________

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