WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Limited

Industrial Relations Commission (NSW)|2003-07-01|Before: Schmidt J, Peterson J, Maidment J

Industrial Relations Commission of New South Wales in Court Session

PROSECUTOR: Mr MJ Joseph SC with Mr PM Skinner of counsel SOLICITORS: Moray & Agnew LEGAL REPRESENTATIVES: DEFENDANT: Mr JE Maconachie QC with Mr GM Watson SC SOLICITORS: Colin Biggers & Paisley

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter Number IRC 5427 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s16(1) of the Occupational Heath and Safety Act 1983

Matter Number IRC 5429 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s15(1) of the Occupational Heath and Safety Act 1983

Matter Number IRC 5430 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v AGL GAS NETWORKS LIMITED Prosecution under s16(1) of the Occupational Heath and Safety Act 1983 JUDGMENT

1 These prosecutions brought under ss15 and 16 of the Occupational Health and Safety Act 1983 ('the Act') were heard together. The defendant entered a plea of not guilty, in each case.

2 The offences charged were, respectively: Matter Number IRC 5427 of 1999 DID FAIL contrary to s16(1) of the Occupational Health & Safety Act , 1983 to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the defendant failed to:

(i) cut and cap the gas supply line to Shop 7 Railway Parade, Kogarah outside an area where construction was designed to occur; (ii) make proper inquiry as to the scope and extent of the works; (iii) take adequate steps to establish the scope and extent of construction work; (iv) take such steps as were necessary to make available to persons engaged in the Kogarah Station Upgrading ("KSU") adequate information about: (a) location of the gas supply line which remained charged; (b) the risks associated with performing work adjacent to the charged gas line; (c) the type of work, if any, that might be carried out adjacent to the charged gas line without risk; (d) the type of work, if any, which could be performed adjacent to any charged gas supply line; (v) take such steps as were necessary to identify the work to be performed at the KSU; (vi) take such steps as were necessary to identify the extent and boundaries of the work to be performed at the KSU; (vii) disconnect the gas supply line, in a position which was safe and without risks to health of persons on or around the KSU; (viii) remove a gas supply line which remained charged from the KSU; (ix) remove a gas supply line which remained charged from an area which would be subject to earthworks; (x) isolate the supply of gas which charged the line to the KSU. (xi) provide or maintain a system for the adequate protection, identification and warning of gas lines which remained charged on a construction site that were safe and without risks to health.

On or prior to 10 November 1995 the Defendant was requested to cut off the gas supply to Shops 3 and 7 Railway Parade, on the eastern side of the KSU.

On or about 10 November 1995 pursuant to a request, John Princi an employee of the Defendant, attended the KSU and inspected Shops 3 and 7 Railway Parade, Kogarah.

Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building ) was to be demolished as part of the KSU.

On or about 10 November 1995 John Princi disconnected the gas supply by cutting and capping the charged gas supply line, leading to Shop 7 Railway Parade, Kogarah.

The gas supply line was capped but remained charged.

The Defendant failed to make proper enquiries as to the scope and extent of the construction work.

The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of gas supply line within the KSU where construction was designed to occur.

The existence of a charged gas supply line situated in an area where constructions work was designed to occur was inherently dangerous.

The Defendant failed to adequately protect the charged gas supply line on the KSU.

The Defendant failed to adequately identify the charged gas supply line on the KSU.

The Defendant failed to adequately mark the charged gas supply line on the KSU.

The Defendant failed to have available pipeline drawings such as to allow the determination of the optimum point for disconnection beyond the boundary of construction work.

The Defendant failed to prepare and keep up to date drawings of the pipelines including their location and to keep on file records showing the result of the pipeline acceptance tests.

Did fail to ensure the health, safety and welfare at work of all its employees and in particular, Charles Bigrigg, Liugino Galasso, Damian Paul Lindsay, Roy Alvero, Gary Charlewood, Les Emerson and Nuno de Sousa contrary to section 15(1) of the Occupational Health & Safety Act, 1983 in that it failed to:

(i) maintain availability of sufficient information to enable persons to identify where the gas supply lines were situated in Kogarah CBD; (ii) provide and maintain adequate and up to date records of the location of: (a) gas supply lines; (b) main supply lines; (c) gas valves; (iii) provide or maintain a system for the efficient isolation of gas flows; (iv) install valves which when operated efficiently isolated gas flows.

On or prior to 10 November 1995 the Defendant was requested to cut off the gas supply to Shops 3 and 7 Railway Parade, on the eastern side of the KSU.

On or about 10 November 1995 pursuant to a request, John Princi an employee of the Defendant, attended the KSU and inspected Shops 3 and 7 Railway Parade, Kogarah.

Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building ) was to be demolished as part of the KSU.

On or about 10 November 1995 John Princi disconnected the gas supply by cutting and capping the charged gas supply line, leading to Shop 7 Railway Parade, Kogarah.

The gas supply line was capped but remained charged.

On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah.

The detachment of the gas line from the elbow joint allowed gas which was under pressure to escape.

At approximately 2.00 pm on 4 December 1995 the Defendant was advised of a gas leak at Railway Parade, Kogarah and thereafter despatched a crew.

At approximately 2.00 p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ.

At approximately 2.00 p.m. on 4 December 1995 the Defendant was notified of the gas explosion.

Shortly after the first explosion on 4 December 1995 AGL employees attended Railway Parade, Kogarah.

At approximately 4.00 p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ.

The valves which could be operated so as to isolate the gas flow to the area were not located expeditiously.

After valves were located the gas flow was not isolated by the operation of the valves prior to 4.00 pm.

The Defendant's employees had to dig exploratory holes before locating the gas supply line that could be crimped to prevent the flow of gas into the atmosphere.

At approximately 4.15 pm the gas flow to the area was stopped.

The gas flow was stopped by crimping the gas supply line on the eastern side of Railway Parade, cutting the line and capping the end.

The gas explosion was of sufficient extent and severity that persons were injured thereby. Matter Number IRC 5430 of 1999 DID FAIL contrary to s16(1) of the Occupational Health & Safety Act , 1983 to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the defendant failed to:

(i) maintain availability of sufficient information to enable persons to identify where the gas supply lines were situated in Kogarah CBD; (ii) provide or maintain adequate and up to date records of the location of: (a) gas supply lines; (b) main supply lines; (c) gas valves; (iii) provide or maintain a system for the efficient isolation of gas flows; (iv) install valves which when operated efficiently isolated gas flows. The Particulars of the charge are:

On or prior to 10 November 1995 the Defendant was requested to cut off the gas supply to Shops 3 and 7 Railway Parade, on the eastern side of the KSU.

On or about 10 November 1995 pursuant to a request, John Princi an employee of the Defendant, attended the KSU and inspected Shops 3 and 7 Railway Parade, Kogarah.

Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building ) was to be demolished as part of the KSU.

On or about 10 November 1995 John Princi disconnected the gas supply by cutting and capping the charged gas supply line, leading to Shop 7 Railway Parade, Kogarah.

The gas supply line was capped but remained charged.

On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah.

The detachment of the gas line from the elbow joint allowed gas which was under pressure to escape.

At approximately 2.00 pm on 4 December 1995 the Defendant was advised of a gas leak at Railway Parade, Kogarah and thereafter despatched a crew.

At approximately 2.00 p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ.

At approximately 2.00 p.m. on 4 December 1995 the Defendant was notified of the gas explosion.

Shortly after the first explosion on 4 December 1995 AGL employees attended Railway Parade, Kogarah.

At approximately 4.00 p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ.

The valves which could be operated so as to isolate the gas flow to the area were not located expeditiously.

After valves were located the gas flow was not isolated by the operation of the valves prior to 4.00 pm.

The Defendant's employees had to dig exploratory holes before locating the gas supply line that could be crimped to prevent the flow of gas into the atmosphere.

At approximately 4.15 pm the gas flow to the area was stopped.

The gas flow was stopped by crimping the gas supply line on the eastern side of Railway Parade, cutting the line and capping the end.

The gas explosion was of sufficient extent and severity that persons were injured thereby.

3 The parties agreed on factual matters, as follows: 1. Inspector Kathleen Maltby of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against AGL Gas Networks Limited.

AGL Gas Networks Limited [ACN 003 004 322] (" AGL ") is a corporation duly incorporated in New South Wales.

The State Rail Authority of New South Wales (" SRA ") is a statutory authority constituted pursuant to Section 4 of the Transport Administration Act, 1988 (NSW).

Abigroup Contractors Pty Limited [ACN 000 201 516] (" Abigroup ") is a corporation duly incorporated in New South Wales.

Josef & Sons Contracting Pty Limited (In Liquidation) [ACN 002 844 537] (" Josef & Sons Contracting ") is a corporation duly incorporated in New South Wales. Josef & Sons Contracting was voluntarily placed into liquidation in May 1996. 6. Josef & Sons Pty Limited [ACN 001 283 601] (" Josef & Sons ") is a corporation duly incorporated in New South Wales. 7. SRA was the relevant Authority which owned the Kogarah Railway Station and its surrounding areas, including shops at Nos. 3, 5, 7 and 9 Railway Parade, Kogarah. Prior to demolition, these shops operated with the trading names:

(a) Shop 3 - Railway Fruit Market; (b) Shop 5 - Railway Fruit Market; (c) Shop 7 - Kogarah Seafood; (d) Shop 9 - Toy/Gift Shop (name unknown) 8. The premises immediately to the south of Nos. 3, 5, 7 and 9 Railway Parade on the western side of Railway Parade and the border of the railway line were as follows: (a) No. 11 Railway Parade - Mei Yee Fashions Ladies Dress Shop; (b) No. 13 Railway Parade - Family Amusement Zone - which was known as "FAZ" - being an electronic amusement centre and games parlour; (c) No. 15 Railway Parade - St George Tobacconist Shop; (d) No. 17 Railway Parade - Oasis Seafood Café. 9. (a) The SRA desired that the Kogarah Railway Station and its environs (including shops and public areas) be upgraded. (b) The project site was called the Kogarah Station Upgrade (" KSU "). The project included the demolition of the concrete steps at the entrance to the Station on the eastern side; the uplifting and removal of pavers in the mall area outside Kogarah Town Centre; the demolition of retail shops Nos. 3, 5, 7 and 9 Railway Parade, and construction within the KSU and the airspace above. 10. (a) A group of companies formed a joint venture, the Station Upgrade Joint Venture (" SUJV ") for the purpose of tendering to the SRA for the right to provide services for upgrades to various metropolitan stations. (b) The SUJV was constituted by the companies TMG International Pty Limited, Edwards Madigan Torzillo Briggs Pty Limited, Group One Interiors Pty Limited and three further corporations, Arup Partner Pty Limited, Ove Arup Consult Pty Limited and Ove Arup Pty Limited. (c) Arup Partners Pty Limited, Ove Arup Pty Limited and Ove Arup Consult Pty Limited traded pursuant to the business name Ove Arup & Partners.

(d) The SUJV in furtherance of the joint venture operated and traded under the name of Capital Works Management (" CWM ") which was registered as a trading name on 15 December 1994. 11. (a) The SRA engaged SUJV (later renamed CWM) on 29 July 1994 for the design, tender process and the supervision to completion of the upgrading of a number of SRA facilities including the KSU.

(b) SUJV was appointed as the project manager and the superintendent of the contract at the KSU between the SRA and Abigroup. 12. (a) Abigroup contracted with the SRA to carry out work at the KSU. (b) The contract was entered into on 18 October 1995. 13. On or about 8 November 1995 Abigroup sub-contracted with Josef & Sons Contracting to perform work including demolition work. 14. Josef & Sons Contracting, pursuant to its obligations under the demolition contract, undertook to provide the management, skill, equipment and labour for the demolition of 2 sets of stairs and shops Nos. 3, 5, 7 and 9 Railway Parade, Kogarah. 15. Josef & Sons was the owner of certain equipment including a 7-8 tonne Daewoo excavator (" the Daewoo excavator "). 16. There was an arrangement between Josef & Sons Contracting and Josef & Sons whereby Josef & Sons leased, hired or otherwise made available to Josef & Sons Contracting equipment used in the demolition work to be carried out under the contract between Abigroup and Josef & Sons Contracting, including but not limited to the Daewoo excavator. This excavator was utilised at the KSU. 17. Robert Josef and Susan Josef, were at all material times the Directors of: (a) Josef & Sons Contracting; (b) Josef & Sons. 17A. Although it is accepted by the parties that the facts agreed upon in paragraphs 7 and 9-17 of this statement are important facts, it is also noted that AGL contends that it was not aware of any of those facts or matters at the relevant times. 18. At the relevant times, AGL: (a) carried on business as a supplier of gas; (b) was the owner of gas supply lines in Railway Parade, to a point approximately 225mm outside the building line of each shop; (c) was the owner of the gas within the said gas supply lines; (d) had the care, control and management of the said gas supply lines and of the supply of gas within the lines. 19. At all material times, AGL employed the following persons: (a) John Princi - Ganger (b) Anthony Brown - Communications Officer (c) John Marjanovic - Welder Service Layer (d) John Ferguson - Manager Gas Supply Projects Sydney South (e) Alex Vlasoff - Acting Manager Gas Supply (f) Damien Lindsay - Ganger (g) Luigino Galasso - Ganger (h) Charles Bigrigg - Team Leader (i) Christopher Shuetrim - Communications Officer 20. (a) Historically gas had been reticulated in the Sydney metropolitan area through galvanised metal or cast iron pipes. (b) As natural gas was progressively introduced from 1976, the existing reticulation pipes were upgraded. (c) AGL embarked on a project to find a safe and suitable means of upgrading the reticulation pipes. (d) As a consequence of the project AGL developed a system using nylon or polyethylene pipe. The nylon pipe was known as "Rilsan". Both kinds of the pipe were yellow and hence the overall project was given the name "Goldline". (e) As the Goldline project was rolled out, the Goldline pipe was commonly inserted into the existing galvanised metal or cast iron reticulation pipes. (f) In the area around the Kogarah Railway Station the gas was reticulated through Rilsan pipe. (g) Where elbow joints were necessary to alter the direction of a Goldline pipe, the joints were sealed to the adjacent sections of Rilsan pipe with a solvent, known as Rilsanol. If the Goldline pipe was within an existing galvanised metal or cast iron reticulation pipe, in order to insert these elbow joints it was necessary to cut and remove a section of the existing reticulation pipe. 21. (a) Prior to the commencement of work at the KSU, a gas supply originated on the eastern side of Railway Parade. (b) The Goldline gas pipe in this area was the nylon pipe, known as Rilsan. The gas pipe crossed the roadway in a westerly direction to a point directly outside the FAZ at No. 13 Railway Parade. (c) The gas pipe then made a right angle turn and continued along the footpath adjacent to the building alignment of Railway Parade in a northerly direction for approximately 15 metres. (d) The gas pipe then made a further right angle turn to the west towards No. 7 Railway Parade, which were the commercial premises known as "Kogarah Seafood". (e) The gas pipe was 32mm in diameter and had an approximate operating pressure of 210kPa. 22. At all material times Abigroup employed: (a) Maurice Bolger as Project Manager for the KSU; (b) Luis Bustamante as Foreman for the KSU; (c) Paul Poidevin as Construction Supervisor; (d) Barry Jessop as a labourer; (e) Paul Warren as a labourer. 23. Josef & Sons Contracting employed: (a) Daniel Josef as a Project Manager; (b) Christopher Stoeski as Foreman; (c) Bruno Brdaric as a labourer; (d) Hasan Alagic as a labourer; (e) Bernath Adler as a supervisor; (f) Gorco Trajcevski as a labourer, (g) Robert Campbell as plant operator. 24. Robert Josef, as director of Josef & Sons Contracting and Josef & Sons performed management and supervisory roles in relation to the KSU. 25. Daniel Josef, as an employee of Josef & Sons Contracting, performed management and supervisory roles in relation to the demolition work at the KSU. 26. On or about 30 October 1995, Abigroup was granted access to the KSU by the SRA, and in turn Abigroup granted access to Josef & Sons Contracting. 27. On or about 1 November 1995 Luis Bustamante and Robert Josef inspected the KSU and had a discussion relating to the disconnection of services including gas, electricity and water. 28. On or about 8 November 1995, a service order call was placed to AGL for the disconnection of the gas supply to No. 3 and No. 7 Railway Parade. 29. (a) On or about 10 November 1995 John Princi, an experienced Ganger employed by AGL, attended the KSU and inspected No.3 and No.7 Railway Parade. John Marjanovic and Anthony Brown attended the KSU with Princi.

(b) When Princi, Marjanovic and Brown attended the address the circumstances were that the shops at Nos. 3, 5, 7 and 9 Railway Parade were empty, but intact. The footpath in the area was intact and in ordinary use by pedestrians. No excavation had commenced.

(c) A man met Princi outside the shops. No names were exchanged, but the man made it known that he was involved in the project. It is now known that this man was Luis Bustamante, a foreman employed by Abigroup. A discussion took place in which Princi said to Bustamante that he had to disconnect the gas pipe. Witches' hats and barricades were erected in the area. 30. (a) In fact, there was no gas supply pipe to the shop at No. 3 Railway Parade. (b) In respect of the shop at No. 7 Railway Parade, Bustamante was present while Princi removed some pavers and began to excavate to find the gas pipe. The gas pipe was approximately 10" to 12" beneath the surface of the footpath. Princi disconnected the gas by "squeezing" the gas pipe using a specialised tool. The gas pipe was cut a distance away from the outside of the existing wall of the shop. A cap was connected with glue to the end of the gas pipe. The men waited 20 minutes while the glue set. The pipe was then tested for leaks. No leaks were found. The excavation was refilled. A "gas box" (which is a cast iron path valve cover marked with the word 'gas', examples of which are commonly seen in the streets of Sydney) was placed above the point of the disconnection. The pavers were re-laid. 31. (a) The gas supply pipe , having been cut and capped, remained in the same situation within the KSU at all times up to and including 4 December 1995.

(b) Located approximately 1.5 metres from the capped end of the gas supply pipe was an elbow joint.

(c) The next elbow joint to the south was approximately 15 metres away, under the footpath directly in front of FAZ. The Goldline between these two elbow joints had been inserted inside an existing galvanised metal reticulation pipe. 32. (a) After 10 November 1995 and before 4 December 1995 shops Nos. 3, 5, 7 and 9 Railway Parade were demolished by Josef & Sons Contracting by way of mechanical felling using an excavator.

(b) Mr Alfred Begg, an employee of Reid's Excavations, was engaged by Josef & Sons Contracting to perform such demolition work during this period. 33. Between 21 and 25 November 1995 a section of the Goldline gas pipe become exposed as an excavator pulled away the footings from shop No. 7 Railway Parade within the KSU. 34. (a) After the gas pipe became exposed a stake and some material was placed by Christopher Stoeski and Luis Bustamante near its capped end to mark it. (b) The stake was a "star picket". (c) Photographs were taken by Robert Josef on 24 November 1995, showing the gas pipe marked with the star picket and material. (d) No signage was placed near the exposed gas pipe. 35. (a) On or about 30 November 1995 approximately 200mm of the gas pipe was exposed in a shallow hole approximately 300mm x 300mm on the ground within the KSU.

(b) On 30 November 1995, Abigroup (by way of facsimile from Maurice Bolger to Robert Josef) directed Josef & Sons Contracting to accelerate their work to ensure completion by the programme date. 36. (a) On Saturday 2 December 1995, a 30 tonne excavator was used by Josef & Sons Contracting to complete the demolition of the concrete steps, located on the eastern side of the KSU and approximately 18 metres north of Mei Yee Fashions. (b) Upon completion of the demolition of the concrete steps the 30 tonne excavator was removed. 37. (a) Thereafter, the Daewoo was brought on to the eastern side of the KSU to complete the demolition and clean up of the stairs. (b) This was used to remove rubble left by the 30 tonne excavator. (c) The excavator was driven by Robert Campbell. (d) Removal of the rubble was not completed on Saturday, 2 December 1995. 38. Monday 4 December 1995 was a scheduled picnic day for the construction industry but work on the KSU by Josef & Sons Contracting continued on that day. Abigroup was aware that Josef & Son Contracting proposed to work on 4 December 1995. 39. On 4 December 1995 Robert Campbell, Bruno Brdaric, Hasan Alagic, Christopher Stoeski, Gorco Trajcevski, Bernath Adler, Daniel Josef and Robert Josef attended the KSU and performed work on behalf of Josef & Sons Contracting. 40. When the rubble had been removed on 4 December 1995, Christopher Stoeski directed Robert Campbell to use the Daewoo excavator to cut a batter from the point where the steps had been located in a north-south direction. 41. (a) Whilst cutting the batter between 12.30 p.m. and 1.30 p.m. on 4 December 1995 Robert Campbell operated the Daewoo excavator in an area where the gas pipe was located. (b) The bucket of the excavator came into contact with the gas pipe. (c) The contact between the bucket and the gas pipe caused the elbow joint located outside FAZ to become detached from the main gas pipe supplying gas to that point. (d) Investigations undertaken at the request of the NSW Coroner reveal that there is no suggestion that the elbow joint detached due to any inadequacy in the design, materials or workmanship used in creating the elbow joint. 42. Between 1.00 p.m. and 2.00 p.m. a strong smell of gas was noticed by John Hatzikiriakos, the proprietor of Oasis Seafood, and Wally Afiouni, the proprietor of St George Tobacconist. 43. (a) John Hatzikiriakos and Wally Afiouni separately approached workers at the KSU and spoke to them about the strong smell of gas. As a result of their enquiry Bruno Brdaric and Christopher Stoeski carried out an inspection of the capped end of the gas pipe located within the KSU. Unable to locate any gas leaking from the gas pipe within the KSU, they attended Oasis Seafood with John Hatzikiriakos. (b) When outside FAZ they saw and heard gas escaping through a crack in the pavement. 44. Wally Afiouni made a "000" phone call at approximately 1.45 p.m. and was put through to the Police. 45. Christopher Stoeski directed Bruno Brdaric to put up a mobile metal barricade in the area where the gas was escaping through the crack in the pavement outside FAZ. 46. At approximately 1.55pm Bruno Brdaric placed the mobile scaffolding in position and attempted to direct pedestrians away from the area. 47. (a) At approximately 1.55 p.m. Constable Adams and Constable Stephens attended in a Police motor vehicle from Kogarah Police Station. (b) Whilst stationary at the lights at the corner of Railway Parade and Montgomery Street, they were able to smell gas. 48. At approximately 1.57 pm the Police Officers inspected the crack in the pavement outside FAZ where gas was escaping. 49. The Police Officers called for further Police to attend and attempted to direct people away from the area. 50. After it was determined that gas was leaking, Christopher Stoeski, Bruno Brdaric, Gorco Trajcevski and Robert Campbell moved the excavator from the KSU onto the open mall area towards the northern end of Railway Parade. 50A. Although it is accepted by the parties that the facts agreed upon in paragraphs 32 to 50 of this statement are important facts, it is also noted that AGL contends that it was not aware of any of those facts or matters at the relevant times. 51. (a) At approximately 1.55 p.m. Christopher Shuetrim, an AGL employee at the Communications Centre in Alexandria, received a telephone call from a male who identified himself to be from Josef & Sons Contracting. (b) This person reported a gas leak at Railway Parade, Kogarah. (c) Shuetrim obtained the man's mobile telephone number, which was the telephone number of Robert Josef. (d) Shuetrim then despatched Luigino Galasso and Damien Lindsay, an AGL mobile maintenance crew, to Railway Parade, Kogarah. 52. At approximately 2.00 p.m. an explosion occurred in and about the FAZ as a result of the ignition of gas which had leaked from the detached elbow joint outside the FAZ into the immediate surrounds, including the basement of the FAZ. 53. The explosion blew out the front of FAZ causing damage to a number of shops in the immediate vicinity. 54. As a result of the explosion, Mina Bakhoum and Gregory Maybury sustained fatal injuries. At least 16 other persons sustained burn injuries. 54A At 2.05pm AGL dispatched Charlie Bigrigg, Team Leader Supply, to the scene from the Southern area headquarters at Alexandria. 55. At some time between 3.00 pm and 4:00 pm on 4 December 1995, a second ignition occurred inside FAZ. 56. A number of Fire Brigade officers were inside FAZ when the second explosion occurred. 57. Approximately five fire brigade officers sustained minor burn injuries as a result of this second ignition. 58. AGL's employees had to dig exploratory holes before locating the main gas supply line upstream of the detached elbow joint outside the FAZ. This main line was then crimped to prevent the flow of gas. 59. At approximately 4.15pm on 4 December 1995 the gas flow to the area was stopped.

4 Numerous other documents were also tendered. Detailed oral evidence was also called from Barrie Bourchier, Detective Senior Sergeant, Flemington Local Area Command; John Princi; Tony Brown; John Marjanovic; Luis Bustamante; Robert Josef; Damian Lindsay; Daniel Josef; Charles Bigrigg; Christopher Shuetrim; Luigino Galasso; Robert McDougall, team leader at AGL Sydney South; Inspector Paul Anthony Mansell, WorkCover Authority of New South Wales; Ross Trethewy, Occupational Health and Safety Consultant. Not all of the evidence accorded entirely with the agreed facts.

5 The witnesses were giving evidence about matters which had occurred almost 8 years ago. Unsurprisingly, their memories were affected, to varying degrees, by the lapse of time. Some of the witnesses had given statements to police and WorkCover investigators during the course of various investigations undertaken in 1995. There was difficulty in some of those statements being received as evidence in these proceedings, but not others. Various submissions were advanced as to which evidence should be preferred, in the event of conflict.

6 The evidence showed that on 10 November 1995, AGL responded to a request for disconnection of the gas supply at Railway Parade Kogarah. The head contractor on site, Abigroup, had not long taken possession of the site. It was Mr Daniel Josef who had made the request of AGL the previous day. He had asked for the gas supply at shops Nos 3 and 7 to be disconnected, because those shops were to be demolished.

7 The upgrade of the Kogarah Railway Station was just commencing. The planned work involved the demolition of shops on Railway Parade, stairs to the station concourse, the concourse itself, new construction on the site, as well as the extension of various platforms at the Station. Josef & Sons Contracting had been engaged as subcontractors, for certain demolition work. Abigroup was just visiting the site, getting acquainted with the location and deciding where to locate temporary offices and other facilities. Mr Bustamante had discussed the Josef & Sons Contracting work method statement with Mr Robert Josef and matters like the disconnection of services and protection for the public. There were, however, no plans for the work, only temporary drawings, giving schematic locations of buildings. It was unclear that the drawings in evidence were those which were being used at 10 November. They certainly contained markings made afterwards. By whom was not established.

8 The shops which were to be demolished were known, although some were still then open. The exact method of demolition was not known. How access to various parts of the site would be gained was also not settled.

9 On 10 November Mr Princi attended the site to disconnect the gas service in the company of Mr Marjanovic and Mr Brown. Mr Princi had been given his instructions by two-way radio. They had been to disconnect the service at numbers 3 and 7 Railway Parade, at the building alignment. He was told that there was to be a demolition, he assumed of the shops at those addresses, but he was given no other information and did not believe that he required any, to do the work assigned. Mr Princi was not aware as to which of the shops was, in fact, to be demolished. As Mr Princi explained, the building alignment was just past the gas box, in the footpath. When he arrived, he ascertained that only one of the shops, No 7, had a gas supply. He spoke to the lady at the fruit shop at No 3, who confirmed that the shop had no gas and he also looked at No 9.

10 On 10 November, pedestrian access to the site had not yet been cut off and there were many people walking around the plaza outside the shops and the station stairs. The three workers used witches hats and barricades to block off the place where they proposed to cut off the gas pipe, from pedestrian access. Its location had been identified by the gas box, a metal box about 4 inches square, with the word 'gas' written on top, located in the ground in the pedestrian plaza outside the shop at No 7. It was located about 9 inches from the building wall at No 7 and half a metre from where the building at No 7 joined No 9.

11 Mr Princi was there approached by a man, identified in these proceedings to have been Mr Bustamante, the Abigroup site foreman. They had not made arrangements to meet, but Mr Bustamante saw Mr Princi working outside shop No 7 and approached him. Mr Princi's evidence was that there was no AGL practice which required any representative of the person or company which had requested the work to meet with him at the site. If someone was there, he would speak to them. Otherwise, he would just go ahead and do the assigned work. In the case of disconnections, there was often no one there.

12 Mr Princi had no written directions as to how the disconnection work was to be performed at this site. He had been trained in such work and there were standard written instructions supplied, some of which he kept in his truck and some at home. Those documents were not in evidence. Mr Princi described his job as being to cut the pipe away from the valve, which allowed the gas running to the shop, to be turned on and off. This was done wherever the metal squeezer used to cut off the gas flow, could be fitted on the pipe. There was also a copper pipe in the ground, which ran from the valve into the shop, where a pressure regulator and metre box were located.

13 This work was done by the use of a special squeezing tool, which squeezed the line, cutting off the gas supply. The line was then cut off on the other side of the squeezed line, and a cap was fitted, by use of a particular type of glue. The pipe was then tested for leaks, after the glue had dried, which took about 20 minutes. Mr Princi's explanation was that he did not cut off the supply to the shop at the gas main, because that had not been his instructions.

14 The evidence showed that AGL did not supply Mr Princi and the other workers at the site on 10 November with maps of the location of the gas service lines or mains at this site, nor had Mr Princi ever seen such maps. Maps were available from AGL, if needed. They did not show all service lines. Mr Princi was directed to cut off the service, by use of a code, which denoted that the service was to be cut at the building alignment. He explained that the decision where to cut was made by him, having regard to what he discovered at the site. It was not subject to specific direction by AGL. When he arrived at the site he located the gas box in the pavement, which indicated where the gas supply line entered the building at No 7 and established that No 3 had no gas supply. Accordingly, he did not require a map, in order to locate the line to be disconnected and did not ask to be supplied with one. He was not aware of the location of the main to which the service line was connected. This information was not necessary for him to complete the work he had been assigned that day.

15 Mr Princi's evidence was that he cut the pipe about 10 to 12 inches from the valve, leaving the charged gas line nearly 2 feet away from the building alignment. The pipe remained in a horizontal position. When replacing the pavers he relocated the gas box to the point above where the pipe had been cut.

16 As earlier noted, the witnesses' recollections had plainly been affected by the lapse of time. There was not common ground, either as to how long the conversation between Mr Princi and Mr Bustamante lasted, what was said, or how long Mr Bustamante remained with the AGL workers.

17 Mr Princi recollected Mr Bustamante, who was wearing blue work clothes, identifying himself as being from the demolishers when he approached. At that time, Mr Princi's work had already commenced, but Mr Princi wasn't sure if the pavers had already been lifted. Mr Princi believed that Mr Bustamante remained while the work was done, although he was working and not keeping an eye on what Mr Bustamante was doing the entire time. He could not recollect all of their conversation.

18 Mr Bustamante's evidence was that on 10 November, he was not aware that AGL was coming to cut off the gas supply, although he was aware that it had been requested by Josef & Sons Contracting. He approached the workers when he saw them digging in the footpath. He saw the yellow pipe in the ground, but did not see it capped and did not discuss the work to be undertaken on the site with Mr Princi, apart from the disconnection of the shops.

19 Nor did Mr Bustamante discuss with Mr Princi what he expected would be required by way of the use of excavation equipment at the site, how it was proposed that access to the site would be gained and what demolition, excavation and building work would have to be undertaken, so that the contracted construction could be undertaken. While Mr Bustamante at that stage had in mind what would be involved, many details were yet to be settled. It was, however, known to Abigroup and Josef & Sons Contracting that the brick paving outside the shops was to be removed.

20 Mr Princi's evidence was that after the disconnection he had shown Mr Bustamante where the gas box had been relocated and had pointed out where the gas had been cut off and also showed him which side of the box the charged line lay and which side was dead, namely the shop side. He told Mr Bustamante to call the gas company if he wanted the pipe cut further back. Mr Bustamante replied: "No, we are only going to remove the bricks and pull down the buildings" and that they were not going to excavate past the edge of the building. Mr Princi said: "If you're going to pull the shops down you don't have to worry about it because you're not going to touch the footpath at all" and that: "If you are only going to move the bricks, then that's all right." He also said: "If you going to dig anywhere around this where the gas pipe is, dig by hand and if you want any more assistance, ring the gas company and we come back."

21 Mr Princi did not ask how the shops were to be demolished.

22 Mr Princi also did not know where the main to which the service line was connected, was located. It follows, logically, from his evidence, that on 10 November he could not have informed Mr Bustamante as to the direction which the charged gas line took, between the point at which the pipe was cut off and where it joined the main. He had not uncovered the elbow joint nearby and did not know where the main to which the service line was connected lay.

23 Mr Princi's evidence was, that on 10 November, he had not dug along the pipe to uncover the elbow joint, to which he later learned the service line was attached, a short distance from where the service line had been cut off. He had not been instructed to cut off the main. That was not done, unless a specific request was made. While it would have been physically possible to cut off the main, that request would then have required other investigations to establish what else was connected to the main. In this case, the request was only that the supply to the shops be cut.

24 Mr Princi had some time earlier worked on a main in the vicinity when, during some Council road works, the gas main lying across the road from the site here in question, outside a hotel in Railway Parade, had been cut, causing gas to escape. His evidence was that gas pipes were inadvertently cut by people digging for various reasons, almost every day. His work frequently involved repairing such breaks.

25 Mr Princi's evidence was also that he returned to the site on 5 December, the day after the accident. He discovered that the main to which the service pipe was connected, was only about a metre away from where the line had been cut. His evidence was that even if he had been directed to disconnect the supply at that main, he would probably have cut the line in the same vicinity. (I observe at this point that the evidence showed that Mr Princi was wrong in this understanding, a matter to which I will return.)

26 Mr Brown's evidence was that he assisted Mr Marjanovic unload barricades and witches hats when they first arrived at the site. He was not sure what Mr Princi was doing when he walked over to the shops, when they first arrived, but on his return, they conducted a risk assessment and then unloaded their tools. There were many commuters about and Mr Brown recalled Mr Bustamante coming over to Mr Princi, while the work was underway. Mr Brown remembered that the hole was originally about 9 inches from the building and that Mr Princi decided to move it a couple of feet further away, for safety reasons. Mr Brown only heard part of the conversation between Mr Princi and Mr Bustamante. He recollected them discussing where the demolition was to be carried out and Mr Bustamante telling Mr Princi, "to the building line". He also said that they were not going into the paved area. Both Mr Brown and Mr Marjanovic remembered Mr Bustamante remaining for 5 to 10 minutes. Mr Marjanovic could not remember any details of his conversations with Mr Princi that day and also could not remember the hole being moved.

27 Mr Bustamante could recollect what he told Mr Princi, but not what Mr Princi said to him. He remembered having been with Mr Princi only some 3 or 4 minutes, during which time he saw the yellow gas pipe exposed in the hole which had been dug about a metre from the building. He told Mr Princi that he was the site foreman, that the disconnection was requested so that at a later day they could demolish "that front, that building". He recollected telling them that where they had disconnected was too close to the building and asking them to disconnect further away from the wall, but did not stay to see if that was done. He explained that he asked for the point of disconnection to be moved, because the single storey wall to be demolished, about 3 metres high, would have some footings and "normally it will encroach 200 or 300 or something into the footpath area, so the further away the gas pipe, the better protection we will have". Mr Bustamante could not recollect being told that they should dig by hand in the vicinity of the gas pipe.

28 Mr Princi did not make any enquiries about the footings, or what was otherwise to be done on the site. At that time, Mr Bustamante knew that some work might be required in relation to the footings, but not what. Mr Robert Josef confirmed that the demolition quote made an allowance for some footings, but their size and how they might be demolished, was not known at that stage. Mr Bustamante knew that some pavers would have to be removed, but not how many. He explained that work had to be done by hand.

29 No representative of Josef & Sons Contracting, who had ordered the cut off of the supply, was present during the discussion between Mr Bustamante and Mr Princi. The AGL workers did not speak to anyone else from Abigroup, or from Josef & Sons Contracting that day. It was Mr Bustamante's evidence that Josef & Sons Contracting had responsibility for the demolition work, the supervision of that work and the cut off of services, both above and below ground. They had both a supervisor and an engineer involved in their work. Mr Bustamante's evidence was that on 10 November, Josef & Sons Contracting workers were working inside one of the shops, commencing to remove material, but the demolition had not yet commenced.

30 At 10 November the construction site was not in place. Temporary site offices and other buildings were in the process of being established. There had been site visits and discussions with Josef & Sons Contracting representatives as to the demolition work necessary, as well as about work method statements, the services to be disconnected and the site protections to be built. Mr Bustamante was also aware that Josef & Sons Contracting would be using machinery in the demolition work, small equipment such as a bobcat, and an excavator, but he did not know the exact size of the equipment to be used.

31 At that time Abigroup had temporary drawings of the site, giving schematic locations of existing buildings and also indicating that a hoarding would have to be established, so that provision could be made for it. Specific dimensions were not given at that stage. Mr Bustamante was aware that Josef & Sons Contracting was to demolish the shops, but he was not sure if they were then engaged to perform other demolition work known to be required, such as the station stairs north of the shops and the station itself. Access to the site had also been discussed, but he was not sure as to whether he was then aware as to where an access road to the station was later to be built. When the site was established, it was surrounded by a moveable fence.

32 Mr Bustamante's evidence was that he was aware that there was a charged gas line on the site, his evidence was that it was accordingly later treated as if it was dangerous. He pointed out the location of the gas box to the Josef & Sons Contracting workers and to others who later came on site, as part of the site induction process which involved various services, including gas, which could pose a danger on the site, being identified.

33 Mr Bustamante's evidence was that pavers were gradually removed from outside the shops, from mid-November. The extent of their removal varied, as did the distance they were removed from the building line. After the demolition of the shops, most pavers were still in place, with one to two close to the building having been removed. Mr Bustamante was aware that after the removal of the pavers the demolisher uncovered part of the yellow gas pipe which had been exposed on site. Precisely when and who was performing work when Mr Bustamante became aware the pipe had been exposed, was not clear.

34 The location of the gas pipe was identified by means of a star picket, which was placed in the ground next to the end of the pipe. Orange bunting was also tied to the star picket. This occurred at Mr Robert Josef's direction. Mr Daniel Josef was also aware of this star picket and what it denoted, as was Mr Bustamante.

35 This occurred after the demolition of the shops, which involved the top part of the building being pulled down by hand and the rest of the standing walls, the floors and footings, being removed by an excavator. Precisely how the work of the excavator was undertaken was not revealed on the evidence. Mr Daniel Josef was not present when that work was done. He was also unsure how far below the pavement level the excavation occurred. Access to the site was however, not gained by the excavator crossing the pipes as far as he was aware. They gained access from another direction. This was consistent with Mr Bustamante's evidence.

36 There was no evidence that AGL was then recalled to the site when the pipe was exposed. The evidence showed that various work in the vicinity of the exposed charged gas pipe was then undertaken.

37 There was a conflict in the evidence as to all those who worked in the vicinity of the star picket prior to 4 December. It is unnecessary to resolve this conflict. It was an agreed fact that part of the work performed in the vicinity of the gas pipe, was the removal of some of the shop footings. It was during this work that the gas pipe was exposed. Mr Bustamante's evidence was that after the demolition, Josef & Sons Contracting had no other work to do in the vicinity of the pipe, other than to remove pavers. He agreed, however, in cross examination, that they performed work on the batter. Further disconnection of the gas pipe was not then undertaken. His evidence was that they were waiting until the final set out of the new buildings, before relocating or cutting other services which were in conflict with them. Mr Bustamante saw no risk arising from the charged gas pipe being left where it was lying exposed, identified by the star picket.

38 After the shops were demolished, an access road was built across the gas pipe, located at the site formerly occupied by the shop at No 9 Railway Parade. It was Mr Robert Josef's evidence that Abigroup workers had built this access way, which was used for heavy equipment and material to be transported onto the railway platforms. It was one of two access points to the railway lines at the site, but on his evidence, was not used by the Josef & Sons Contracting workers. They had approached the shops from the north of the site. Mr Daniel Josef also gave evidence to similar effect. His evidence was that it was during the work on the access way that a galvanised gas pipe was exposed, which he then saw. Work being done on the access ramp also involved loaded trucks backing over where the underground gas pipe lay.

39 Mr Bustamante was also aware that a large excavator was also used some distance further away from the star picket, in the demolition of the station stairs. Mr Robert Josef confirmed this, as did Mr Daniel Josef.

40 Some other excavation work was also later carried out, in order for a batter to be built nearby the gasline. Mr Bustamante's evidence was that the location and method of building this batter was regarded as a matter of commonsense and was left to the Josef & Sons Contracting workers. Abigroup did not lay out where they wanted this batter to be built and did not direct how the work was to be done. Mr Bustamante understood that a bobcat and small excavator was used in this work. He was, however, not present when the work was done. He was away from work and upon his return to work, the batter had been built. Mr Robert Josef's evidence was that Abigroup workers had built the batter. Mr Daniel Josef's evidence was that the batter was constructed by Josef & Sons Contracting workers on 4 December, using a 30 tonne excavator.

41 Mr Robert Josef was present at the site on 4 December, for a short period. His evidence was that he noticed that the ground where the star picket had been located, had been cleaned up and the star picket had been removed. The batter had already then been built, but not by the Josef & Sons Contracting workers. As I noted, there was a conflict in the evidence about these matters, which it is unnecessary to resolve. Mr Robert Josef was told on 4 December that it was proposed that an excavator was to be used by the Josef & Sons Contracting workers to clean up this batter. He directed them to keep out of the area, because he was aware that there was a live gas pipe in the ground there. He then left the site. Mr Daniel Josef was there too, for a short time and understood that Josef & Sons Contracting had built the batter. It was an agreed fact that the gas pipe was struck during the work performed that day by the Josef & Sons Contracting workers.

42 Later on 4 December, there was a gas leak detected in Railway Parade, at a location beyond the worksite. Authorities and AGL were notified. An AGL crew, comprising Mr Galasso and Mr Lindsay was sent to the site. They responded immediately on notification, being at Roselands, some 20 to 30 minutes away. There was an explosion at the site, at 2pm prior to their arrival. The AGL crew found the fire brigade dealing with the resulting fire and used extinguishers to help put out the flames. They were aware that fire would break out again, if the gas leak was not located and set about trying to find it. They had difficulty in doing as further fire broke out.

43 They found a yellow gas pipe at the construction site, sticking out of the steel pipe. When it was pulled, some 6 to 8 metres came free. Mr Lindsay and Mr Galasso knew that the leak lay further along the pipe, but not where. They did not have the relevant maps of gas pipes with them. They ceased pulling out this pipe and went to find the location where gas was bubbling from the ground. They dug a hole there, outside the FAZ, but the pipe was not found. They called for assistance.

44 Mr McDougall, the team leader for the area was away from work on 4 December taking an RDO. Mr Bigrigg, another team leader, was responsible for the Kogarah area that day. Mr McDougall explained the system of maps then maintained by AGL on microfiche, kept at the North Sydney radio control room and also at the Alexandria depot radio room. The maps AGL maintained showed mains and valves, but not the location of all service lines. There was a system of bringing the maps to site, on request.

45 Mr McDougall also explained that in 1995, AGL was in the process of installing valve systems at shopping centres, which allowed the mains in the area to be isolated, by operation of the mains. After the later completion of that project, a valve book containing maps of all such valves was produced. In 1995, Mr McDougall had knowledge of where the four valves for the Kogarah shopping centre were located, because, about 12 months previously, there had been an incident in Railway Parade outside the VideoEZY store, when Council workers had broken a gas line. He had then identified where the valves were located, because he considered that they might have to be used to isolate the mains. This had involved him using maps which showed the location of the valves. He had no difficulty at that time, in finding any of the four valves. The gas leak was ultimately, on that occasion, able to be dealt with, without use of the valves.

46 Mr McDougall's evidence was that AGL maps were used by AGL employees in order to locate valves and mains, but that they had to be used with some care. While they accurately depicted the location of the mains and valves, things on the ground referred to in the maps were often changed, or removed or new features were added, without AGL being advised. Maps were thus sometimes misleading. It was also on occasions difficult to locate gas mains and valves, because things above them, roads and footpaths for example, had been altered without AGL being advised. Sometimes valve covers were also buried in asphalt, when a road was resurfaced.

47 The maps also did not show how all service lines were connected to mains. On Mr McDougall's evidence, AGL had a practice of running service lines at 90 degrees from the metre, to the nearest mains. When reading the map for Kogarah, Mr McDougall assumed that this was the practice which had been followed in that case. He was not aware that at Kogarah Railway Station, a service line ran parallel to the shops which had been demolished south along Railway Parade, to the FAZ, before turning and running east across Railway Parade, to join the main there. He expected that the line would run directly from shop No 7, east across Railway Parade to join the main at that point. Mr McDougall could not, however, ascertain that this was how service was actually supplied to shop No 7, from the maps in evidence.

48 Mr Bigrigg did not have Mr McDougall's knowledge of the valve system at Kogarah on 4 December. Like Mr McDougall the preceding year, he had to himself locate these four valves. His evidence was that he was then the team leader for the CBD area. On 4 December, he was asked to attend the Kogarah Railway Station, by the Alexandria radio room operator at about 2 pm. He was then at Alexandria and was aware that Mr McDougall was away. He was told there had been an explosion. While he had maps of the CBD area in his car, he did not carry maps of Kogarah. They were available to him on microfiche and he could have taken copies with him when he left Alexandria, but he did not do so. There were no maps at the site until after the second explosion.

49 On that day, traffic was heavy and Mr Bigrigg did not arrive at Kogarah until about 2.25pm. He first spoke to some workers, whose identity was not clear, whom he encountered in the street, to ask them what they had done, prior to the gas leak being found. They denied any relevant knowledge, even though the radio room had given Mr Bigrigg one of the worker's mobile phone numbers. He then spoke to Mr Lindsay and Mr Galasso, who were digging a hole outside the FAZ. He helped them initially, but soon decided to stop that work and instead, to turn off the valves to cut gas to the area, both because they had uncovered nothing in their digging and the dangerous situation in which they were trying to work. There was fire in the vicinity and the AGL workers were being hosed by the fire fighters, as they tried to dig. Mr Bigrigg was not aware at that time, that a service line ran north from the FAZ to the construction site, or that the crew had already identified that there was a loose gas pipe at the construction site.

50 Mr Bigrigg and one of the other two workers went in a northerly direction to look for valves, which Mr Bigrigg expected to find nearby. Two were found in Montgomery and Regent Streets. They were in the ground, under a cover about a foot square marked 'gas', which gave access to the valve underneath. A tool was used to turn each valve off, when the cover was removed. The workers then headed south. Mr Bigrigg assumed that the flow from any valves further north would have been cut off, by the northernmost valve he had found being turned off. He was unaware that there was another valve nearby, or that a junction in the line made it necessary for this also to be turned off.

51 The third worker had already gone south, to find the valve there but when they met up again, after Mr Bigrigg himself went south, he was told that no valve had been found. Mr Galasso had already looked for valves in that vicinity before Mr Bigrigg had arrived, but had not found any. Mr Bigrigg then radioed for information as to the location of this valve. He was directed to Gray Street, where they found two valve covers in the footpath, but no valves underneath. He radioed for more specific information and then returned to the FAZ site.

52 There were then two crews there. Mr Princi, Mr Marjanovic and Mr Brown, were not, however, amongst those who were sent to the site that day. By then the location of the main had been identified, Mr Bigrigg's plan was to squeeze off the main in both a southerly and a northerly direction, because gas was still bubbling up in the roadway. When the mains were exposed, they were found to be inside galvanised pipes.

53 It was around this point that the second explosion occurred, at about 3.30pm. Further radio advice was received as to the whereabouts of the valve at Gray Street. When Mr Bigrigg returned to Gray Street, the valve was found in the roadway. The wheel of a fire truck had been covering it, but that vehicle had been moved.

54 Mr Bigrigg was, at that point, still not aware of the fourth valve, located to the north on the bridge over the railway line. He did not learn of the existence of this valve, until later. The evidence showed that the gas flow to the area could not be cut off, unless the valve on the bridge was also turned off.

55 When Mr Bigrigg returned to the FAZ site, he found the gas was still flowing. He radioed Alexandria again, to advise that there must be another valve in the vicinity. Another hole was then being dug, to uncover the service line from the main to the FAZ. Mr Bigrigg went to find the valve at the railway bridge to which he was then directed. He located it and turned it off. On his return the service pipe had also been squeezed. Whether it was the fourth valve being turned off, or the squeezing of the pipe which had stopped the gas flow, was not apparent at that point to Mr Bigrigg. On Mr Bigrigg's evidence it was also around this time that maps were brought on site. Mr Galasso's evidence suggested this occurred earlier, before the second explosion. I will return to deal with this conflict.

56 After the gas supply had been cut off, the nylon pipe at the construction site was pulled completely from the steel pipe by Mr Lindsay and Mr Galasso. It was then laid out on the ground and when a further hole was dug at the end of the pipe. The elbow joint from which it had come free was uncovered, outside the FAZ. Mr Galasso explained that he had considered doing this when the pipe was first located, but decided that the situation then was too dangerous to permit this course.

57 Mr Princi attended the site on 5 December and was involved in opening up the gas pipe, from No 7 Railway Parade down to No 14 or No 15. A trench was dug, which exposed the galvanised steel pipe, coated in plastic, in which the nylon pipe had been laid. Mr Princi was not aware, on 10 November, that this was where the pipe travelled. He also found that there was a gap in the steel pipe, outside the FAZ, where the pipe joined another elbow, and turned to travel across the Railway Parade Such a gap was common when there was a change in direction in the pipe. Mr Princi was not aware of this change of direction on 10 November, but on his evidence had no need to know. If needed, he could have found out.

58 Mr Princi was shown the nylon gas pipe on 5 December. It was about 15 metres long and included the part where he had cut the pipe and the elbow joint which it joined. The elbow joint was about 2 feet from the cap. He noticed a deformation about 4 inches from the cap, which he identified as the place where he had put the squeezer on. On the other side of the elbow, where the long gas pipe was connected, there were some deformations. On the short side, there were also some scratches on the pipe and the cap, which had not been there when he disconnected the gas. Squeezers do not scratch the pipe. Mr Princi believed that this showed that the pipe had been hit by somebody, after he had disconnected it.

59 The case advanced for the prosecutor by Mr Joseph SC, appearing with Mr Skinner of counsel, was that the prosecutor was obliged to prove that the conduct of the defendant was a causal link in the creation of the risk in question, although there might be several causes. A causal link will not always be broken by another act, especially if that act, here the blind use of a backhoe at the excavation site on 4 December, was itself foreseeable, or if it was foreseeable that full safety protection of the live gas pipe might not occur on a building site. It was submitted that a distinction had to be drawn between whether the defendant's conduct was sufficient to bring about the harm, from that where it was not sufficient, without the intervention of another.

60 As to the s16 prosecutions, it was submitted that culpability would not be removed, by the fact that others might also have had responsibility in relation to safety. The duty was to be proactive, even in relation to foolish disregard of personal safety. As to the s53 defence, the greater the magnitude of the risk and the gravity of the harm, should the event occur, the greater the obligation to take precautions, even if expensive or difficult.

61 Building sites were submitted to be notoriously unsafe. Detailed submissions were directed to the evidence, which I do not outline. The defendant argued that many of them had no foundation in the evidence.

62 As to the prosecutor's failure to call certain witnesses, particularly Mr Ferguson, it was submitted that the presumption flowing from Dyers v R (2002) 192 ALR 181, was that the prosecutor would 'call all relevant evidence in respect of the charge.' It was argued that this had been done and that the fact that the defendant had sought, but had failed to have other witnesses called, did not allow the Court to guess what their evidence might have been, nor to make any adverse finding in relation to the evidence which was called.

63 Submissions were also made in relation to Jones v Dunkel (1959) 101 CLR 298 inferences, especially in relation to the defendant's failure to call relevant evidence as to its systems and the defence of reasonableness.

64 The case advanced for the defendant by Mr Maconachie QC appearing with Mr Watson SC, was that the prosecution's case had to be approached, having in mind the proper construction of ss15 and 16 of the Act. Detailed submissions were advanced as to the limitations inherent in the sections, which I do not outline. It was, however, strongly submitted that the Parliament could not be ascribed with an intention to attach criminal sanctions to an obligation which could never be satisfied. Such an outcome was inconsistent with Parliamentary intention in a mature democracy. It would also be "beyond the power of the NSW Parliament to legislate for attachment to a citizen, individual or corporate, criminal sanctions under the guise of the imposition of an obligation which is impossible to discharge". It followed that a construction of the sections which involved a causative connection between an act or omission for which the citizen was responsible, and the risk to health and safety in question, must be preferred.

65 It was further submitted that it followed that the prosecutor was obliged to establish, beyond reasonable doubt, that an act of the defendant, as employer, was causative of a risk to the health, safety and welfare of an employee, in the case of s15, for instance.

66 As to causation, it was argued that the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant, negatived the necessary causal connection. Here, Abigroup and Josef & Sons Contracting had deliberately, intentionally and knowingly, given rise to the risks in question, by exposing and leaving the charged gas pipe on this site. That act had been what had given rise to the risks here in question.

67 While the duties imposed by the Act were absolute, the employer was entitled to the benefit of any doubt as to whether the events were caused by the failure of the employer, or by some other unrelated factor. Even if the offences were proven, it was submitted that the s53 defence was made out, for reasons which I will not here outline.

68 There were also detailed submissions advanced in relation to the evidence, which I will not detail. It was submitted that the defendant had no causal role in the events in respect of which Abigroup had been convicted and in respect of which Josef & Sons Contracting had been charged. The full extent of the defendant's connection with these matters was that it supplied gas by services reticulated throughout Sydney and that it was gas from that system, which ignited and exploded. On the evidence, it should never have been prosecuted. The prosecution had flowed from a misinterpretation of the Act and an overstatement of the nature of the duties imposed, which was compounded by the way in which the case was pressed at the hearing, in an attempt to go beyond the particulars of the charge. Submissions were also advanced as to whether the location of the gas pipe which was breached was the defendant's place of work at the relevant time.

69 It was also argued that Mr Ferguson should have been called and was not, for tactical reasons. The adverse inference, that Mr Ferguson was a witness who would not have advanced the prosecution case, flowed from the submissions the prosecution itself made. Submissions were also advanced as to the inadequate nature of the expert evidence sought to be tendered, which again, I will not detail.

The calling of Mr Ferguson 70 A number of statements had been taken from an employee of AGL, Mr Ferguson, during investigations conducted both by the police and by the WorkCover Authority. The position of the prosecution was that those statements contained representations, which amounted to admissions by AGL, having regard to the provisions of s87 of the Evidence Act 1995. The prosecution did not propose to call Mr Ferguson, but, nevertheless, sought to tender his statements. It was candidly explained that this course was adopted, amongst other reasons, because there was a concern that any evidence which Mr Ferguson gave in cross examination, would not assist the prosecution case. The submission was that: 'Insofar as they are not admissions by the defendant, we don't rely on them, but insofar as they are admissions against the defendant, then we are entitled to rely on them and we're not required to, in our submission, call that witness to further explain or add to his evidence.

The only basis upon which they are admissible is that they are binding on the corporation, the defendant. If my friend thinks that there is further evidence that this witness could assist in its defence, of course he's entitled to call that evidence, but we are not required, in our submission, to put our case at risk by calling a witness who does not advance our case.'

71 The defendant opposed the tender of the statements if Mr Ferguson was not to be called, so that he could be cross examined. The objection was put on a number of bases and it was argued that in such circumstances, the Court would, in any event, exclude the statements, in the exercise of the discretions given by ss90, 135 or 137 of the Evidence Act 1995.

72 There was an issue between the parties as to whether Mr Ferguson was a material witness. He plainly was. This could not seriously be doubted, given the use to which the prosecutor wished to put his statements, in the context of the charges here in question, which amongst other things, went to the system of work which the defendant had in place. Evidence as to the systems of work which a corporate defendant has established will, in the ordinary course, come from the employees of the corporation and from the documents which it has created. There was no doubt that Mr Ferguson was available to give evidence and still the prosecution declined to call him.

73 The High Court has considered the obligations of a prosecutor and the decisions which fall to him or her to make, including the fundamental decision as to which witnesses to call. In R v Apostilides (1984) 154 CLR 563, six general propositions relevant to the conduct of a criminal trial were outlined at p575: (1) The Crown Prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. (2) The trial judge may, but is not obliged to, question the prosecutor in order to discover the reasons which led the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. (3) Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. (4) When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor's reasons for his decision as the prosecutor thinks it proper to divulge. (5) Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. (6) A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

74 At p576 it was said that a decision not to call a material witness would be rarely made by a prosecutor, justified only by the overriding interests of justice, for example in a case where the unreliability of the witness was clear. That circumstance did not here arise. To the contrary, the prosecution wished to rely upon representations made by Mr Ferguson out of court, but would not call him. It is relevant to consider in this context, that in Apostilides, failure to call a witness later called by the defendant, led to a miscarriage and a retrial, because there had been no opportunity for the defence to cross examine that witness.

75 In Whitehorn v The Queen (1983) 152 CLR 657 at p663 the need for the prosecution to act with fairness and detachment was discussed, in the context that the trial should be directed at ascertaining the whole truth. At p664 it was also said that a prosecutor should refrain from deciding who to call, by reference to tactical considerations.

76 More recently in Dyers v R (2002) 192 ALR 181 Gaudron and Hayne JJ said at p184 at [11], that the fact that a witness might give an account inconsistent with the prosecution case, is not a sufficient reason for not calling the witness. Callinan J observed at p212 at [118] that the prosecution's obligation is to call all material witnesses and at [119], that the prosecution should call material and available witnesses. It is bound to prove guilt, but not at any and all cost, referring to the High Court's earlier judgment in RPS v The Queen (2000) 199 CLR 620. There it was observed at p633, that the defendant need not call any evidence; that the prosecutor has the responsibility for ensuring that the Crown case is presented with fairness to the accused and should, in many cases, call the witness in question, as part of the prosecution case.

77 The prosecutor persisted in the refusal to call Mr Ferguson. Having heard the parties' submissions, I came to the conclusion that Mr Ferguson's statements in part contained representations, which might be admissible against the defendant, as admissions, as that term is defined in the Evidence Act 1995. Section 87 and Part 1 - Definitions provide: 87. Admissions made with authority

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that: (a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or (b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or (c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party. (2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove: (a) that the person had authority to make statements on behalf of another person in relation to a matter, or (b) that the person was an employee of another person or had authority otherwise to act for another person, or (c) the scope of the person's employment or authority.

" admission " means a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding.

78 There was an issue between the parties as to the meaning of the word 'adverse' in the definition of admission. I was satisfied that the construction urged for the prosecution was not correct. It involved an acceptance of the proposition that in criminal proceedings, all evidence called by the prosecution is 'adverse', because it is led in the case brought against the defendant. That approach involved a departure from the ordinary meaning of the word, itself not defined in the Evidence Act 1995. It is, for example, relevantly defined in the Macquarie Dictionary, 2nd Edition, as: '1 . antagonistic in purpose or effect … 2. opposing one's interests or desire … 3. being or acting in a contrary direction; opposed or opposing .. 4 . opposite; confronting … 6. Law a. opposed to the examining party in a law suit … '

79 I was also satisfied that the prosecutor's approach to this construction point was one not properly available, particularly as it would appear to have the result of making the word 'adverse' and indeed paragraph (b) of the definition of 'adverse', entirely otiose.

80 It followed that not all of the representations made in Mr Ferguson's statements, if themselves relevant and admissible, could amount to admissions, as provided by s87.

81 The prosecutor's submissions also revealed the difficulty inherent in identifying which representations made by Mr Ferguson in his statements might amount to admissions, particularly at the stage of the proceedings at which the statements were sought to be tendered. This problem flowed from the nature of the obligations imposed by the Act, the charges laid in these prosecutions and the representations made in the statements. Despite this difficulty however, the prosecutor still declined to call Mr Ferguson, while pressing the tender of the statements. The prosecution then asserted that Mr Ferguson was the defendant, for the purpose of the tender of his statements and that therefore, the prosecutor had no obligation to call him.

82 I could not accept that submission. It is clear that the evidence which an officer or employee of a corporation gives, is his or her evidence and not that of the corporation which has been charged with the offence in question. (See for example the discussion in Smorgon v ANZ Bank (1976) 134 CLR 475 at 481, 483-5). While a corporation might well be bound by an admission made by a proper officer, or someone else armed with authority to speak on its behalf, there was no evidence that Mr Ferguson fell into this category. Rather, the evidence suggested that he was an employee who had made statements about matters which fell within the scope of his employment and that he had been authorised to produce to the investigators, certain AGL documents which they had sought. It was in that context that the provisions of s87 of the Evidence Act 1995 arose for consideration. This did not, however, make Mr Ferguson the defendant, in any relevant sense in these proceedings.

83 The prosecution also submitted that they had no objection to those parts of the statements which did not fall within s87 being admitted, as a matter of fairness and to ensure that the evidence was complete. It was also explained that they could be tendered by the defendant. No proper basis for either course was identified. Given the defendant's objection to the tender of the statements and its right not to call evidence at all, neither course provided an available way forward.

84 In those circumstances, I declined to admit the statements, in the exercise of the Court' s discretion pursuant to ss135 and 137 of the Evidence Act 1995. The exercise of the discretion thus given by s90 did not arise for consideration at that point, the prosecutor not having undertaken the exercise of identifying what parts of the statements it submitted amounted to admissions by the defendant. That process would undoubtedly have been time-consuming and not one consistent with the interests of justice, given the views which I had otherwise reached on the tender of the statements.

85 It was undoubted that to do otherwise than to decline to admit the statements at that point, would have visited the most obvious unfairness upon the defendant, which would give rise to other difficulties in the trial.

86 It has long been the position that evidence at a criminal trial is usually adduced orally from a witness and that this requirement should not be waived lightly. Much of the Evidence Act 1995 proceeds on this basis. In Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 at 189-190, Mason CJ, Brennan and Deane JJ emphasised that the practice is not immutable and circumstances for a departure from the rule will arise, but that "In every case, even when the accused consents to the admission of the documents, the trial judge should bear in mind the overriding consideration of fairness to the accused." The undue weight which a written document might be given by a jury, also there discussed, did, of course, not here arise as a consideration.

87 The law, so understood, did not leave room for doubt that the discretions in question should here be exercised in favour of the defendant. This ruling still left the question of whether or not to call Mr Ferguson one for the prosecution to make.

88 In coming to the conclusion that Mr Ferguson's statements could not be admitted, I also had regard to the obvious point that if it transpired that Mr Ferguson proved to be an unfavourable witness, that development could properly be dealt with under s38 of the Evidence Act 1995. There was, however, no reason finally to think that this possibility might present itself. After ruling on the point, Mr Joseph expressly eschewed any concern that Mr Ferguson might give evidence unfavourable to the prosecution case.

89 While not dealing with the same point as here arose, I am also satisfied that the approach which I adopted to the exercise of the discretions provided by ss135 and 137 of the Evidence Act 1995, accorded with that adopted by the Court of Criminal Appeal in R v Sing (2002) 54 NSWLR 31 at p37. There a failure to call 'available witnesses of events alleged to constitute the offence and of essential parts of the prosecution case was dealt with and the view taken that the discretion should have been exercised. Likewise in this case, I was satisfied that there could be no doubt at all that Mr Ferguson was a witness who could "deal with important links in the prosecution case" and so should have been made available for cross examination, if his statements were to be admitted.

90 Mr Ferguson was finally not called in the prosecution case, but it was submitted that no adverse inferences should flow against the prosecution from that fact. The defendant advanced submissions to the contrary. It seems to me that consistent with the prosecution's obligations, Mr Ferguson should have been called. What his evidence might have been cannot, however, be known. Nor was attention finally drawn to any particular aspect of the evidence where some particular inference should be drawn from his absence.

91 Both Inspector Mansell and Mr Trethewy were called to give expert evidence. Inspector Mansell's evidence was sought to be tendered by way of the report to the Coroner, which he had prepared in 1995. The objection to the evidence was put on various bases. The tender of the report which Mr Trethewy had prepared was withdrawn, following upon objections that it did not fall within the provisions of s79 of the Evidence Act 1995, or the observations made by the High Court in HG v The Queen (1999) 197 CLR 414 and Heydon J in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705, as to the form in which evidence by an expert should be given. Several paragraphs and an appendix to the report were later tendered.

92 I declined to receive Inspector Mansell's report, either pursuant to s79 of the Evidence Act 1995, or s78, as the tender was further pressed. As Gleeson CJ discussed in HG v The Queen (1999) 197 CLR 415 at 427, the form in which an expert's report is sought to be tendered is important. This is picked up, in a practical sense, by the provisions made in Rule 13C of the Supreme Court Rules, and Schedule K thereto, where are set out the requirements which an expert's report must satisfy. Unsurprisingly, given that Inspector Mansell expressed the opinions on which the prosecution wished to rely in a report made to the Coroner, the report did not pay regard to such considerations.

93 One resulting deficiency was that the report did not adequately establish the Inspector's qualifications and experience, or the area of special knowledge, which it was said he had. The oral evidence called well established that the Inspector had no special knowledge relevant to the issues here arising. His experience in the demolition, construction and gas reticulation industries, was not such that the view could be formed that the requirements of s79 were met and thus his report to the Coroner could not be admitted.

94 The report was also tendered under s78 of the Evidence Act 1995. This section relates to lay opinions, admissible if certain matters are established. They were not. The report resulted from investigations which Inspector Mansell and two other inspectors employed by the WorkCover Authority had conducted. The offences in question concerned the events of 10 November and 4 December 1995. Inspector Mansell did not appear to have become involved in the investigation until later. His opinions were plainly not based upon what he had seen, heard or perceived about the matters the subject of the report, but either what those directly involved in these events had seen, heard or perceived, or even once further removed, in the cases where those persons who were directly involved, had been interviewed by the other two inspectors. (See Smith v The Queen (2001) 206 CLR 650 and R v Leung & Wong (1999) 47 NSWLR 405).

95 Oral evidence was also called from Mr Trethewy, as to his qualifications, training and experience. I was satisfied, on that evidence, that his area of special knowledge in the construction and demolition industry, was such that it could not be concluded that any opinions which he might express, were entirely irrelevant to the charges here in question.

96 Mr Trethewy then gave evidence about certain of his opinions and the basis upon which they had been formed. This included the assumptions which he had made about matters such as the construction of the shops to be demolished at Nos 3, 5, 7 and 9 Railway Parade; the way in which access to the site would be gained by the demolishers; the size of the construction site and how it was to be fenced off; and also the way in which demolition of the buildings was to be undertaken, namely on a basis 'typical' for the demolition industry. It emerged that in forming his opinions, Mr Trethewy did not have regard to the particular problems of this site, given the work there to be undertaken, or how in fact it was undertaken.

97 There was also evidence called by the prosecutor from Mr Bustamante and the two Mr Josefs, as to what they had in mind, as at 10 November, as well as what had been determined by that time and what was, in fact, later done, by way of demolition and construction work at the site. Matters of this kind appear to have been a part of the investigations conducted in 1995. Mr Trethewy was not, however, asked to express any opinions about what had been planned on 10 November or later undertaken, at this site. Nor had he himself sought any information as to such matters, before forming any of the opinions about which he gave evidence in these proceedings. This gave rise to some difficulty. There were other difficulties flowing from some of the assumptions upon which Mr Trethewy had based his views. The upshot was that much of his evidence was of little assistance in the resolution of the issues which here fell to be determined.

98 To illustrate the point, Mr Trethewy gave evidence as to his experience of how buildings like the shops in question were generally demolished. His answers showed that his experience was different to the method of demolition actually utilized at this site. Mr Trethewy did not expect that demolition would be undertaken by hand, but rather that an excavator would be used, from the front of the building where the pipe lay, to push the walls in. That method was not the method, in fact, used. Other problems flowed from his use of schematic diagrams, rather than design plans, in making various assessments. Mr Trethewy agreed in cross examination that the former could be very misleading in relation to work actually done at a building site. It also emerged that given the documents upon which Mr Trethewy had based his opinions, there could be no confidence that the views which he expressed about measurements and calculations were reliable. They were based on assumptions made in relation to what was shown in photographs taken after 4 December. That this reliably reflected the position at the site on 10 November, was not established. Indeed, Mr Trethewy himself was not even certain when the photographs on which his evidence was based were taken.

99 In other instances, Mr Trethewy's evidence did not support the prosecution's case. For example, his evidence was that he had observed demolitions in the course of research he had undertaken. He had, however, never observed underground services failing on demolition sites due to heavy machine loading. He had also never observed live services being disconnected at a site. The research had identified services being breached as the result of vibration from machinery and snagging of pipelines by machinery, as risks arising at demolition sites. The causes of such events had, however, not been researched. There had also been no investigation of snagging, striking or breaching of pipelines by excavators.

100 Mr Trethewy was also aware that on some construction sites excavation right up to the edge of a footway abutting a building line was undertaken, even when the footpaths continued to carry live services of various kinds, including gas, to adjoining buildings. Such excavation was conducted by machinery. Different methods which ensured the stability of the footings were then used, suitable to the substrata present at the particular site. Mr Trethewy's evidence was that if footings of 300 to 500 millimetres in depth extended 100 millimetres from a building line, removal of the footings would impact about 300 to 400 millimetres out, which he described as the "zone of influence". Mr Trethewy agreed in cross examination that the views which he expressed as to any "zone of influence" flowing from an excavation of footings, depended on the method of retention utilised for the material in the footpath side of the excavation, as well as the material type comprising the substrata and the equipment used in the excavation.

101 Mr Trethewy also explained that his evidence was based on the assumption that there was no method of protection of the edge of the excavation utilized at this site. He had no knowledge as to what was planned to be done at this site as at 10 November or what was in fact done. The evidence of Mr Bustamante and Mr Daniel Josef was that there were no firm plans at that date. They were made later. There was, however, no evidence as to what in fact had here occurred. Mr Trethewy's understanding was that there was no requirement to shore an excavation, unless the excavation went below 1.5 metres. The actual depth of the excavation was not established. He believed the excavation to have been 300 to 500 millimetres.

102 Mr Trethewy also explained that he had not been provided with, nor sought, any instructions as to what method of work was actually adopted at the site. His assumption was that methods typical for industry were used and his assessment of risk were all based on that assumption. This included, for example, that there was no hand demolition of any part of the shops. This was contrary to the evidence as to what had occurred. He made other assumptions as to how the shops and footings were constructed and removed. There was no evidence that these assumptions accorded with what had actually existed. This included the nature of the floor of the building and the size of the footings. He also assumed that access to the site would be gained by pushing in the front wall of the shops. As I noted, this was contrary to the evidence.

103 Mr Trethewy also assumed that the construction site had been fenced in accordance with the schematic diagrams to which he had had regard, which had not altered. This was also inconsistent with the evidence. Some time after 10 November the site was bounded by a moveable fence, which was in fact moved. He also assumed that a demolition site would not encroach upon public land. This assumption was shown to be incorrect, by other evidence led in the prosecution case.

104 It is convenient to observe at this point that had proper regard been paid to the Supreme Court Rules in relation to the calling of expert evidence, much of the difficulty which arose in the calling of this evidence would have been avoided. Those Rules appear to have been drafted having in mind the observations of the High Court and the Court of Appeal in the decisions abovementioned.

105 After Mr Princi had been excused, the prosecutor sought leave to recall him, in order, it was submitted, to clear up an area of his evidence which was unclear. Leave was opposed. While, ordinarily such an application might be granted, I was satisfied, having heard the parties, that there was no lack of clarity in the evidence and in the interests of the efficient disposition of this hearing, refused to grant the leave sought.

106 An Australian Standard was sought to be tendered by the prosecution as a public document, by virtue of its incorporation in regulation 84AB of the Construction Safety Act 1912 Regulation, in September 1996. The Standard was not referred to in any of the three charges here in question; nor was it said to be a Standard binding on the defendant, or even a part of the Regulation, at the time of these offences in 1995. Rather, it was put that the Standard was something which the defendant should have been aware of at the time as pertaining to the construction and demolition industry.

107 Australian Standards have been referred to in numerous of the Court's judgments in relation to breaches of the Act. In WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2000] NSWIRComm 12, Marks J was dealing with a prosecution where breach of such a Standard was one of the particulars of the charge to which a guilty plea had been entered by the defendant. The Standard was tendered without objection. At [56] to [58], His Honour took the view that: 56 In the absence of any evidence or submissions to the contrary, I do not accept AS 4024.1 as having any particular status or as creating any particular standard, a breach of which would ipso facto give rise to a breach of an obligation under the Act. However, the standard having been admitted into evidence without objection I am prepared to accept it as constituting an expert opinion concerning the specific and general matters to which it refers. Accordingly I propose to approach the contents of the standard as representing an expert expression of opinion, albeit one which is accepted having regard to the qualifications contained within the document itself (some of which I have referred to), and subject of course to the acceptance of any contrary expert evidence.

57 It follows that failure to comply with AS 4024.1 cannot per se constitute a failure to comply with the provisions of s 18 of the Act but may be considered in the context of an allegation that the defendant was in breach. I propose to approach the particulars of the charge in par 5(ii) accordingly.

58 Having regard to the totality of the document AS 4024.1 which I should add is 185 pages in length, and having regard specifically to those parts of the document to which I have referred, I prefer for the purpose of determining these proceedings to rely on the expert evidence adduced by the witnesses called for both the prosecution and the defence which was directed more specifically to the machine the subject of these proceedings rather than to the material contained in AS 4024.1 which is, of necessity, of general application because, as Mr Roberts conceded in evidence, that document does not specifically refer to a wood chipping machine.

108 Boland J followed that approach in Inspector Wilkie v Batequip Pty limited t/as Ditch Witch Australia [2003] NSWIRComm 111.

109 In WorkCover Authority of New South Wales (Inspector Carmody) v Byrne Civil Engineering Constructions Pty Ltd (No 1) (2001) 103 IR 80, Hungerford J was dealing with a charge where the defendant sought to argue that compliance with a Standard was all that was necessary, in order to demonstrate that the requirements of the Act had been complied with. His Honour rejected the arguments, concluding in [45] at p109, that it was no answer to a charge that s16 of the Act had been breached, to point to duties imposed by an Australian Standard and to enquire whether they had been met. The question rather to be answered, was whether the obligation imposed by the section to ensure safety, had been met.

110 In Inspector Malone v Delta Electricity [2003] NSWIRComm 212, Peterson J was dealing with a charge where it was the prosecutor who sought to argue that failure to comply with a Standard, demonstrated the defendant's breach of s16 of the Act. His Honour rejected the argument, concluding at [32] that: 'There is, in my view, no reason to conclude that non-compliance with an Australian Standard will lead necessarily to a detriment to safety. That quality must be determined by the facts and circumstances found to exist in a particular case.'

111 Here, the tender of the Standard was objected to, it being argued that it was not relevant to the charges in question. The objection had to be upheld. Even if, at the time of these offences, Abigroup and Josef & Sons Contracting had been bound to observe the Standard, proof of their failure to do so would not have demonstrated that the defendant had committed the offences here charged. In this respect, the observations of Hungerford and Peterson JJ earlier referred to are apt and have even greater force, given that it was not the defendant's asserted breaches of the Standard which the prosecutor here sought to rely upon.

112 Further, at the time of these events, as Millhouse J of the South Australian Supreme Court discussed in Chicco v The Corporation of the City of Woodville (1990) Aust. Torts Reports [81-028] at 67,897, the Standard was but an expression of opinion of those who contributed to its development, under the aegis of the Standards Association which produced it. As such, it was not admissible. It was, furthermore, not evidence which could rationally affect, either directly or indirectly, the assessment of the probability of the existence of any fact here in issue.

113 I note that other Standards, referred to in the Gas Act 1986 Regulations, which applied to the defendant were admitted, albeit over the defendant's objections, for reasons which it is unnecessary to outline. It is sufficient to note that I was satisfied that they were relevant to the matters here in issue.

The AGL Gas Reticulation System and how it was mapped

114 The gas supply system which the defendant operated at the time of this offence, comprised a number of components, including relevantly, gas mains, service lines and valves. The defendant delivered natural gas, under pressure, to its customers in nylon pipes of varying diameters. On the evidence, this was the undertaking of the defendant, in which it employed the various persons mentioned in the evidence.

115 In the case of the service line here in question, the nylon gas pipe terminated at a valve outside shop No 7 and from there, gas was delivered to the shop in a copper pipe. The nylon pipes were partially installed inside galvanized steel pipes. Elbow and 'T' joints were used, when it was necessary for the pipes to change direction. In this case, there were two elbow joints between the shop at No 7 and the main located on the other side of the road in Railway Parade, one outside shop No 7 and the other, outside FAZ at No 13. In areas regarded as high public risk, such as shopping centres like that at Kogarah, a system of valves was installed on the mains, so that the gas supply to the shopping area could be cut off. There were four such valves at Kogarah.

116 AGL maintained maps of the main system and the valve system. The maps did not show all service lines. The maps were not infallible, because of changes which were beyond AGL's control and of which it was not always notified. Copies of the maps, stored on microfiche, were kept at the North Sydney control room and at the Alexandria depot radio room. Area team leaders carried some maps in their cars. Copies of maps were supplied to service personnel on request and information was also available by radio and telephone, from the personnel manning the radio rooms.

117 Maps were not routinely supplied to service personnel such as Mr Princi, when directed to disconnect a service. He was trained to locate and disconnect service lines. Instructions were given in writing or by radio, by use of various codes. Advice of job completion also used these codes.

118 AGL had a practice of connecting a service to the closest main, at a 90 degree angle. This was not an invariable practice. It was not followed in the case of the service connection at shop No 7. Rather, the service line ran parallel to shops Nos 7 and 9 down to the FAZ at No 13, where it joined an elbow joint, travelled across Railway Parade and there joined the main, which ran down the other side of that street. This was not known to Mr Princi on 10 November, nor to the AGL personnel who first attended the site on 4 December.

119 Had Mr Princi been supplied with a main map on 10 November, it would not have disclosed to him where the service line running to shop No 7 was connected to the main. When he returned to the site on 5 December, it was his impression that the line which ran from the elbow joint, located a short distance from where he had cut the service to shop No 7, was the main. He was mistaken. The mains map showed the main to lie on the other side of Railway Parade. It was a service line which ran from the elbow joint down to the FAZ and across the road. Mr Princi's misunderstanding appears to have come about because he did not have access to the mains map and because a main is not always distinguishable by its size, from a service line.

120 Neither Mr Lindsay, Mr Galasso or Mr Bigrigg had any maps with them when they attended on 4 December. Mr Bigrigg carried maps for the CBD in his car. That was the area where he usually worked as team leader. On his evidence, it was a mistake for him not to have taken maps of the Kogarah area with him when he left Alexandria to respond to the call. He overlooked this, in his haste to respond to the emergency developing. Both he and Mr Galasso asked for maps and they were brought to the site. I will deal later with the question of when they arrived.

121 There can be no doubt that the system which AGL then had in place, did not ensure that maps of the mains and valves were necessarily supplied to those working on the site of an emergency, such as that which occurred on 4 December. The information contained in the maps was available to personnel on the ground, by radio or telephone contact from those operating the radio room. On the evidence, in the case of an emergency such as this, AGL's method of conveying information to workers on site, had obvious limitations.

At a glance

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Judgment (294 paragraphs)

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Cases Cited (25)

Cited By (6)