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

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.

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

3. 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).

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

5. 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.

122 The evidence was that there was usually a planner on duty in the radio room, who had familiarity both with AGL's maps and the work performed by AGL employees in the field. When Mr Bigrigg first radioed for information as to the location of the valves regulating the supply of gas to this area, he was given information about the location of the third valve at Gray Street, but not the fourth, at the railway bridge. This was despite the fact that the person who had access to the map, would have seen what was not apparent to Mr Bigrigg on the ground at Kogarah, namely that the intersection of the gas lines at Regent Street and Railway Parade, made it necessary to turn off another valve located at the railway bridge, in order to cut off supply to the area. Why, or how, this occurred was not explored in the evidence.

123 The proper inference from the evidence was that had Mr Bigrigg had access to a valve map, as Mr McDougall had some 12 months previously, he too would have readily been able to identify the location of the four valves at Kogarah and the need for them all to be turned off. That there might still have been a practical problem in locating the Gray Street valve, because it was then covered by the wheel of a truck, is entirely possible. This is because, on Mr Bigrigg's evidence, the location of the valve was not exactly as it was depicted in the map and the valve was, in fact, covered by the wheel of a vehicle, a matter not within the defendant's control. Nevertheless, even taking those problems into account, the gas would clearly have been turned off a considerable time before it in fact was, had Mr Bigrigg himself had access to a map which he could read, from the outset rather than having to rely on someone else's interpretation of the map, given what Mr Bigrigg was asking and/or telling that person. On 4 December, even when the Gray Street valve was found, Mr Bigrigg had not been advised of the existence, or location of the valve at the railway bridge and the need for it to be switched off. This was information which Mr Bigrigg had to further pursue, when the gas flow did not stop, despite the three valves which had been located, being switched off.

124 On 4 December, radio and telephone conversation was not possible, in close vicinity to the gas leak. Phones and radios had to be switched off and workers had to move away from the vicinity, in order to make use of that equipment. This involved an element of obvious delay, even if a short one. The information provided under the defendant's system also plainly depended on questions and answers. Here, either Mr Bigrigg did not ask the question which elucidated information as to the existence and location of the valve at Bridge Street, until after he had been at the site for a considerable period of time, or he was given an incorrect or incomplete answer to the questions he asked.

125 On the evidence here, there can be no doubt that access to maps available on site would have assisted the AGL workers find and shut off the four valves at Kogarah and also to locate the main to which the service line in question was connected. That service line was, in fact, shown on the map. On the evidence, either would have enabled the gas supply to be shut off and the fires then raging to be doused. The second explosion occurred at about 3:30pm. The cause of this explosion was not explained. Whether it was the gas still escaping from the line, which was then burning fiercely or gas earlier built up before the fire broke out, was not examined.

126 Nevertheless, given that AGL responded to a call received shortly before 2pm and had its first workers there at about 2.20pm, with Mr Bigrigg arriving at about 2.25pm, it cannot be doubted that had AGL ensured that the relevant maps were present on the site, from that time, that the fires then raging would have been quenched much earlier, than in fact occurred. The evidence as to the difficulties of locating the Gray Street valve cannot be discounted, given that a fire truck was parked over the valve; that there were many people and vehicles in the area and that it was a confused scene, given the danger posed by the escaping gas and burning fires and the work being done by firemen, using water to control the blaze. Fire extinguishers were also being used.

127 Nevertheless, the inescapable inference from the evidence of Mr Bigrigg and Mr McDougall was that had Mr Bigrigg had access to a map himself, he would have realized that there was a fourth valve north of Montgomery Street, necessary to cut off the gas supply. It could have been attended to while the Gray Street valve was located.

128 As I observed in Rodney Morrison v United Collieries Ltd [2003] NSWIRComm 36 at [98]: As has oft been observed in the authorities, there are many inherently dangerous industries and occupations where work is required to be performed in dangerous places and under dangerous conditions. Given the absolute nature of the obligations imposed by the Act, it follows that in such cases an employer may have more difficulty in meeting the obligations imposed than would be the case, if the dangers in question were absent. It does not, however, leave room for any view that thereby, an offence may not be committed by an employer, who fails to protect employees from the resulting risks to safety which arise from such hazardous places or conditions of work. The obligations imposed by the Act that the place of work be made safe by the employer remains. The Act requires that the systems of work which such an employer devises ensure that employees are kept safe from such inherent risks when performing work. That an offence may also be committed if ever present risks are increased or exacerbated, as the result of an employer's acts or omissions, can only follow as a matter of inescapable logic.

129 Similar observations were made by Hungerford J in WorkCover Authority of New South Wales (Inspector Keeltby) v Crown in the Right of the Sate of New South Wales (Police Service of New South Wales) (No 2) (2001) 104 IR 268 at p290 ([23]).

130 Against that background I turn to consider the particular offences charged. Matter Number IRC 5427 of 1999 131 There can be no doubt that causation is an important element in the scheme of the Act. Section 16 imposes absolute obligations upon an employer, in relation to risks arising from its undertaking, while non-employees are at the employer's place of work. The question always to be answered in such a prosecution, however, is whether it was what the employer did, or failed to do, which gave rise to the risk in question, having in mind the offence charged. (See the decision in Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 at pp156-7.)

132 There can by no doubt on the evidence in this case that the defendant's procedures could well have been improved. The question of whether an offence has been committed is not answered however, working backwards from any evidence which the prosecution might wish to call about particular circumstances in which a risk has arisen or an accident has occurred and which, with the benefit of hindsight, shows deficiencies in a particular system. Rather, it depends upon a consideration of the offence charged, as particularised, in light of the evidence.

133 Here, there can be no doubt that this offence was concerned with what the defendant did or failed to do on 10 November. The service line cut and capped that day by Mr Princi, then remained in the ground under the earth and pavers which covered the footpath. The line was undoubtedly charged beyond the point at which it was cut. That point was identified by the gas box relocated to that point in the footpath outside the shop. There was nothing unusual or dangerous about a charged gas line so lying under a footpath. Gas lines, like other live service lines, are laid in footpaths and roads throughout the State. It was not asserted by the prosecution that this fact alone gave rise to any offence.

134 Rather, the failures alleged related to matters such as the line lying within an area where construction was designed to occur; the defendant's failure to ascertain this fact and to make proper enquiries as to the scope of the proposed work; its failure to take steps to remove the charged gas line from that area and to warn those working on the site of the dangers of working near such a charged gas line and so on, as the particulars earlier outlined allege.

135 The evidence also showed that on 10 November the point at which the line was cut, was clearly identified by the gas box located above. That information was provided to Mr Bustamante on 10 November. He later took steps which had the effect of drawing attention to the location of the capped end of the pipe to those working on site. Obvious questions arose as to how Abigroup and Josef & Sons Contracting later acted upon this information, consistently with their obligations under the Act, when they later removed the pavers and exposed the end of the charged pipe. Thereafter the location of the pipe was indicated by a star picket and bunting, rather than it being isolated from the excavation work being undertaken, or the available step of recalling the defendant to remove the charged pipe being taken. Other questions arose from the circumstances in which the star picket was ultimately removed and the pipe buried underground, where it was later snagged, when further work was performed in the area. It is these actions which gave rise to the question of whether it was the defendant's acts or omissions on 10 November, or those later taken by others, which caused the risk here in question.

136 The evidence was that there are many occasions when the defendant's charged gas lines are disrupted by excavation work undertaken in roads and footpaths, without the defendant's knowledge and in ways beyond its control. The real issues here concerned whether the defendant had erred on 10 November, in meeting its obligations under the Act, given that it had disconnected the service line in the footpath outside shop No 7, knowing that it and a number of the other shops there located were to be demolished. Did the defendant fail to meet its obligations in not taking adequate steps to enquire whether the footpath where the pipe lay would be involved in, or affected by, the work proposed to be undertaken at the site?

137 The evidence was that on 10 November, Abigroup and Josef & Sons Contracting were only beginning the process of taking over the site. Its boundaries had not been delineated. While it was known that a hoarding would be established around the site, in order to restrict access to pedestrians, precisely where, had not been decided or implemented. On 10 November the footpath was still open to pedestrians and while quotations for demolition work had been provided, in which allowances had been made for things such as the removal of footings, matters such as the size of the footings, or how, or if, they would have to be demolished, were also not known.

138 The request made of the defendant was that the supply of gas to the identified shops be cut off, because they were to be demolished. There was no doubt that the defendant did not make any real enquiries as to what work would be involved in the demolition, or the extent of other demolition or construction work, which might be undertaken at or near these shops, or how such work was to be undertaken. The evidence did not suggest that the defendant had either a statutory, or contractual, right to be provided with such information, had it been sought. There was certainly no practice that such enquiries be made and, as the defendant submitted, there was no evidence as to what information it might have received, had such enquiries been made of either Abigroup, or Josef & Sons Contracting. On Mr Bustmante's evidence, at that point, little had been settled about the work necessary, or how it would be undertaken.

139 The evidence also showed that if the defendant had either been requested to cut off supply to this building site, or to cut off supply at the main, there would have been no difficulty in it doing so. The information which the defendant maintained made this entirely possible. That was not what had been requested, which was rather, supply to the shops to be cut off.

140 The defendant's approach appeared to be consistent with that described by Mr Trethewy based on his experience, namely, that there was no expectation that demolition of a building would involve public areas, such as the footpaths where its pipes lay, being encroached, so that they became a part of a construction site. The evidence was that there were no physical signs at the site, which should have alerted the defendant to consider that this would not be the case.

141 The evidence also showed that while it transpired that Mr Princi and Mr Bustamante met at the site and discussed what was to occur, this was not required under the defendant's system. Nevertheless, the evidence of Mr Princi, supported by Mr Brown, was that Mr Bustamante told him that the demolition of the shops was to be to the building line. On Mr Trethewy's evidence, such a demolition was not unusual and would require particular shoring of the footpath, having regard to the nature of the ground at the site. The result was that the gas pipe was cut by Mr Princi, in the ordinary way. The pipe then remained lying charged in the ground, under the footpath located outside the shops which were to be demolished, covered by earth and pavers and its location identified by the gas box.

142 It was not entirely clear as to all that was discussed on 10 November by Mr Princi and Mr Bustamante. While it was submitted that I should approach the evidence of Mr Princi with some care and should take the view that what he told investigators in 1995 had then been affected by a concern that he might himself be charged with an offence, I am satisfied, on the evidence, that it would be quite inappropriate to do so. His position, it seems to me, can have been no worse, potentially, than that of Mr Bustamante. It was Mr Bustamante who was subsequently charged with an offence and not Mr Princi.

143 As earlier noted, recollections were affected by the time which had elapsed since the events in question. Mr Princi and Mr Brown, however, both understood from Mr Bustamante that the footpath was not to be disturbed by the demolition. This appeared to be entirely consistent with the fact that the pavers were then intended to be re-used. They were to be taken up and stored. Mr Bustamante's evidence was that he also understood on 10 November that a bobcat was to be brought on site, it being small enough to travel over the pavers, without damage to them. There was no doubt that Mr Bustamante was aware of where the cut end of the pipe lay in the ground under the footpath. It was also clear that where the charged pipe then travelled under the footpath was not known, either to Mr Princi or Mr Bustamante.

144 As to the point at which the pipe was cut, the evidence was that it was cut off further from the building than Mr Princi initially proposed, on Mr Bustamante's evidence, having regard to the possibility that footings might have to be removed in the demolition and he was concerned to take this into account. Despite this, an agreed fact in the proceedings was that a section the pipe was later exposed, while the footings of shop No 7 were removed by use of an excavator. This occurred between 21 and 25 November. More pipe was exposed on 30 November. It was agreed that this occurred, unbeknownst to the defendant.

145 In those circumstances, prudence and commonsense dictated that once a decision was made about how excavation was to be conducted, and the pavers were to be removed from above where the pipe was cut and work with heavy machinery was contemplated, or undertaken, in the vicinity of the footpath where the charged pipe lay, that those doing the work should have taken the available steps of recalling the defendant to remove it, or to have the gas cut off further away. Certainly, once the pipe was exposed there should have been no delay in such steps being taken. Again, the evidence showed that there would have been no difficulty in the defendant doing so. Contrary to the particulars of the charge laid, there was no doubt that the defendant maintained and had available maps of its gas line system. The evidence did not establish that the maps so maintained, gave rise to the offence charged on 10 November.

146 The question, however, remains. Did the defendant's failure on 10 November to ensure that the pipe was cut off further away from shop No 7, outside the area which later became a part of this construction site, after 10 November, give rise to the offence charged? On the prosecutor's case, this question must be answered positively, given that it transpired that the footpath where the charged pipe lay later became a part of the construction site, with work involving heavy machinery being undertaken in its vicinity. On its approach, the Act required the defendant to ensure that the possibility could not arise, that a live pipe was exposed or disturbed during the work which ensued, with no steps being taken by those working at the site to deal with the risk this created.

147 It is in this context that the question of causation arises for consideration. On the defendant's approach it had done what safety required, in relation to the cutting off of the gas supply to shop No 7 on 10 November. The deliberate steps later taken by those who worked on the public footpaths, removed the pavers, exposed the pipe lying in the ground and then caused work to be performed in its vicinity, despite the obvious and apparent danger of doing so, was what gave rise to the relevant risk to safety, not the acts or failures of the defendant. The prosecutor's approach was that the defendant's acts or failures provided a cause of the risk, sufficient to give rise to criminal liability. Without them, the subsequent acts would have not occurred, or could not have given rise to any risk.

148 The defendant also argued that at the time at which the risk in question materialised, the place at which exposure to the risk occurred, was no longer its place of work. The risk in question was, of course, that associated with performing work adjacent to the charged gas line. I will return to this below.

149 It seems to me that this issue of causation may be approached and resolved, by considering the question which the prosecution posed in its written submissions. Was the conduct of the defendant sufficient to give rise to the risk, without the intervention of Abigroup and Josef & Sons Contracting? Approached in that way, it becomes obvious that the conclusion must be that the offence has not been established.

150 The prosecutor referred to Royall v R (1991) 172 CLR 378 where the question of causation, in the criminal context, was discussed, albeit in relation to a crime unlike that here in question, where absolute obligations are imposed by the Act. This decision has been discussed by the Western Australian Court of Criminal Appeal in Jemielita v R (1995) 81 A Crim R at 430-433 and by the Court of Criminal Appeal in Regina v Andrew [2000] NSWCCA 310 at [58], where it was observed: 'The legal test for causation in a criminal trial (both necessary and sufficient) as reviewed by the High Court in Royall v R. [1991] 172 CLR 378. Deane and Dawson JJ (at 411) said "a substantial or significant cause". Toohey and Gaudron JJ (at 423) said "substantial", and McHugh J (at 441) said "sufficiently significant". There would be no material difference in the way a jury would understand the words "substantial" and "significant" in this context. The formula proposed by Deane and Dawson JJ, a "substantial or significant cause", would reflect the view of the court as a whole.'

151 The concept is also discussed in Hart and Honore, Causation in the Law, 2nd Edition where it was explained at p326 that: 'One must distinguish, however, the situation where the first actor's conduct was sufficient in the existing circumstances to bring about the harm (e.g. a mortal wound in the sense defined in Chapter VIII) from that where it was not sufficient without the intervention of the second actor.'

152 As I have noted, here the evidence was that gas pipes being breached by excavation works is a commonplace occurrence, which the defendant has to deal with. That is perhaps not surprising. Gas pipes are laid underground below roads and footpaths, where they cannot be observed. Work on such roads and footpaths must, on occasions, be undertaken. The evidence did not explore what steps are available to those who undertake excavation work, to ascertain the location of the defendant's pipes. Whatever they are, they are not such that they always ensure that the defendant's gas pipes are never breached. This is obviously a matter well known to the defendant, but of itself, cannot establish the necessary causal connection here at issue.

153 The defendant knowing on 10 November that some shops were to be demolished, cut off the pipe in the footpath outside shop No 7 and then indicated where the pipe had there been cut off, by the gas box relocated to that point in the footpath. This did not of itself give rise to any risk, as I have noted. The charged pipe continued to lie under the public footpath, as it had earlier done. It was cut off some distance from the building line, in accordance with Mr Bustamante's request that it be moved further away than Mr Princi originally intended, having regard to the possibility that footings might have to be demolished.

154 The evidence also showed, that some time after 10 November, the footpath where the pipe had been cut became part of the construction site. Hoardings were erected and the area was cut off from pedestrian access. Work involving the bobcat was then performed, on and about the footpath where the charged pipe lay. That work also did not appear to involve any risk, so far as the pipe was concerned. It lay under the footpath in the usual way, covered by earth and pavers. The evidence was that the bobcat was the only piece of equipment used on the pavers, because it was the only equipment on site which would not damage them. Given that many vehicles constantly travel over roads and footpaths where charged gas pipes lie, this of itself, cannot have given rise to any risk. Indeed, it was Mr Trethewy's evidence that he had never observed underground services failing due to machine loading. It was Mr McDougall's evidence that interference occurred to gas pipes when builders, demolishers and contractors used heavy machinery over gas services. In his experience, pipes were then crushed, broken or torn. On the evidence this cannot have been a risk here, while the pipes were covered by pavers.

155 The evidence was that, nevertheless, a significant risk arose when, between 21 and 25 November, some of the pavers and the gas box were removed, and excavation work was undertaken near the location where the cut end of the gas pipe was known to lie, without steps first being taken to have the pipe removed, or the gas cut off from the site at which that excavation work was undertaken. All the pavers were then removed, an access ramp was built and heavy machinery was then also driven over the gas pipe lying under the ground and near the exposed end, which was identified by a star picket and bunting.

156 The danger of so undertaking such work in the vicinity of a charged, partially exposed, gas line is self evident, as I have noted. Did the Act impose an obligation upon the defendant to ensure, on 10 November, that the risk which later resulted from such steps being taken did not arise?

157 As Bauer J discussed in WorkCover Authority of New South Wales (Inspector Twynam - Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248, the Act was designed to protect against all sorts of human error, including 'foolish disregard of personal safety' (at p18). Other authorities have made clear that a person upon whom an obligation is imposed by the Act, may not delegate or transfer its obligations to others. See the discussion in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316. The authorities have not, however, gone so far as to require a defendant to ensure that others, such as Abigroup and Josef & Sons Contracting, do not commit offences under the Act.

158 The evidence showed that the work which directly gave rise to the risk was variously undertaken by Josef & Sons Contracting and/or Abigroup, with an employee of Josef & Sons Contracting actually making contact with the charged pipe on 4 December, with a piece of equipment. On the evidence, this occurred contrary to a direct instruction by Mr Robert Josef that such work not be undertaken.

159 Does this sequence of events lead to the conclusion that the risk in question resulted from the acts or omissions of the defendant on 10 November, rather than from those later taken by Abigroup and Josef & Sons Contracting, as the prosecutor argued? On the evidence, there can be no doubt, that without these latter acts, the risk in question, namely to non-employees of the defendant, would not have arisen.

160 The evidence was that at 10 November, the construction site had not been established. Mr Princi undertook, what seemed to him, an unexceptional job, cutting off a service pipe laid in a footpath, having been asked to cut off supply to certain shops, which it was told were to be demolished. He did so in a manner which does not appear to have given rise to any immediate risk. While in opening the case for the prosecution it was submitted that the defendant should then have cut off gas supply to the construction site, the evidence showed that the defendant was never asked to do so and that the construction site did not then exist. After the disconnection, the gas line otherwise lay underground, in the same way as it had prior to the supply to shop No 7 being cut off. The evidence did not show that if the defendant had made further enquiries as at that date, that information would have been supplied which would have resulted in a disconnection different to that which it had undertaken being made.

161 Contrary to Mr Trethewy's expectations, the construction site later established encompassed public land, namely the footpath where the gas pipes lay in the pedestrian plaza between the shops and the station stairs. On the evidence it was entirely possible for the demolition of the shops to have been undertaken in such a way so as to ensure that the footpath in which the gas pipe lay was not disturbed during the demolition work. It was Mr Trethewy's experience that this has been done on plenty of excavation sites. Indeed, if Mr Princi and Mr Brown's recollections of what Mr Bustamante said on 10 November were correct, which I have no reason to doubt, this was then in contemplation.

162 The agreed facts showed that the way in which the work was undertaken failed to ensure that this occurred. Mr Bustamante explained that what was necessary to be done in relation to the shop footings was not determined until the footings were revealed, when advice was taken from a structural engineer and architect. Mr Robert Josef also confirmed that as at 10 November, what might have been required in relation to the footings was not known. It was other construction work undertaken at the site, not connected with the demolition which finally caused the risk to materialise.

163 It is in this way that it can be seen that the evidence did not show, beyond reasonable doubt, that what the defendant did, or failed to do, on 10 November was a substantial or significant cause of the risk in question. The evidence showed that had Abigroup and Josef & Sons Contracting not later taken the steps I have outlined, the risk here in question would not have arisen at all. Neither the evidence as to what the defendant did on 10 November, or what the defendant should then reasonably have anticipated, given what it had been requested to do and what it was confronted with at the site, even having regard to Mr Trethewy's evidence, can lead to the conclusion that the offence as charged was made out, to the criminal standard.

164 It follows that it cannot be concluded that the causal connection between the risk in question and the defendant's acts and omissions was established by the prosecution, to the necessary degree. I am satisfied that it was not the defendant's actions or omissions which were sufficient to give rise to the risk, without the later acts and omissions of Abigroup and Josef & Sons Contracting.

165 I am also satisfied that this was not a circumstance where the defendant has sought to delegate, or transfer its responsibilities under the Act to others. Rather, the evidence showed that it was a situation where the acts and omissions of others gave rise to the risk in question.

166 There is a second consideration which leads to the same conclusion, which arises from the question of whether any risk arose at the defendant's place of work, a matter averted to by the Full Court in Haynes at p157: 'Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o secure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16 as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.'

167 There can be no doubt that the service pipe, which was breached on 4 December always formed a part of the defendant's undertaking. The same cannot be said in relation to the place of work. Work was undertaken by the defendant outside Shop No 7 on 10 November. On the evidence, it was not until 21 or 22 November, that a risk in reality arose, with the removal of the pavers and the exposure of the pipe while footings were demolished. In the circumstances revealed, it is difficult to see that the site was then the defendant's place of work, where those whom it had not employed were exposed to risk, contrary to its obligations under s16.

168 The mere fact that part of the defendant's gas reticulation system there lay in the ground, cannot be sufficient to make it at all times the defendant's place of work. Nor could the fact that at one time, the defendant had there performed work on the pipes, thereafter make that place the defendant's place of work. If that were the test, inevitably the result would be that anywhere that the defendant had at any time ever laid pipes or other parts of its system, would always remain thereafter the defendant's place of work, with ongoing obligations under s16 of the Act resulting.

169 The term "place of work" is defined in s4 as "premises, or any other place, where persons work" and "premises" is defined as: (a) any land, building or part of any building; (b) any vehicle, vessel or aircraft; (c) any installation on land, on the bed of any waters or floating on any waters; and (d) any tent or movable structure.

170 The term has been given a broad construction. (See the discussion by the Full Court in Mainbrace Construction Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at pp94 to 96).

171 In WorkCover Authority of New South Wales (Inspector Hughes) v. Boral Montoro Pty Limited (19 December 1997, unreported), Peterson J nevertheless, observed at p8: 'It seems to me this case is somewhat analogous to the elevator situation dealt with by Maidment J. in the Boral Johns Perry Case . His Honour held that an elevator, in respect of which the defendant had a maintenance contract, was not the defendant's place of work while no maintenance work was being done thereon. In the same way the building site of Jennings would not be the place of work/undertaking of Boral Montoro except when the defendant is engaged in roof tiling work. I would so conclude."

172 In WorkCover Authority of NSW (Inspector Paine) v Boral John Perry Industries Pty Limited t/as Boral Elevators (unreported, 8 August 1996) Maidment J observed at pp6-9: 'The issue of construction in this case is one which, it would seem, has not previously been considered by a court. The nearest issue decided in this Court is probably that decided by Fisher CJ in Inspector Clarke v WL Meinhardt & Partners Pty Ltd concerning prosecutions under ss.15 and 16 of the Act. The defendant employer had designed a facade support system which was required to enable the façade of an historic building to remain safe whilst being incorporated into a new building on the same site. The façade collapsed. The support system was constructed by a different employer. Fisher CJ rejected a no case to answer submission which was based upon the contention that the site was not the defendant's place work, it being argued that the defendant employer's engineering office was its place of work. At the time the façade collapsed two employees of the defendant employer were on site for the purpose of inspecting timber packing which was integral to the façade support system.

Section 15(1) imposes the following obligation: Every employer shall ensure the health, safety and welfare at work of all his employers.

His Honour said: I consider the phrase "at work" in s.15(1) of the Act has temporal connotations. It applies equally to all kinds of work. On a building site it would include entering, moving about and leaving a site, as well as here, inspection or reinspection, maintenance and periodic checks. Whilst this work was being performed the employer is subject to the duties cast upon him by the Act.

With respect to the duty under s.16(1) I consider the employer's conduct of his undertaking includes here the design of the façade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed. As I understand this decision his Honour identified the temporal aspect of s.15(1), however, it being unnecessary to his decision, he did not determine the temporal obligations under s.16(1). The use by his Honour of the phrase "work being done" in the last sentence of the excerpt does not appear to me, in its context, to represent a concluded expression of view as to any temporal aspects of s.16(1). It would seem to me to be inconceivable that a passenger in the inclinator would consider himself, in the ordinary and natural sense of the words, to be "at the defendant's place of work" just as, upon entering his year old home, he would not consider it to be the builder's place of work.

On the other hand I would think that a factory or a building site would, in the ordinary and natural sense of the works, be considered to be the occupier's or builder's place of work during downtime such as weekends, in each case its character as a place work having an obvious continuance.

Additionally, for the following reasons, consideration of the statute as a whole does not lead me to the view that the legislative intent is different to that exposed by the ordinary and natural sense of the works in question.

The opening paragraph of the Minister's second reading speech says: The purpose of this bill is, for the first time in New South Wales and indeed for the first time in any Australian State, to provide effectively for the safety, health and welfare of all persons in all workplaces, including those of the Crown, and those of self-employed persons, under the umbrella of the Crown, and those of self-employed persons, under the umbrella of one single piece of legislation. It is the most important measure of its kind ever to come before this House. This Bill and its regulations will have wide-ranging provisions designed to embrace every area of the work environment, every hazardous occupation, and every used (sic) of dangerous substances and chemicals, and it will keep apace with technology in so far as it relates to the workplace. Vital to the success of this legislation is its intrinsically constructive and effective tripartite structure. This bill was born out of worker, industry and government involvement. It spells out, with the concurrence of a tripartite advisory committee, safe working obligations imposed on employers, and employees, and provides for enforcement by the government inspectorate. Bearing in mind the objects of this legislation it is clear that this Act is directed at safety in the work place. It should be borne in mind that the legislation is not directed at general produce liability, although, in certain given circumstances such as those specified in s.18 with which I will deal later, suppliers and manufacturers of plant have obligations imposed upon them.

A vessel may be a place of work (s.4). Thus whilst a boat builder may be required to ensure that the safety of persons at a non-commercial vessel under construction or repair as his place of work, he is not required, by s.16, to ensure the safety of the end product of his work as a boat, as opposed to as a place work.

Other examples spring to mind. A council repairing a pot hole in a road is required to ensure that the site is safe during the repair work. It is not, however, required by this legislation to ensure that the road surface is properly repaired such that no hazard will arise from the quality of the workmanship. A handyman or an appliance installer/repairer working at domestic premises is required not to endanger occupants during the course of that work, he is not required, by this legislation, to ensure that the product of that work is free from hazard.

Thus it is with an employer engaged in lift maintenance. Under s.16 he is required to conduct that maintenance work such that persons, not in his employment, are safe from risk whilst they are at his place of work. In the present case this includes ensuring that residents are not put at risk by the conduct of his undertaking while they are at his place of work as a place of work. This legislation does not require the employer to ensure that the product of his work is devoid of hazard. Thus, in my view, the obligation cast upon the defendant by s.16 is confined to the periods during which maintenance work is being conducted.

The existence of a contractual obligation (which may or may not be complied with) to regularly service the lift does not result in the lift being, at all times, a place of work within the sense of the section.

173 I am satisfied that the situation which here arises for consideration is akin to those dealt with by Fisher P, Peterson and Maidment JJ. It seems to me that unless the defendant is present at a particular location, doing work on its gas reticulation system, or perhaps having someone else perform such work, as for example when contractors were engaged to install the goldline pipe for the defendant, when, on the evidence it appeared also to have its own employees present at least at some times, such a pipe and the ground in which it lies, is not the defendant's place of work. Section 16 of the Act is concerned with safety, while non-employees are present at an employer's place of work. It is not concerned with ensuring that the product of such work thereafter remains free from hazard. It follows that this location was only the defendant's place of work on 10 November and not thereafter, when I have found that non-employees were exposed to the risk here in question.

174 Given these conclusions, it is unnecessary to consider the defences relied upon in the context of this charge.

Matter Number IRC 5429 of 1999 175 The prosecution made no suggestion that the fact that the defendant's response to the advice of the gas leak at Kogarah, was not able to prevent the explosion at 2pm on 4 December 1995, gave rise to any offence under the Act. It was also anxious to praise the heroic response of the defendant's employees, to the emergency with which they were confronted.

176 Nevertheless, it was argued that the evidence had demonstrated that the offence charged under s15 of the Act had been made out. I am satisfied that the submission must be accepted, having regard to the evidence.

177 While two of the particulars of the charge suggested that it was the defendant's delay in stopping the flow of gas to the area which caused the second explosion, I am satisfied that this was not made out on the evidence. There was no evidence from which it could be determined whether it was gas which had escaped after the defendant had been notified of the gas leak, or had reached the scene, rather than gas which had escaped beforehand, which was involved in this explosion. Indeed, given the evidence of a first explosion and that thereafter, escaping gas was burning throughout the afternoon, it seems likely that it was not gas which was escaping after the first explosion, which led to the second explosion. It is, however, impossible to come to any concluded views on this.

178 Nevertheless, the evidence made well plain the dangerous circumstances into which the defendant had to send its employees to perform their work that day. There can be no doubt on the evidence that such work was a part of the defendant's undertaking and that its employees were exposed to risk while they were doing that work. Such work was a part of their duties, for which they had seemingly been trained and equipped. The evidence was that the defendant's policy for such circumstances was to "make safe". How this was done was a matter to be determined on the site. Given the witnesses' descriptions of the scene at which they were called upon to work, the need for the defendant to ensure that those whom it so employed to do such work and make such decisions were armed with necessary information and equipment, so that the gas supply could quickly and safely be turned off was obvious. It was also necessary to ensure that its employees were not exposed to avoidable risks to their health and safety.

179 The evidence also made abundantly clear that the defendant failed in that duty, as the charge alleges. The evidence as to the need for the defendant's employees to dig a number of exploratory holes in the road before the gas supply was finally stopped and the time which thereby elapsed, put this beyond doubt. Throughout this time the fire fuelled by the escaping pressurised gas, continued to burn. The defendant relied heavily upon the fact that on 4 December, its employees were called upon to respond to an emergency, which had arisen in circumstances beyond its control. The evidence showed that the defendant is frequently called upon to respond to such situations. It is unsurprising that in such circumstances, decisions have to be made in haste and without time for reflection. AGL employs persons to effect the obligation which it has, when such circumstances arise, given the nature of its undertaking. This underlines the importance of it ensuring that the approach which it adopts, and the systems which it has in place and in which it trains its employees, equip them with as much information and support as possible, so as to ensure that when they must make decisions in such circumstances, mistakes are not made, which place the defendant's employees, and others, at risk of injury.

180 On 4 December, soon after the first of the defendant's employees arrived at Kogarah, they helped douse the fire burning outside the FAZ. A little later, they commenced digging to find the pipe outside the FAZ, where they could see gas still bubbling. Gas was then undoubtedly escaping under pressure. The danger of that situation was obvious. Fire broke out again. Assistance was called for by radio, including the provision of maps. The description of the conditions under which that work was being performed, amply illustrated the dangers present.

181 It does not require hindsight to appreciate that prompt and accurate information as to the whereabouts of the gas pipes and valves in that vicinity was required by the defendant's employees, in order to ensure that the flow of gas could be cut off as quickly and as safely as possible. Undoubtedly, the defendant had relevant information in the form of maps. It should have ensured that these maps were made available to its employees by being immediately taken to the site. Once it became aware, at 2pm, that there had been an explosion, the magnitude of the problem and the risk which the escaping gas posed, became very apparent, as did the need for the relevant information to be made available to those sent to work at the site.

182 At that point Mr Bigrigg was at Alexandria. The evidence showed that the employees the defendant had first dispatched to the scene did not have such maps with them, nor were they given the information contained on the maps, by radio or telephone. The information was not there provided to them and those two employees were left to 'work blind'. The defendant also did not ensure that Mr Bigrigg took maps with him when he was sent to supervise the work. The evidence clearly demonstrated that the defendant's system did not ensure that the maps were promptly taken to the site, nor did it ensure that a mistake in relation to taking such maps to the site, if made, was quickly identified and rectified. The log suggested that maps were sent to the site, with different employees, perhaps in response to a number of requests at 14:42, 14:55 and 15:00. Mr Bigrigg's evidence was also that he did not receive the maps until Mr Charlewood, the last employee despatched at 15:00 arrived with the maps, after the second explosion. What maps each employee had, was not explored.

183 The evidence as to the communication of the information contained on the maps by radio and telephone to the employees at the site, who were attempting to deal with the emergency with which they were confronted, nevertheless, amply demonstrated the inadequacies of that method of communicating the information. Had Mr Bigrigg had the necessary information available to him from the outset, it cannot be doubted that the flow of gas fuelling the fire burning at the site where the pipe had been broken underground, would have been cut off more quickly and safely than it was.

184 The radio communication system relied, in part, on Mr Bigrigg leaving the site at Kogarah on a number of occasions, in order to make enquiries as to the whereabouts of valves and mains, because it was there too dangerous to use the telephone or radio. This danger is highlighted in the defendant's documents. Mr Bigrigg had to leave in order to seek more information, which was not being adequately supplied to him by those at the defendant's Alexandria depot who had the maps, without ongoing questioning from Mr Bigrigg. That Mr Bigrigg was not receiving sufficiently proactive support, in the supply of the relevant information, from those who had the maps before them, was plain on the evidence.

185 The evidence showed the necessity for AGL to ensure that Mr Bigrigg, the most senior employee on site, was promptly provided with complete and accurate information, both as to the location of all four valves and the main supplying the service line from which gas was leaking. The evidence showed that this, AGL failed to do. It knew shortly after his arrival that he had not taken maps with him. Despite this, Mr Bigrigg acted for a considerable time in the belief that there were only three valves at Kogarah. He did not learn of the existence of the fourth until after the Gray Street valve had been turned off and still the gas kept flowing. He then realised that there was a fourth valve. The radio operators had not provided him with this information. I do not accept the submission that in this regard, "errors of judgment are understandable". It cannot be doubted that the Act required AGL to have a system in place which paid regard to the difficulty of dealing with an emergency such as this and which precluded errors such as those made on this occasion from occurring. Ensuring safety in these circumstances plainly required that those called upon to deal with this situation had those maps with them at Kogarah.

186 The defendant's approach left all the employees at the site, including Mr Bigrigg, initially, as Mr Galasso put it, "working blind". Even when information was supplied to Mr Bigrigg by radio, after he had decided, shortly after his arrival, that it was necessary to turn off the valves and stop the flow of gas to the area, it was insufficient to enable all four valves at Kogarah and/or the relevant main to be promptly located. Such an approach cannot be accepted as meeting the high onus imposed by the Act upon AGL.

187 In coming to these conclusions I do not single out individual AGL employees to criticise. The failings demonstrated on the evidence were those of the defendant, in the approach which it had devised and put in place to deal with situations such as this. It follows that the submission that AGL had a safe and efficient system of work in place must be rejected. It also means that the defence was not made out. I will return to this below.

188 As to the difficulties in locating the Gray Street valve, the evidence that Mr McDougall had had no difficulty in finding all four valves, and the main at Kogarah, some 12 months previously, cannot be ignored. He then had needed to locate the valves at Kogarah, when another pipe had been breached during excavation work. He had had no difficulty in doing so, being armed with the relevant maps. Mr Bigrigg's evidence showed that he, too, had the ability to read the maps so as to identify the four valves necessary to cut off the gas supply.

189 Mr Galasso had requested maps from Alexandria not long after he and Mr Lindsay arrived, because they, too, had decided that the gas flow had to be cut off, when they had failed to find the leaking pipe. They could not locate the valves, called for maps and returned to try and find the main. Mr Bigrigg did not take maps with him when he left. He thought of them in the car and asked by telephone on his arrival that they be supplied. Mr Bigrigg's evidence was that he did not receive them until after the second explosion. Mr Galasso in 1995 made a statement suggesting that Mr Bigrigg had maps before the explosion, at about 2.45pm. This was not consistent with the logs and in cross examination, he said that he hadn't looked at what Mr Bigrigg had and that he could have been reading the race guide for all he knew.

190 Given the work which Mr Galasso and Mr Bigrigg were respectively doing after Mr Bigrigg's arrival at the site, I am more inclined to the view that it was Mr Bigrigg who knew when he first had access to the maps. The maps taken to the site were not in evidence. Even if he had maps at the time Mr Galasso had in mind, what he was supplied with and whether it was adequate cannot be known. Mr Bigrigg did not give evidence about these matters, understandably, given that his evidence was that information as to the existence of the fourth valve was given to him by the radio room, at around the same time he was given the maps. What was abundantly clear on the evidence, in any event, was that this crucial advice was not given when he first asked about the location of the valves. He was only directed to Gray Street.

191 The valve there was initially covered by the wheel of a vehicle, which hampered both Mr Galasso and Mr Bigrigg's search for the valve. It is unnecessary to speculate as to whether or not the map would have assisted Mr Bigrigg in also earlier finding that valve. Even if it had not, the maps would have shown him the location of the main and the fourth valve, as well as the service line. That information, like the events which had occurred 12 months previously, would have assisted in either the main or the service line being promptly squeezed off. The map also showed the location of the service line running from the main across to the FAZ, where the fire was burning and the explosion had occurred. It would also have enabled the fourth valve to be located and turned off, before the Gray Street valve was found. There was no difficulty in that being done, once its existence was revealed to Mr Bigrigg after the Gray Street valve had been found.

192 On Mr Bigrigg's evidence this was as the result of his further questioning, after the Gray Street valve had been located, but the gas flow had not been cut off. He believed to that point that there were only three valves. He then surmised that there had to be a fourth valve, asked about such a valve and was directed to it at the Railway Bridge. Why those in the radio room did not direct him to that valve need not be determined. Once he was alerted to its location, Mr Bigrigg had no difficulty in locating it or turning it off. There can be no doubt on the evidence that had he had access to the maps from the outset or had otherwise received this information, the long delay in cutting off the gas supply, would not have occurred.

193 I am well satisfied, on the evidence, that while not each of the particulars of this charge were established on the evidence, the charge was made out. The defendant's system did not ensure the efficient isolation of gas flow when the need arose on 4 December. Both Mr Galasso and Mr Bigrigg decided very early on in their endeavours to deal with this situation, that locating the valves was necessary. The difficulty and delay in finding the valves necessitated other difficult and dangerous work to be pursed in digging a variety of holes in the roadway, in the vicinity of burning gas, in order to locate the service line. Had the maps been on site from the outset, or the necessary information provided promptly in the absence of the maps, much of this work would have been unnecessary. As it transpired, both the crimping of the service line and the valves being turned off occurred simultaneously, about two hours after AGL was first alerted to the problem and one and a half hours after the first of its employees arrived at Kogarah.

Matter Number IRC 5430 of 1990 194 The same conclusions must flow in relation to the s16 charge in relation to the events of 4 December. The evidence made abundantly clear the risk to which persons not in the defendant's employ were exposed. Such risks were obvious in the circumstances of the undertaking in which the defendant was involved and the work it had to have its employees perform, in the course of such an undertaking, when a charged gas line was breached. On the evidence, there can be no doubt that on that day, such persons were at the defendant's place of work, when they were exposed to the risks here in question.

195 For similar reasons to those reached in relation to the s15 charge, this offence must also be found proven, even though not every particular was made out on the evidence.

The defences in relation to the offences on 4 December 1995

196 On the evidence, it cannot be accepted that it was not reasonably practicable for the defendant to have complied with the obligations imposed upon it by the Act on 4 December and which I have found were not complied with. The evidence did not demonstrate that the defendant's employees, were provided with all the information necessary for them to know where the valves and gas lines were, so that they could promptly and safely perform the work required of them, especially not promptly upon their arrival at the site. It was not a mere matter of those employees asking to be provided with information by radio or telephone, which was always available and provided. The evidence showed that in the absence of maps at the site, the system depended upon the right questions being asked, the maps being correctly interpreted, and correct information being conveyed and understood, at a time where those seeking and providing that information, were labouring under obvious difficulties. That system failed.

197 The submission that its employees might have asked for more, highlighted the defendant's failure. It was obliged to foresee what information the employees would require in such emergency circumstances and to ensure that they had it, rather than to rely upon them to ensure that they did not make any errors, in the information which they sought, in the difficult circumstances in which they were placed. The defendant could not so delegate its responsibilities to its employees. It was obliged to be proactive in dealing with the requirements of safety in situations such as this one. This was not a matter of hindsight, but sensible and obvious fore planning, for what information employees might require when called upon to deal with an emergency of the kind which arose on 4 December, so that their own safety and that of any non-employees necessarily present, was ensured.

198 Nor can it be concluded that the defendant had no control over the causes of the offences committed on 4 December and against which it was impracticable to make provision. It was not the breach of the pipe and the resulting conflagration, which here gave rise to the offence which has been found proven against the defendant. The defendant's failure to ensure that the necessary information and support was provided to its employees as particularised in the charges, to ensure that the flow of gas could promptly and safely be cut off, when the need to do so arose, which has led to its conviction.

199 The failures demonstrated on the evidence resulted not from the decisions, or errors which particulars employees made, which with the benefit of hindsight and with greater time for reflection, they would not have made. It was the defendant which employed them to perform work in such emergency circumstances and which was obliged to ensure their safety and that of non-employees, in such circumstances. The evidence showed that there was no difficulty in the defendant having ensured that the necessary information which it maintained on its maps was present and provided to those at the site, rather than having that information relayed in the disjointed fashion which it was on 4 December, by radio and telephone, until belatedly, maps were brought to the site.

200 Nor can AGL divest itself of its responsibility for the risks in question, by relying upon the course which its employees chose to take. There was no evidence upon which it could have been concluded that the defendant could not have ensured that the necessary information was available to the employees on site. They were obviously trained in how to utilise the maps in question and to apply the information contained in them, to cut off the gas supply. The evidence plainly demonstrated that the defendant's failures were causative in the risks here in question. The evidence showed that those risks were entirely within the defendant's control and in respect of which it was entirely able to make proper provision.

201 It follows that the defences were not made out.

202 For all of these reasons, I find that the offences in matters IRC 5429 of 1999 and IRC 5430 1999 were made out. The offence in matter IRC 5427 of 1999 was not. I convict the defendant of the offences in IRC 5429 of 1999 and IRC 5430 of 1999 and I dismiss the charge in IRC 5427 of 1999.

203 The matter will be listed for hearing in relation to sentence, on a date to be fixed. ------------------------

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