On appeal in A & M I Hanson Pty Ltd v WorkCover Authority of New South Wales (Inspector Kirkby) (unreported, Full Court, CT94/1218, 4 October 1995) the decision at first instance was upheld and the Full Court ( Fisher CJ, Bauer and Hill JJ) concluded (at p 22) that the defendant "had a positive duty in the terms of s 15 and s 16 of the Occupational Health and Safety Act to use the correct timber for the making of the brace and of making all safety decisions".
47 Another aspect of the nature of the statutory duty requiring mention, having in mind the way in which the case proceeded, concerned what I saw to be the undue reliance on the actual occurrence of the collapse of the brick wall and the immediate reasons therefor in determining whether the defendant relevantly failed to ensure the safety of Mr Whelan and Mr Twomey. In WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at p 257, Bauer J followed the approach of the Full Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 for the proposition that, as his Honour said, "Whilst … it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare". The particular passage referred to by his Honour from Haynes v C I & D Manufacturing stated (60 IR at pp 158-159) :
The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injuring, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.
48 Of course, and although the nature of s 16(1) in imposing strict liability on the employer is as stated in the authorities cited above, it remains for the prosecutor to prove to the requisite criminal standard of beyond reasonable doubt that it was the defendant employer who relevantly failed to meet the statutory obligation and not some external factor. This has usually been referred to in the cases, appropriately in my view, as the necessary causal nexus between the breach of statutory duty and the detriment to safety occasioned to the worker. In McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241 at p 244, Grove J put it in terms that "it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety". That approach was approved by a Full Bench of the former Industrial Commission in State Rail Authority of New South Wales v Dawson [1990] 37 IR 110 at p 121 and affirmed by the Full Court in Haynes v C I & D Manufacturing (60 IR at p 156).
49 With those principles in mind, I turn to the facts of this case as established by the evidence.
50 The essential element of the charge here was the failure to make arrangements for ensuring safety and absence of risks to health in connection with the excavation work carried out adjacent to the free-standing wall. I am in no doubt that the prosecutor has identified a detriment to safety, namely, the presence of an unstable brick wall at the south western boundary of the Kent Road site and the risks to health and safety thereby occasioned to persons working near the said wall if it collapsed. That detriment existed on 15 December 1997 at the time Mr Whelan and Mr Twomey were performing excavation work in the trench immediately adjacent to the wall. As Mr Leavy said in evidence, "one of the fundamental rules of engineering is beware of free standing structures".
51 Mr Leavy's evidence, as earlier outlined, well established, in my view, the unstable nature of the wall before its collapse by reference to the saw cuts in the concrete driveway and the extent of excavation work performed in the trench so as to expose and undermine the wall's footings. I am wholly satisfied on the evidence that the condition of the wall was such as to require appropriate safeguards to be taken, such as propping or bracing, prior to any excavation work being undertaken along its length. The excavation work actually performed along the wall exacerbated its already unstable condition. Indeed, because of the potential for the wall to collapse onto the site due to vibrations or weather conditions, as indicated by Mr Leavy, I am of the view, even absent any excavation work below the footings, that it would have been prudent for the defendant in performing work along the boundaries of the site, including adjacent to the brick wall, to properly secure the wall. The demolition of the wall during the construction phase of the work, and its later replacement if necessary, would have been a reasonable solution to consider. It was a hazard which should have been attended to so as to avoid risks to persons working nearby or otherwise attending the site.
52 The core issue in the s 16(1) offence has, therefore, been proven by the prosecutor. It then remains to determine whether it was the defendant who relevantly failed to ensure that persons not in its employment, in particular Mr Whelan and Mr Twomey, were not exposed to risks to their health and safety from the identified unstable brick wall. This requires a consideration of the causal nexus with what occurred on 15 December 1997 by a relevant failure of the defendant and that properly requires attention to the particulars of the charge as set out in the summons.
53 Inherent in each of the particulars was the allegation that the defendant was required under its contract with Consolidated Constructions to perform excavation work adjacent to the subject wall on the south western boundary of the site. I have, by the earlier reference to and analysis of the evidence of Mr Seamus Byrne, Mr New, Mr Taylor and Mr Mark Byrne, concluded that excavation work to the footings of the brick wall at the southern end of the western boundary of the site was part of the defendant's contract with Consolidated Constructions. In my view, a review of the evidence makes that finding inevitable.
54 However, Mr Moore put the submission that on 15 December 1997 at the time the wall collapsed, said by counsel to be the relevant time of the offence and to which the particulars of alleged failure by the defendant were directed, there was no reason for Mr Whelan and Mr Twomey to be working near the wall. That submission was based on the evidence of Mr Seamus Byrne that he understood the work required on that day was to the pad footings on the southern boundary of the site with no work on the western boundary in the vicinity of the wall; support was sought also from the evidence of Mr New. Again, I have earlier detailed the evidence concerned but expressed doubts about it to the extent of accepting the evidence of others in this respect, namely, that of Mr Mark Byrne and Mr Taylor. Their evidence, again earlier set out, made it clear that the excavation near the wall at the time of its collapse was performed by Mr Mark Byrne, Mr Whelan and Mr Twomey as part of the defendant's contracted work. I need only add the comment made by Mr New in his interview of 23 December 1997 that, although he had not anticipated any work in the area of the wall on 15 December 1997, once the pads on the southern boundary had been rectified "then they were supposed to carry on with the rest of their contract work on the western foundations". Also, Mr Seamus Byrne said he left the site during the morning of 15 December 1997 with Mr Whelan in charge of the defendant's scope of works and "to carry out any instructions from Ben New".
55 I am satisfied, without any reservations, that the work performed by the defendant along the western boundary of the site and near the brick wall at the time of its collapse was required to be performed as part of its contract with Consolidated Constructions. Even if the work at the time was to be restricted to the pad footings and not extended to the western boundary of the site, the submission by Mr Moore would not, in my view, relieve the defendant of responsibility for what occurred. The charge in the summons, it is to be emphasised, alleged the defendant committed the offence "between 29 October 1997 and 15 December 1997 inclusive"; that is, contrary to Mr Moore's submission, there was no restriction to 15 December 1997 and the particulars of the charge are to be similarly construed over that longer period. The defendant's submissions on this point must fail.
56 Further, and in any event, the evidence of Mr Seamus Byrne that he did not direct work to be performed near the wall on 15 December 1997 and his response under cross-examination "that I can't recall them ever working on the western boundary before the date of the accident" (this latter evidence was inconsistent with his earlier evidence during the interview with the prosecutor on 19 December 1997) would not support Mr Moore's submission that the defendant thereby avoided responsibility. It is apt in that respect to repeat the words of Bauer J in Maine Lighting (100 IR at p 257) - "… the very purpose of the (Occupational Health and Safety) Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry". His Honour's statement of principle was cited with approval by a Full Bench ( Wright J, President, Walton J, Vice-President and Hungerford J) of the Court in State Rail Authority of New South Wales v WorkCover Authority of New South Wales (Inspector Dubois) [2000] NSWIRComm 261 at para 25 where their Honours added "the proposition that inattention or mere inadvertence of an employee serves to show only the need for an employer to be astute in ensuring safety and in meeting all reasonable contingencies": see also WorkCover Authority of New South Wales (Inspector Chadwick) v BHP Steel (AIS) Pty Ltd (2000) 98 IR 122 at p 135.
57 As a general comment on the eight particulars of the charge, alleging as they did separate failures by the defendant, it is my view that the offence charged would be made out if it be established that there was a causal nexus involving the defendant in respect of one or more of the particulars so specified. In other words, it was not necessary for the prosecutor to make out each and every particular alleged. Mr Moore accepted that position. Of course, the extent of failure by the defendant by, for instance, the prosecutor's inability to make out some particulars, whilst not sounding in liability, would necessarily affect any penalty imposed in terms of the degree of culpability of the defendant for the offence.
58 Particulars (a), (b) and (f) may be considered together as they all concerned an assessment or evaluation of the stability of the brick wall. I find them to have been established. It is undoubted on Mr Seamus Byrne's evidence, as set out in his record of interview of 19 December 1997, that the stability of the wall, including its footings and the saw cuts on the concrete driveway, was not examined, evaluated, checked or otherwise assessed by the defendant or by anyone on its behalf at any time prior to or during the performance of the excavation work contracted to be performed for Consolidated Constructions on the site. Mr Seamus Byrne thought he would have seen the wall during his visits to the site but other evidence by him conceded he was only ever about 60 metres to 100 metres from the wall at any particular time. His evidence was that he never examined in any way the excavations along the western boundary or the footings to the brick wall; and he was unaware prior to the incident on 15 December 1997 of the existence of the saw cuts in the concrete driveway on the property of The Blue Mountains Water Company. On the basis of that evidence, I do not accept his later evidence that he considered the wall to be safe and that from "visual examination there was nothing to raise any concern about it". Against these particulars, Mr Moore submitted that the observations of the wall by Mr Seamus Byrne and his conclusion, although perhaps erroneous, that it was safe meant the allegations in the particulars failed because indeed an "assessment" was made. I reject that submission.
59 The failures by the defendant to relevantly and properly assess the stability of the wall logically lead to the conclusion that it failed to take any measures to ensure the integrity of the wall so as not to impose a detriment to safety on the site. Once it be established, as I have found to be the case, that the defendant engaged persons to perform excavation work near the wall, then, in my view, it had a responsibility in relation to the health and safety of those persons to ensure the place of work where it was operating was safe. The measures which the defendant allegedly failed to implement related to particulars (c), (d) and (e). Again, on the evidence, none of those measures were taken by the defendant or even considered by it as necessary. So much is clear, I think, from the cross-examination of Mr Seamus Byrne cited earlier in these reasons. It needs no repetition, except to comment that he did not think such measures were necessary because he "thought it was a safe site". I conclude that these three particulars have been made out. The submission by Mr Moore in endeavouring to counter them was that it was not the responsibility of the defendant to take the measures concerned but rather that of Consolidated Constructions on advice from van der Meer Bonser as the designer. I affirm my earlier conclusion that that submission cannot succeed because whatever responsibility may have been on others, the defendant itself had the responsibility in terms of s 16(1) to ensure that persons were not exposed to risks to their health or safety at its place of work in the conduct of its undertaking.
60 In relation to particular (g) concerning the supervision of Mr Whelan and Mr Twomey while they carried out the excavation work adjacent to the brick wall, Mr Seamus Byrne admitted under cross-examination he was the only person who generally supervised the two persons, although in his absence Mr Whelan as an engineer was the supervisor. Having in mind his lack of knowledge, certainly in any detail, of the condition of the brick wall, it does not seem to me that Mr Seamus Byrne could be said to have supervised the excavation in the trench along the length of the wall and certainly not the detailed digging work near the foundations with shovels. The admission by him in his interview by the prosecutor on 19 December 1997 that he did not know why Mr Whelan and Mr Twomey were working at the base of the wall when it collapsed was, I think, an admission that those two persons were not relevantly or appropriately supervised at the time. Particular (g), therefore, was established.
61 Consistent with what I inferred from the evidence to be a somewhat casual approach by the defendant, particularly in the allocation and supervision of work on a day-to-day basis, particular (h) concerning the alleged failure by the defendant to assess whether Mr Whelan and Mr Twomey were adequately trained and experienced to safely undertake the duties required of them falls to be considered. It seems that Mr Whelan since graduating with a degree in civil engineering had about 12 months' experience and Mr Twomey as a labourer also had only about 12 months' experience. However, it is significant that Mr Seamus Byrne verified the qualifications of the two persons orally and in an apparently superficial manner. Importantly, he did not know what training in occupational health and safety regarding excavation work on building sites Mr Whelan and Mr Twomey had had and he relied on Mr Whelan's "experience" to carry out any instructions from Mr New. Further, he said that Mr Whelan was instructed by him at all times but added that "I asked him every morning what he had to do. If there was a problem he was required to meet". It was clear from the evidence that Mr Seamus Byrne was not on the site at all times during the performance of work and that Mr Whelan "co-ordinated" with him. I am satisfied to the requisite standard that the prosecutor has made out a case that neither Mr Whelan nor Mr Twomey was adequately trained and experienced to safely undertake the duties of them having in mind the existence of the safety detriment occasioned by the unstable brick wall.
62 In terms of the summons, I am satisfied that the failures alleged against the defendant by the prosecutor, as set out in the eight particulars, resulted in the exposure of Mr Whelan and Mr Twomey to risks to their health or safety during the relevant period at the Kent Road site in relation to the free-standing brick wall and as a result of which those two persons sustained fatal injuries. It was the defendant who relevantly failed to assess and implement measures to ensure that Mr Whelan and Mr Twomey were not so exposed to detriments to their safety and that is so even though the precise cause for the collapse of the wall was not ascertained. I have already commented, by reference to Dawson , C I & D Manufacturing and Maine Lighting, that it would be erroneous to concentrate too much on the actual cause of the incident causing death as that, as Bauer J said in Maine Lighting (100 IR at p 257) merely "goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare". I respectfully agree and would only add reference to the similar reasoning in WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd t/as Boral Asphalt (2000) 98 IR 246 at p 250. In a very real sense, the present case illustrated the proposition that antecedent failures by a defendant established a s 16(1) charge in that they created or allowed the detriment to safety and enabled the direct cause of an incident to result in injury. In WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at p 43, a prosecution for a breach of s 15(1) of the Occupational Health and Safety Act where a structure collapsed when it was struck with an industrial hammer, the distinction I am endeavouring to make was put by me in the following way :
I accept (senior counsel's) submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to asses the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned.
63 Section 53 of the Occupational Health and Safety Act provides :
53 Defence