Workcover Authority of New South Wales (Inspector Byer) v Cleary Bros

Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Concrete Constructions Group Ltd v WorkCover Authority of NSW (Inspector Dubois) No 2) (2000) 99 IR 16 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 Edwards v National Coal Board [1949] 1 KB 704 Environmental Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Jayne v National Coal Board [1963] 3 All ER 220 Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 CASES CITED : Mansell v Anytime Industrial Services Pty Ltd [2001] NSWIRComm 237 Marshall v Gotham Co Ltd [1954] AC 360 R v Saffron (1989) 17 NSWLR 395 Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481 WorkCover Authority of NSW (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of NSW) (No 2) (2001) 104 IR 268 WorkCover Authority of NSW (Inspector Dubois) v Concrete Constructions Group Ltd (No 1) (1999) 98 IR 362 WorkCover Authority of NSW (Inpsector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383

HEARING DATES: 10/30/2000; 10/31/2000; 12/05/2000; 12/06/2001; 01/29/2001 DATE OF JUDGMENT: 11/21/2001

PROSECUTOR: Mr P Skinner of counsel

SOLICITOR: Mr G McCann Workcover Legal Services Branch LEGAL REPRESENTATIVES: DEFENDANT: Mr R J Buchanan QC with Mr M Shume of counsel

SOLICITOR: Mr P Cutrone Sparke Helmore Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President 21 November 2001

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR BYER) v CLEARY BROS (BOMBO) PTY LTD. PROSECUTION UNDER SECTION 16(1) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1983. Judgment [2001] NSWIRComm 278 Introduction 1 This matter is a prosecution by Inspector Shayne Byer of the WorkCover Authority of New South Wales ("the prosecutor") of Cleary Bros (Bombo) Pty Ltd ("the defendant") alleging a breach of s16(1) of the Occupational Health and Safety Act 1983 ("the Act"). Section 16(1) of the Act imposes the obligation on an employer to "ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work." A further summons (Matter No IRC 7049 of 1999), alleging an offence under s15(1) of the Act, was dismissed at the commencement of the hearing when the prosecutor indicated that it did not wish to proceed with the matter.

2 The prosecution arose out of an incident that occurred at approximately 5.20am on 31 December 1997 at the Artarmon Waste Management Centre at Lanceley Place, Artarmon, resulting in serious injuries to Mr John Holloway. Mr Holloway was employed as a casual driver by Mr Gordon Street who conducted a waste collection business as a sole trader. On the date of the incident, Mr Holloway attended the site in order to unload the miniskip truck in which he was travelling. Mr Holloway's father-in-law, Mr Robert Dunn, with Mr Holloway as a passenger, drove the truck.

3 Mr Dunn drove the truck onto the site and reversed up to Pit No.1 at the position that provided for mechanically operated vehicles. With the vehicle stopped, Mr Holloway alighted from the passenger side and walked around the front of the vehicle to the rear on the driver's side in order to undo the clip of the door of the bin to allow the bin to be emptied into the pit. When in the vicinity of the rear of the vehicle, he slipped and fell into the pit which was approximately 1.8 metres in depth. As result of the fall, Mr Holloway suffered serious head injuries, a broken rib, two broken wrists, as well as bruising and swelling.

4 The facility catered for the disposal of industrial and household waste by commercial operators and the general public. The site consisted of a vehicular ramp, with weighbridge, allowing access to the first floor which is available for public access to the industrial unloading areas. The western side of the pits are allocated for hand-unloading (domestic) vehicles and the eastern side for mechanically unloading (industrial) waste vehicles. Prior to the accident permanent fencing was in place along the hand-unloading side of the pits. No barricades were in place on the side of the pits that catered for mechanically unloading vehicles. This side of the pit was divided into parking bays, separated from the pit by a low curb. The ground was constructed from exposed concrete and there were two metal plates approximately 600mm by 600mm in the rear corners of each bay. The vehicle being operated by Mr Holloway was parked in a bay on this side of Pit No. 1 when he fell into the pit.

5 The defendant leased the waste management site from Waste Services New South Wales. Under the lease agreement, Waste Services New South Wales provided the facility including associated entranceways and roadways, amenities, offices and storage facilities and various other equipment and facilities. In return, the defendant operated the facility, including accepting, storing and transporting waste. The defendant was responsible for the management and supervision of the operation and provided the requisite personnel, tools, materials and equipment for the facility. The defendant employed a number of personnel at the site.

6 Inspector Byer was assigned to the investigation and visited the site on 19 February 1998 to conduct an inspection. Interviews were subsequently conducted with Mr Holloway, Mr Dunn and Mr Holloway's employer, Mr Street, as well as with various employees of the defendant. The initiating summons was issued on 24 December 1999. The charge, as contained in the summons, was in the following terms: On 31 December 1997, at Artarmon Waste Management Centre at Lanceley Place, Artarmon in the State of New South Wales, the defendant, being an employer FAILED TO ensure that persons not in its employment, and in particular, John Holloway, were not exposed to risks to their health or safety arising from the conduct of its undertaking, while they were at its place of work.

a) The defendant at all material times employed a number of personnel at the Artarmon Waste Management Centre. b) The defendant at all material times leased the operation of the Artarmon Waste Management Centre from Waste Services New South Wales. c) The defendant failed to provide plant, to wit, barriers to ensure that person could not fall into pit No.1 from the mechanically unloading side of the said pit. d) The defendant failed to ensure that persons attending the Artarmon Waste Management Centre on the mechanical vehicle unloading side could not fall greater than 1.8 metres into the pit. e) The defendant failed to ensure that the floor adjacent to the pit No.1 was clean and free of debris to ensure that persons could not slip whilst walking adjacent to the pit and fall into the waste pit. f) As a result of the said failures, John Holloway suffered numerous injuries.

8 The defendant sought further and better particulars in relation to the offence. The prosecutor responded by letter dated 28 April 2000. The further and better particulars provided by the prosecutor were as follows: Summons No. 7048 of 1999

1.1 What do you allege is the defendant's undertaking? A. The defendant at all material times undertook the operation of the Artarmon Waste Management Centre located at Lanceley Place, Artarmon in the State of New South Wales.

1.2 Do you allege "the pit" is required to be fenced off? A. It is alleged that barriers or some other device should be utilised to ensure that persons cannot fall into the mechanically unloading side of the pit.

1.3 What economic arrangement existed between Robert Dunn and John Holloway and Gordon Street on 31/12/97? A. John Holloway was employed as a casual driver by Gordon Street. Robert Dunn was the father-in-law of Gordon Street (sic) and was assisting on the day of the accident.

1.4 Do you allege that the defendant is responsible for supplying safety shoes to its non-employees who use the pit? What facts and matter do you rely upon to support this allegation? A. It is not alleged.

1.7 Please provide all information either verbal or written, relating to instructions, training and information provided to Mr Holloway by Mr Street for: (a) accessing the pit at the defendant's premises; (b) how the "slip on the door of the bin" is to be accessed; (c) when the "slip on the door of the bin" is to be released prior to tipping; and (d) what safety equipment was to be worn. A. As indicated in the statement of John Holloway he was instructed by Gordon Street to: (a) get out of the truck, operate the controls, put the chains on and undo the hatch; (b) to stay away from the edge, stand near the back wheels; (c) to wear safety boots and old clothes that you can get dirty.

1.8 What safety equipment was provided to Mr Holloway by Mr Street? A. No safety equipment provided.

1.9 Was Mr Street aware that Mr Dunn was assisting Mr Holloway on 31/12/97? A. It is apparent that Mr Street was not so aware.

The Evidence 9 A three volume brief of evidence was tendered without objection in these proceedings. The brief of evidence contained extensive documentation produced in connection with the investigation of the incident conducted by Inspector Byer, including the statements taken from Mr Holloway, Mr Dunn and Mr Street, as well as from a number of employees of the defendant. Inspector Byer also completed a factual inspection report and took a number of photographs of the site and the vehicle Mr Holloway was operating at the time of the incident. Improvement notices issued following the incident were also tendered as part of the brief, as well as comprehensive documentation concerning the safety procedures in place at the site prior to and following the incident. These included accident reports completed by employees of the defendant, photos taken of the site on the day of the incident and documents indicating actions taken following the incident. Various documents relating to the general conduct of the operations at the waste disposal site were also tendered, including various work instructions and the agreement between the defendant and Waste Services New South Wales.

10 It is appropriate to commence the consideration of the evidence by referring to the evidence of Mr Holloway, both in his statement made by Inspector Byer on 25 February 1998 and in oral evidence in these proceedings. In his statement to Inspector Byer, Mr Holloway stated that the ordinary procedure for unloading rubbish was to reverse up to the pit and get out of the truck. It was necessary to walk to the back of the truck to put the tip chains on and then undo the latch on the lid and go back to the controls and push the lever to tip the rubbish. Mr Holloway then described what occurred after Mr Dunn backed the truck up to the pit. Mr Holloway stated: I got out of the truck, walked to the back of the truck to open the latch, then my feet slipped from underneath me and then I remember hitting the floor then I must have blacked out and then I just remember falling and coming to a stop at the bottom.

11 Mr Holloway stated that there was often a build-up of grit and dirt adjacent to the pit, but on the day of the incident it was free of rubbish. There was, however, some fluid on the ground. He continued: I noticed the fluid was there on the ground, so I carefully went to the back of the truck to open the lid. Then as I turned, my feet slipped and the next thing, I was falling.

12 He stated that he was not standing on the metal plates when he slipped, but on the surrounding ground. Mr Holloway confirmed his statement in oral evidence given in these proceedings.

13 A statement was made by Mr Dunn to Inspector Byer on 20 March 1998. Mr Dunn was called to give evidence in these proceedings. In his statement to Inspector Byer, Mr Dunn indicated that he saw Mr Holloway fall. He stated: John got out of the passenger side of the truck, walked around the front of the truck, passed me, to undo the clip on the door of the bin. As he got near the back of the truck on the driver's side he slipped and went into the pit. I seen him fall over. I heard a thud when he hit the bottom. I looked over and he was laying face down in the bottom of the pit.

14 Mr Dunn indicated that the floor was wet at the time and that after the incident he walked to the rear of the driver's side of the truck and noticed a greasy substance on the floor which "looked like gravy" and was "very slippery".

15 Mr Dunn was cross-examined about his account. Under cross-examination, he stated: Q. So he was walking forward, was he? A. He was walking towards the back of the truck, yes.

Q. In a forward direction. A. Yes, forward direction.

Q. And he fell forwards, his feet slipped from under him? A. Well, virtually he just took off.

Q. Took off? A. His feet just went from under him.

Q. He wasn't running, was he? A. No, he was walking.

Q. I am just wondering why, if that happened, why he didn't fall straight down where he was? A. He just took off. If you slip on something you just skate, he skated.

Q. Not from forward? A. I don't know.

Q. Did he go head first? A. Well, he seemed to have gone head first after he went past me. He was on his way down once he went by. I didn't see where he went. I was standing back at the truck. As he went past me he skated virtually past me and as he went past me he tried to grab the back of the truck to stop himself but he wasn't in the race, it just happened like that.

16 Mr Dunn was also cross-examined about his recollection of having seen a substance which looked "like gravy". Mr Dunn denied that the substance could have been mud, but was unable to be sure what the substance was. He stated: Q. I want you to try and tell us what you think this gravy like substance was that was there? A. How would I know? It looked like gravy, it was brown. Trucks come in there from 1am in the morning. They tip stuff on the floor, they tip stuff in the pit, it goes everywhere. Its hard for me to say what it was. I went and checked it after the accident and I ran my feet across it and it was as slippery as could be.

17 The Court conducted a view of the vehicle that was being operated by Mr Holloway on the day of the incident. The view was conducted in the presence of Mr Street prior to him giving evidence in these proceedings. The purpose of the view was to obtain an understanding of the mechanical operation of the vehicle, particularly with respect to the actions which were necessary when a person is required to tip a load of rubbish stored in the vehicle. Mr Street was subsequently questioned concerning its operation. Mr Street gave the following evidence in chief: Q. As you demonstrated just now down in the street, when you back the truck up to the pit, you hop out and attach that chain on to the skip to hold it, lift it out over the pit? A. That's correct.

Q. Why do you not attach the chain when you load the full skip up back at the pick up site? A. I have found occasionally that because they hang loosely on that particular bin they can, depending on the road, they will have a tendency to bounce off, but leaving them on the two hooks, as they were shown there, it appears that - well, I have found over the years that I don't have to worry about the chain dangling along on the road.

18 As has been mentioned, statements were taken from various employees of the defendant, including Mr Steven Tappenden, an Assistant Manager, who was nearby when the incident occurred, and Danny Ineson, the Site Manager, who was also at the site at the time of the incident. Interviews were also conducted with Mr George Lasek, an environment engineer employed by the defendant, and Mr Graeme Granger, the Technical Manager of the defendant. Both Mr Lasek and Mr Granger are based in Port Kembla. In addition, Mr Tappenden was called to give oral evidence in these proceedings.

19 Mr Tappenden was operating the compactor when the incident occurred, but quickly attended to Mr Holloway and arranged for an ambulance to be called. He stated that on that day the ground around the pit was clean, but wet. He indicated that the ground was cleaned by sweeping and shovelling of any loose debris after every truck, but that there were no procedures in place to attempt to keep the area dry. In addition, Mr Tappenden stated that the ground was swept and hosed down at closing time every day. He indicated that the area had been cleaned that morning, probably at about three o'clock. In cross-examination, Mr Tappenden explained: Q. You said in answer to Mr Skinner that it was the practice of the operators to clean up the debris but you couldn't always get the floor dry? A. That's right.

Q. Why is that? A. If it was a rainy day all the trucks would just come in and the water would be dripping off them, and the other reason is a lot of the bins come from town and they have substance on board and if they're not at the tip and they open their door then all the fluid runs out of the door which is more or less swept up as much as we can but it still remains wet because there's nothing to dry it with.

20 Mr Tappenden also indicated that he thought the vehicle Mr Holloway was travelling in might have itself been leaking some fluid onto the ground. He also stated that Mr Holloway had been wearing joggers at the time of the incident. This was denied by Mr Holloway.

21 The statements of Mr Ineson, Mr Lasek and Mr Granger further clarified a number of aspects of the defendant's operations. Mr Ineson indicated that there were no specific procedures in place to ensure that the ground around the pit was non-slippery. The area was just swept regularly and hosed down at the end of the day. He stated that after the incident moveable barriers were put in place when the pits were not in use and metal welds were placed on the metal plates adjacent to the pits for extra traction. Despite not being present when the incident occurred, Mr Ineson posited the theory that Mr Holloway was applying backward pressure to the door lock on the mini-skip when he slipped and fell.

22 Mr Lasek confirmed that there were no barriers in place on the side of the pits used for industrial vehicles at the time of the incident. He indicated that swinging barriers were subsequently installed. The swing barriers remain closed at all times except when this was not possible for operational purposes. He stated that mechanically unloading vehicles could not unload if barricades were permanently in place. In relation to the cleaning of the area, Mr Lasek stated that any spillages of refuse would be swept and absorbent material applied to liquid spillages and, in addition, the area would be washed down and swept at the end of each day.

23 In addition to this evidence, the prosecutor, Inspector Byer, was called to give evidence in relation to her investigation. Evidence was also heard from Inspector Mason, also of the WorkCover Authority of New South Wales, who completed a safety survey of the waste disposal site for Waste Services New South Wales which was completed in August 1995. The defendant called an expert, Mr Roger Roberts, to give evidence in relation to the health and safety issues raised by the present case. Mr Roberts was the Managing Director of a company known as Risk Assessment and Technical Solutions Pty Ltd, which was a specialist consultancy for plant and machinery safety. Mr Roberts was previously employed by the WorkCover Authority of New South Wales and, before retiring, was the State Co-ordinator of the Risk Management Division.

24 Inspector Byer was cross-examined in relation to her investigation of the incident. In particular, Inspector Byer was asked about her impressions of the division of responsibilities at the site between the defendant and Waste Services New South Wales. The Inspector conceded that the improvement notices issued by her to the defendant following the incident did not specifically require that the mechanical unloading side of the pits be guarded. Rather, improvement notices were issued to Waste Services New South Wales requiring guarding to be put in place. Inspector Byer conceded that she did not formally interview anyone from Waste Services New South Wales in relation to be incident or directly indicate to the defendant that guarding was required.

25 Inspector Byer agreed with Mr R J Buchanan QC, who appeared for the defendant, that the swing barriers which were installed following the incident would not have prevented the risk to health and safety which resulted in the injuries to Mr Holloway. The Inspector was asked about the practicality of permanently guarding the pits whilst mechanical vehicles were unloading. Referring initialling to the swing barriers, the Inspector stated: Q. In other words, while those barricades are swung out of the way it is as though the pit is not guarded? A. Correct.

Q. And, whatever might be said about Mr Holloway's unfortunate accident, barriers of that kind would not have prevented his kind of --? A. Barriers, the swinging barrier kinds would not have prevented it, no.

Q. Is it reasonably practicable to guard the pit during tipping operations? A. I believe it is.

Q. Do you? A. I believe it is possible, yes.

Q. You did not issue an improvement notice---? A. Not this specific guarding because I issued a notice for them to do a risk assessment of the task, the unloading on the mechanical side of the pit.

Q. After the swinging barriers were introduced, you did not suggest that was inadequate? A. That was my personal opinion and if the company had done a risk assessment and identified risks and hazards - that is what they are trialing so I can't walk in there and say: "No, that is not right". If that is what they have been trialing and have identified and assessed and are trialing then we have to monitor it; it is a process.

26 The Inspector was later questioned concerning the statement of Mr Lasek that it was not practicable to install permanent barriers which would be in place whilst mechanical vehicles were tipping. The Inspector responded: Q. Did you investigate that allegation, that if there were particular barriers it would not be possible to unload? A. No, I didn't investigate.

Q. It is clear that is true, is it not? A. I don't - like, yes, the barricades, yes, weren't provided basically.

Q. It is clear not having regard to the range of vehicles that come into that site you could not unload these, mechanically unload the vehicles if there were barricades there? A. I could see with modified barricades they could be workable, just not barricades like the ones, exactly like the ones on the domestic side but, you know, amended themselves or adaptations of. Certainly, you know, it could have been done in my opinion.

Q. Nobody sat down with Cleary Brothers and said: I think the way you could do this is X, Y, Z? A. No, not from WorkCover.

Q. You certainly did not do it, you did not share your fear, if you had one, with Cleary Brothers? A. No.

27 In relation to the risk of slipping, Inspector Byer indicated that she formed the view that there was a risk of slippage on the floor in general and not just on the metal plates. The Inspector denied having formed a theory that Mr Holloway had slipped whilst standing on the metal plates.

28 Inspector Byer conceded that there was no reason to believe that there was a build up of debris at the rear of Mr Holloway's vehicle at the time of the incident, only that there may have been some fluid on the ground. In response to questions from counsel for the defendant concerning the requirement that the area be dry and non-slippery, the Inspector stated: Q. You were also concerned that the floor was not dry and you issued two improvement notices one of which commenced by saying "dry and non-slippery" which you amended so that the two improvement notices then talked about being non-slippery? A. Yes.

Q. Was that because you realised that it was not practicable to keep the floors dry? A. That's right.

Q. For a number of reasons not the least of which is that there is a dust suppression system at that site which sprays periodically water to control the dust levels? A. Yes, that's right, it sprays water on the pits not on to the surrounding surfaces.

Q. It sprays water on the pits which are immediately adjacent to the surrounding surfaces? A. Yes.

Q. In the improvement notices let me just find them for you again, it is at tab 11, these are 177604, which is the amended one, and 177606 the measures to be taken were to ensure the safety of persons by providing a safe system of work to ensure the ground and surrounding surfaces of loading areas are non-slippery at all times or by other means? A. That's right.

Q. And if it should be simply not practicable, having regard to the material which is delivered, to ensure that the ground surfaces, no matter what their nature, remain non-slippery at all times, your requirement was that some other way be found to ensure people's safety? A. Yes, to ensure the ground and surrounding surfaces of the pit and unloading areas are non-slippery at all times or by other means, so yes.

29 The Inspector later agreed that, having regard to the nature of the materials carried in to the area, it was not practicable to have the surfaces non-slippery at all times. Q. … if, having regard to the nature of materials carried into that area, it is not practicable to have surfaces non-slippery all the time at least they must not be able to fall into the pit? A. That's right.

30 Inspector Mason was questioned in relation to the safety survey of the site conducted by him in August 1995. The Inspector was questioned concerning his examination of the site at that time and his views concerning the risks to safety occasioned by the operation. In examination-in-chief, the Inspector expressed the view that it may have been possible to erect some kind of fencing which would be in place. Inspector Mason stated: Q. My friend may ask you some questions specifically about it but in general are you familiar with the opinion of Mr Roberts expressed in his report that based on his experience it was not practicable to fit any safety fence along the mechanically unloading side of the pit due to having to leave truck clearance? A. I am familiar with that statement.

Q. Is that something with which you agree? A. I partially agree with it.

Q. What part do you agree with? A. I agree with the major part of the mechanical side where trucks are reversing to the position where they tip their waste into the pit and the driver doesn't have to leave the actual cabin of the truck, that is the automatic type dumping truck. It would be impracticable to put a fence up because you have got problems with - if you created any problems with the crush - and I agree with Roger in that usually when you put a fence up and it becomes a bit of a - the word I'm looking for, it gets in the way, people would just take it down, you will get problems with trucks reversing into it and you would get problems with creating a crush hazard, but having said that I feel that the smaller type trucks that do access the industrial side where people have to get out of their trucks in some cases you could put some type of fence up.

Q. You saw the truck this morning that Mr Street demonstrated on a view to his Honour, you were actually present at that view, correct? A. Yes.

Q. That sort of truck, is it your opinion that it would be not practicable to fit a safety fence in relation to that sort of truck going to the pit and tipping into it? A. You could fit a safety fence with that particular type of truck, yes.

31 Under cross-examination, Inspector Mason conceded that, in the safety survey conducted on the site, he identified the fall hazard, but did not propose that the hazard be addressed by erecting permanent fencing. The Inspector explained his views at the time of completing the report as follows: Q. Did you give any thought at the time to whether it would be possible to suggest some form of fencing to address this particular concern? A. I did give it some thought but, as I have stated before, it was my opinion that you would compound the problem by putting fencing up on the mechanical side or the industrial waste side because just for the mere fact of the movement of trucks it would restrict truck movement.

My thought or my recommendation was that instead of putting a physical barrier up there should have been a safe work procedure put in place and something that should have been policed and I will go over what I have said before, on the bigger type trucks that are unloading their waste there, it would have compounded the problem. On a smaller type skip truck they could have gone that way but at the time of writing the report I didn't highlight that fact.

32 The opinion of Inspector Mason at the time of completing the safety survey appeared to be that the fall hazard be addressed by a change in work procedure, rather than by the erection of a barrier. However, the Inspector maintained his view that it may be possible to design a fence which could be permanently in place whilst skip trucks of the type operated by Mr Holloway were unloading. He speculated that it might be possible to have some kind of sliding barrier which could slide back to the edge of the truck to allow unloading to occur. He agreed, however, that this would only be possible if a separate area was designated for mini-skip trucks as opposed to larger mechanical vehicles which could be unloaded without the driver leaving the cabin of the vehicle.

33 In his first expert report tendered in these proceedings, Mr Roberts stated that, in his opinion, it was not practicable to fit any safety fence along the mechanical unloading side of the pit due to the need for truck clearance. When asked about the views expressed by Inspector Byer and Inspector Mason as to the possibility of constructing some kind of fence, Mr Roberts stated: Q. You have heard the evidence in the present case, particularly that of Inspector Byer and Senior Inspector Mason? A. I have.

Q. Is there anything which you have heard which leads you to wish to qualify the opinion which you there express? A. Not really. They have both expressed an opinion that there is a possibility of some kind of fence of some make and kind being built there and being used, particularly for mini skips. I have yet to see such a thing and I would hold grave doubts as to whether it could be in fact fulfilled in any practical way.

34 During cross-examination, Mr Roberts agreed that it may be possible for a mini-skip to clear a low fence, but stated that a low fence would itself create a hazard and would not comply with the relevant regulations concerning fencing. Mr Roberts also gave evidence that it would be impracticable to reserve a separate area specifically for mini-skip trucks. Mr Robert's opinion was that the only practical way in which the risk of falling could be managed was through better supervision.

35 The defendant sought leave to tender a second report by Mr Roberts, dated 12 December 2000, after the closure of the defendant's case. The prosecutor opposed the admission of this evidence. The report concerned the practicality of allocating a separate area to cater for mini-skip trucks. It was submitted by the defendant that the question of the practicality of creating a separate area for mini-skip trucks arose without notice during the prosecution's case, specifically during the evidence of Inspector Mason. The defendant submitted that it was disadvantaged through being unable to respond to this evidence. The Court ruled that the evidence be admitted on the basis that the evidence was relevant and it was necessary to admit the evidence to avoid any possibility of a miscarriage of justice: following the approach adopted in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 at 241 - 242.

36 The opinion of Mr Roberts expressed in the second report was that it was quite impractical to adopt an arrangement whereby mini-skip trucks tipped their loads in a particular area. Mr Roberts explained that the operation of the site required that loads be placed in a rotating order to allow the compactor to function correctly. Mr Roberts stated: 8. Inspection of the site disclosed that the loads must be placed in a rotating order so as to allow the compactor to function correctly. This sequential loading occurs from the blade of each pit to the pack end and commences with pit four and progresses to pit one. The sequence is varied due to several factors. Firstly the speed of the packing in the pit varies depending on the type of materials in the loads; building waste would take longer to pack than household food waste. Secondly there is necessary stopped time when the compaction bins beneath the pits are being changed; this can vary also due to the nature of the waste material. Thirdly the frequency of the arrivals can vary the packing as the packer blade can be retracted when only part of the pit has been cleared to allow a further deposit of waste.

37 Mr Roberts stated that the restriction of a particular area to one type of vehicle, because a fence would not permit other vehicles to unload, would result in the site coming to a standstill whilst waiting for the arrival of a mini-skip truck and cause a significant unloading area to be unavailable. He indicated that such an arrangement would have a major adverse impact on the efficiency of the operation and cause significant congestion and delays.

38 There was significant discussion during submissions concerning the scope of the charge against the defendant. Mr P M Skinner of counsel, who appeared for the prosecutor, indicated that the prosecutor pressed its case as pleaded and particularised. The charge was pressed on three bases. These were the alleged failures of the defendant to provide a sufficient barrier, ensure that the floor was not slippery because of what was on it and ensure that the floor was not slippery in itself. Mr Skinner indicated that the third element, that is, the allegation that the floor was slippery in itself, was limited to an allegation that the metal plates located adjacent to the pit at the sides of the parking bay were inherently slippery. There was no allegation that the floor, aside from the metal plates, was itself slippery.

39 Mr Skinner submitted that all the elements of an offence under s16(1) of the Act had been made out. The defendant was an employer, the risk occurred at the defendant's place of work and arose from the conduct of the defendant's undertaking, namely, the operation of the waste disposal site. It was submitted that the waste disposal pit presented an inherent risk to the safety of persons disposing of rubbish. It was contended that the defendant admitted that a risk existed and that the expert called by the defendant, Mr Roberts, had conceded that an inherent risk existed. In any event, it was submitted that the risk was undeniable.

40 Mr Skinner submitted that it was not necessary for the Court to ascertain precisely how the incident that resulted in the injuries to Mr Holloway occurred. It was contended that the prosecutor need only demonstrate a causal connection between failures on the part of the defendant and the risk to safety. It was submitted that Mr Holloway slipped on the floor, which was wet and slippery, and fell into the pit as a result of the absence of any barrier or fence. It was contended that the failings identified by the prosecutor caused a risk to health and safety of persons not in the defendant's employment, such as Mr Holloway, on the day that Mr Holloway sustained his injuries. On this basis, it was submitted that the prosecutor had made out its case that an offence had been committed under s16(1) of the Act.

41 In this regard, it was submitted that the Court should accept that evidence of Mr Holloway and Mr Dunn as to the events that resulted in Mr Holloway's fall. In particular, it was contended that the Court should accept the evidence of Mr Dunn to the effect that the floor was wet at the time of the incident and that there was a greasy substance on the ground. It was submitted that Mr Dunn consistently maintained this recollection when interviewed by Inspector Byer and when cross-examined in these proceedings. Other witnesses, particularly Mr Ineson, who may have been able to give evidence concerning the state of the ground were not called by the defendant, nor was any request made for the prosecutor to make those witnesses available for cross-examination.

42 The prosecutor persisted with the allegation that there was a risk to safety on the day of the incident created by the fact that the metal plates adjacent to the pits were, in themselves, slippery. Mr Skinner submitted that the evidence supported the conclusion that, at that time, the metal plates were smooth and inherently slippery. This evidence was said to be comprised of photographs of the area taken on the day of the incident by Mr Ineson and the observations of Inspector Byer when she inspected the site. Mr Skinner conceded that the evidence did not appear to suggest that Mr Holloway was standing on the metal plates when he slipped. However, it was again submitted that the charge did not depend upon the precise circumstances which resulted in the injuries to Mr Holloway. Rather, the risk to safety was created by the fact that the metal plates were in a position where the operator of a truck may be required to be.

43 Mr Skinner submitted that this case essentially turned on whether a defence existed under s53 of the Act. In terms of the practicality of providing permanent fencing of the pits, the Court was referred to the Australian Standard AS1657-1992 entitled "Fixed Platforms, Walkways, Stairways and Ladders - Design, Construction and Installation" which requires the fencing of any side, edges, ending or openings, except where impracticable. Mr Skinner submitted that the assessment of reasonable practicability required the balancing of the quantum of the risk with the sacrifice, in terms of money, time or trouble, involved in the measures necessary to cover the risk. It was asserted that the only evidence supporting the defendant's contention that the erection of a fence was impracticable was the evidence of Mr Roberts. It was submitted that Mr Roberts was unable to give evidence as to the practice at other waste disposal sites. The prosecutor relied upon the evidence of Inspector Mason that some form of fencing was feasible and that it was possible to have a designated area for mini-skip trucks to unload.

44 A significant portion of the defendant's submissions focussed on the limited nature of the particulars to the charge in this case. Mr Buchanan conceded that there was an obvious falling hazard created by the unguarded pit. However, Mr Buchanan emphasised that the defendant was only charged with the offence specified in the prosecutor's case. Mr Buchanan submitted that read with the further and better particulars provided by the prosecutor, the charge related solely to the failure to provide sufficient barriers. This aspect of the defendant's submissions will be further discussed below. In any event, it was submitted that, on the evidence, the defendant had established a defence under s53 of the Act in relation to each of the elements of the charges pressed by the prosecutor.

45 In relation to the fencing of the pit, Mr Buchanan submitted that the evidence established that it was impracticable for the side of the pit which catered for mechanically operated vehicles to be fenced whilst vehicles were unloading. In this respect, Mr Buchanan noted that Inspector Mason completed a comprehensive survey of the site in 1995 and, notwithstanding the fact that he identified the falling hazard, made no suggestion that the pit be guarded. Nor was any suggestion made to the defendant following the incident that the area should be permanently fenced. The prosecutor relied upon the evidence of Mr Roberts to the effect that it was not practicable to fence the pit because of the need for mechanically operated vehicles to unload. Inspector Byer and Inspector Mason were only able to suggest untried and speculative systems that were said to permit the pit to be guarded whilst unloading occurred. Mr Buchanan submitted that these suggestions should be rejected.

46 Furthermore, it was submitted that it was neither the defendant's right nor responsibility to install permanent barriers at the site. Mr Buchanan referred to the agreement between the defendant and Waste Services New South Wales under which the defendant operated the site. The agreement, it was contended, provided that the defendant was responsible to maintain the facilities in good order and repair and to use a safe system, but Waste Services was responsible for the infrastructure. It was contended that the operation of the site by the defendant did not extend to the installation of fixed plant, including permanent barriers. Mr Buchanan noted that the recommendations following the 1995 safety survey were made to Waste Services and that improvement notices issued by Inspector Byer concerning fencing were also directed at Waste Services.

47 In relation to the allegation that the area was not clean and free of debris, Mr Buchanan submitted that it was abundantly clear that the area was clean and free of debris on the day of the incident. This proposition was supported by the evidence of Mr Holloway and Mr Tappenden and was conceded by Inspector Byer during cross-examination. The only evidence which suggested that there was any substance in the area was the evidence of Mr Dunn. Mr Buchanan submitted that this evidence should be rejected. It was contended that the statement of Mr Dunn that he saw a substance which was "like gravy" conflicted with the evidence of Mr Holloway and Mr Tappenden that there was merely some fluid in the area. Mr Buchanan conceded that the area was wet, but submitted that there was no suggestion that it was reasonable, or even possible, to ensure that the floor remained dry and non-slippery at all times.

48 Mr Buchanan submitted that there was no clear evidence as to the proximate cause of Mr Holloway falling into the pit. It was submitted that Mr Dunn's account was implausible and inconsistent with Mr Holloway's own recollection. Mr Dunn indicated that Mr Holloway was moving forwards towards the rear of the truck, whilst Mr Holloway stated that he had reached the rear of the vehicle and turned around before he slipped. There was also no evidence that Mr Holloway had slipped on any substance which may have been on the ground. The evidence of Mr Holloway was that he had noticed some fluid and taken care to avoid it. Furthermore, Mr Buchanan submitted that it was a reasonable hypothesis that any substance which was on the ground may have been mud, oil or hydraulic fluid from the truck itself. As a result, it was submitted that the prosecutor had failed to demonstrate any causal connection between any failing on the part of the defendant and the injuries to Mr Holloway.

49 Finally, Mr Buchanan submitted that the condition of the metal plates was not a matter that could support the charge against the defendant in this case. It was submitted that Mr Holloway and Mr Dunn gave clear evidence that the metal plates played no role in Mr Holloway slipping and falling into the pit. Mr Holloway was not standing on the metal plates when he fell. In any event, Mr Buchanan submitted that there was no direct evidence as to the condition of the metal plates on the day of the incident. It was contended that there was no basis for concluding that they were smooth or inherently slippery. Particulars and Scope of the Charge 50 Significant attention was attached in this case to the scope of the particulars accompanying the charge. The defendant submitted that the particulars in this case were essential ingredients of the charge. It was submitted that the defendant was not guilty of the charge as it was particularised in the summons, notwithstanding the fact that there may have been a risk to the health and safety of persons at the site as a result of the unguarded pits. The defendant submitted that it was not guilty of failing to provide sufficient barriers or failing to keep the area clean and free of debris so that persons could not slip and fall into the waste pit. Whether or not a hazard existed, the defendant submitted that it was not open for the prosecutor to depart from the particulars or for the defendant to be convicted upon some other basis. The defendant also submitted that, in some respects, the case brought by the prosecutor was outside the particulars. This was said to be the case to the extent to which the prosecutor alleged that the offence was made out by a failure to ensure that there were not fluid or liquid substances on the ground or in that the metal plates were inherently slippery.

51 A number of decisions of this Court have recently had occasion to consider the requirement that a summons specify the essential factual ingredients of an offence, as well as the obligation of the prosecutor to provide sufficient particulars so as to ensure that the defendant is adequately appraised of the case that the defendant will be required to meet: see WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119; WorkCover Authority of NSW (Inspector Dubois) v Concrete Constructions Group Ltd (No 1) (1999) 98 IR 362 and Concrete Constructions Group Ltd v WorkCover Authority of NSW (Inspector Dubois) (No 2) (2000) 99 IR 16. These cases concerned either an allegation that a summons should be dismissed for failing to correctly state an offence under the Act, that a summons was invalid for failing to set out the essential factual elements of the alleged offence or that the prosecutor had failed to provide adequate particulars of the offence.

52 In the present case, I do not understand it to have been submitted by the defendant that the summons failed to state an offence under the Act or failed to set out the essential factual elements of the offence. It is, as a result, unnecessary to consider the detailed arguments and exhaustive authorities considered in the cases referred to above in relation to the requirements that must be fulfilled by a summons.

53 As to the issue of particulars, it was noted that the prosecutor provided particulars of the offence in the summons. Further and better particulars were subsequently sought by the defendant, provided by the prosecutor and relied upon by the defendant in these proceedings. No issue was raised as to the adequacy of the particulars following the provision of the further and better particulars. The question raised by the defendant was whether the case ultimately brought by the prosecutor went beyond the bounds of the particulars provided and, if so, whether the prosecutor was entitled to frame the case in that manner.

54 It is evident that particulars are not to be treated as if they were pleaded as part of an indictment: see Fernz at 134 and WorkCover Authority of NSW v Concrete Constructions Group Ltd (No 1) at 374. Reference was made in those cases to observations of Hunt A-JA in R v Saffron (1989) 17 NSWLR 395. In that case, his Honour stated that the principles relating to particulars in criminal cases were the same as the principles applicable in civil cases. His Honour observed that, in civil proceedings, particulars cannot circumscribe or modify the cause of action. As such, a party may lead evidence that is outside the particulars. The trial judge may, however, hold the prosecutor to the particulars if departing from the particulars would cause unfairness to the defendant because the case brought was one in which the defendant had insufficient warning: at 447. His Honour continued (at 448): If the Crown's obligation to give particulars in a criminal case is the same as a plaintiff's obligation to do so in a civil case, so should the consequences of having given those particulars be the same in each type of case - subject only to the trial judge's duty in each case to ensure that prejudice is not created by any departure from those particulars.

There is no logical reason why the Crown should not be entitled in the appropriate case to lead evidence which is within the charge pleaded in the indictment but outside its particulars, in accordance with the principles discussed by the High Court in Dare v Pulham . It would in every case be advisable that the particulars should be amended, but the absence of an amendment is not fatal. Of course, such departures by the Crown from its particulars should not be encouraged, and it will be more difficult for the Crown in a criminal case to persuade the trial judge that the accused has not been prejudiced by its departure from its particulars than it is for the plaintiff in a civil case in relation to his opponent. Indeed, normally the Crown would not be permitted to go outside its particulars for that reason. But the principle is the same, however different its application may be in the particular case.

55 Another case referred to in Fernz and the Concrete Constructions cases was the decision of the Court of Criminal Appeal in Environmental Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481. In that case, Gleeson CJ (with whom Ireland and Bruce JJ agreed) stated (at 484): Although the decision of Talbot J was discretionary, the basis upon which he exercised his discretion emerges clearly from the stated case, and the documents attached to it, and was not in dispute in argument. It was that his Honour took the view, as a matter of principle, that when, in a criminal proceeding, the prosecution fails in its case in chief to establish a particular of the offence charged, then it should not be permitted to seek to rely on material which later emerges in support of that particular.

This view, with respect, is heterodox. It involves a misunderstanding of the nature and function of particulars.

In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.

It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons ( Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16).

There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused to permit the Crown to depart from its particulars. Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal ( VHP (unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997)).

56 I take it from these authorities that the failure to establish a particular to a charge is not fatal for the prosecutor's case. The prosecutor must make out the essential elements of the offence. Mr Buchanan did not submit, nor could he properly have done, that the prosecutor was required to make out each particular or choose between particulars. I also take it from the authorities set out that the prosecutor may bring evidence or rely on evidence that emerges as part of the defendant's case, notwithstanding the fact that the evidence is outside the scope of the particulars provided by the prosecutor. It will be necessary for the trial judge to assess whether the prosecutor should be held to their particulars because it would be unfair or oppressive to the defendant to permit the prosecutor to depart from the particulars. In criminal proceedings, particular attention should properly be given to whether a defendant will suffer any prejudice as a result of the departure from the particulars provided by the prosecutor. In the present case, I note that no application was made by the defendant for an adjournment to remedy any unfairness that may have been occasioned by the conduct of the case by the prosecutor. I am satisfied that no unfairness was caused to the defendant as a result of the manner in which the case was brought.

57 I am also satisfied that the case brought by the prosecutor was within the scope of the particulars provided in the summons. As has been discussed, the prosecutor's case was advanced on three bases: that the defendant failed to provide a sufficient barrier; that the defendant failed to ensure that the floor was not slippery because of what was on it; and, that the defendant failed to ensure that the floor was not slippery in itself (in relation to the metal plates). I consider that those allegations are within the scope of the particulars given in the summons. The absence of barriers was expressly referred to in particular (c) in the summons and no issue was raised as to whether that allegation was within the particulars. Further, in my view, the allegation concerning the condition of the metal plates was within particular (d). However, as a result of the findings that will be made later, this allegation is not crucial to the resolution of the case.

58 In relation to the allegation that the area beside the pit was slippery as a result of the presence of fluids or liquids on the ground, the defendant contended that the only allegation contained in the particulars provided, in this respect, in the summons was that the area was not clean and free of debris. It was submitted that this particular did not encompass an allegation that the defendant had failed to ensure that the floor was dry and non-slippery. I do not consider that the particular was limited in the manner claimed by the defendant. It was evident the spillage of liquid substances was a regular event at the site and that the dangers posed by the spillage of liquid, as well as solid material, were contemplated in the investigation. Furthermore, the full particular (particular (e)) referred to a failure to ensure that the floor was "clean and free of debris" to ensure that persons "could not slip whilst walking adjacent to the pit and fall into the waste pit". In my view, as a matter of logic, this particular encompassed an allegation that the defendant failed to ensure that the area was clean and free of debris in that there was present a substance (solid or liquid) that could cause a person to slip and fall. Whilst the word debris might generally be considered to refer to fragments of solid objects, the particular also referred to the ground being clean which, in my view, incorporates reference to liquid substances.

59 I would observe that particular (d) has potentially a wider operation in that it referred to the failure of the defendant to ensure that persons could not fall into the pit. However, the prosecutor pressed its case only on the bases I have identified. In this regard, I note the approach adopted by Hungerford J in WorkCover Authority of NSW (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of NSW) (No 2) (2001) 104 IR 268. In that case, his Honour considered a submission by the defendant that charges be dismissed because there was no case to answer. His Honour indicated that, in considering the potential liability of the defendant, it was necessary for attention to be directed to the precise terms of the charges brought. His Honour continued (at 293): 27 It is necessary, then, to consider each of the charges in turn - initially as to whether there was any evidence that the defendant had failed in terms of the particulars as alleged in the charges and, if so, whether there was a causal relationship or nexus between that failure and the consequent risk to the safety of the two officers; that is, and as the Vice-President ( Walton J) observed in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at p 253, "the alleged failure must cause the detriment to the safety (the risk) of the person concerned": see also WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at p 377 per Hill J and WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 in [37] per Boland J.

60 In conformity with this approach, I will proceed to consider the charge as particularised in the summons and as further confined by the prosecutor during the hearing of the case. Offence under Section 16(1) of the Act 61 It is possible to resolve the question of the existence of an offence under s16(1) of the Act relatively shortly. The starting point for consideration must be to observe that the waste disposal pit presented a clear and inherent risk to the safety of persons disposing of rubbish on the side of the pit reserved for mechanically operated vehicles due to the lack of a barrier together with the fact that the area adjacent to the pits was often wet and there was potential for the spillage of solid or liquid waste during the tipping process. During cross-examination, Mr Roberts, the expert called by the defence, gave evidence as follows: Q. You say greater risk. Do you accept that there is a risk inherent? A. Definitely.

Q. To persons approaching the edge of the pit? A. Definitely.

62 The risks to the safety of persons disposing of rubbish occasioned by the lack of a barrier on the pits and the condition of the ground next to the pit was readily foreseeable and the defendant was, in fact, on notice as to the risk involved. The safety survey completed by Inspector Mason in August 1995 clearly identified the fall risk as a hazard.

63 It is appropriate to consider each element of the case advanced by the prosecution. Firstly, it is convenient to consider the allegation that the defendant failed to provide adequate barriers so as to ensure that persons did not fall into the pits. There can, in my view, be no dispute that a risk to the health, safety and welfare of persons unloading vehicles on the side of the pit catering for mechanically operated vehicles was created as a result of the absence of any barrier on that side of the pits. Whilst some argument was raised by the defendant as to how Mr Holloway might have come to have slipped and fell, it was evident that the drivers or occupants of some types of vehicles would be required to be in the vicinity of the rear of their vehicles when unloading. It was undisputed that Mr Holloway was at that location at some stage before he fell. In the absence of any effective barrier or fence, the serious danger of a person falling into the pit for some reason was clear and was demonstrated by the injuries received by Mr Holloway. Subject to the defence raised by the defendant under s53 of the Act, I understand the defendant to have generally conceded that the failure have a barrier in place created an offence under s16(1) of the Act, save for one matter to which I will now turn.

64 It should be noted that the defendant raised one contention which could be construed as contesting the existence of an offence under s16(1) of the Act in relation to the failure to provide effective barriers. Essentially, the defendant contended that Waste Services New South Wales owned the site and was responsible for providing and improving the permanent infrastructure on the site. Whilst the defendant had some obligations in relation to the maintenance of the facilities and capital equipment, it was contended that it did not have the right or responsibility to install permanent barriers beside the pits. This was said to be the responsibility of Waste Services.

65 I do not regard this submission as enabling the defendant to resist the charge. Not infrequently, a number of employers, contractors or individuals may be involved in working at a particular site. All these parties may have responsibilities in relation to the maintenance, cleaning, design or construction of equipment or structures in use on the site. Risks of injury may arise as a result of failings by a number of parties involved in an operation or of the difficulty in co-ordinating between the different operators: see, for example, WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (1999) 95 IR 383 and Inspector Mansell v Anytime Industrial Services Pty Ltd [2001] NSWIRComm 237. However, where an operator continues to operate in circumstances that present an obvious and known risk to persons working at the site and which constitutes an offence under the Act, the culpability of the operator will not be removed by the fact that other persons may also have responsibilities in relation to the safety of the site generally, or related responsibilities as to a particular operation at that workplace. Such a matter may be relevant to the determination of sentence or, perhaps, to a defence under s53 of the Act. It does not, however, remove the existence of an offence.

66 In any event, in the present case, I am not satisfied that the defendant did not have any control over the infrastructure of the site. The defendant was responsible for the operation of the site and for instituting safe work procedures. The defendant, together with Waste Services, quite properly participated in efforts to address safety concerns at the site. For example, following the safety survey conducted by Inspector Mason, discussions were held between the defendant and Waste Services in relation to addressing concerns which had been raised. Whilst Waste Services made many of the alterations, other changes were made by the defendant. In addition, the defendant installed the swinging barriers following the accident. It is not the case that the defendant had no power to effect changes. It could do so by initiating discussions with Waste Services or by implementing alterations itself.

67 I turn now to consider whether the offence is also made out by the failure of the defendant to ensure that the ground adjacent to the pit was not slippery as a result of what was on it. In relation to this allegation, the defendant submitted that the prosecutor had failed to establish a causal connection between any substance on the floor and Mr Holloway's fall. The defendant contended that there were difficulties in determining precisely the course of events which resulted in Mr Holloway slipping and falling into the pit. The defendant submitted that there were disparities between the evidence of Mr Holloway and Mr Dunn in relation to how the accident occurred. It was contended that the most likely scenario was that Mr Holloway slipped on fluid which had leaked from his own truck whilst applying backward pressure to the lever which releases the bin. As a result, it was said that there was no causal connection between a failing on the part of the defendant and the injuries sustained by Mr Holloway. I consider that this submission focuses unduly on the precise circumstances leading to Mr Holloway suffering injury, that is, the accident itself, rather than the relevant risk to safety.

68 It is now axiomatic that the general duties created by the Act are directed at obviating risks to the safety of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'Ng) (1999) 90 IR 432 at 452 - 454 and WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 253 - 254. Frequently a prosecution will be commenced following, and by reference to, an accident which results in injuries being sustained by an employee or other person. The occurrence of that accident may provide an indication of the existence of a risk to the health and safety of persons in the workplace and the gravity of that risk. However, the duty imposed by s16(1) of the Act is broader than simply imposing a liability in relation to a particular accident. The relevant failure of the employer under s16(1) of the Act is to ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

69 Having reviewed the evidence, I am satisfied that there was some kind of fluid or substance present on the ground in the area adjacent to the pits at the rear the vehicle being operated by Mr Holloway. Both Mr Holloway and Mr Tappenden gave evidence that there was "fluid" on the ground in the area surrounding the metal plate. The evidence given by Mr Dunn, both in his statement to Inspector Byer and in oral evidence in these proceedings, was more specific. He stated that there was a substance which was "like gravy" and was "very slippery". I do not consider that there is a direct conflict in this evidence. The evidence of these three witness was that there was some kind of fluid or substance on the ground. There was other evidence that trucks depositing waste frequently leaked liquid around the pits. I am satisfied that the presence of any fluid presented a clear danger of slipping and falling to persons working around the pit, such as Mr Holloway. I am also satisfied that the risk occasioned resulted from the failure of the defendant to ensure that the area was clean and free of debris. Having regard to the fact that the Act is directed at obviating risks to safety rather than the occurrence of a particular accident, I do not consider it is necessary to determine whether Mr Holloway slipped on the fluid or substance present on the ground.

70 Finally, it is necessary to address the third allegation raised by the prosecutor, that is, that the defendant failed to ensure that the floor was not slippery in itself. As discussed earlier in the judgment, the prosecutor pressed this allegation only in respect of the metal plates located at the rear of the parking bays adjacent to the pits and there was no allegation that the floor, aside from the metal plates, was inherently slippery. This narrowing of the prosecutor's case creates a difficulty when the evidence as to the accident is considered. The defendant emphasised that there was no evidence that the metal plates played any role in Mr Holloway slipping and falling into the pit. In fact, the direct evidence of both Mr Holloway himself and Mr Dunn was that he did not slip on the metal plates, but whilst standing on the surrounding ground. On the basis of this evidence, I am satisfied that Mr Holloway was not standing on the metal plates when he slipped and fell.

71 For the reasons discussed above, this does not necessarily remove the possibility that the metal plates themselves, if smooth and inherently slippery, presented a risk to Mr Holloway and others. However, the fact that the metal plates played no role in the accident does lead to the question of whether there was sufficient evidence to establish the condition of the metal plates at the time of the incident. Mr Holloway and Mr Dunn gave no evidence in this regard, and perhaps could not have done. Neither did Mr Tappenden or Mr Ineson. By the time Inspector Byer observed the plates during her inspection on 19 February 1998, additional metal tread had been placed on the metal plates. Whilst this does indicate that the defendant thought it appropriate to make improvements to the tread on the metal plates, the defendant was correct to point out that it does not itself establish their condition on the day of the accident.

72 The only evidence which could bear upon the condition of the metal plates at that time were photographs taken by Mr Ineson on the day of the incident. These photographs were included in the agreed brief of evidence tendered in the proceedings. I observe that, in the photographs, the metal plates appear to be greasy and wet and look slippery. However, I do not consider that the photos, of themselves, constitute sufficient evidence to establish beyond reasonable doubt that the metal plates were inherently slippery and presented a danger for this reason alone. It may be that the plates were slippery because of fluid or spillage which were on them, but that is a different question to the one posed by the prosecution. As a result, I find that the allegation that the defendant was guilty of an offence because the metal plates adjacent to the pits were, in themselves, slippery has not been made out on the evidence.

73 There is one further matter raised in relation to the culpability of the defendant which should be addressed. The defendant made a number of allegations concerning the conduct by the prosecutor of the investigation of this matter. Essentially, it was alleged that the prosecutor pursued lines of investigation against the defendant, notwithstanding the lack of objective support in the evidence, whilst failing to investigate the potential liability of other parties. The defendant alleged that the prosecutor was characterised by an over-zealousness and lack of objectivity and an absence of the neutrality that should properly govern the conduct of the prosecution. This submission may be dealt with shortly. Unless it is sought to have the proceedings dismissed for abuse of process, to have evidence excluded on the ground that it was improperly or illegally obtained or the weight given to the evidence reduced because of how it was obtained, it is difficult to envisage how allegations concerning the conduct of an investigation could properly affect the determination as to the guilt of the defendant. The obligation of the Court is to consider the evidence which is properly admissible in the proceedings before it and determine whether the essential elements of the offence are established beyond reasonable doubt. The authorities cited by Mr Buchanan in this respect established no more than that the prosecutor bears the onus of proof to establish its case beyond reasonable doubt.

74 It follows from the foregoing discussion, that the defendant failed to ensure that persons not in its employment, particularly Mr Holloway, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work as particularised in the first two elements identified by the prosecutor, namely, the failure to provide effective barriers and the failure to ensure that the area surrounding the pits was clean and free of debris so that a person could not slip and fall. The defendant is thereby guilty of an offence under s16(1) of the Act in relation to the charge brought in these proceedings, unless it is able to make out a defence under s53 of the Act.

Defence under Section 53 of the Act 75 Having determined that the elements of the offence have been established, it is necessary to consider whether the defendant has made out a defence under s53 of the Act. Section 53 of the Act provides: 53. Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

76 To establish a defence under s53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: see Drake Personnel at 457; Kennedy Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 57 at 82 and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at 102.

77 In this case, the defendant purported to rely on both arms available under s53 of the Act. In relation to the allegation of failing to provide appropriate barriers, it was submitted both that the defendant did not have control over the erection of fencing or barriers within the meaning of s53(b) of the Act and that, in any event, the erection of a permanent barrier was not reasonably practicable within the meaning of s53(a) of the Act. In relation to the allegation of failing to ensure that the area was clean and free of debris, the defendant submitted that it was not reasonably practicable for the area to be kept completely clean at all times. In this regard, there was no contention that the cleaning of the area was outside the control of the defendant and, as a result, s53(b) of the Act does not arise for consideration in that context.

78 It is possible to initially dispose of any argument raised in relation to s53(b) of the Act. The submission that the defendant had no control of the erection of permanent fencing or barriers on the pits was founded on the allegedly limited responsibilities of the defendant at the site. It was contended that Waste Services New South Wales owned the site and was responsible for providing and improving permanent infrastructure. It is not necessary to greatly expand upon what was said earlier in the judgment in relation to this submission. Although the responsibilities for the provision and maintenance of plant and equipment at the site were shared with Waste Services, for the reasons discussed earlier, the defendant did have some control over the provision of infrastructure. The agreement with Waste Services imposed broad obligations on the defendant, including the care and maintenance of all equipment. Furthermore, the evidence revealed that the defendant did properly participate in addressing safety concerns that arose at the site both prior to and following the accident. Although Waste Services made many of the alterations to the infrastructure, the defendant did have some control over bringing matters to the attention of Waste Services and did make some alterations itself. As a result, I am not satisfied to the requisite standard that the defendant has established a defence under s53(b) of the Act.

79 The remaining question then is whether the defendant has established a defence under s53(a) of the Act. That is, whether it has been established that it was not reasonably practicable for the defendant to comply with the provision of the Act which constituted the offence. In view of the broad duties imposed by the Act and the crucial position of the defences provided by s53 of the Act, there is surprisingly little authoritative discussion of the application of s53(a) in decisions of this Court or its predecessors.

80 The first observation which may be made in relation to this defence is that s53(a) of the Act provides for an objective test as to whether it was reasonably practicable for the defendant to have complied with the Act: see Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 362. An objective determination must be made as to what measures were reasonably practicable in the circumstances of the case. This determination is not restricted to the state of knowledge of the defendant or to the measures, if any, which the defendant had contemplated.

81 As to the meaning of the phrase "reasonably practicable", a number of decisions of this Court (see, for example, Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470 and WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Ltd at 260) have referred to the judgment of Asquith LJ in Edwards v National Coal Board [1949] 1 KB 704 at 712, where his Lordship said: The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s49. The construction placed by Lord Atkin on the words "reasonably practicable" in Coltness Iron Co. v. Sharpe [1938] AC 90 at 94 seems to me, with respect, right. "Reasonably practicable" is a narrower term than "physically possible" and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed on the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them.

82 It might be added that the judgment of Asquith LJ has also been followed in subsequent decisions of the English Courts. In Austin Rover Ltd v Inspector of Factories [1990] 1 AC 619, for example, Lord Goff of Chieveley referred to Edwards v National Coal Board as well as the subsequent decision in Marshall v Gotham Co Ltd [1954] AC 360. His Lordship stated (at 625): I turn next to the second expression in section 4(2) of the Act of 1974 which I have segregated - "so far as is reasonably practicable." These words have received authoritative interpretation in previous cases. It is now established that, in cases concerned with a statutory duty which is qualified by those words, the risk of accident has to be weighed against the measures necessary to eliminate the risk, including the cost involved. If, for example, the defendant established that the risk is small, but that the measures necessary to eliminate it are great, he may be held to be exonerated from taking steps to eliminate the risk of the ground that it was not reasonably practicable for him to do so.

83 When assessing the reasonable practicability of taking measures to address a known risk, what is required is a balancing of the magnitude and gravity of the risk with the expense and difficulty of available measures. As was said in WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd (at 260), "the greater the magnitude of the risk and the greater the gravity of the harm, should the event occur, the higher is the duty to take precautions, even if these are expensive or difficult to adopt."

84 The High Court has recently considered the meaning of the words "reasonably practicable" in Slivak v Lurgi (Aust) Pty Ltd (2001) 75 ALJR 481. That case concerned the liability of a designer under s24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA). The duty imposed by that provision was that the designer of any structure to be erected in the course of any work must ensure, so far as is reasonably practicable, that the structure is designed so that persons who are required to erect it are safe from injury and risks to health. It will be observed that the offence under s16(1) of the Act differs from that under consideration in Slivak in that the duty under s16(1) is not restricted to taking steps which are reasonably practicable. The question of whether it was reasonably practicable to take steps to address a risk to health and safety arises only where a defence is raised under s53 of the Act. Whilst the difference between the statutes shifts the onus of establishing whether measures were reasonably practicable and expands the scope of the charge to be made out by the prosecution (see Fernz at 133), there does not appear to be any reason why the meaning of the words themselves should not be treated as the same.

85 In Slivak, the majority (Gleeson CJ, Gummow and Hayne JJ) indicated that the requirements to protect against risks, so far as is reasonably practicable, referred to matters which were within the control of the designer. Their Honours said (at 490): … the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.

86 Gaudron J, who dissented as to the result, undertook a more detailed discussion of the meaning of the words "reasonably practicable". Her Honour observed that the statutory duty to ensure that a structure does not present risks to health and safety, so far as reasonably practicable, differed from the common law duty in at least two respects. Firstly, the statutory duty was not limited to simply preventing foreseeable risks of injury to workers. The duty is to protect against all risks, if that is reasonably practicable. Secondly, the statutory duty requires that the designer not only takes reasonable care, but that the designer incorporates safety features in the design if those features were reasonably practicable. Her Honour continued (at 492): The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases: · the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible"; · what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time; · to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

87 It is evident from these authorities that what is required by s53(a) of the Act is a balancing of the nature, likelihood and gravity of the risk to safety occasioning the offence with the costs, difficulty and trouble necessary to avert the risk. At one end of the scale, it could not be reasonably practicable to take precautions against a danger which could not have been know to be in existence: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd at 362. Similarly, if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event: see WorkCover Authority of NSW (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of NSW v Kellogg (Aust) Pty Ltd at 259 and Austin Rover Ltd v Inspector of Factories at 627 per Lord Goff and at 635 - 636 per Lord Jauncey of Tullichettle.

88 At the other end of the scale, there will be cases, such as the present, in which known or obvious risks to safety exist. In these circumstances, the defendant will not have established a defence under s53(a) of the Act where it was reasonably practicable to have complied with the Act by ensuring that persons were not exposed to those risks. This may be the case because no measures were reasonably available or because measures which were available were not reasonably practicable. As has been discussed, the assessment of the reasonable practicability of those steps requires a balancing of the quantum of the risk with the sacrifice (in money, time and trouble) in adopting the measures necessary to avert the risk. In my view, where there is a known risk which entails the potential for serious injury to persons in the workplace, the defendant will generally have to demonstrate that the costs, difficulty or trouble occasioned by the measures significantly outweigh the risk. This must be done by reference to the charge as brought by the prosecutor.

89 With these principles in mind, I will examine the defences raised by the defendant. Firstly, it is necessary to note that the foreseeability of the risk is not a consideration in this case. The risk occasioned by the presence of the unguarded pit presented an obvious danger to persons required to unload rubbish. This risk had, in fact, been identified by the defendant and documented in the safety survey conducted by Inspector Mason in August 1995. I now turn to the first submission advanced by the defendant that was said to establish a defence, namely, that it was not reasonably practicable to install barriers or fencing on the side of the pits that catered for mechanically unloading vehicles. I consider that the defendant has made out a defence, in this respect, under s53 of the Act.

90 On the evidence before the Court, I do not consider that the erection of a barrier or fence for mechanically unloading operations was reasonably practicable. The evidence of Inspector Byer and Inspector Mason suggested no more than a speculative possibility that some form of barrier may be installed. Inspector Byer indicated that she believed it to be practicable to guard the pit during tipping, but conceded that barriers of the type in place on the side of the pit catering for domestic waste would not be workable. The Inspector merely stated that it might be possible to adapt the barrier in some way. This suggestion was made for the first time in response to cross-examination. Inspector Mason agreed that it would be impracticable to erect a barrier where trucks unload on an entirely mechanical basis, that is, in circumstances where the driver remained in the cabin of the vehicle. However, the Inspector stated that it might be possible to put some kind of fence up in the case of smaller type trucks where the driver was required to get out of the vehicle. During cross-examination, the Inspector indicated that it might be possible to install some form of sliding barrier that would slide back to the side of the truck depositing waste.

91 It is notable that, when completing the safety survey in August 1995, Inspector Mason identified the fall risk, but did not recommend that any barrier or fencing be installed. Inspector Mason gave evidence that he formed the view that the risk should be managed by means of the adoption and policing of a safe work procedure. Whilst this fact is not conclusive as to whether the erection of a barrier was reasonably practicable, it represents further evidence supporting the view of Mr Roberts that it was not reasonably practicable to construct a safe and appropriate barrier to be in place whilst mechanically operated vehicles were unloading.

92 I consider that the evidence of Mr Roberts was convincing. Mr Roberts agreed that it might be possible to have some form of low fence in place whilst mini-skip trucks were unloading. However, Mr Roberts persuasively asserted that a low fence of this nature would itself create a trip hazard which was, on one view, even more serious than the unguarded pit. In this regard, it is significant that such a fence would not have adhered to the Australian Standard. It required that the top rail of fencing be not less than 900mm above the standing level. The suggestion that some form of sliding barrier might be possible was no more than speculative. In light of the evidence of Mr Roberts that in his long experience he had never seen such a device, I consider that the possibility of a sliding barrier, on the evidence in this matter, does not defeat the defence under s53 of the Act.

93 It is also evident that the erection of a barrier designed specifically for mini-skips or similar vehicles would be possible only if a separate area of the pit was reserved for those vehicles to unload. In this regard, I accept the evidence of Mr Roberts that such an arrangement would be impracticable at the site. The operation of the waste disposal site required that the pits be filled on a regular basis. The arrival of vehicles of a particular type was not something that could be predicted in advance, much less guaranteed. As such, the reservation of a particular area for the deposit of waste from mini-skip trucks has the potential to greatly disrupt the operation of the site. Although the risk of falling is a significant one, and the likely consequences serious, on balance, I do not consider, on the evidence, that the reservation of a particular area for use by mini-skip trucks was reasonably practicable when weighed against that risk, particularly in the absence of some appropriate method of redressing the dangers.

94 Finally, it should be noted that the swing barriers installed following the accident played no role in addressing the risk to the health and safety of persons at the site which was identified in these proceedings. The clear evidence of Inspector Byer and Inspector Mason, as well as Mr Roberts, was that the swing barriers were swung back out of the way. As such, the barriers would not be in place when a truck was actually unloading. They did not address the risk to persons whilst they are unloading their vehicles at the site.

95 I now turn to the question of whether it was reasonably practicable for the area beside the pit to be kept free of any substance or fluid that might cause persons to slip and fall into the pit. I observe initially that there was a lamentable lack of evidence in relation to the presence of fluids or substances in the area, the risks of slipping presented by those substances and the measures which may have been adopted to remove any risk. As has been discussed, I consider that the evidence established that there was some fluid or liquid on the ground adjacent to the pits on the day of the incident. Mr Holloway, Mr Dunn and Mr Tappenden gave evidence to that effect. However, there was no suggestion that, on the day of the incident, there was solid waste present in the area.

96 The evidence suggested that the area was nearly always wet and there were frequent spills of solid or liquid waste from vehicles tipping their loads into the pit. As to liquid or fluid spills, the then Assistant Manager of the site, Mr Tappenden, explained that if a truck had liquids on board, the fluid would run everywhere when they unloaded. For example, large trucks were received carrying waste from the fruit markets and fruit juice was frequently spilled on the ground. If it were raining on a particular day, trucks would come in dripping with water causing the area to be wet. There was also some suggestion that the area was wet as a result of a dust suppression system which was employed to limit dust levels by regularly spraying water in the pits.

97 There was evidence that the defendant had in place systems to regularly clean the area between vehicles unloading. Mr Tappenden stated that the depot hands were responsible for sweeping and shovelling up all rubbish after every truck had deposited its load. The area would also be hosed and washed down at the close of each day's work. Other officers of the defendant, including Mr Ineson and Mr Lasek, made similar statements to Inspector Byer. Mr Lasek stated, when interviewed by Inspector Byer, that any spillages outside the pit would be removed and placed in the pit and the area would be swept. Mr Lasek indicated that any liquid spillages would have adsorbent material applied to them and these would be collected and placed in the pit. Mr Street and Mr Dunn, who had both regularly used the site in the past, agreed that the staff regularly swept and shovelled any spillages.

98 In this case, there was a total absence of an affirmative case by the prosecutor (in relation to the defence brought by the defendant) to demonstrate that some other measures were available and reasonably practicable for the defendant to adopt. Indeed, Inspector Byer conceded during cross-examination that she had formed the view that it was impracticable for the floors to be kept dry and non-slippery. Although the defendant bears the onus to establish a defence under s53 of the Act, once the defendant has raised a case, the absence of any other evidence must strongly favour the defence being made out. Having considered the evidence as to the nature of the substances which were regularly brought into the area, the inevitability of spillages and the measures which were in place to clean the area adjacent to the pit, I am satisfied, on the evidence in these proceedings, that it was not reasonably practicable for the defendant to ensure that the area was always clean and free of debris so as to ensure that a person could not slip and fall.

99 As a result of the foregoing discussion, having regard to the way in which the offence was particularised and the manner in which the case was brought, I do not consider that it was reasonably practicable for the defendant to address the failings identified in the prosecutor's case. The prosecutor's case was limited to allegations that the defendant failed to provide an effective barrier and failed to ensure that the area was clean and free of debris. On the evidence before the Court, I am satisfied that the defendant has discharged its onus of proving that it was not reasonably practicable either to erect an effective barrier on the side of the pit catering for mechanically unloading vehicles or to ensure that the area beside the pit was always clean and free of debris so as to ensure that a person could not slip and fall. As a result, the defendant has established a defence under s53 of the Act and the summons must be dismissed.

100 I would observe that there was undoubtedly a serious risk to safety occasioned by the unguarded pit when combined with the presence of substances or fluids on the ground. Mr Buchanan properly conceded that such a risk existed. The gravity of the risk was demonstrated in this case by the injuries sustained by Mr Holloway. However, it was necessary that this risk be addressed by eliminating failings other than those specified in the prosecutor's case. It was necessary that the risks be addressed by some other means. Whilst it is not the position of the Court to specify what measures were required, it is possible that there were failings in effective supervision, adequate warnings or in the condition of the ground (even aside from the metal plates) that gave rise to the risk. These were not matters that were alleged as part of the prosecution. Orders 101 I make the following orders: 1. The summons in Matter No IRC 7048 of 1999 is dismissed.

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