WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited

1 38 It is a simple but important point that a s53 defence does not arise for consideration in proceedings unless and until the prosecutor establishes to the requisite standard that an offence as charged has been made out: see ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997 at 7). See also Bultitude v Grice (at [77]) where it was stated: The burden of proving the offence beyond reasonable doubt remains with the prosecution, but where provision is made for an exclusion or defence to such liability the defendant bears the burden, in an evidentiary sense, to adduce evidence capable of showing it is entitled to the benefit thereof. 39 Section 53 provides two bases for a defence: where it is established that it was not 'reasonably practicable' for the respondent to comply with its obligations under the statute (s53(a)) and where the offence was a matter over which the respondent had no control (s53(b)): see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 458 and State Rail v Dawson at 126. 40 I accept that the Act obliges corporations to engage appropriately qualified persons to ensure that "safety is pursued in an active and ongoing way" and that in meeting its obligations under the Act on a practical level, a corporation may undertake a number of different steps, one of which is the appointment of supervisors with the necessary skills, training and experience to ensure that work is carried out safely. 41 However, it was not, in my view, open to the corporate respondent in these proceedings to entirely delegate its obligations under the Act to a supervisor or manager, regardless of how well qualified he or she may be. The corporate respondent could not simply appoint a manager, instruct him to develop safe systems of work (including work methods and systems for training, supervision and the like) and then, having done so, turn its back on matters of occupational health and safety, taking no further steps to ensure that these systems of work, training and otherwise, had been adequately established and were being complied with. I shall return to this consideration later in this judgment. 42 To adopt what was stated by the Court in WorkCover Authority v Kellogg (No.1) (at 258), these are matters to which a 'managerial mind' should be directed. Whilst the content of such policies and procedures may well be the subject of appropriate advice, ensuring that such steps are taken is a matter for the employer; it is the employer, be it a natural person or corporation, upon whom the Act places the obligation to ensure a safe workplace. 43 Further, the Full Bench in Ridge Consolidated Pty Ltd v Mauger [2002] NSWIRComm 108 (at [32] - [33]), by reference to WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] NSWIRComm 25, recently emphasised the extent of the duty cast upon an employer "in the strongest possible language" by the Occupational Health and Safety Act. The relevant passage from Schrader, adopted by the Full Bench was in the following terms: [56] In short, the duty is to be proactive. This duty was, in my view, correctly and forcefully stated by Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (unreported, CT94/1037, 13 April 1995 at p18) (approved recently by Full Benches of this Court in Profab at [37] and Riley v Australian Grader Hire (2000) 103 IR 143 at [15]): ... the Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry.

[57] Equally forceful observations have been made, an example of which includes the judgment of Watson J in Carrington Slipways Pty Limited v Callaghan (1985) 11 IR 467, in which his Honour held (at 470): In their context and purpose, there would appear to be no reason to make any implication that the words "to ensure" are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain. [58] It is pertinent to observe also the comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace.

[59] I would also concur with the observations of Wright J, President, in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 where, in the context of a s15 prosecution, his Honour observed that the Act imposed (at 209): ... an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation. 44 Whilst made in the context of proceedings brought under s19 of the Occupational Health and Safety Act, it is relevant to refer to the observations of the Full Court of Fisher P, Glynn and Hill JJ in WorkCover Authority of New South Wales (Insp. Gordon) v Wallis (unreported, Matter No. CT 1011 of 1995, 14 August 1995) (at 9): The appropriate sections under which to bring charges for failing to provide and maintain a safe system of work and/or conduct an undertaking so as to "ensure" that employees, and other persons at the place of work of the employer are not exposed to risks, are ss 15 and 16 respectively. Such charges must be against the employer concerned. Additionally, under s 50, if an employer corporation contravenes any provision of the statute then each director of the corporation and each person concerned in the management thereof is, subject to the provisions of that section, deemed to have committed the same contravention. But, under the Act, there is no duty cast upon an "employee" while at work, to ensure the health and safety of persons at his place of work by, for example, providing and maintaining plant and systems of work that are safe and without risks to health. (emphasis in original). 45 Their Honours continued (at 11): In our view the fact that an act or omission of an employee while at work occurs in or in relation to the employer's system of work (or lack of one) or conduct of the undertaking does not of itself exculpate the employee from the duty under s 19(a) to take reasonable care not to do or fail to do any act which may affect the health and safety of any person who is at his place of work. … But, irrespective of the duty to co-operate with the employer and/or of the safety or otherwise of the plant and/or system of work operated by an employer, an employee must nevertheless take reasonable care that his own acts or omissions at work do not affect the health and safety of other persons. Sections 15 and 16 and s 19 are complementary and not mutually exclusive. An exemplary case would be where the employer has in fact instituted a safe system of work and has put in place proper rules and procedures governing its operation and has employed apparently competent and experienced supervisors to police the implementation and application of those rules and procedures. If, in those circumstances, one of the supervisory employees failed to take reasonable care in performing those duties and, by a careless act or omission in relation thereto, endangered the health and safety of other persons at work, then the employee/supervisor may, in our view, be liable under s 19(a). On the other hand a supervisory employee would not, in general and without more, be so liable if the act or omission complained of was, in truth and substance, a failure to provide and maintain a safe system of work or otherwise "ensure" the health and safety of employees under s 15; and a similar position would obtain in respect of what was, in substance, a failure under s 16 to ensure that persons not in employment were not exposed to risks while at an employer's place of work. The acts or omissions in such cases would be those of the employer concerned . (emphasis added). 46 Cases such as the present also demonstrate the necessity for the Court to pay particular attention to the charge that has been brought against a defendant. In these proceedings, the charges against the respondent alleged "a failure to provide a safe system of work for the pouring of concrete into a formed up column", particularised as involving a failure to provide a system of work to prevent the potential for fall injury from an elevated platform, the provision of appropriate plant and equipment to prevent such fall injury and necessary instruction regarding a safe system of work to employees engaged in the pouring of concrete on the day of the accident. The alleged failures are limited to the day on which the accident occurred. 47 The Chief Industrial Magistrate considered that, subject to the s53 defence, an offence had been made out. This was not the subject of appeal, and I consider that such a finding was correct in the circumstances of the present case when considered in the light of the charges levelled against the respondent. Indeed, Mr B D Hodgkinson of senior counsel, who appeared with Ms L A Clegg of counsel for the respondent in these proceedings, conceded as much in his submissions. It is then strictly unnecessary to provide any further consideration as to the commission of the offences. However, it is important to further analyse the culpability of the respondent, as these findings are essential to the consideration of the s53 defence and illustrate the way in which the defence under s53 should have been considered in this matter. I shall return to this point after consideration of the relevant authorities. 48 The submissions for both parties before the Chief Industrial Magistrate relied upon the judgments in Cullen v State Rail Authority of New South Wales (1989) 31 IR 207. In particular, the submissions of the respondent before the Chief Industrial Magistrate relied upon the minority judgment of Fisher P, for the proposition that it was not guilty of an offence under the Act. It was contended that his Honour's minority judgment was referred to with approval by the Full Bench of the Industrial Relations Commission in Court Session in State Rail Authority v Dawson. When stated without more, in my view, this is not an entirely accurate description of the way in which the former President's judgment in Cullen v State Rail was treated by the Full Bench in State Rail v Dawson. It will be, therefore, necessary to consider initially the judgment in Cullen v State Rail in some detail. 49 The circumstances in Cullen v State Rail Authority, whilst tragic, may be fairly shortly stated. A gang of workers employed by the defendant authority as 'linesmen' were performing routine maintenance work, cutting back tree growth which was encroaching an inappropriate distance from high voltage powerlines which supplied the defendant's rail network. The work was being conducted during inclement weather at a location near the Mt Kuring-gai rail station. Two members of the gang, Mr Harvey (the supervisor of the gang) and Mr Baillache, in breach of well established and promoted safety policies and procedures put in place by the defendant, climbed a tree (as opposed to using a ladder or other approved method) to remove a branch which extended to some 50cm from a high voltage conductor. The branch was apparently about the size of a man's wrist. Having been handed a 'bush saw' by Mr Baillache, Mr Harvey proceeded to saw through the branch. The branch, still being attached to the tree by a 'finger' of bark, began to fall. In doing so it came into contact with the powerlines, electrocuting the two men in the tree - Mr Harvey suffering fatal injuries. 50 In the proceedings which followed, the Chief Industrial Magistrate found the offence had been made out, but that the defendant was able to avail itself of a defence under s53(a) of the Act. In his Worship's view, the defendant had developed a safe system of work which had been implemented over a long period, producing a good safety record. The persons engaged to perform the relevant work were well experienced, properly trained and were aware of the policies and procedures in place. His Worship considered, given the nature of the work and the experience of the persons engaged, it could not be said that further supervision would have assisted the provision of a safe workplace. The accident had occurred due to the neglect of the individual employees involved and that neglect could not be sheeted home to the defendant to render them liable to an offence under the Act - it had done, it was found, all that was reasonably practicable. 51 On appeal, Fisher P in a minority judgment, agreed, by and large, with the Magistrate. His Honour set out the circumstances surrounding the accident, including that Mr Harvey, the deceased, was the senior man in the gang, that he was well trained and experienced in the system adopted by the defendant and that the system was found in a book of regulations known as the "Mains Section Standing Instruction". This included a requirement that "work should not be performed on location when any part of the body or equipment came within 5 feet of any exposed high voltage conductor". Various techniques were used to control the fall of branches, none of which had been utilised at the time of the accident. Importantly, his Honour noted (at 208): As part of the system of work there appears little dispute that where the senior linesman had any reason for considering that there would be a risk of contact between the limb and the conductor that he could call for an "outage" which meant that by arrangement, on an appropriate occasion, power was removed from the conductor enabling the work to be done with safety. The deceased, the senior linesman on this occasion, could have but did not call for an outage. 52 His Honour set out the relevant provision of the Act and continued (at 209): The Magistrate's finding was that there had been a failure by the employer to maintain the workplace in a condition that was safe and without risk to health. What was the failure? The failure, extensively debated before us, was submitted as a failure to maintain a safe system of work. However, the evidence was that these elements related to a safe system of work which had been in place for very many years. No evidence was called of previous failures. It was also extensively argued on appeal that in some way there was a failure either to supervise adequately or to employ suitably trained personnel. I consider that on the evidence of both qualifications and experience of the deceased employee, including his leading hand status, the fact that he had qualified by training and examination as a linesman and his familiarity over several years working in the several classifications employed in the work makes it unlikely that a case alleging failure to provide a safe system of work or to require that the work be adequately supervised could possibly have been made out. This agrees with the Magistrate's findings. 53 His Honour emphasised the need to demonstrate a failure on the part of an employer and recognised that the absolute duty cast on employers under the Act was different to that case by the common law (referring to Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467). Fisher P then made the following observations on the system then in place (at 209 - 210): As is common in these cases, the evidence relied upon to demonstrate such a failure was substantially the evidence that emerges from the events themselves. To be safe, the system of work being utilised would appear to require an election between alternatives - if the limb to be severed reached within 1.5 metres of the power line, then the person in charge, here Mr Harvey, should have required a power outage, the existence and availability of which was undoubtedly part of the system within which he worked and was well known to him. In the alternative, if the movement of the limb was such that upon severance it might reach towards the power lines, then such a circumstance should have been controlled by the use of the equipment, including ropes and ladders with which the parties were supplied for that very reason. … The evidence strongly suggests that a well known safe system of work was not followed. Mr Harvey, in his familiarity with his employment, may well have taken a short cut in breach of what he had been taught about safe systems and exposed himself to the risks of an inadvertent contact between the severed limb and the power line. Such an observation would account for all the relevant events of the day.

In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged. 54 The balance of his Honour's findings, particularly as to the issue of a defence under s53 (at 210 - 211) shall be set out later in this judgment in the consideration of State Rail Authority v Dawson. 55 The judgment of Cahill J and Sweeney J, in the majority in Cullen v State Rail Authority, took a different view as to whether the system which had been established, promulgated and promoted was, in fact, sufficient to establish a defence under s53 of the Act. Their Honours emphasised (at 217) that a s53 defence only arose in the context of an offence having been made out against the defendant, and that the onus (on the civil standard) rested upon the defendant to demonstrate that a defence under either paragraph (a) or (b) has been made out. Their Honours continued (at 217 - 218): In the circumstances in which the fatal accident occurred, the relevant danger would have been removed and the workplace thus rendered safe if a power-out had been in place. The evidence is to the effect that power-outs were available and that, if requested, they were generally implemented, with no serious inconvenience to the Authority's rail traffic operations. In the circumstances of the present case and in the context of paragraph (a) of s53, it would seem to us that the Authority had an obligation to prove, on the civil standard, that it was not reasonably practicable for it to comply with its obligation to ensure the safety of its employees by having a power-out implemented at the time the relevant work was being performed. In our view, that obligation was not discharged. Paragraph (b) of s.53 is in two parts. The first matter that a defendant must prove according to the civil onus is that "the commission of the offence was due to causes over which he had no control". In our opinion, no case was made out by the Authority as to that provision. On the contrary, the Authority had the power to lay down safe methods of working, to institute a system of checks and supervision to ensure that such methods were followed, and, in particular, to prescribe procedures as to power-outs which would negate the danger of electrocution when tree-lopping was being performed in proximity to high-voltage lines. The second part of paragraph (b) requires, in addition, that the defendant prove that the commission of the offence was due to causes against the happening of which it was impracticable to make provision. In the circumstances of this case, it is clear that such a defence was not made out. 56 Their Honours then proceeded to discuss the system that had been established and continued (at 219): In our view, where this system fails to satisfy the stringent provisions of s.15 is that it basically leaves to the discretion of the linesman in charge the decision whether a tree-branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the dangers inherent in lopping trees growing in close proximity to high-voltage power lines but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, of whether a branch can be cut with safety. 57 The judgment highlights other difficulties their Honours perceived with the procedures which had been established and continued (at 219): In relation to the task of cutting branches of trees growing in proximity to its high-voltage conductors the Authority could have instituted a system of power-out at all times when such work was being performed. Such a system would have negated the danger which resulted in the fatality in the present case. Alternatively, it could have, and did, institute a system whereby a power-out was implemented in some cases but not in others. In order to ensure such a system was safe as required by s.15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. In our view, this the Authority failed to do, and the magistrate would have been justified in finding that, in addition to its failure under s.15(2)(d)(i), the Authority had also failed to comply with s.15(2)(a), and for that reason also was in breach of its duty under s.15(l) to ensure the safety at work of its employees. 58 The appeal against the decision of the Chief Industrial Magistrate was upheld by majority. 59 I have analysed the decision in Cullen v State Rail Authority as it appears there was some misconception in the submissions of the respondent as to what was actually decided. The differing views of the Court, in my view, went to what constituted a safe system of work and demonstrated how different approaches might prima facie appear possible in applying the statutory defence of what, in any given circumstance, is reasonably practicable. The power-out option available in that case was described by the Chief Industrial Magistrate as being an "eminently practicable" means of providing a safe work method. The judgment of the majority identified that there was little difficulty or inconvenience imposed upon the defendant's rail network when power outages were effected; the risk was plainly one that was foreseeable and the potential consequences should that risk be realised were, potentially, [nothing short of catastrophic. In those circumstances, it was considered by the majority that the defence of reasonable practicability had not been made out. Whilst a method of work had been established as part of the overall system of work, the method of work was itself unsafe in that it did not require the power out option to be adopted. The above analysis is also useful in demonstrating the important consideration, which seems to be often overlooked, that it is the defendant who bears the onus of proof in proving that a defence under s53 has been made out. 60 It is important to emphasise the fundamental distinguishing feature between Cullen v State Rail Authority and the present case - there was in that case an extensive, long standing, well promulgated safe system of work in which both the supervisor and the remaining member of the gang had been trained. It should also be plainly stated that the judgment of Fisher P is not authority for the proposition that simply placing an appropriately trained, qualified and experienced person in a position of authority and requiring that person to determine and enforce the requisite safe systems of work, without more, is sufficient to avoid culpability under s15 or for that matter to establish a defence under s53 of the Act. Rather, the judgment of Fisher P rests upon the determination that an existing, long-standing system was safe. 61 In State Rail Authority v Dawson, the Full Bench dealt with an appeal from a decision of the Chief Industrial Magistrate, in which his Worship had held the appellant guilty of an offence under s15(1) of the Act for a failure to provide a safe workplace to a gang of workers performing work on overhead powerlines which supplied the main rail line between Sydney and Lithgow. Whilst at first instance one of the particulars to the charge under s15(1) related to a failure to de-energise the power lines on which work was to be performed, this was dismissed by the Chief Industrial Magistrate and not challenged on appeal. The remaining particulars under consideration related specifically and exclusively to the failure to properly supervise; it was this charge which the Chief Industrial Magistrate considered had been made out. 62 The appellant in that case contended it had done all that it could to ensure that there was adequate supervision - that is, on the appellant's submission, the corporate respondent had allocated to the task persons with appropriate qualifications and experience to ensure that the safe work methods that had been established were properly observed. In that matter the appellant had contended that the relevant failure was that of the person put in charge of the operations because he failed to properly organise the performance of the work. He had adequate supervisory staff and there was a failure to use them properly. 63 The respondent had contended that the appellant had failed in two respects: firstly it had failed to take sufficient steps to ensure that the staff it had allocated to the foreman to perform the work were properly utilised and secondly there was, in any event, insufficient supervisory staff allocated for the task. 64 The Full Bench, comprised of McMahon DP, Hill and Hungerford JJ observed (at 120 - 121): Although s 15(l) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. 65 Their Honours were satisfied that there was the requisite causal link between the accident and the failure on behalf of the foreman to adequately supervise the work method being adopted by the deceased. There was a failure by the foreman to give instructions as to the particular method to be employed. The actions of the employee giving rise to his death, having regard to the method employed, could, it was found, have well been "envisaged". However, the question which the Full Bench then turned to consider was whether the failure by the foreman to exercise the required supervision resulted in a failure by the appellant to comply with the duties cast on it. 66 Having noted the concession by the prosecutor that the appellant had, in fact, laid down a safe system of work, their Honours considered Cullen v State Rail Authority. Their Honours set out a lengthy passage from the majority judgment (at 218 - 219) (which is set out earlier) and continued (at 123): It will be seen that the majority in Cullen determined the matter on the employer's failure to ensure a safe system of work by not laying down and policing specific rules and procedures so that any discretion of the linesman in charge could be exercised safely by following rules as to when a tree-branch could be cut or deferring the job until a power-out had been implemented. In the case before us, the critical facts are somewhat different to those in Cullen; no issue arises that the appellant should have de-energised the wires over the rail line, but rather it is alleged the appellant failed to provide the necessary degree of supervision to ensure that Mr McFadyen was safe in the way in which he performed the work. Nevertheless, the majority judgment in Cullen emphasises the stringent nature of the provisions of s 15 and the high duty cast upon an employer in organising work where that work is to be performed under the control of an employee delegated to exercise supervisory responsibilities. It is in that respect of supervision, where, in our view, the decision in Cullen has relevance to the instant case. 67 It is at this stage in their Honours' reasoning that the minority judgment of Fisher P in Cullen v State Rail is discussed. It is appropriate to set out in full the relevant extract from his Honour's judgment referred to by the Full Bench in Dawson, including the emphasis that was placed on parts of the passage by the Full Bench: In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt . Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged. …

I consider that this safety code should be viewed in the light of the Industrial Commission's practical experience of industrial circumstances. The deceased was well trained by experience over many years and by qualification to both work at and supervise tree lopping. Neither qualifications nor experience were seriously challenged in the evidence, indeed, the evidence established the deceased's responsible behaviour and experience as a qualified linesman in this precise work. The employer was entitled to rely upon these qualities. The case against the employer is not strengthened by suggested reliance on ever higher levels of supervision.

The case against the Defendant is not proved beyond reasonable doubt if there remains an acceptable hypothesis reasonably consistent with the innocence of the Defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach. I consider that on the evidence and for these reasons, the prosecution has not made out its case to the exclusion of reasonable doubt.

Were it necessary to do so, I would also accept, this time on the basis of probabilities, that a probable cause of the events alleged, the unforeseeable and unanticipated conduct of a properly trained and experienced supervisor supervened to remove from the employer the ability to control the happenings of the day which the employer otherwise would have had. The absence of information to the employer about the supervisor's casual acts of negligence, including the abandonment of a number of safety measures it was his duty to put in place, made it impractical for the employer to make further provision.

My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control. 68 Having emphasised the judgment of Fisher P in that way, the Full Bench in State Rail v Dawson continued (at 124): The decisions in Cullen point up the not unusual difficulties which arise in determining cases, of this nature where the ingredients of the offence for breach of statutory duty impose a strict liability, as does s 15. It seems to us that the distinction between the majority and minority judgments in Cullen does not relate in any way to a different view of the relevant principles, but rather to the result of their application to the particular facts. There is nothing in the majority judgment to detract from the observations of Fisher P. as to the onus and standard of proof required of the prosecution in criminal proceedings. We respectfully agree with his Honour's observations in that respect. 69 I interpolate my analysis at this point. The judgment in Dawson makes it plain that it was not the judgment of Fisher P in general that was being approved by the Full Bench in that matter, it was merely the "observations of Fisher P as to the onus and standard of proof required of the prosecution in criminal proceedings". It is to be emphasised that Fisher P considered that the system contained within the "book of regulations" was a safe system. It was, in that context (that is, in the context of a qualified and experienced employee departing from an established safe system) that his Honour made his observations distinguishing the responsibility of an employee from his/her corporate employer. 70 Returning then to the judgment in Dawson, the Full Bench further considered whether in the circumstances of that case, there was the requisite failure by the employer (at 124 - 125): It is plain, in our view, that if Mr McFadyen had adopted the first or second method instead of the third method then the accident could not have occurred because he would have been working over the track and sufficiently away from the steel structure. He was a qualified and experienced linesman, and should, therefore, have been aware the work could have been performed by either one of the three methods; equally, he should have been aware that the third method was not as safe as the others by reason of the presence of the steel structure, and the potential which it had to complete a live electric circuit by providing a path to earth. The reason for him choosing the third method is not clear from the evidence, although it seems reasonable to infer, as the magistrate did, that the third method had to be used because of the absence of suitable comealongs and the presence of tension in the wires. The foreman did not supervise Mr McFadyen to the extent of instructing him in which method to use, simply telling him to do the job before the foreman departed to supervise other workers in the gang. The foreman was surprised, later, that Mr McFadyen had used the third and unsuitable method. Clearly, and as we have earlier found, there has been a failure by the foreman to adequately supervise Mr McFadyen in the selection of the safest method to perform the work; and that failure must be seen to have a causal connection with the accident which occurred. However, the appellant has laid down a procedure or system of work to meet the eventuality of employees working within a certain distance of live wires, namely that they are to be personally and individually supervised by qualified employees. A number of persons at the time in question, at least three including the foreman, were suitably qualified to provide that supervision. The foreman failed to provide such a supervision, and, notwithstanding the absence of the leading hand, there was no redeployment by him of other qualified and available employees; and there is no evidence of any causal connection between the absence of the leading hand and the failure by the foreman to adequately safeguard Mr McFadyen in the performance of his duties.

Whilst we have found there was a failure to relevantly supervise Mr McFadyen, that failure was the failure of the foreman. On balance, and viewing the evidence as a whole, we are unable to be satisfied beyond a reasonable doubt that the failure was also that of the appellant. There was no suggestion in the case that the appellant had not laid down a safe system of work, only that it had not supervised Mr McFadyen so as to ensure his safety. But the facts are clear in that there was ample supervision available through the foreman and at least two other qualified linesmen; it was a matter of their proper deployment according to the work then in hand. That deployment, particularly on a remote site, must be a matter for the senior supervisor present . There was in fact a failure by the foreman to adhere to the procedure or system of work laid down in clear terms by the appellant. The appellant, in our view, cannot be held liable under s.15 in such a situation, once it be found qualified supervisors have been provided by it. (my emphasis) 71 I consider that the Full Bench in State Rail v Dawson was at pains to emphasise that it was dealing with the failure of an employee to properly adhere to a system which had been established. It was a failure of an employee to properly utilise the employees provided to him, in the context of a well established and well settled safe work method which had been promulgated to all employees. Again, it should be emphasised that State Rail v Dawson is not authority for the proposition that the corporate defendant may select an appropriately qualified employee, delegate to him all authority necessary to establish and implement a system of work, and thereby, without more, meet the requirements of s15 of the statute. It is that initial step, the establishment of the safe system of work and, in particular, the method of work for the pouring of the concrete pillars so as to avoid the risk of potential fall injuries, that is the gravamen of both culpability and s53 issues in the current proceedings. 72 In Genner Constructions, the Court dealt with an appeal by the defendant at first instance against a conviction under s15 of the Occupational Health and Safety Act 1983 for a failure to properly train its workforce. The appellant was a roadworks and subdivision contractor which was engaged in the widening of a portion of the Moss Vale Road at Burradoo. An employee of the defendant, Mr Ingram, had been placed in control of the relevant worksite and, in particular, in control of trucks entering and exiting the site. At first instance there was found to be a safe system of work in place which provided for vehicular access to and egress from the worksite. At the time of the accident, a subcontracted grader driver, a Mr Holzigal, in conjunction with Mr Ingram, determined that it was necessary to alter the system of access and egress to the site due to certain weather conditions. The alteration to the work method was unsafe. Mr Ingram was struck and killed by a truck as it left the site. The charges, which at first instance had been held to be made out, and were under consideration on the appeal, alleged the defendant had breached the Act by failing to properly train Mr Ingram, the person placed in charge of the site, so as to permit him to properly deal with alterations to the established system of work, should such a need arise. That such a need may have arisen was considered to have been reasonably foreseeable (in the relevant sense) both at first instance and on appeal. Whether the system of work adopted was otherwise generally safe did not arise. 73 The appellant contended it had adequately trained its employee by way of 'on the job training' and that the accident arose from a casual act of negligence in disregarding that training. Whilst the charges levelled against the respondent in these proceedings do not relate to a failure to provide proper training, it is instructive to have regard to the way in which the Full Bench in Genner Constructions approached the adequacy of the system of training under consideration, when considering the defendant's submissions in these proceedings. The Full Bench in Genner Constructions stated (at [57] - [59]): [57] The appellant pointed to the evidence of Mr Genner to the effect that he had provided regular "on-the-job" training and instruction to Mr Ingram over many years. The evidence of Mr Genner was that this training encompassed issues of safety, including methods of directing vehicles entering and leaving worksites. Inspector Chadwick of the WorkCover Authority and Mr Johnson, an expert called by the appellant in the proceedings at first instance, agreed that "on-the-job" training can be a very effective method of training workers. However, whilst such training may, with respect to particular work, be sufficient to ensure a safe workplace, there will be many cases in which more detailed, comprehensive or systematic training and instruction will be required: see, for example, WorkCover Authority of New South Wales (Inspector Penfold) v Pacific Dunlop Ltd t/as National Cables [2000] NSWIRComm 33 at [24]-[25] and WorkCover Authority of New South Wales (Inspector Egan) v Bituminous Products Pty Ltd [2001] NSWIRComm 43 at [71].

[58] The extent and standard of training provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction or the provision of substantial work manuals. However, in all cases, adequate training will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake, including the provision of training as to all contingencies arising out of or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work, including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the training afforded them (and re-training of employees, where necessary, to ensure the continued sufficiency of such education).

[59] In this case, we are satisfied beyond reasonable doubt that the training provided to Mr Ingram was not adequate to ensure he was not exposed to risks to his health and safety in relation to the control of vehicular movements onto and off the worksite. The training received by Mr Ingram over the years he had been working for the appellant was solely informal, ad hoc training and provided directly by Mr Genner. The training was not documented and the appellant's procedure for controlling vehicles entering and leaving a worksite were not recorded or refined. In our view, it is proper to conclude there was not sufficiently systematic or comprehensive training so as to ensure that Mr Ingram, who was left in control of the worksite, was sufficiently trained to react to changing circumstances and at the same time to ensure the site remained safe. 74 The following observations are also pertinent: [61] We also consider that it is properly open to conclude the inadequacy of the training received by Mr Ingram from the evidence of his actions on the day of the accident. It was contended by the appellant that the actions constituted an inadvertent or casual failure to observe the appellant's safe system of work and that Mr Ingram disregarded his many years of training. We do not consider that this view of the evidence is sustainable. Mr Genner gave evidence that Mr Ingram was a competent and diligent employee and that view was supported by another witness, Mr Currall, who had worked with Mr Ingram on a number of worksites. We consider it is not possible to infer that Mr Ingram simply disregarded the dangers created when he acquiesced in the alteration to the working arrangements. The rational conclusion from the evidence was that Mr Ingram did not fully envisage the risks created by altering the vehicle movements by reason of a failure to adequately train him in relation to the safe operation of the worksite. 75 The Full Bench in Genner Constructions also gave consideration to a defence under s53 of the Act (at [66] - [69]), holding that no such defence was established on the evidence. Having referred to observations of the Full Bench in State Rail v Dawson (at 126) and the judgment in Kellogg (No.1) (which was adopted by the Full Bench in Kennedy-Taylor v WorkCover Authority) the Court continued: [68] … It may be that, in some cases, it would not be practicable to guard against a detriment to safety occasioned by an appropriately trained and instructed employee departing from a known safe procedure. This may be so because the risk of the employee failing to follow procedures was not reasonably foreseeable or on a comparison of the training and instruction required to ensure the employee adhered to those procedures with the risks created. There are limits to the degree of instruction which can be expected to be provided to an experienced employee.

[69] However, we do not consider that the present is such a case. Having regard to the findings made in relation to the inadequacy of the training received by Mr Ingram and the instruction given to him and to Mr Holzigal on the day of the accident, it is not possible to conclude that the risks to safety were caused solely by the failure of the two workers to observe the appellant's ordinary procedures. The Act obliges employers not merely to establish safety procedures but also to ensure those procedures are sufficiently promulgated to its workers who are themselves adequately trained in their implementation. In light of the findings made in relation to the inadequacy of the training and instruction afforded by the appellant, we are not satisfied the appellant demonstrated on the probabilities, that it was not reasonably practicable to make provision for more detailed and thorough training and instruction for those working on its worksites. The s53 defence must fail . (emphasis added) 76 See also the judgment in WorkCover Authority of New South Wales (Inspector Barbosa) v Newstart 150 Pty Ltd t/as Stylewise Interiors (2002) 113 IR 78 where the Court emphasised, for there to be a "system" of on the job training, there needed to be a "coherent and systematic process for the instruction of employees" (at [82] and later at [89]). 77 The passages cited from Genner Constructions serve to illustrate the fundamental failing in the system of work provided by the defendant in the current proceedings. The Court in Genner Constructions and in Newstart 150 emphasised that for a system of training to be adequate in accordance with an employer's obligations under the Act, what must be shown is that the "system" is "sufficiently systematic or comprehensive", contains appropriate detail and, importantly, is "sufficiently promulgated to its workers who are themselves adequately trained in their implementation". In Genner, these observations were made in a context where the particular method of work (in that case the method of work providing for the entering and exiting of trucks to a worksite) was not the subject of consideration on appeal. In Newstart 150, there was both a failure to provide a safe method of work and a consequent failure to properly train the workforce (see [67] - [69]). 78 Thus, in order to meet the requirements of s15 of the Act, the system of work must be "coherent and systematic" so that all employees who are performing work on any given site can properly understand what is being required of them. That is, to reiterate what was stated by the majority in Cullen v State Rail Authority (at 219): In order to ensure such a system was safe as required by s15, it was necessary for it to lay down, and to police, specific rules and procedures designed to guard against and prevent, amongst other dangers, the type of accident which occurred in the present case. 79 In this matter, there is no challenge to his Worship's finding that the system of work adopted by the respondent through its employee Mr Eckford, constituted a risk to safety contrary to s15 of the Act. The matter turned upon the respondent's defence under s53, both at first instance and on appeal. However, it is important to examine just what gave rise to the risk to safety in this case. 80 The breach resulted simply from the adoption by Mr Eckford of a plainly unsafe work method. It is essential, as in Cullen v State Rail Authority, to examine the system of work established by the respondent. In this case, there was no documented method of work by the respondent in evidence, either for the normal method of pumping the concrete into the formwork pillars where rubber hosing from the pumping truck was positioned vertically over the formwork pillar or the altered method of work where the hose could not be so positioned. The charges brought against the respondent did not merely allege a failure by the respondent to provide and maintain a safe system of work for the concrete pouring operation (in the sense of a particular work method adopted at the site). True it is, the charges included a failure to provide a safe system of work in this respect, but it is the failure of the employer's system to ensure that a safe work method was adopted for the pouring of concrete from the outset that is the subject of prosecution (and, in particular, the failure of that system to ensure a method of work was adopted that prevented the risk of fall injuries). 81 His Worship confined his attention in examining culpability (and ultimately the s53 defence) to the adoption of an unsafe work method by Mr Eckford. However, there was no examination of the failure of the respondent to specify at all, a work method for the carrying on of concrete pumping operations that was safe, and in particular, where the boom was of insufficient length to, of itself, permit pumping to safely occur. The system of work established by the respondent at this workplace was, in essence, whatever Mr Eckford directed. The corporate managerial mind of the respondent was at no stage, nor in any way, turned to what was actually occurring on site. As was clear on the evidence of Mr Taylor set out above, prior to the accident, he was not aware of what work methods were to be adopted at the site. The particular work method adopted was "a site taken decision". What is of greater concern and will require further reference shortly, is that Mr Taylor, as the CEO of the respondent corporation, was aware of a standard work method for the pouring of concrete pillars involving the use of scaffolding and that there was "not really" any time saving factor gained in the adoption of the work method involving the scissor lift. In the absence of some periodic checking, reporting or monitoring of what Mr Eckford was, in fact, requiring at the workplace, it is difficult to envisage how a corporate respondent could itself, as is required by the Act, have ensured there was adopted at the Macquarie site, safe work methods sufficient to provide the foundation for safe systems of work and meet the requirements of the Act. 82 In making those observations, however, I would not wish to be taken as establishing a requirement that all businesses must develop extensive written documents setting out, in detail, every aspect of a particular task. What is required is dependent upon the particular circumstances and will be heavily influenced by the nature of the work and the exigencies of the particular work environment. It is inappropriate to attempt to spell out what is required in any given situation. However, one thing is clear. The method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend for their effective operation. It is the employer's obligation to "ensure" that the system is safe. The respondent's system of work did not ensure that the method of work adopted was safe. Indeed, it did not purport to turn its mind actively to the appropriate system to be adopted, although, on the evidence such, a system was available (and known). It is for this reason the respondent was guilty of the offence. It is against these assessments that questions of "reasonable practicability" under s53 of the Act must properly be tested. 83 There was no question that the respondent had the requisite control over the worksite and, therefore, s53(b) does not arise. Rather, the respondent submitted it had done all that was reasonably practicable. As to what is required when considering a defence under s53(a), regard should be had to the judgment in WorkCover Authority of New South Wales (Inspector Byer) v Cleary Brothers (Bombo) Pty Ltd (2001) 110 IR 182: [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. 84 Those passages were subsequently approved by the Full Bench in Legge v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447 at [38] and in Bultitude v Grice at [71]. 85 It may well arise that due to the exigencies of a particular work situation, it may have been impractical to have developed a safe system of work in advance. The particular circumstance may not have been a matter that was reasonably foreseeable in the way that phrase has been used in the authorities: see Bultitude v Grice (at [68]): Reasonable foreseeability of a risk or detriment to safety is relevant to the extent that it assists in determining whether it was reasonably practicable to avoid the risk. 86 Regard should be had in this respect to the judgment in Kellogg (No.1) (adopted by the Full Bench of the Court in Kennedy-Taylor v WorkCover Authority (at 82), Genner Constructions (at [67] - [68]) and Bultitude v Grice (at [68])): 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 at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 480; and Italo Australian Construction Pty Limited v Parkes (1988) 24 IR 428 at 431. So much was accepted by the defendant in this case.

It is here that the question of reasonable foresight has relevance. If a defendant is able to demonstrate that the circumstances or causes of the detriment to safety constituting the offence were not reasonably foreseeable, it will generally have thereby established that it was not practicable to take measures to guard against that risk: see Jayne v National Coal Board [1963] 3 All ER 220 at 224 and Shannon v Comalco Aluminium Ltd (1986) 19 IR 358 at 363-364. In WorkCover Authority of NSW (Insp. Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381, for example, Hill J commented in relation to s53: If the happening of an event is not reasonably foreseeable it is not practicable to make provision against it. When considering the matter of foreseeability, one should be careful not to substitute reasonable hindsight for reasonable foresight.

This does not remove the obligation, to which I have earlier referred, of an employer to adopt a proactive approach to safety issues which seeks to discover and remedy potential risks to its employees and others. It is not a question of whether the employer did envisage a particular danger, but rather whether it should have. 87 In the present case, however, it has not been contended that the risk was not foreseeable in the relevant sense. Such a submission could not have been properly accepted, in my view, in light of the evidence of Mr Eckford and the fact that he had actually stopped the construction of the concrete pillars due to safety concerns. 88 Mr Hodgkinson submitted, in the course of argument, that merely putting in place a supervisor would not meet the obligations imposed on a corporation. Although it was important to recognise the dynamic nature of a construction site (the system of work devised by the company needed to be able to adapt to the changing needs of the work environment by putting an appropriate person in charge of site safety matters), Mr Hodgkinson conceded, properly in my view, that merely putting an appropriately trained and qualified person in such a role was not enough. It was contended that the supervisor needed to be properly trained and experienced so as to have the necessary skills to meet the changes of a dynamic working environment. The supervisor needed to be fully aware of his responsibilities in that role. The remainder of the workforce needed to be aware of his authority in that regard. 89 Further, on Mr Hodgkinson's submission, this may not be enough to satisfy the obligations of an employer under the Act. His submission in this regard was recorded in transcript in the following terms: [I]t is not enough to put in place a system and put the system on the shelf even if you trained everybody in the system. In the same way if your system relies upon the discharge of certain persons of certain functions for which they are trained and qualified you check from time to time that they are in fact discharging those obligations. So you have to balance any change in the circumstances to see if there is such a change and make sure the training or the qualifications they have are relevant. 90 I would agree with these submissions. However, on Mr Hodgkinson's submission, these issues to do not arise on the facts of this case because the respondent was charged only with an offence that is limited to a single day. On his submission, whilst there may well be a requirement for the company to check on the actions of its supervisor, there could be no suggestion that there is a requirement for that checking to be done on a 'minute by minute basis'. There is nothing to suggest that the company failed because it failed to check on the operations taking place on that particular day. Such a requirement would amount to a requirement, on a day-to-day basis, to supervise the supervisor. This, on senior counsel's submission, would be a nonsense. 91 There is some merit in the submissions of senior counsel for the respondent. However, they ultimately fail to acknowledge the final link in the chain that would have been necessary to make out this argument. There was no evidence that the "system" of the respondent in these proceedings did, in fact, involve the respondent, in any way, checking on the actions of Mr Eckford - be it by way of reporting to the board or in some other way. That Mr Taylor only became aware of the work method utilised in pouring the concrete pillars after the accident, is consistent with there being a lack of this final fail safe checking mechanism. 92 As is clear from the evidence of Mr Eckford given in cross-examination, he was the one responsible for site safety, he was the one with full authority to make alterations to the work methods and he was the one who did in fact make alterations to the work methods following the accident. There was nothing in the evidence of Mr Eckford, Mr Taylor, or any of the other evidence on behalf of the respondent to indicate that the "system", for which Mr Hodgkinson contends, contained this final element - that is, the respondent satisfying itself that such safety steps were, in fact, being taken by its qualified, responsible site manager. How then could the respondent satisfy itself that the method of work being adopted was safe? 93 The respondent's failure in this regard may be likened to that found by the majority in Cullen v State Rail Authority. As was emphasised earlier, the majority in that case found that the defendant in those proceedings was at fault for not requiring the relevant power lines to be de-energised before tree trimming work commenced. The system adopted by the company was unsafe for that very failure. The defendant had itself failed to ensure that its system was safe. 94 What, in my view, will meet the test of reasonable practicability under s53 of the Occupational Health and Safety Act 1983 in any given case is a matter of fact of which the defendant bears the onus (in an evidentiary sense). It plainly calls for a balancing of the various interests of the particular employer in their particular circumstances against the stringent and explicit policy expressed in the Act to ensure that all places of work are safe and without risk to health and safety. Whilst it may well be that in an appropriate set of circumstances, a particular task will not have a standard safe work method (be it documentary or otherwise) or a policy dealing with variations to a particular settled work method, should the exigencies of a work situation make such an adjustment necessary, it must be kept firmly in mind that in order to establish a defence under s53 a defendant must be able to show that it had done all that was reasonably practicable. This is how the balancing of interests expressed in Cleary Bros must operate. However, for a defendant to establish such a defence in the absence of some pre-established safe work method, would, in my view, at the minimum, require evidence of the particular or unique circumstances that made the establishment of a safe work method in advance of the activities being commenced, impracticable. By their nature, such situations would be rare. Perhaps a particular work situation may not be reasonably foreseeable in the way foreshadowed by Hill J in WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362. There was no such evidence here. 95 There was no evidence of a safe work method adopted by the respondent for the pouring of concrete pillars at all, be it a more general standard work practice adopted at the respondent's sites more generally, or a standard practice for the Macquarie site. The evidence of Mr Eckford would indicate that there was a safe method of work known to the respondent, involving the use of scaffolding surrounding the formwork pillars. The respondent in these proceedings is a substantial construction company - it is reasonable to infer that concrete pouring activities, similar to those being undertaken on the day of the accident, were not infrequently an aspect of the respondent's business. Given the nature of the respondent's business, it would, in my view, be difficult to establish that it was impracticable to establish some form of standard safe work method, or a policy that would operate where the standard safe work method needed to be altered. 96 One further matter should be emphasised in relation to a purported "system of work". In accordance with the observations of the Full Bench in Genner Constructions, the respondent must be able to show that the alleged system of work was sufficiently certain in its operation, sufficiently promulgated and enforced so as to ensure the relevant workforce is aware of what is required and that the employer has taken steps to ensure the work method is safe and adhered to. I emphasise again that it is the employer who is to ensure the method of work is safe. 97 As earlier mentioned, the respondent's answer amounts to the following proposition: it picked the appropriate person for the job and then left it to him. It was his job to establish the safe work practices. It was his job to make sure they were followed. That was the system referred to in the evidence of Mr Eckford as "in utilisation within the Fletcher's organisation prior to this incident". The respondent corporation can do no more than act through its employees. This contention does not, in my view, establish a basis for a finding of not guilty in this matter. 98 As was emphasised by the Full Court in State Rail Authority v Dawson (at 125 - 126): In so concluding, however, we would wish to comment on the submission put by Mr Kenny to the effect that an employer could not be held vicariously liable in criminal proceedings for a failure by any of his employees in the performance of their work. For that proposition he relied upon Collins and Tesco. Whilst the submission, as a general proposition, may have some basis, it really puts the matter far too broadly to the point of probable error. Where a criminal offence is created by statute, such as s15 of the Occupational Health and Safety Act, and where strict liability is imposed, it is to the statutory provision itself that attention needs to be directed to determine whether an employer incurs liability for the acts of his employees. And this is particularly so where an employer is a large corporate entity which, of course, can only act or fail to act through its officers and employees. The cases under s 15 abound with employers being held liable for the conduct of their employees, and Cullen and Italo are but two recent examples. The answer to Mr Kenny's submission, in our view, lies not in the concept of vicarious liability but rather whether the facts of a particular case show a causal connection between the detriment to safety and what the employer had or had not done. 99 What was the failure of the respondent in this case? The answer is plain. The respondent's system of work did not ensure that there was a safe work method established by the person to whom it had delegated that task; nor did it ensure that a safe work method was adopted on site. The Act stipulates that it is the employer who is to ensure that a safe workplace is provided. Whilst it is trite the company can only meet that obligation through the actions of natural persons, it can only delegate the authority to make it happen, it cannot delegate the responsibility imposed by the Act upon it to ensure that it is done. The respondent is guilty of the offence charged. 100 The absence of some failsafe checking mechanism by management in this case demonstrated the risk which the company took in totally delegating its obligations under the Act. The evidence demonstrated that Mr Taylor, the CEO of the company, knew that a standard work method for the pouring of concrete was available, utilising scaffolding erected around the formwork pillars. This could hardly be considered surprising given the nature of the respondent's business - the pouring of concrete pillars would plainly be one of the more frequently undertaken aspects of the respondent's operations. No evidence was led demonstrating the particular circumstances would have prevented or precluded the safe work method for pouring concrete pillars, involving the use of scaffolding, being utilised. Quite the contrary. The evidence of Mr Eckford was that there was nothing to prevent this method from having been adopted prior to the accident. Indeed, this was the work method adopted following the accident. This factor, in itself, is relevant to a finding as to the respondent's guilt.

101 Although the judgments in Cullen and Dawson were clear pronouncements of the law, misunderstandings have developed in their application. Given the importance of clarifying the principles relating to a defence under s53 of the Act, and of obviating further misunderstandings, I intend to risk repetition by providing a summary of the key elements of my judgment: 1. A corporate respondent cannot discharge its responsibility by simply delegating its entire obligations under the Act. 2. As the Full Bench was at pains to point out in Ridge Consolidated Pty Ltd v Mauger, the Act is designed to protect against human errors (including foolish disregard for personal safety) as well as technical risks. Appropriate established systems or procedures known and understood in advance by the workforce, together with a clear, practical, chain of supervision or management, go some considerable way to achieving this aim. The mistakes of an individual are less likely to be made, or left unrectified, if that individual is accountable or if an appropriate system of checks and balances has been instituted. 3. The majority in both Cullen and Dawson based their judgments upon the existence of an offence, examined against the background of well-established safety-systems, unlike the present case in which there was effectively no system at all, established or otherwise. The extent to which an employer could be held accountable for the conduct of a supervisor was assessed against that same background. Where an employer has established, maintained, and promulgated a relatively detailed system of safe work practices, it becomes meaningful to consider whether that employer has done all that is reasonably practicable. The highest that the respondent could put its "system" in this case was to say that it had delegated establishment and implementation of safe work procedures to the unmonitored discretion of a responsible individual: a unpersuasive argument in the light of Cullen where the majority held that a comparatively small degree of discretion left to the linesman rendered the otherwise detailed system unsafe. The establishment of the offences in this case, both of which included a failure to provide a safe system of work, was not challenged on appeal. The very establishment of an offence assumes a causal nexus between the conduct of the respondent and the consequent risk to the health, safety and welfare of its employees: see Kellogg at 253. 4. The availability of a defence under s53(a) must be assessed by reference to the offence charged and found: ABB Power Transmission; Kellogg No. 1 and Cleary Bros . The majority in Cullen stated (at 217 - 218):

In the circumstances of the present case and in the context of paragraph (a) of s53, it would seem to us that the Authority has an obligation to prove, on the civil standard, that it was not reasonably practicable for it to comply with its obligation to ensure the safety of its employees [by having a power-out implemented at the time the relevant work was being performed]. 5. In the present case, in order to make out the defence, the respondent would have to prove, on the civil standard, that it was not reasonably practicable for it to comply with its obligations under the Act by providing a safe system of work. The respondent has conceded that the risk was foreseeable (its own representative stopped work for this very reason) and that an alternative safe method of work, which presented no inconvenience, was known and available to the respondent. In those circumstances it could not be said that it was not reasonably practicable for it to comply with its obligation to ensure the safety of its employees. Indeed, even apart from those decisive factors, in circumstances where the respondent had no established systems or procedures, and had done nothing but delegate all safety issues to the unfettered discretion of one individual, thereby exposing itself unnecessarily to the ramifications of human error in all its forms, it is difficult to conceive a defence under s53(a) to the offences as charged and found. 6. Finally, the respondent extrapolated the fact that it was charged with an offence limited to a single day to an assertion that it could not be expected to "check on the actions of its supervisor" on "a minute by minute basis". Such a submission (a) has no relevance to charges which prove failure to provide a safe system (a system necessarily being required on a continuous basis), (b) involves a serious misunderstanding of liability under the Act, particularly where a systems charge is laid and (c) does not detract from any of the points made above.

Orders 102 I propose the Court make the following orders:

3. The order of acquittal of the Chief Industrial Magistrate is set aside and in lieu thereof the respondent is found guilty of the offences charged.

4. The proceedings are stood over to a date to be fixed before the Court to hear the parties as to sentence. JUDGMENT OF SCHMIDT J

103 This is an appeal from a decision given by the Chief Industrial Magistrate ('CIM') on 5 July 2001. The CIM found the offences with which the respondent to the appeal had been charged under ss15 and 16 of the Occupational Health and Safety Act 1983 ('the Act') proven. It was also concluded however that a defence under s53 of the Act had been made out, so that the charges were dismissed.

104 The complaint pressed on appeal was that the CIM had erred in the application of s53 "…in finding that the defendant's obligations extended, in the circumstances, only to the provision of properly trained and experienced personnel who had the capacity and were given the (ultimate) responsibility to determine safe working practices." The conviction of the respondent was sought.

105 The appeal was brought under s197A of the Industrial Relations Act 1996 ('the 1996 Act'). The parties addressed both matters of leave and the merits of the appeal in their submissions. Mr Hodgkinson senior counsel appearing with Ms Clegg of counsel, for the respondent, submitted that in appeals such as this, leave to appeal pursuant to s188 of the 1996 Act was required. The point has been decided in Bultitude v Grice Constructions Pty Limited [2002] NSWIRComm 20 at [59] - [65]. In this case, I am satisfied that leave to appeal should not be granted.

106 No challenge was made to any of the CIM's findings, other than that which appeared at the conclusion of the decision, where the learned Magistrate held: 'The departure from safe practice was the responsibility of Mr Eckford in that he, as the site manager, was in a position and capable by reason of his training and experience to make all relevant decisions and have them carried out. The defendant's obligations in these circumstances was to provide, as it did, properly trained and experienced personnel who had the capacity and were given the responsibility to determine safe working practices. Under the circumstances the defendant had done everything in my view " reasonably practicable " to satisfy paragraph (a) of s.53 of the Act and as a consequence the defence is made out to the civil standard.'

107 It was explained by Ms Backman of counsel for the appellant, that the CIM's reference to "the departure from safe practice" had been unfortunate, given that the two charges made out concerned the respondent's failure, on 6 October 1998, to have in place a safe system of work. It was argued that the CIM had erred in two respects. Firstly, in making the factual finding that the supervisor in question had the appropriate experience and training, having regard to the evidence, and secondly, in failing to have regard to a significant body of case law relevant to the s53 defence. These authorities provided that an employer must remain proactive as to implementation of safety matters, including in relation to the monitoring and policing of these issues, including lines of communication.

108 The case below proceeded on the basis of written submissions, which the parties did not address orally before the CIM. The respondent argued unsuccessfully that a causal nexus between it and the risk to safety identified in the charges had not been made out by the prosecutor on the evidence. In the alternative, it mounted a defence under s53(a) of the Act. That subsection 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 …'

109 The risk to safety at issue had arisen from the way in which concrete was poured into a particular column being erected at a construction site operated by the respondent. The respondent had employed Mr Eckford as site manager. There was no issue that he had been given responsibility at the site for designing safe systems of work and ensuring that they were implemented. He also had responsibility for ensuring that the systems so established were adequate to provide for changing safety requirements, as they developed at the construction site. The respondent had also employed Mr Hunt as the site foreman, who also had responsibility as to various safety matters on the site. Before the CIM, the respondent submitted that the evidence had demonstrated that these two employees were both experienced and qualified for their respective responsibilities as to safety matters. That was not put in issue by the appellant before the CIM.

110 There appears to have been some confusion as to the dates in question, but the evidence suggested that late on the evening of Wednesday (29 September) 1998, Mr Eckford had identified that a risk to safety had arisen in the way in which a concrete pour of certain columns then being erected was being performed. When work recommenced the next morning, Mr Eckford discussed his concerns with Mr Hunt, the site foreman and with the formwork foreman. He then stopped further work on the preparation of columns for the next concrete pour, as he had authority to do, until he devised a different and safe system for that work. Mr Eckford had to leave the site for personal reasons on Friday morning. In Mr Eckford's absence and despite his instructions, Mr Hunt had further columns prepared in order that the concrete pour could continue, in accordance with the system which Mr Eckford had already identified as being unsafe.

111 On his return to the site that afternoon, Mr Eckford discovered the prepared columns and again halted the work. A long weekend intervened and on the next workday, Tuesday 6 October, Mr Hunt and the concrete pump operator, Mr Lindsay, discussed the concrete pour with Mr Eckford. Mr Eckford's evidence was that they 'talked him into' permitting the pour to proceed, despite his view that the system of work was unsafe. Mr Eckford did not consult with anyone else about this departure from safe practice, he having the relevant responsibility. It was his decision which permitted the unsafe work to proceed. An accident then resulted, which led to an investigation by WorkCover and eventually, the laying of two charges.

112 The Magistrate's finding as to the two offences charged was that: 'The evidence discloses that the defendant, through Eckford, permitted an unsafe work practice to continue on 6 October 1998. The evidence further confirms a failure by Eckford to provide the necessary instruction to Hunt and Lindsay engaged in the process of pouring concrete. I am satisfied that the prosecutor has discharged its onus.'

113 On the evidence, a safe system of work required the use of scaffolding when the concrete pour proceeded. Mr Eckford's evidence was that temporary scaffolding was available and could have been used. He did not instruct Mr Hunt and Mr Lindsay, the pump operator, to use it. It was Mr Eckford who later devised and implemented the system which was used when work resumed after the accident. That involved the use of scaffolding.

114 As to the s53 defence, it was the respondent's submission below that: 'The departure if, contrary to our primary submission there was one, from safe practice was therefore the responsibility of Mr Eckford in that he, as the site manager, was in a position and capable by reason of his training and experience to make all relevant decisions and have them carried out. It cannot be suggested that in order to discharge occupational health and safety obligations there is a need to "supervise the supervisor". The Defendant's obligation in these circumstances is to provide, as it did, properly trained and experienced personnel who had the capacity and were given the responsibility to determine safe working practices. Under the circumstances the Defendant had, in my respectful submissions, done everything "reasonably practicable" and as a consequence the defence is made out.'

115 In reply, the prosecution's submission about the defence claimed was: '15 The defendant's submission in paragraph 24 that the defendant has done everything "reasonably practicable" and has therefore successfully discharged the onus upon it in relation to s53(a) is also not sustainable either on the evidence or in law. 16 In this regard, the prosecution relies on its written submissions dated 3 April 2001 at paragraphs 13 and 15. 17 The evidence supports the submission that neither Hunt nor Lindsay received, effective instruction on 6 October. Also, the evidence supports the submission that the defendant, through Eckford, permitted unsafe work practices to continue on 6 October. 18 In those circumstances, the defence, as relied upon by the defendant under s53(a) of the Occupational Health and Safety Act, 1983 is not made out: Italo Australia Construction Pty Ltd v Parkes (1988) 24 IR 428 at 432,433".

116 The two paragraphs of the earlier submissions relied upon were: '13. This proposition is supported by the weight of authority. In Cullen v State Rail Authority of NSW (1989) 31 IR 207 at 219, the majority held: "…In our view, where this system fails to satisfy the stringent provisions of s15 is that it basically leaves to the discretion of the linesman in charge the decision whether a tree-branch should be cut or whether the job should be deferred until a power-out has been implemented. By incorporating provisions allowing the linesman in charge to call for a power-out it recognises the dangers inherent in lopping trees growing in close proximity to high-voltage power lines but it fails to lay down stringent rules as to when such a power-out should be requested. Rather, it relies on the linesman's judgment, based on his training, qualifications and experience, of whether a branch can be cut with safety." This view was approved by Walton J, Vice President, IR Comm. NSW in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd , unreported, IR Comm NSW, 19 October 1999 (Matter Nos. IRC 4732 and 4733 of 1999 at p38: "I note, though also not necessary to my decision, that one reason for the defendant's failure to fulfil its duties that it failed to apply a managerial mind to the assessment of the risks inherent in the job delegated to the two operators. The duty to assess the risk of the task allocated to Mr Husakovic and Mr Jovanovic should have been taken by management and could not be delegated, in particular, to the operators themselves: Cullen at 219. In that regard, I note the decision of the English Court of Appeal in R v British Steel Plc [1995] ICR 586 at 592 to 594 where it was held, in relation to parallel UK legislation, that a corporate employer could not avoid liability on the basis that the company at senior management level had taken all reasonable care to discharge its duty by delegating its health and safety obligations." 15. Senior management cannot delegate or abdicate its statutory obligations under the OHS Act to, here, the site manager. Eckford's failures were the failures of the defendant. Eckford, as site manager, acted as the representative of this employer, the defendant: see WorkCover Authority of NSW (Inspector Gordon) v Gregory Ronald Wallis , Industrial Court of NSW, CT 1011 of 1995, unreported, Fisher CJ, Glynn, Hill JJ at pp 11, 12, 14 and 17.'

117 In Italo Australia Construction, an appeal from a decision of the CIM was considered by the Industrial Commission of New South Wales in Court Session. The CIM had found an offence under s15 made out and had rejected a defence under s53. Reference was made at p430 to the judgment of Street CJ in Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209 at 214, in relation to s17 of the Act and the defences in s53: 'The offence as formulated is in perfectly normal straightforward English. It is an offence not to take such measures as it is reasonable for a person in the defendant's position to take to ensure the safety of the premises. This, in my view, imports a well-travelled and quite widely recognised obligation upon employers and occupiers of premises. It imports also the recognition that an employer with a very substantial undertaking under his or its responsibility may well act reasonably or, put more precisely, may well not be properly held to have failed to act reasonably, if that employer has responsibly delegated within its work-force the due performance of obligations such as are imposed by this section."'

118 The Court Session took the view that the judgment of Street CJ was binding upon it, but that it did not have force in the circumstances there before it, given the CIM's factual findings. The circumstances were that a labourer employed by the defendant had been directed by his supervisor to strip formwork on a building site in accordance with the 'strip and crash' method. The formwork had not been assembled properly and this led to the formwork collapsing on the employee when he undertook the stripping work. There was no supervisor present on the site when the accident occurred.

119 The CIM found that the defence had not been made out, because 'supervision of the activities of the worker was a step open to the defendant which would have resulted in the worker removing the formwork in the order as seen to be safe' by the defendant (at p433). There was evidence before the CIM as to what safety required and what instructions had been given to the foreman as to the performance of the work, to ensure that it was carried out safely. The worker's evidence was that his instructions were not consistent with those given to the foreman. The Court Session agreed with the CIM's conclusion that the defence was not made out, observing that 'there was cogent evidence of a lack of diligence in supervision and in the enforcement of safe working practices' (at p433).

120 The circumstances here before the CIM were different. There was no problem of an absence of supervision. The evidence that it was Mr Eckford who had been employed to design and implement the relevant systems of work at the site, so as to ensure safety was not challenged. There was no issue that his qualifications, experience or training were inadequate or inappropriate for the responsibilities which he had been given as to such safety matters. Both he and Mr Hunt were present when the accident occurred.

121 Mr Eckford had some 43 years' experience in the industry, some 25 years, on and off, in site management work and the rest on project management and construction management. He had performed site management work for the respondent for over 4 years, as at 6 October 1998. There was evidence that the respondent provided employees with training in safety matters, both in-house and external. The detail of that training was not in evidence, although there was evidence that the respondent's training programmes were considered during the WorkCover investigation into the accident. The fact of Mr Eckford having undertaken relevant training or it having been adequate, was not put in issue before the CIM. Nor were charges laid in relation to any inadequacy of the training received either by Mr Eckford or Mr Hunt, the site foreman, who also had responsibilities as to safety.

122 This position of itself, militates against leave to appeal being granted. See Caltex Petroleum Ltd v Harmer (1999) 92 IR 264, where at 269, the Full Court said: 'As to the second matter adverted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same. This consideration is directly applicable in the present case.'

123 The discussion of the High Court in Crampton v The Queen [2000] HCA 60 at para [4] to [20], is also pertinent. There the High Court was dealing with the limited circumstances in which a point attacking a conviction may be taken before the High Court, if not taken at trial or in the Court of Criminal Appeal. It was said: 14. The power invoked in the present case exists but, as was said in Giannarelli , it should only be exercised in exceptional circumstances. There are a number of reasons for this.

First, there is what was referred to by L'Heureux-Dubé J in the Supreme Court of Canada as "the overarching societal interest in the finality of litigation in criminal matters"[ R v Brown [1993] 2 SCR 918 at 923-924] when she said: "Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases."

Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.

Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.

Fourthly, as a general rule, litigants are bound by the conduct of their counsel [ Rondel v Worsley [1969] 1 AC 191 at 241 per Lord Morris of Borth-y-Gest; R v Birks (1990) 19 NSWLR 677 at 683-684; Halsbury's Laws of England , 4th ed, vol 3(1), par 518]. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice [ R v Birks (1990) 19 NSWLR 677].

Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.

In the case of an attempt to raise a new point in this Court there is the additional consideration, reflected in the statutory provisions governing the requirement of special leave to appeal [ Judiciary Act 1903 (Cth) s35A], that a second appeal is intended to be reserved for special cases. It is not there for the purpose of giving any sufficiently determined and resourceful litigant a third chance of success.

124 Similar considerations arise in appeals such as this, particularly given the provisions of ss179 and 197A of the Act. Here, it follows that the CIM's conclusion, that Mr Eckford was in a position and capable by reason of his experience and training to make all relevant decisions as to safety at the site and to have them carried out, was available on the evidence and submissions before him. Unlike the circumstances considered by the Full Court in Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) [2001] NSWIRComm 267, where a s53 defence was also rejected, here there was no issue raised before the CIM as to the adequacy of the training of the person employed by the respondent to carry out its obligations under the Act, in a practical sense on a day to day basis at this place of work. A desire on the part of the appellant to now argue that Mr Eckford did not have the appropriate experience or training, is not a proper basis for leave to appeal to be granted.

125 I turn then to the appellant's submissions that the CIM failed to consider a line of authority relevant to the s53 defence raised by the appellant. On appeal it cannot be overlooked that the submissions here advanced as to these authorities and their relevance to the defence in the circumstances of this case, were not put to the CIM by the appellant. I have already quoted the reference to authority upon which the appellant relied below. It is not open to conclude that the authorities to which reference was there made, were not considered by the CIM. Nor, in my view, is it open on appeal to criticise the CIM for having fallen into error in the way here put by the appellant.

126 There can be no doubt that the obligations flowing upon employers under the Act to be proactive as to safety matters, often commented upon in the authorities, is not removed by the availability of a s53 defence. A failure to be proactive, in the necessary sense, may lead, as here, to the conclusion that an offence has been made out. It is at that point that consideration must be given to any defence claimed.

127 The s53 defences are concerned with two alternatives. Firstly, whether in the particular circumstances which gave rise to the offence, it was reasonably practicable for a defendant to comply with the obligations under the Act (s53(a)). Secondly, whether the offence in question was due to causes over which the defendant had no control and against which it was impracticable to make provision (s53(b)).

128 It is inevitable that in the case of a corporation, meeting the obligations imposed upon it by the Act requires the engagement of employees or others to ensure that safety is pursued in an active and ongoing way. At the practical day to day level, this may involve a variety of different steps. For example, persons with appropriate skills, training and experience must be employed to safely perform the work which the employer requires. Safe systems of work must be devised and implemented. Training in the safe performance of such work may be also required. In many cases, supervisors who have the necessary skills, training and experience, to ensure that the work is carried out safely, must also be appointed.

129 The authorities have now long demonstrated that a breach of the Act may occur, even where an employer has been proactive in taking such steps and where, before an accident occurred, the employer believed that it had met all of its obligations to ensure safety. That explains why in so many prosecutions under the Act, a plea of guilty is entered and arguments are then advanced as to the foreseeability of the particular risk in question. Foreseeability is relevant to the determination of the penalty appropriate to the offence to which a plea is entered.

130 In only relatively few of the defended prosecutions, has a defence under s53 been raised or made out. Those cases readily demonstrate that the evidence necessary to establish such a defence is not easily made out, given the absolute obligations imposed by the Act and the narrow way in which the s53 defences are framed. When a defence is made out, that of course flows from the evidence led in the particular proceedings.

131 On the evidence in this case, I am satisfied the CIM's conclusion that the defence had been made out, was available. The respondent was not charged with any offence committed on Wednesday 29 September, when the risks to safety with which the respondent was charged, namely the failure to provide and maintain a safe system of work and to give the necessary instructions to ensure safety during the concrete pour, first arose and were identified. The charges were both concerned with the events of 6 October. The evidence demonstrated the steps the respondent had in place to ensure safety at this construction site, by the employment of Mr Eckford and Mr Hunt. As the Magistrate found, the system in place and the instructions given were inadequate, given the risk to safety posed by the method adopted for the concrete pour of the columns being erected at the site. Despite the risk in question having been identified by Mr Eckford on 29 September when steps were taken to halt the unsafe work, that did not prevent the unsafe work being performed on 6 October, with both Mr Eckford and Mr Hunts' acquiescence. Hence the offences were found proven.

132 Having found the offences proven, the CIM went on to accept that the evidence demonstrated that in the particular circumstances, it was not reasonably practicable for the respondent to comply with the obligations which it had breached on that day.

133 The CIM's conclusion rested on evidence that the person employed to ensure that the respondent's obligations under the Act at this site were met in practice, Mr Eckford, had in fact on the evening of Wednesday 29 September, identified the risk to safety here in question. He responded to it in an entirely appropriate way, by halting the unsafe work when work commenced on the next day, so that the risk identified could be removed by a different and safe system of work being devised and implemented. Scaffolding was available to be used to remove that risk. Why, in those circumstances, on 6 October Mr Eckford allowed himself to be talked into a departure from what he had already recognised that safety required, was not explained. The only hint of an explanation lay in the evidence that Mr Eckford's mother had recently died. He had gone away from the site on Friday 3 October to attend to the resulting personal obligations which fell upon him and on his evidence, was still affected by these events on 6 October. This, however, had not prevented him from halting further preparation for the unsafe work for a second time, when he returned to the site on the afternoon of 3 October, to find that Mr Hunt had not complied with his instructions that preparation for the next concrete pour not proceed.

134 The question which thus arose under s53(a), was whether or not on 6 October it was reasonably practicable for the respondent to have complied with ss15 and 16, the breach of which constituted the offences in question. There was no question that on 6 October a safe system could have been devised and implemented, but it was not. On the evidence, both of the supervisory staff who were employed on the site, Mr Eckford and Mr Hunt, had relevant responsibilities to ensure safety. They were both involved in the respondent breaching its obligations under the Act that day.

135 What reasonably practicable steps could have been taken by the respondent that day to ensure that Mr Eckford, the supervisor having the ultimate responsibility for safety at the site, with the requisite training, skills and experience, to carry out that responsibility, did not take the inexplicable step of permitting the identified unsafe work to proceed on 6 October? This was what Mr Eckford himself could not explain. Mr Eckford had plainly been pursuing his responsibilities in an ongoing and proactive way when he identified that a safety issue had arisen and had stopped the unsafe work twice. Despite this, on 6 October he permitted the unsafe work to proceed.

136 The appellant made no submissions as to what steps were here reasonably available to the respondent, which would have ensured compliance with ss15 and 16 on that day. It was not suggested, for example, that someone else should have been supervising Mr Eckford on the site. The respondent argued both before the CIM and on appeal, that such further supervision was not reasonably practicable. It was not submitted for the appellant that this submission was wrong. The argument advanced on appeal, that in arranging for safety at this site, as it did, the respondent had failed to be sufficiently proactive as to safety and could not delegate those responsibilities, did not come to grips with the issue of whether it was 'reasonably practicable' for the defendant to have met its obligations, when Mr Eckford permitted the unsafe work to proceed as he did on 6 October. That is what the CIM had to determine.

137 The CIM's conclusion that the defence was made out accorded with the approach taken in Italo Australia Construction and State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 123-5. In the latter case, a magistrate had found the offence charged proven and had concluded that the s53 defence had not been made out. In its decision the Court Session referred with approval to the minority judgment of Fisher P in Cullen v State Rail Authority (NSW) (1989) 31 IR 207, where his Honour said at pp210-211: '"In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer at or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged .

I consider that this safety code should be viewed in the light of the Industrial Commission's practical experience of industrial circumstances. The deceased was well trained by experience over many years and by qualification to both work at and supervise tree lopping. Neither qualifications nor experience were seriously challenged in the evidence, indeed, the evidence established the deceased's responsible behaviour and experience as a qualified linesman in this precise work. The employer was entitled to rely upon these qualities. The case against the employer is not strengthened by suggested reliance on ever higher levels of supervision. The case against the defendant is not proved beyond reasonable doubt if there remains an acceptable hypothesis reasonably consistent with the innocence of the Defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach. I consider that on the evidence and for these reasons, the prosecution has not made out its case to the exclusion of reasonable doubt. Were it necessary to do so, I would also accept, this time on the basis of probabilities, that a probable cause of the events alleged, the unforeseeable and unanticipated conduct of a properly trained and experienced supervisor supervened to remove from the employer the ability to control the happenings of the day which the employer otherwise would have had. The absence of information to the employer about the supervisor's casual acts of negligence, including the abandonment of a number of safety measures it was his duty to put in place, made it impractical for the employer to make further provision. My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control". (Our italics.)'

138 In Dawson, the Court Session held (at p125): 'Whilst we have found there was a failure to relevantly supervise Mr McFadyen, that failure was the failure of the foreman. On balance, and viewing the evidence as a whole, we are unable to be satisfied beyond a reasonable doubt that the failure was also that of the appellant. There was no suggestion in the case that the appellant had not laid down a safe system of work, only that it had not supervised Mr McFadyen so as to ensure his safety. But the facts are clear in that there was ample supervision available through the foreman and at least two other qualified linesmen; it was a matter of their proper deployment according to the work then in hand. That deployment, particularly on a remote site, must be a matter for the senior supervisor present. There was in fact a failure by the foreman to adhere to the procedure or system of work laid down in clear terms by the appellant. The appellant, in our view, cannot be held liable under s.15 in such a situation, once it be found qualified supervisor have been provided by it.'

139 The Court Session went on at p126: 'Finally, we should observe that even if we had taken a contrary view of the facts and concluded that the appellant had prima facie offended against s.15, we would nevertheless hold that it has established the statutory defence under s.53. This may be illustrated by referring to what Street C.J., with whom Slattery C.J. at C.L. and Yeldham J. agreed, said in Collins as follows at 215: "This decision points directly to the answer to the essential question in the present case. It was found as a fact that the Authority laid down a safe and proper practice. There is no suggestion either in the particulars or in the findings of fact of failure by the Authority to use "due diligence to see that it is observed" (Lord Diplock). Failure by inferior employees, even those of a supervisory rank, to observe that practice on the particular occasion will not render the Authority criminally liable for the offences charged against it."

Although that case concerned a breach of s.17, in its then form, of the Occupational Health and Safety Act , the principles therein laid down are equally applicable, in our view, to a defence under s.53. In the case before us, the facts well establish, on the probabilities, that the appellant laid down a safe and proper practice, and the evidence did not suggest the appellant had failed to use due diligence to see that that practice was observed. It seems to us to be established that the statutory defences available under s.53 are both made out in a situation of a casual failure by a supervisor to perform the duties and functions laid down by the employer.'

140 These approaches have been applied in later cases in a variety of factual circumstances, to which it is unnecessary to refer. Some of these authorities were relied upon by the respondent on appeal, but not before the CIM. The need for proactive pursuit of safety at workplaces has also been often discussed. See Genner Constructions Pty Limited v WorkCover Authority of New South Wales at [64] to [68]; WorkCover Authority of New South Wales v Ridge Consolidated Pty Ltd [2002] NSWIRComm 11 at [26]; WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at 381; WorkCover Authority of New South Wales (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [75]-[89].)

141 At the end of the day, each case falls to be determined on its own facts. In the circumstances here demonstrated on the evidence, the finding that it was not reasonably practicable for the respondent to ensure that the risk to safety here made out did not arise on 6 October, was plainly open. The CIM accepted that it had resulted from a supervisor's departure from his obligations, in circumstances which could not have been anticipated. This was consistent with applicable authority, where it has been accepted that while an employer has absolute obligations to ensure safety under the Act, an employer cannot anticipate and prevent every failure by a supervisor to perform his or her duties and functions in relation to safety. In some such circumstances, a s53 defence will be made out.

142 These observations do not leave open a view that merely by employment of an employee who is given responsibility as to safety matters, an employer has thereby met all of its obligations under the Act. As the appellant submitted and the respondent readily conceded, such obligations cannot be delegated. Nor does employment of those with responsibility for safety matters relieve an employer of the obligation to ensure safety in an ongoing and proactive way. This includes ensuring that those employed to ensure safety are not only appropriately trained, qualified and experienced, but also both effectively and proactively perform their work, in pursuit of the employer's ongoing obligations under the Act.

143 While the circumstances in this case were different to those dealt with in cases such as Cullen or Dawson and the other cases earlier referred to, the CIM's acceptance that the defence had been made out reflected what was revealed before him on the evidence led in relation to the charges he was considering and rejecting the submission that "the defendant, through Eckford permitted unsafe work practices to continue on 6 October." As I have already noted, the s53 defences are framed in a relatively narrow confine. Given their nature, it is always necessary to have close regard to the factual matrix demonstrated on the evidence, in order to determine whether a defence to the charge in question is made out. That is what the CIM did here, correctly in my view.

144 I finally note that I have had the opportunity to consider the draft judgment of the Vice President, but find myself in disagreement with it.

145 It cannot be doubted that the offences with which the respondent was charged were made out, as the CIM found. The evidence showed, however, that while there was no 'safe work method' devised prior to 29 September for this work, Mr Eckford halted the work that day, having identified that a risk to safety had arisen; he also identified what safety required, having the necessary equipment available on site to ensure safety. In fact, he twice halted the unsafe work prior to 6 October and on that day discussed with Mr Hunt and Mr Leslie the work to be performed. For entirely inexplicable reasons, Mr Eckford then permitted an identified, unsafe method of work to proceed, when a safe and identified alternative method was then available and which he had, in fact, discussed with the two workers directly responsible for supervising and performing the work in question. His only explanation was that he allowed them to talk him into proceeding with an obviously unsafe method of work.

146 While the absence of a managerial system designed to check Mr Eckford's work, for example by reporting to the board or in some other unidentified way, may well have been relevant to the offence the CIM found had been made out, had such a system there been raised or relied upon, how it could have prevented the circumstances in which this offence occurred on 6 October, is not apparent to me.

147 My view may well have been different, had the offence concerned the events of 29 September, when the unsafe system was first implemented, before detection by Mr Eckford. No offence was however charged in respect of what occurred that day. On the evidence, in the words of Fisher P in Cullen, I take the view that a probable cause of the offence here made out on 6 October, when Mr Eckford departed from a by then known and available safe work method, was the 'unforseen and unanticipated conduct of a properly trained and experienced supervisor'. True it was that the offences with which the defendant was charged were made out. I cannot see, however, that it was reasonably practicable for the respondent to have taken steps to preclude Mr Eckford's inexplicable conduct on 6 October. This is what the s53(a) defence was concerned with. I am satisfied that it was made out, as the CIM found.

148 For these reasons, I would order that leave to appeal be refused, with an order for costs in favour of the respondent, as agreed or assessed. The parties should be given liberty to approach within 21 days if no agreement as to costs is reached.

Orders 149 PRESIDENT: The orders of the Court are therefore those proposed by his Honour, the Vice-President, at paragraph [102] above. ____________________

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