WorkCover Authority of New South Wales (Inspector Clark) v Jabboury

Industrial Relations Commission (NSW)|2001-05-03|Before: Boland J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 PROSECUTOR: WorkCover Authority of New South Wales (Inspector Clark) PARTIES : DEFENDANT: Raymond John Jabboury FILE NUMBER: IRC 986 of 2000 CORAM: Boland J CATCHWORDS : Occupational health and safety - Prosecution under s 16(2) and s 49(4) of the Occupational Health and Safety Act 1983 - Not guilty plea - Person drowned in 500mm water main pipe - Elements of an offence under s 16(2) - Inference drawn from evidence that defendant expressed no objection to persons entering pipe - Risk arose from presence of persons in an Inspection Pit and pipe in circumstances where there was a risk of serious injury of death caused by inundation - Further risk from absence of ladder in Inspection Pit - Obligation on self-employed person to ensure that instructions are both sufficient and complied with - Confined space - Defendant found guilty. LEGISLATION CITED : Occupational Health and Safety Act 1983 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Ferguson v Nelmac (1999) 92 IR 188 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239 CASES CITED : Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 WorkCover Authority of New South Wales (Inspector Peter Hannan) v Bitupave Limited, trading as Boral Asphalt [2000] NSWIRComm 50 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2001) 101 IR 239 WorkCover Authority of New South Wales (Inspector Keenan) v TAFE Commission (1999) 92 IR 251 HEARING DATES: 03/05/2001; 03/06/2001 DATE OF JUDGMENT: 04/20/2001

PROSECUTOR: Mr J J Millar of counsel Solicitor: Mr S Pertsinidis WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT: Mr M K Scott of counsel Solicitor: Mr A Salmon Deacons

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 20 April, 2001 Matter No IRC 986 of 2000 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CLARK) v RAYMOND JOHN JABBOURY

Prosecution under s 16(2) and s 49(4) of the Occupational Health and Safety Act 1983 JUDGMENT 1 In June 1996 the defendant, Raymond John Jabboury, was a self-employed person trading as Desman-Ray Constructions. He had been contracted by Ledonne Constructions Pty Ltd ("Ledonne") to be the Project Manager for Ledonne in the construction of a 'Booster Pumping Station' at Mount Keira Reservoir, Mount Keira ("Mount Keira project"). Ledonne was to carry out the work under a contract with Sydney Water Corporation Limited ("SWC"), which owned and operated the Mount Keira Reservoir. Australian Water Technologies Pty Limited ("AWT"), a wholly owned subsidiary of SWC, was contracted by Ledonne to supply and install pumps at the Pumping Station, to supply and install roof covers and ladders to all chambers, perform welding connections to reservoirs, connect pipe work to mains and test all of the pipe work and pumps. Waycon Services Pty Ltd ("Waycon") was a labour hire company contracted by AWT to supply labour to the construction site. 2 On 25 June 1996 Malcolm Dewar, an employee of AWT, died inside a 500 mm diameter water main pipe when the pipe filled with water and he drowned. Inspector Thomas Clark of the WorkCover Authority of New South Wales explained in his affidavit in support of the application for summons prosecution how it happened: Minutes prior to his death, Dewar had entered a concrete inspection pit and climbed approximately 2.4 metres inside an open outlet pipe attached to the inside of the concrete pit. Whilst Dewar was inside the pipe conducting an inspection to ascertain where the pipe had been previously leaking, the gate valve and flanged connector assembly (connected to the inlet pipe) located inside the inspection pit, broke away from the inlet pipe. The valve and connector assembly failed due to the force of the water inside the inlet pipe (coming from the reservoir) pushing against the gate valve. Both the concrete inspection pit and outlet pipe filled with water within approximately 10 seconds. 3 Arising out of this tragedy, SWC, AWT and Ledonne were charged with various offences under the Occupational Health and Safety Act 1983 ("the Act"). Those charges are the subject of separate proceedings before this Court. The defendant was also prosecuted pursuant to s 16(2) and s 49(4) of the Act. Section 16(2) provides: Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 4 Section 49(4) of the Act provides: If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be. 5 The charge brought against the defendant by the prosecutor, Inspector Thomas Clark, was as follows: The defendant Raymond John Jabboury trading as Desman-Ray Constructions has breached Section 16(2) of the Occupational Health and Safety Act 1983, at Mount Keira Reservoir, Mount Keira in the State of New South Wales between 24 June 1996 and 25 June 1996, in that being a self-employed person, he failed to ensure that persons not in his employment, and in particular Malcolm Dewar, Geoffrey Rowling and John Watson, were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work. The particulars of the charge are : The defendant failed: a. To ensure the effective isolation of water at Inspection Pit No. 7 at the said site, whilst persons were carrying out work inside the inspection pit and outlet pipe. b. To ensure that a risk assessment was undertaken of the Mount Keira Reservoir Contract Project No 12239 to identify any confined spaces on the project and the hazards associated with working in those confined spaces. c. To identify the area inside Inspection Pit No.7 and the inside of the outlet pipe attached to Inspection Pit No.7 as being confined spaces. d. To ensure that work carried out in confined spaces was being carried out in accordance with the requirements and procedures set out in Australian Standard AS 2865-1995 ("Safe Working in Confined Space") called up by Clause 5 of the Occupational Health and Safety (Confined Spaces) Regulation 1990. e. To provide or maintain means of access to and egress from Inspection Pit No.7 at the site, which was safe and without risks to health. f. To ensure that persons entering confined spaces, being Inspection Pit No.7 and the outlet pipe attached to Inspection Pit No.7, had been provided with appropriate training and had the knowledge and skills necessary to enter confined spaces. g. To ensure that persons working at the site to whom he was giving directions were aware of and had read and understood the contents of 'Sydney Water's Instruction 800' regarding 'Safe Entry and Working in Confined Spaces.' h. To instruct Geoffrey Rowling and Kevin McDonald not to climb inside the outlet pipe attached to Inspection Pit No.7. As a result of the defendant's failure Malcolm Dewar drowned, and Geoffrey Rowling and John Watson were placed at risk. 6 The charge refers to Geoffrey Rowling and John Watson. Mr Rowling was an employee of SWC and was in the concrete pit when it filled with water. He rose to the top of the pit with the water and was able to escape. Mr Watson was an employee of Waycon Services and on the day of the incident had been in the concrete pit working on the pipe work but had climbed out of the pit prior to the incident. 7 The defendant entered a plea of not guilty. A Statement of Agreed Facts was submitted which was in the following terms: 1. That the prosecutor, Inspector Thomas Clark, was at all material times an inspector duly appointed pursuant to section 48 of the Occupational Health & Safety Act 1983 (NSW). 2. That at all material times Ledonne Constructions Pty Limited contracted with Raymond Jabboury trading as Desman-Ray Constructions, to supply project management services to Ledonne Constructions Pty Limited at the Mount Keira site. 3. That at all material times, Raymond Jabboury trading as Desman-Ray Constructions provided project management services to Ledonne Constructions Pty Limited at the Mount Keira site ("site") in accordance with the contract between them. 4. That between 24 June 1996 and 25 June 1996, Raymond Jabboury did not identify Inspection Pit No. 7 at the site as a confined space within the meaning of the Occupational Health & Safety (Confined Spaces) Regulation 1990 ("Regulation"). 5. That between 24 June 1996 and 25 June 1996, Raymond Jabboury did not instruct Malcolm Dewar, Geoffrey Rowling and John Watson that Inspection Pit No. 7 at the site was a confined space within the meaning of the Regulation. 6. That between 24 June 1996 and 25 June 1996, Raymond Jabboury did not ensure that Malcolm Dewar, Geoffrey Rowling and John Watson were carrying out work in Inspection Pit No. 7 at the site in accordance with AS 2865 - 1986. 7. That between 24 June 1996 and 25 June 1996, Raymond Jabboury did not ensure that Malcolm Dewar, Geoffrey Rowling and John Watson had read the contents of "Sydney Water's Instruction 800" regarding "Safe Entry and Working in Confined Spaces".

Dated: 5 March 2001 8 The sequence of events that led to the tragic incident on 25 June 1996 is critical to the proceedings and so I have set this out below in some detail. 9 It is to be kept in mind that Mr Jabboury was the project manager responsible for the work done not only by Ledonne but also by AWT. AWT was contracted by Ledonne to install, amongst other things, the pipe work, connectors, valves, etc., in and around Inspection Pit No. 7. On 24 June 1996 the pipeline between the reservoir and the pump station was pressure tested for leaks. The person who conducted the pressure testing was Mr Rowling. Two leaks were found, one was approximately 1.5 - 2 metres from the Inspection Pit No. 7 in the location of a 45 degree bend in the outlet pipe that had been laid by Ledonne. The other was in the Inspection Pit at the straub-flex stainless steel coupling. Mr Rowling informed the defendant of the leaks. An inspection of the leaks was carried out by the defendant. Mr Rowling and Mr Mark McCarron who, at the time, was employed by Ledonne as a pipe layer/machine operator, were present at the inspection. Also present at the inspection was Michael Kenny, a leading hand mechanical fitter employed by AWT. Mr Kenny had gone to the site to determine who was responsible for the repair of the leaks. It appears that it was agreed that the leak at the 45 degree bend was Ledonne's responsibility and the straub coupling leak was the responsibility of AWT. 10 In carrying out the inspection of the leak in the pipe, soil was removed from around the site of the leak and it was found that the concrete anchor block supporting the 45 degree bend had failed. Discussion occurred between the defendant, Mr Rowling and Mr McCarron about how to repair the leak. This particular discussion appears to have been inconclusive. 11 At about 5.00 pm on 24 June 1996 Laurence Pathinather, a civil engineer employed by AWT as the superintendent's representative assistant on the Mount Keira project, went to the pumping station to check on the progress of the pressure testing. He was informed by the defendant that a leak had occurred. Both Mr Pathinather and the defendant went to the site of the leak. It was Mr Pathinather's evidence that having seen the leak he asked the defendant what he intended to do about it. According to Mr Pathinather, the defendant replied that the concrete anchor block supporting the 45 degree bend may not be enough and he would replace it with a bigger block after pushing the two pipes together. Mr Pathinather then said to the defendant that he should give him specific details of what was proposed to fix the leak the next day. The defendant denied that Mr Pathinather asked him to provide a detailed plan the next day or that Mr Pathinather said words to the effect of "Let me know exactly what you are going to do". The defendant also said that he asked Mr Pathinather for a revised design of the anchor block. 12 Following the discussion between Mr Pathinather and the defendant there was a discussion at about 5.30 pm on 24 June involving the defendant, Mr Rowling and Mr Kevin McDonald. Mr McDonald was a foreman/machine operator employed by Ledonne. It was the defendant's evidence that the discussion with Messrs Rowling and McDonald was about the defendant's concern with obtaining a proper seal once the two pipes where the leak had occurred were pushed back together. The defendant said that Mr McDonald suggested an internal inspection but that he, the defendant, said the pipe was too small. Mr McDonald and Mr Rowling, however, insisted it could be done and that Mr Rowling was small enough to fit inside the pipe. The defendant then said in his evidence: I do not recall I said anything further but I did take it on board and that it may be a good idea to physically carry out an internal inspection. 13 The defendant then said he told Mr McDonald and Mr Rowling that the following morning they were to arrange to expose all of the pipe work around the leak and to take all of the concrete away. He said that he mentioned to Mr Rowling and Mr McDonald his earlier discussion with Mr Pathinather regarding the need "to reinforce around the top of the bend itself with steel reinforcing and concrete to anchor it down". 14 In the defendant's examination in chief the following exchange occurred: Q. Having in mind the concept of somebody going up the pipe to see whether you had a good seal or not, after the concrete block had been excavated away, what did you have in mind occurring, if anything, before that took place in terms of safety? A. Before we carried out the internal inspection?

Q. Yes? A. I quite frankly gave it no more thought than that at the time. The information I gained out of the brief discussion that afternoon was it was physically possible.

Q. Did you have any idea that on 25 June 1996, any persons would seek to enter the pipe? A. No sir.

Q. Did you have any idea that on 25 June 1996 that anybody would take the main valve out of pit number 7? A. No I did not.

Q. After getting Mr McDonald or telling Mr McDonald what you wanted the Ledonne employees to do on 25 June, what did you then do? A. I locked the site office and went home. 15 In the record of interview with Mr Rowling, on 2 July 1996 undertaken by the prosecutor, the following exchange took place: Q12: What instructions did Ray (the defendant) give you after that regarding the water coming out (the leak at the 45 degree bend)? A12: I said to Ray, to remove the piece of pipe off the valve to get entry into the pipe to see how bad the join is so we can push it back home. 16 In his examination in chief, Mr Rowling explained that in the conversation with Mr McDonald and the defendant at about 5.30 pm on 24 June he said to the defendant that he could probably fix the leak by disconnecting the straub coupling and spigot valve connector in the Inspection Pit, crawling inside the pipe and putting some soap on the rubber ring which formed the seal between the two pipes. Mr Rowling could not remember the defendant's response. 17 Under cross examination Mr Rowling agreed that the defendant did not tell him to go into the pipe to have a look at the leak and that it was his, Mr Rowling's idea, to go into the pipe. 18 Mr McDonald's evidence, limited though it was, about the conversation in the late afternoon of 24 June was that in answer to a question from Mr Rowling as to what Mr McDonald thought about the leak, Mr McDonald said "I don't know Geoff, I have not had a look at it." Under cross examination Mr McDonald said he did not think Mr Rowling made any suggestions about how to fix the leak and as to the suggestion about putting soap on the rubber seal, he said that was "impossible" and "we certainly would not have talked about that". Mr McDonald apparently instructed Mr McCarron to undertake the task of removing the concrete around the 45 degree bend and because Mr McDonald had other work to perform the next day he was not in the vicinity of Inspection Pit No. 7 when the accident occurred. 19 On 25 June 1996 at about 7.00 am Mr Rowling, accompanied by Mr Robert Cockburn, a truck driver/operator employed by Ledonne, released water from the pipe at the southern end of Inspection Pit No. 7. Mr Cockburn then went into the Pit "and cracked the bolts on the downside of the bypass valve, allowing air into the line so that the section could be removed." Mr McCarron had begun to remove the concrete from around the 45 degree bend and Michael Kenny was asked by Mr Rowling to remove a straub coupling and spigot valve connector in Inspection Pit No.7. Mr Kenny agreed and then appears to have asked Mr Watson to assist with the removal of the parts. Mr Kenny needed to go to Port Kembla and so Mr Watson was left to perform the job. Mr Watson, who was located at the pumping station, then requested a lift up to the reservoir and Mr Dewar who was at the pumping station at the time, obliged. 20 Mr Watson disconnected the straub coupling and spigot valve connector from the outlet pipe and they were lifted out of the Pit using an excavator and sling. Mr Watson got out of the Pit to go to the toilet. Mr Rowling then entered the outlet pipe from the Pit to look at the rubber ring at the 45 degree bend and was inside the pipe for a distance of about two metres. He was inside the pipe for about two minutes. After Mr Rowling came out, Mr Dewar entered the pipe. While he was in the pipe the socket valve connector dislodged from the inlet pipe due to the force of water inside the inlet pipe (coming from the reservoir) pushing against the gate valve. The Pit and outlet pipe filled with water. Mr Rowling was able to escape but Mr Dewar drowned. 21 It is to be noted that the socket valve connector was connected to the inlet pipe by no more than a rubber ring joint which was placed around the edge of the inlet pipe thereby creating a seal between the inlet pipe and the socket valve connector. With all parts connected it appears that there was no possibility of inundation but once one part of the connections, such as the spigot valve connector, was removed from the system of pipes, connectors and valves in Inspection Pit No. 7 the remaining connections were susceptible to the force of the water in the inlet pipe. Why not one person involved in the whole sequence of tragic events leading to Mr Dewar's death realised this has escaped satisfactory explanation. Elements of the offence 22 It seems to me that there are four elements of the offence under s 16(2) that the prosecution is required to prove beyond reasonable doubt, namely: 1. The defendant was a self-employed person.

There were persons not employees exposed to risks to their health or safety.

The risk arose from the conduct of the defendant's undertaking.

The exposure to risk was at the defendant's place of work. Defendant a self-employed person 23 A self-employed person is defined in s 4 of the Act to mean "an individual who works for gain or reward otherwise than under a contract of employment or apprenticeship, whether or not employing others". The defendant was a civil engineer operating as a sole trader. It was common ground that at all material times he was contracted to Ledonne to supply project management services at the Mount Keira site and that he provided those services in accordance with the contract. In my view the defendant came within the meaning of self-employed person in s 16(2) of the Act. Persons not employees of the defendant exposed to risks 24 The persons whom it was alleged were exposed to risk were the deceased, Mr Dewar, Mr Rowling and Mr Watson. Mr Dewar was employed by AWT as a fitter, Mr Rowling was a trades assistant employed by SWC, and Mr Watson was employed by Waycon Services. None of these persons were employed by the defendant. I will address the question of exposure to risk in relation to the third and fourth elements of the offence. Risk arose from conduct of defendant's undertaking 25 Mr M K Scott of counsel who appeared for the defendant, submitted that the work undertaken in Inspection Pit No. 7 of disconnecting the straub coupling and spigot valve connector, and the actions of Mr Dewar and Mr Rowling in crawling into the outlet pipe, were not part of the defendant's undertaking and therefore, no risk arose from the conduct of the defendant's undertaking. The submission was based on the propositions that, firstly, there was no engineering purpose to be served in entering the pipe, at least until the concrete around the 45 degree bend had been removed and the pipe connection reset and, secondly, the defendant had not given any instruction for any person to enter the pipe but rather had instructed that the work to be done was to clear the concrete from around the leaking pipe. Mr Rowling, the defendant contended, had gone off on a frolic of his own. 26 The defendant's undertaking was to provide project management services to Ledonne in connection with the construction of the booster pumping station for SWC. Part of that undertaking involved a responsibility for the work associated with the construction of Inspection Pit No. 7 and the pipework, valves and connections in and around that Pit. A leak had developed in the pipe near the Inspection Pit; it was the defendant's responsibility, as part of his undertaking, to have the leak repaired. The defendant had a concern about ensuring the seal where the leak had occurred was made good. He listened to advice from either Mr McDonald on the defendant's evidence, or Mr Rowling on Mr Rowling's evidence, about how the leak might be repaired and, at least in the defendant's mind, had not discounted the idea of someone going into the outlet pipe to ensure the seal had been made good. Indeed, he thought it was a good idea. The only way to do that would be to enter the outlet pipe through the entrance to it in the Pit, once the straub coupling and spigot valve connector had been removed. The defendant did indicate, in the presence of Mr McDonald and Mr Rowling, that he wanted the concrete cleared from around the leaking pipe but, critically, he did not go on to give instructions that there was to be no attempt to enter the outlet pipe to check on the seal where the leak occurred, or alternatively, did not make it clear to Mr McDonald or Mr Rowling that before entering the Pit and the outlet pipe, there were extensive safety precautions that had to be undertaken. 27 Even if I accept the defendant's evidence that he was not aware that anyone would seek to enter the outlet pipe on 25 June 1996 and that his expectation was that the work to be done involved clearing the concrete from the leaking pipe, the inference I am able to draw from the evidence is that Mr Rowling was left with the reasonable impression that either there was no objection to the proposal, or that there was tacit approval of the proposal, that as part of the procedure for repairing the leak, there should be an internal inspection of the pipe to check on whether the seal had been made good and that he proceeded to embark on that course of action the following day. The alternative inference that may be drawn from the evidence is that the defendant was aware that Mr Rowling intended to do what he proposed, that is, to enter the pipe to apply soap to the rubber ring and either expressly endorsed it or acquiesced in the proposal. 28 On the basis of either inference the evidence shows, in my opinion, that a risk arose from the conduct of the defendant's undertaking by virtue of the fact that in repairing the leaking pipe, persons not employed by the defendant entered Inspection Pit No. 7 and the outlet pipe leading from it in circumstances where there was a risk of serious injury or death. I find that, on the basis of the first inference I referred to, the relevant detriment to safety was the presence of persons, not employed by the defendant, in the Inspection Pit and outlet pipe in circumstances where there was a risk of serious injury or death caused by inundation. The other risk to safety arose out of the fact that the Inspection Pit was 3 metres deep and that there was no ladder in the Pit to assist in gaining access to or egress from the Pit. In the absence of a ladder there was a risk that persons may fall while getting into or out of the Pit. 29 The fact that the defendant gave instructions on 24 June that the work to be done the following day was to clear the concrete from around the leaking pipe, did not carry with it an unambiguous implication that no attempt should be made to enter the outlet pipe. Mr Rowling obviously saw the removal of the concrete and entry into the pipe as part of the one operation to repair the leak. Absent any instruction not to enter the pipe there was no work-related reason why the straub coupling and spigot valve connector could not have been removed and an internal inspection carried out of the site of the leak while the concrete was being cleared. Of course, what Mr Rowling overlooked, as did the defendant, were the risks associated with doing so. In fact, the defendant candidly admitted in his evidence that, following the discussion with Mr Rowling on 24 June about the prospects of an internal inspection, he gave no further thought to questions of safety; he gave no thought to the prospect of Mr Rowling and others doing what they did in entering the Inspection Pit and outlet pipe and being exposed to the risk of inundation by whatever means that might occur. Given his conversation with Mr Rowling it was reasonably foreseeable on the defendant's part that, in the absence of an express direction to the contrary, Mr Rowling might well do what he proposed and that if he did, he would be at risk unless measures were taken to ensure the safety of Mr Rowling and others. 30 In Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31, a Full Bench of the Commission in Court Session said: The magistrate appears to have reached her conclusion as to the objective seriousness of the offence, having regard to the lack of common sense of the injured worker. It is reasonably clear from her decision that it was concluded that the conduct of the injured worker effectively removed or minimised the liability of the respondent in relation to the lack of training or instruction afforded the employee. This was wrong in principle. Section 15 of the Occupational Health and Safety Act requires employers to be diligent and proactive to ensure the safety of employees. Those obligations are not diminished because of the error or negligence of an employee, although such matters may reflect on the degree of culpability of the employer for the purposes of sentencing. We note the following observations of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: "Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry." Similarly, it is important for employers to actively ensure that instructions given are both sufficient for and complied with by employees. We refer to the judgment of Walton J, Vice President in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Australia) Pty Limited (Unreported, 19 October 1999) as follows: "In any event, the mere stipulation of procedures and instructions to carry out the work may not be enough to satisfy the requirements of s15 of the Act. The employer should ensure that procedures and instructions are actively and positively complied with by employees.

In Dawson (at 121 and 125) the failure by a foreperson to supervise a qualified and experienced linesperson to the extent of instructing the employee as to the safest available method (where the employer had laid down a procedure for work and various methods of performing the work were available) would constitute a breach of s15 (although in that matter it was found the failure was that of the foreperson and not the employer).

I note that in an English High Court case, Pope v Gould (HM Inspector of Health and Safety, 20 June 1996, unreported but cited at p44 of Redgrave's Health and Safety, 1998, Third Edition) it was held in England, under the equivalent of s15, that it is not a sufficient defence for an employer to demonstrate that he had instructed the employee to operate machinery in a particular way and the employee had not followed his instructions. There, it was held, that the legislative provision was not concerned solely with the giving of instructions; rather it imposes upon the employer positive duties in relation to ensuring safe systems of work and safe machinery. It was held not to have been sufficient for instructions of a health and safety nature merely to have been given to employees; an employer must also ensure that those instructions are carried out (see also Haynes at 181-182, Kirkby at 53 and McMartin at 8)." 31 The force of these observations applies equally in the present case. If, as the defendant contended, he had given instructions to Mr McDonald and Mr Rowling to work on removing the concrete from around the site of the leak, he had an obligation to ensure that those instructions were carried out and he should not have left it open for Mr Rowling to believe there was no objection to entering the outlet pipe. 32 Mr Scott put a submission to the effect that the defendant had issued instructions to Mr McDonald and Mr Rowling on 24 June that the work to be done the following day was to clear the concrete from around the leaking pipe. I have dealt with this instruction insofar as Mr Rowling was concerned. But Mr Scott contended that having received the instruction Mr McDonald, as the supervisor, had a responsibility to see that it was carried out and that, in effect, it was Mr McDonald's responsibility to ensure that Mr Rowling did not go off "on a frolic of his own". Mr Scott relied on State Rail Authority of New South Wales v Dawson (1990) 37 IR 110. In Dawson , of course, there was no suggestion that the appellant had not laid down safe systems of work to be followed by supervisors and others. It was found that there was a failure by the foreman to adhere to the safe working procedure that had been laid down. In the present case there was no evidence of a safe system of work to be followed by supervisors or any one else within the defendant's undertaking. The fundamental failure lay with the defendant, not any supervision. The exposure to risk was at the defendant's place of work 33 That the Mount Keira project, which encompassed the site of the pumping station and the reservoir site where the accident occurred, was the defendant's place of work, was not put in issue in the proceedings and properly so, in my opinion. A Full Bench in WorkCover Authority of New South Wales (Inspector Keenan) v TAFE Commission (1999) 92 IR 251 at 262 said each case under s 16 of the Act raising an issue as to the 'place of work' must be determined upon its own facts and circumstances. However, the Full Bench acknowledged that an employer (and I would add self-employed person) may carry out its undertaking remote from its principal or primary place of operation. I note also the decision in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239, where the Full Bench adopted a broad construction of 'place of work'. In this case I find that the scene of the accident at the reservoir site was a place of work for the purposes of s 16(2) of the Act. Failure to ensure persons not exposed to risks 34 It is not in issue that Mr Dewar died in the way he did. However, the accident that caused Mr Dewar's death does not establish the commission of an offence: State Rail Authority of New South Wales v Dawson at 120-121; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 156; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449 per Wright J, President and Walton J, Vice President. There must be shown some causal nexus between the breach of statutory duty and the fact of detriment to safety: Dawson at 121; Haynes at 159 and Drake Personnel at 449-450; WorkCover Authority of New South Wales (Inspector Peter Hannan) v Bitupave Limited, trading as Boral Asphalt [2000] NSWIRComm 50. 35 In Haynes the Full Court said at 158-159: The stated purpose of the OHS Act being "to provide effectively for the safety, health and welfare of all persons in all workplaces" in which "enormous reforms in worker safety, health and welfare" will be achieved in "the protection of workers in their employment from all risks resulting from factors adverse to health" by placing "responsibility on employers to ensure that they operate in such a way as not to endanger their employees" may only be seen in the manner stated by us. The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. 36 In WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 his Honour said at p 253: Many decisions of this court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s15(1). It is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees: see McMartin : Drake at 34; Cullen at 209; Dawson at 120-121; Haynes at 156-157: and Kirkby at 49-50. There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: WorkCover Authority of NSW v Maitland City Council (1998) 83 IR 362 at 377. 37 It seems to me, therefore, that I need to consider firstly, whether there had been a failure on the part of the defendant as alleged in each of the particulars of the charge. Secondly, if there was a relevant failure, whether there was a causal relationship between that failure and the consequent risk to the health or safety of persons not in the employ of the defendant occasioned by their presence in Inspection Pit No. 7 and in the outlet pipe. I have to be satisfied of this beyond reasonable doubt. 38 The alleged "failures" of the defendant to ensure that persons not in his employment were not exposed to risks to their health and safety are set out in the particulars of the charge. 39 The allegation in particular (a) was that the defendant failed to ensure the effective isolation of water at Inspection Pit No. 7 whilst persons were carrying out work inside the Inspection Pit and outlet pipe. The defendant took no steps to ensure that Inspection Pit No. 7 and the outlet pipe would not become inundated with water while Messrs Watson, Dewar and Rowling were carrying out work in the Pit and the pipe. Because of that failure to do so these three persons were exposed to risks to their health or safety. The defence to this failure on the defendant's part was that he did not know that any person intended to carry out work in the Pit or enter the outlet pipe and that, in accordance with his instructions, he expected that the work to be carried out on 25 June was the clearing of concrete around the leaking pipe. However, in response to the defendant's concern about ensuring that there was a proper seal where the leak had occurred, a proposal was put to him that someone should remove the straub coupling and spigot valve connector in the Inspection Pit and go inside the pipe to make an internal inspection. The defendant thought this was a good idea, although the defendant said he issued no directions to implement the proposal and did not think anyone would seek to implement it. Clearly, however, Mr Rowling left the meeting with the defendant on 24 June thinking either that he had approval to proceed with the proposal or thinking that as no objection had been voiced against the proposal it was all right to implement it the following day. 40 The defendant had a duty to ensure that persons not in his employ were not exposed to risks to their health or safety. In describing the duty imposed by s 15(1) of the Act, the Full Bench in Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'ng ) (1999) 90 IR 432 at 449 stated : This Court and its predecessors have frequently emphasised the breadth of the duty imposed by s 15(1) of the OH&S Act: see, for example, WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at 478 and WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85. The duty imposed by s 15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty. In Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469-470, Watson J said: "I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear. Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the Industrial Safety, Health and Welfare Act 1972 (SA), where in reg 4 the phraseology used is "shall take all reasonable precautions to ensure' ( see Smith v Elliott Bros ( 1980 ) 26 SASR 138) . . . . 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.'' 41 I see no reason in construing the statue that the word "ensure" as it is used in s 16(2) should be given any different meaning to the same word in s 15(1). 42 I also refer to the decision of Wright J, President in Ferguson v Nelmac (1999) 92 IR 188 where his Honour said at 210: As to the obligations imposed by s 15 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, which are equally applicable in this matter although his Honour was dealing with proceedings under s 16 of the Act: "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."

43 These observations apply with equal force to a self-employed person under s 16(2) of the Act. In my opinion the defendant had a positive duty to ensure that, once the proposal to go inside the outlet pipe was raised for discussion, he took all steps necessary to quash any notion of such an activity and to ensure that it did not occur or, if it was to occur, that all steps were taken to ensure it was done safely. This he failed to do, including a failure to isolate the water at Inspection Pit No. 7. Only SWC employees were qualified to effect isolation procedures. No contact was made by the defendant with SWC about isolating the mains water at the reservoir site. If he had taken steps to isolate the water at the Pit the risk to health or safety would not have arisen. Particular (a) is made out. 44 Particular (b) alleged that the defendant failed to ensure a risk assessment was undertaken to identify any confined spaces on the project for which the defendant was responsible and the hazards associated with working in those confined spaces. The defendant acknowledged in his evidence that he did not undertake or arrange to have undertaken, a risk assessment to identify any confined spaces or hazards associated with such spaces on the project for which he was responsible. 45 Pursuant to Australian Standard AS 2124-1986, which was incorporated into the General Conditions of the Contract between Ledonne and SWC, Ledonne was required to provide all things and take all measures to protect people and property. Certain other obligations on Ledonne in respect of its Contract with SWC were set out in clause GS-02 of the Contract, including the obligation on Ledonne to "at all times exercise any other necessary and reasonable precautions appropriate to the nature of the work and the conditions under which the Contract is to be performed for the safety of all persons on the Site or in the vicinity." 46 The terms of the contract between Ledonne and the defendant were not in evidence in the proceedings, so it is not known whether Ledonne passed on its obligations in respect of safety to the defendant. In any event, however, the defendant indicated in his evidence that he had read the contract between Ledonne and SWC and agreed that he had to concern himself with occupational health and safety issues for the whole site including Inspection Pit No. 7 and the associated piping. The defendant had also read SWC's Manual of Practice concerning "Safe Entry and Working in Water Board Confined Spaces" ("Instruction 800"), which contractors were required to comply with. Instruction 800 required that "In planning for safe entry and working in a confined space all hazards must be identified and managed to create a safe workplace." Whether or not the defendant was under a contractual obligation to observe Instruction 800, he was a self employed person with certain obligations under s 16(2) of the Act and he was aware of the clear advice in the Instruction to undertake a risk assessment in relation to the existence of confined spaces and associated hazards. On the basis of the reasoning I applied in relation to particular (a) of the charge the defendant should have either issued unequivocal instructions that there was to be no disconnection of pipework in Inspection Pit No. 7 and no entry into the outlet pipe or, if this work was to be carried out, or allowed to be carried out through acquiescence by silence, some assessment should have been undertaken of the associated risks. None was undertaken. If such an assessment had been conducted in a complete and proper manner it would have been obvious that a grave risk existed for anyone entering the Pit and the outlet pipe and action would inevitably have been taken to avoid the risk, isolation would have occurred, permits to work in confined spaces would have been obtained, safety equipment would have been used, standby personnel would have been available. I find that particular (b) is made out. 47 Particular (c) alleged that the defendant failed to identify the area inside Inspection Pit No. 7 and the inside of the outlet pipe attached to the Pit as confined spaces. As I understand the evidence, the outlet pipe entered by Messrs Rowling and Dewar was 500mm in diameter. The Pit was some 3 metres deep. The Occupational Health and Safety (Confined Spaces) Regulation 1990 defines a confined space as follows: (1) In this Regulation:

"confined space" , in relation to a place of work, means a space of any volume which a person may at any time enter or be allowed to enter and in which: (a) the atmosphere is liable to be contaminated at any time by dust, fumes, mist, vapour, gas or other harmful substances; or (b) the atmosphere is liable at any time to be oxygen deficient, and includes, but is not limited to, the following: (c) storage tanks, tank cars, process vessels, boilers, pressure vessels, silos and other tank-like compartments usually having only a manhole for entry; (d) open-topped spaces of more than 1.5 metres in depth, such as pits or degreasers which are not subject to good natural ventilation; (e) pipes, sewers, tunnels, shafts, ducts and similar structures; (f) any shipboard spaces entered through a small hatchway or manhole, cargo tanks, cellular double bottom tanks, duct keels, cofferdams, ballast and oil tanks and void places (but not cargo holds); "the Act" means the Occupational Health and Safety Act 1983. (2) In this Regulation, a reference to AS 2865-1986 is a reference to the publication of that number of the Standards Association of Australia entitled Safe Working in a Confined Space (as in force on the day on which this Regulation takes effect). (3) For the purposes of this Regulation, a reference in AS 2865-1986 to a confined space is to be read as a reference to a confined space as defined in subclause (1).

48 There does not seem to me to be any doubt that the outlet pipe was a confined space, there being particular reference to pipes in the definition set out in the Regulation. The Pit was a place of work more than 1.5 metres deep but I do not consider it was not subject to good natural ventilation having regard to the fact of its size and that it was open-topped. However, once the spigot valve connector was removed, the Pit was liable to fill with water and, obviously, would be rendered "oxygen deficient". In those circumstances, I consider it would be a confined space and, therefore, any proposal to carry out work in the Pit that involved the removal of the spigot valve connector would attract the host of safety requirements contained in Instruction 800 and AS 2865-1986. 49 I note that there is overlap between particulars (b) and (c); if a risk assessment had been carried out it would have become obvious that work was to be undertaken in confined spaces, namely, the Pit and outlet pipe. Nonetheless, the defendant failed to identify the confined spaces. If he had identified them the requirements of AS 2865-1986 and Instruction 800 could have been invoked and the risks avoided. Particular (c) is made out. 50 Particular (d) of the charge alleged that the defendant failed to ensure that work carried out in confined spaces was being carried out in accordance with the requirements and procedures set out in AS 2865-1995 called up by clause 5 of the Occupational Health and Safety (Confined Spaces) Regulation 1990. I have no evidence or information before me about any Australian Standard referred to as AS 2865-1995. I am in no position, therefore, to make any finding about the allegation in particular (d). Particular (d) is not made out. 51 Particular (e) alleged that the defendant failed to provide means of access to and egress from Inspection Pit No.7 that was safe and without risks to health. The allegation goes to the absence of a ladder in the Pit. The evidence was that there was no ladder - temporary or permanent - in the Pit and it seems that persons gained access and egress to the Pit by climbing on and off the gate valve top. The Pit was three metres deep. In my opinion, the risk to health or safety of a person climbing into or out of a pit this deep without the assistance of a ladder is obvious. The defendant gave evidence to the effect that when he was in the vicinity of the Pit on 24 June, he did not remember seeing a ladder in the Pit. Mr Scott submitted that the evidence also showed that a ladder was available for use by AWT and Ledonne employees and that the defendant could not be held responsible if the employees did not use the available ladder. The submission overlooks the nature of the duty on the defendant under s 16(2) of the Act, which is to "ensure" the health or safety of persons. It seems to me that it was reasonably practicable for the defendant, given the nature of his undertaking, to ensure that persons entering or leaving the Pit used a ladder to do so. It also seems to me that to require a ladder to be used, and to ensure that it was used, was a matter over which the defendant had control. If a ladder had been in place the risks to health or safety would have been avoided. Particular (e) is made out. 52 Particular (f) alleged that the defendant failed to ensure that persons entering confined spaces, being the Pit and outlet pipe, had been provided with appropriate training and had the knowledge and skills necessary to enter confined spaces. The defendant's evidence was that he agreed persons entering pipes ought to have confined space training and that persons carrying out work in the Pit in relation to the pipework should have had confined space training. However, the defendant said that it was not his responsibility to ascertain whether the relevant persons had in fact received the training. In my opinion, the defendant's duty to ensure that persons not in his employment were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking, placed on the defendant a responsibility for ensuring that persons entering confined spaces had the necessary training, skills and experience to enter confined spaces. The defendant did not do so. The evidence suggests that Mr Rowling had "some" confined space training but Mr Watson had received none. The evidence is unclear about whether Mr Dewar had received any training. In any event, the defendant took no steps to find out whether the relevant persons had received confined space training and whether they had the necessary skills and experience to enter confined spaces. If he had taken these steps, either personally, or through the supervision that was available to him, and it had become evident that the relevant persons did not have the necessary training, skills and experience, the risk is unlikely to have arisen. Particular (g) is made out. 53 Particular (h) alleged that the defendant failed to instruct Geoffrey Rowling and Kevin McDonald not to climb inside the outlet pipe attached to Inspection Pit No. 7. Mr J J Millar, counsel for the prosecution , did not pursue this particular insofar as Mr McDonald was concerned. The evidence was that the defendant failed to instruct Mr Rowling not to climb inside the outlet pipe. If he had the risks to health or safety would not have arisen. To this extent particular (h) is made out. 54 I find that the essential elements of the offence have been proved beyond reasonable doubt and I find the defendant guilty of an offence under s 16(2) of the Occupational Health and Safety Act 1983 . 55 I shall hear the parties at a date to be fixed as to the question of penalty and costs.

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Safety Act 1983(NSW)

Industrial Safety, Health and Welfare Act 1972(SA)

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Judgment (19 paragraphs)

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