WorkCover Authority of New South Wales (Inspector Waterhouse) v Paterson... [2005] NSWIRComm 413 | Case summary

WorkCover Authority of New South Wales (Inspector Waterhouse) v Paterson... [2005] NSWIRComm 413 | Case summary | Zoe

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1 The defendant has entered a plea of not guilty to a charge arising under s8(2) of the Occupational Health and Safety Act 2000 (the Act). 2 The offence charged alleges that on 18 January 2003, the defendant, being an employer, failed: To ensure that persons (other than the employees of the defendant employer), and in particular, Ken Hong, Phillip Walzinski, Nivone Thipdavong, Adam Hong, Tino Carfi, Kite Richards and Pauline Piper were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while they were at the defendant's place of work. 3 The particular of the offence alleged is: 1. The defendant failed to advise that tests should be undertaken to ensure the adequacy and uniformity of the sodium silicate grout treatment prior to the commencement of the trimming of the foundations of the house and excavation of the trench at the site to ensure that the footings of the house would not move, shear, collapse or subside during trimming of the foundations of the house and excavation of a trench at the site so that the wall of the house was not at risk of collapse. 4 The nature of the failure alleged requires some detail as to relevant background factual matters involving other parties as well as the defendant. Relevant factual background 5 In or about March 2002, the South Sydney Council gave development approval for the residential development of a site at 162-184 Belmont Street, Alexandria. The development, building and construction work on that site was to be overseen by Newtown Developments Pty Limited (Newtown). 6 At 160 Belmont Street Alexandria, located adjacent to and abutting the boundary of the development site, was a single storey house constructed of brick which was occupied by Mr Kite Richards and Ms Pauline Piper. 7 Prior to the commencement of building work at the site it was necessary to undertake soil stabilisation under the footings and piers of the house at 160 Belmont Street to consolidate its foundations and prevent any structural damage to that house that might arise from the excavation of a trench along the length of the boundary between 162 and 160 Belmont Street. It was intended to dig a trench along the boundary wall between 162 and 160 Belmont Street to be used for pouring the footings of the new terrace house development on the site of 162 - 184 Belmont Street. 8 On or about 13 January 2003, Mr Tino Carfi, Construction Manager for Newtown, decided to use a sodium silicate injection process to underpin the footings of the house at 160 Belmont Street. In general terms, that process involved injecting into the soil adjacent to the footings of the house at 160 Belmont Street, a sodium silicate solution in order to solidify and stabilise the soil providing support for the house at 160 Belmont Street and to ensure the digging of the trench at the boundary line did not destabilise the foundations of that house. 9 The solution that was injected comprised a grouting mixture of sodium silicate together with a hardening agent ethylene glycol diacetate and water. The process involved is that, once injected into the soil at certain predetermined depths, the grouting mixture permeates the soil and, over assessed periods, it solidifies and hardens thereby providing the necessary stabilisation to what would otherwise be loose soil. 10 In order to undertake the sodium silicate grouting process, Mr Carfi contacted Mr Peter Bradley at In-Ground Constructions Pty Limited (In-Ground) on or about Monday, 13 January 2003 and requested a quote for the treatment. In-Ground had undertaken similar work for Mr Carfi and Newtown on a prior development at McAvoy Street, Alexandria. 11 In-Ground subsequently provided a quotation dated 13 January 2003 identifying the scope of works to be undertaken as follows: The extent of the stabilisation work is the treatment of the soil to a depth of up to 1 metre below footing levels of the adjacent property, over a length of 26 metres. This will be achieved by the creation of interlocking columns of treated soil, 600mm nominal diameter spaced at 500mm centres. 12 Mr Bradley is a director on In-Ground and, by all accounts, was directly involved in the work undertaken by the company in the silicone grouting process. He described the work to be done along the boundary line of 162-160 Belmont Street as sand stabilisation by sodium silicate grouting. 13 Also included in the written quotation from In-Ground to Newtown was the following warranty: We will carry out the Chemical Grouting in accordance with the procedures established and agreed with your supervising engineer and the results of the grouting will depend on the ground conditions . No other warranty expressed or implied is offered or intended by this company. (emphasis added) 14 According to Mr Bradley, he requested input from an engineer in relation to the work he proposed to undertake in order to assess the strength or capacity of the grouted soil. He said that as he does not have professional indemnity insurance, he required a supervising engineer 'to do that sort of thing'. 15 Newtown had a consulting engineer contracted for the development work at Belmont Street but he was overseas in January 2003. As a result, Mr Carfi contacted Mr Paterson of the defendant company, Paterson Wholohan Grill Pty Limited (PWG). Mr Paterson is the Managing Director of PWG which is a consulting civil and structural engineering company based at St Leonards. PWG had previously done work for Newtown in relation to construction development work at McAvoy Street, Alexandria. 16 In his record of interview with Inspector Waterhouse on 6 June 2003, Mr Paterson described the work to be undertaken by PWG for Newtown at Belmont Street as follows: We were asked to confirm that the method of grouting the perimeter of the site was a satisfactory method. We set out some guidelines for restrictions on how they should do the work. 17 The scope of the work to be undertaken by PWG for Newtown is a significant issue in these proceedings. I will return to it in more detail later in this judgment. 18 Following Mr Carfi's approach to Mr Paterson on 13 January 2003, Mr Paterson had at least two discussions with Mr Bradley of In-Ground on 15 January 2003 as well as additional discussions with Mr Carfi. Following that, he sent a fax to Mr Carfi on 15 January 2003 as follows: Dear Tino,

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19 Mr Bradley confirmed that, by 15 January 2003, he had had at least two conversations with Mr Paterson about the work to be done, including the 'minimum set time' of forty eight hours. In other words, there is no dispute as far as Mr Bradley is concerned that the minimum set time as recommended by Mr Paterson was forty eight hours. 20 On Wednesday, 15 January 2003, on behalf of In-Ground, Mr Bradley conducted penetrometer tests in the vicinity of the silicone grouting work to be undertaken. A penetrometer measures the density and, to some degree, the nature of the soil being measured. Mr Bradley described it thus: A penetrometer test is a test whereby a rod is hammered into the ground by a standard weight dropping over a pre-determined height, and you measure the number of blows for equal measures of penetration. 21 The testing was done by Mr Bradley following discussions with Mr Paterson of PWG. He described the results of the test to Inspector Waterhouse as indicating 'rapid improvement in ground strength with depth'. Mr Bradley recorded the results of the penetrometer tests and, as I understand it, faxed a copy of those results to Mr Paterson at PWG on that day. 22 On Thursday, 16 January 2003 at about 11:00am, In-Ground commenced the inground silicone grouting process. It was done by Mr Bradley, assisted by Mr Bernie Dreske and was completed at about 11:30am on Friday, 17 January 2003. Mr Bradley confirmed there was no safe work method statement prepared for the process. Nevertheless, Mr Bradley was clear in his recollection that, on Friday, 17 January 2003, it was his belief the silicone grouting would be left until Monday before trimming it in order to allow time for it to harden consistent with the recommendation received from Mr Paterson that the minimum set time should be forty eight hours. 23 As Mr Bradley stated in his evidence: A. …Once I received the advice, having spoken to Mr Paterson of his decision, then I did speak to Carfi and I spoke to several people on the site who asked when the gel could be cut and I said not before Monday morning. …

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24 Mr Carfi completely disavows any such conversation with Mr Bradley. According to Mr Carfi, he did not have any conversation on 17 January with Mr Bradley. Mr Carfi's evidence was to the effect that on the afternoon of 17 January he went to the worksite at 162 Belmont Street. He did not see Mr Bradley. He did see Mr Bernie Dreske, the In-Ground employee who assisted Mr Bradley with the silicone grouting process. He was 'packing up' to leave the site. According to Mr Carfi, he asked Bernie: 'How did it go?' And he said, 'It has gone really well, all done'. I said, 'When can we dig?' He said, 'With this heat, it's ripping its head off, you can have a go at it tomorrow, as long as you do it by hand.' 25 It was on the basis of what was said by 'Bernie' that Mr Carfi proceeded to instruct his workers to commence excavating the trench at the boundary line between 162 and 160 Belmont Street the next day. 26 On any view, Mr Carfi's direction to commence excavation on Saturday, 18 January 2003 was completely at odds with the minimum wait time of forty eight hours as recommended by Mr Paterson and as understood by Mr Bradley. According to Mr Carfi, he was entitled to rely on what Bernie told him because, he said: Bernie was the injector, he was doing the installation. I was assuming, as I did on the first job that they did where Peter would come and go and Bernie was there predominantly, that I would deal with the guy on site; you don't deal with the guy who is not always there. 27 As well, Mr Carfi said, it was 'the installer' who was 'going to tell us whether the forty eight hours is sufficient or whether he wants more setting time or less setting time'. 28 I am satisfied that 'Bernie', as recounted by Mr Carfi, was Mr Bernard Dreske, the employee of In-Ground who assisted Mr Bradley with the silicone grouting process. 29 Under cross-examination, Mr Carfi adhered to his evidence that he had no conversation with Mr Bradley on 17 January 2003 and that it was Mr Drekse's statement to him that he could 'start excavating tomorrow morning' that he relied upon in directing his workers to do that. Clearly, Mr Dreske's evidence on this point was critical. 30 For reasons that were not made clear, the prosecutor did not interview Mr Dreske. Accordingly, no statement was forthcoming and he was not called by counsel for the prosecutor. When asked to explain why Mr Dreske was not being called, counsel said: ... As counsel prosecuting this case, I am not calling Bernie Dreske because I don't know who he is, I don't have a statement from him and he is not under subpoena. It is not really a question of deciding not to call him, he is not a person from whom I have a proof or from whom a proof was taken in the investigating process. There is no secret about that. My friend can make of that or may make of that what he likes. There is no issue about me deciding not to call him; he is not a witness that I am instructed about.

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31 The absence of any evidence from Mr Dreske does not assist the prosecution. Counsel for the prosecutor submitted that I should accept Mr Carfi's evidence on this issue. To the extent that Mr Carfi was adamant as to his recollection, it is accepted. However, balanced against that is the totally contrary evidence of Mr Bradley. His evidence on this issue was equally firm and he was not tested in relation to it. I have nothing to suggest that his evidence should not also be accepted at face value. 32 In the absence of any corroborating evidence from Mr Dreske, I cannot accept Mr Carfi's evidence as evidence establishing beyond reasonable doubt the facts that he asserts. If anything, there was other evidence given before me that, when taken together, would point against accepting the veracity or accuracy of Mr Carfi's recollection on important matters. Before detailing those, it is necessary to set out the events of 18 and 19 January 2003 relevant to this offence. 33 On Saturday, 18 January 2003 employees of Newtown commenced excavation work. As instructed by Mr Carfi, they did the work manually using digging tools such as 'picks, shuffles (sic) and crow bars'. They were digging a trench along the boundary line and cutting away any of the solidified grouting that may have extruded into the trench line. 34 The work was being overseen by Mr Nivone Thipdavong. He was the site foreman for Newtown at the Belmont Street site. Mr Thipdavong had prior experience as site foreman on construction sites for his parent's construction company. At the time he worked for Newtown, he was part way through a degree in civil engineering which he has now completed. 35 In addition to himself, Mr Thipdavong recorded in his site diary that other employees on site that day were: Tino, Foong, Peter, Phil, Marko, Nick, Kenny and Adam. 36 Reference to 'Tino' is Mr Carfi and 'Foong' is Mr Foong Takounlao, the company manager for Newtown at the time. He is still with Newtown in the position of Project Manager. 37 Excluding Mr Carfi and Mr Takounlao, both of whom visited the site briefly on 18 January 2004, there were five labourers actually doing the trench digging. Beyond the names listed by Mr Thipdavong in his site diary, there is no other evidence to confirm whether they correlate with those persons cited in the particulars of the offence charged as being specifically exposed to risk. They are named as Ken Hong, Phillip Walzinski, Nivone Thipadavong, Adam Hong, Tino Carfi, Kite Richards and Pauline Piper. 38 Mr Richards and Ms Piper were the tenants living at 160 Belmont Street. Mr Carfi and Mr Thipdavong have been clearly identified as Construction Manager and site foreman respectively for Newtown. Although it is more likely than not that reference in Mr Thipdavong's site diary for 18 January 2003 to 'Phil' is Mr Phillip Walzinski, 'Kenny' is Mr Ken Hong and 'Adam' is Mr Adam Hong, that issue was never clarified in evidence before me. Further, I have no idea who 'Peter', 'Marko' and 'Nick' are as far as being employees of Newtown on site on 18 January 2005 who may have been exposed to risks to their safety. 39 Ultimately, the only persons I can be satisfied beyond reasonable doubt as being specifically exposed to risks to their health and safety on the dates of the alleged offence are Mr Thipdavong, Mr Carfi and Mr Kite Richards. Although I assume Ms Piper was present in the house at 160 Belmont Street when structural problems emerged with the wall of the house, I have no evidence as to her presence or otherwise. 40 Mr Thipdavong gave evidence that he participated in a tool box meeting on the afternoon of Friday 17 January which Mr Carfi attended. According to Mr Thipdavong, it was at that meeting that Mr Carfi told him to proceed with the excavation of the trench at the boundary line of 160 and 162 Belmont Street the next day. Mr Carfi confirmed that discussion although his evidence differed as to where the tool box meeting was held. Mr Thipdavong said it was at the Spectrum development site at McAvoy Street whereas Mr Carfi said it was at the Belmont Street site. 41 As site foreman, Mr Thipdavong had not been involved in discussions with Mr Bradley or Mr Paterson about the silicone grouting process. He was not familiar with the process. When Mr Carfi told him about it at the tool box meeting on Friday 17, Mr Thipdavong said he: ... asked Tino for advice on the actual specification of the product and what's it used (sic) and how was the cost in comparison with concrete underpinning or grout injections. 42 According to Mr Thipdavong, Mr Carfi assured him that he had previously used the product, that it worked well with sand and was cost effective. 43 The only additional instruction Mr Carfi gave was that the digging of the trench and the cutting away of any extruded silicone grouted material should be done by hand using digging tools such as picks and crow bars. 44 According to Mr Thipdavong, the excavation work and trimming of the extruded silicone grouted material proceeded relatively uneventfully in the area adjacent to the footings of the house that had been underpinned by the silicone grouted material. In other words, the side wall of the house at 160 Belmont Street gave no indication of any untoward movement. 45 At some point, however, the workers did encounter what Mr Thipdavong described in his site diary as follows: Found the silicone to be quite soft half way between Grid (9-8). 46 Reference to Grid (9-8) refers to grid lines on structural plans of the proposed development. The proposed development consisted of a row of terrace houses fronting Belmont Street and extending back to Belmont Lane. Commencing with the front of the proposed terraces in Belmont Street, the structural plans depict each house to be built as falling within denoted grid lines running horizontally across the plans. Starting with Belmont Street, each house had a front courtyard area depicted between grid lines 10 to 9. The residential or main section of each proposed house fell between grid lines 9 to 8, the back courtyard between grid lines 8 to 7 and the garage between grid lines 7 to 6. As I understand it, the house at 160 Belmont Street corresponded more or less with the same structural outline as the proposed terrace development adjoining it. Accordingly, while the need to provide underpinning to 160 Belmont Street using the silicone grouting process was done along the full length of the boundary, the underpinning between grid lines 9 to 8, being the residential area of the house at 160 Belmont Street, was obviously particularly important. 47 Despite Mr Thipdavong's entry in his site diary as to the silicone being 'quite soft' between grid lines 9-8, he did not report it to Mr Carfi or anybody else for that matter. 48 According to Mr Bradley, he and Mr Dreske did not complete the grouting under the residential section of the house until Friday 17 January at a time said to be between 11:30am and 2:00pm. 49 As is evident, based on the recommendation of Mr Paterson in his discussions with Mr Bradley, once the grouting process was completed by approximately midday on Friday 17, the sodium silicate grout should have been left for a minimum period of forty eight hours in order to properly permeate and set. Mr Bradley certainly knew that and it was his evidence that Mr Carfi was also aware of that. Further, Mr Bradley stated it was his belief, based on his discussion with Mr Carfi on Friday 17 January, that no attempt would be made to excavate the boundary trench and trim the extruded silicone grouting until Monday 20 January. As events transpired, Mr Thipdavong and his workers did the job on Saturday 18 January, less than twenty four hours after grouting had been completed. 50 Given the relatively shortened period that elapsed before excavation commenced, it was not surprising that Mr Thipdavong observed the silicone 'to be quite soft' between grid lines 9 to 8. Between grid lines 10 to 9, Mr Thipdavong said the 'solidness of the silicone was hard'. 51 In addition to noticing the silicone was soft between grid lines 9 to 8, Mr Thipdavong noticed some areas of black silt in that area that had not bonded well with the silicone. 52 In short, as would now seem evident, two problems were encountered on Saturday 18 January. The first was that the silicone grouting had not had time to properly harden. The second was that due to the presence of silica with the sand in some areas, the silicone grouting had not properly permeated and bonded before setting. The extent of that is not clear. 53 It is not disputed that problems with the structural stability of the side wall of 160 Belmont Street, adjacent as it was to the boundary line and the excavated trench, surfaced early on Sunday, 18 January 2003. As Mr Carfi described: Q. ... When did you first know there was a problem? A. About 6 o'clock Sunday morning. Q. How did you know? A. The tenant, Kite, rang me and said he couldn't open his front door and that the house was creaking.

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56 Counsel for the defendant contended that, relying on s107 of the Act, the prosecutor had commenced proceedings out of time. 57 Section 107(1) of the Act provides: 107 Time for instituting proceedings for offences (1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section or section 107A. 58 The prosecutor filed the initial application for order on 18 January 2005. According to the particulars of the offence alleged, the date of the offence is said to be 18 and 19 January 2003. 59 In order to comply with the two year time limit provided for by s107(1), the proceedings had to be commenced two years 'after the act or omission alleged to constitute the offence'. 60 The provisions for the reckoning of time in any Act or instrument is provided for in s36(1) of the Interpretation Act 1987 (NSW) that provides: If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event. 61 As I would construe that provision, the period of two years as provided in s107(1) of the Act is reckoned to commence 'exclusive' of the day of the act or commission alleged to constitute the offence. Accordingly, for the offence alleged to have occurred on 18 January 2003, the prosecutor was required to file by 19 January 2005 and, for the offence alleged to have occurred on 19 January 2003, the prosecutor was required to file by 20 January 2005. 62 As the application for order was filed on 18 January 2005, the prosecutor was, on the face of the order, within time. 63 The issue, however, does not end there as far as this matter is concerned. It has to be remembered that the offence charged relevantly particularises that the defendant 'failed to advise that tests should be undertaken ... prior to the commencement of the trimming of the foundations of the house and excavation of the trench at the site ...'. 64 On the evidence before me, any advice that was sought from, and given by, the defendant was given no later than 15 January 2003. In short, the alleged failure by the defendant to properly advise as to tests to be done on 15 January 2003 was when the risk to safety arose. That the alleged risk to safety did not manifest itself until the wall of the house started to crack on 19 January 2003 is, for the purposes of the alleged offence, not relevant. 65 Counsel for the prosecutor submitted that the proceedings were not out of time. He relied on the decision of Haylen J in Coombs v Patrick Stevedores Holdings Pty Limited [2002] 118 IR 401, specifically para [89] where his Honour stated: Bearing in mind also the general objectives of this legislation (see the discussion in par 80), I can detect no legislative intention that s15 excludes a continuous offence by operating only in relation to a breach which is completed once the prohibited conduct is undertaken by an employer or is confined to daily breaches. The defendant's approach (as shown in earlier submissions including submissions before Wright J, President on its earlier Notice if Motion) demonstrates a misconception that there needs to be an incident or workplace accident before there can be a relevant breach of s15 of the Act. It has been accepted, at least since the Full Court gave judgment in Haynes v CI&D Manufacturing Pty Ltd (1995) 60 IR 149, that it was an error to focus solely on workplace accidents in considering whether or not there had been a breach of the Act; although a prosecution frequently is commenced because of an investigation arising out of such an incident, the occurrence of a workplace accident is primarily evidence of the risk or risks to employees at the workplace. 66 In Coombs, his Honour was considering arguments that had been raised by the defendant as to the validity of a summons that had pleaded alleged particularised failures over a two year period. In dealing with that issue, his Honour determined, correctly in my view, the continuing nature of occupational health and safety offences 'once the prohibited conduct is undertaken by the employer'. But that is not the issue in the matter before me. 67 The prohibited conduct relied upon by the prosecutor arose on 15 January 2003, when the defendant, by an act or omission, allegedly failed to properly advise as to tests to be undertaken. That was when the 'act or omission alleged to constitute the offence' and the risk to safety arose. That is the nub of the offence alleged. In my view, in order to comply with the time limit provisions of s107(1) of the Act and consistent with the reckoning in s36 of the Interpretation Act, the prosecutor should have filed the application for order by 16 January 2005. His failure to do so means the proceedings have been instituted out of time and the summons should be dismissed. 68 Even if I am wrong as to that conclusion, then for the reasons later set out in this judgment, I am not persuaded the prosecution have established the offence alleged beyond reasonable doubt. 69 There is, however, one further threshold matter the defendant has raised. That is, that the site at Belmont Street, Alexandria was not the defendant's place of work as required in s8(2) of the Act. Place of work

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70 In the application for order, the place of work is pleaded as 162-168 Belmont Street, Alexandria. Reference to 168 is clearly an error. At all times, the site being developed by Newtown was at 162-184 Belmont Street, Alexandria. The error in the application is not sufficient to invalidate the summons and can simply be amended as a variance. 71 The issue of 'place of work' for the purposes of s8(2) of the Occupational Health and Safety Act 2000 was recently considered by me in WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263. In that matter I said, inter alia: [13] Notwithstanding the authorities to which I have been referred, what is the employer's 'place of work' is a matter of fact to be determined by the circumstances of the case: see WorkCover Authority of New South Wales (Inspector Farrell) v Schrader [2002] 112 IR 284 at [63] and WorkCover Authority of New South Wales (Inspector Keenan) v Technical and Further Education Commission (1992) 92 IR 251 at 263. [14] I agree with counsel for the defendant that many authorities of this Court that have had cause to consider the question of an employer's 'place of work' have done so within the context as to whether or not the immediate environs of a 'place of work' were within the application of that expression as it is used in the Act. See, for example, Inspector Clark v W L Meinhardt & Partners Pty Limited (Unreported) Matter No's IRC 1212 and 1213 of 1990: 30 June 1992 at 12 where Fisher CJ, in considering 'place of work' in the circumstances then before him, said: With respect to the duty under s 16(1) I consider the employer's conduct of his undertaking includes here the design of the facade retention structures, the safe retention of the facade and residual maintenance and inspection as discussed above. I consider the place of work includes every area which may be affected by the work being done which would include in this case the hoarding, the external scaffolding above the hoarding and the area of the street beneath the hoarding and site upon which the facade collapsed.

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[15] The broad approach of Fisher CJ in Meinhardt was adopted by Peterson J in WorkCover Authority of New South Wales ( Inspector Page) v Woolworths Ltd (Unreported) NSWIR Comm 95: 9 September 1994. That broad approach, in my view, is encapsulated by the words of Fisher CJ in Meinhardt that a defendant's place of work 'includes every area which may be affected by the work being done'. [16] In Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales [2000] 102 IR 84 at 96 the Full Bench of the Court affirmed the broad construction of 'place of work' as determined by Fisher CJ and Peterson J in Meinhardt and Woolworths respectively. As they said at [51]: While each case will indeed be a question of fact, we consider that a broad construction of the term 'place of work' in s 16(1), consistent with the approach of Fisher CJ and Peterson J in the cases cited, is also appropriate in this case. 72 As well, there have been relatively recent decisions of this Court where the meaning and application of 'place of work' has been considered in diverse factual circumstances. See, for example, WorkCover Authority of New South Wales (Inspector Webb) v Nowra Truck & Farm Equipment (Holdings) Pty Limited and ors [2003] NSWIRComm 340 where Boland J concluded that employees of the defendants were at a place of work when they were driving up a hill in the defendant's paddock counting cattle. See also WorkCover Authority of New South Wales (Inspector Jorgenson) v Christopher John O'Keeffe and C J & S J O'Keeffe Building Pty Ltd (2004) NSWIRComm 397 where Haylen J, after considering all relevant authorities, determined that the footpath outside the relevant driveway and the roadway around it by which access was gained to the worksite was a place of work. Finally, in WorkCover Authority of New South Wales (Inspector Campbell) v James Gordon Hitchcock [2004] NSWIRComm 87 Walton J, Vice-President found that the defendant's articulated lorry was a 'place of work'. 73 Further, as was said by Walton J Vice-President in Hitchcock at [310]: Although there are obvious connections (indeed, an employer's place of work will always be part of its undertaking), the two concepts do not always overlap. An employer's undertaking may be present at a place which is not the employer's place of work and the key to the distinction lies in the examination of performance of work in the circumstances of a particular case. 74 Having regard to the factual circumstances in this matter, and accepting as correct for the purposes of this point only the prosecutor's contention as to the defendant's failure as particularised, I am satisfied that the work being performed at the site 162-184 Belmont Street, Alexandria could be construed as the defendant's place of work. The prosecutor alleges that the defendant failed to advise that tests should be undertaken in order to confirm the stability of the silicone grouting process in underpinning the footings of the house adjacent to the worksite. Assuming that the defendant had so failed as alleged, it would be clear, in my view, that the site where the silicone underpinning was being done was an area 'affected by the work done by the defendant' (as per Meinhardt). That is, the work being done by the defendant was the giving of particular advice relevant to the work being performed at 162-184 Belmont Street.

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No difference in approach arises under s8 of the Occupational Health and Safety Act 2000. 77 The duty imposed by s8 requires an employer to provide a workplace free of risks to safety. As the Full Court of the Industrial Court of New South Wales expressed in Haynes v C.I & D Manufacturing Pty Limited (1994) 60 IR 149 at 157 stated when dealing with the equivalent provisions in the Occupational Health and Safety Act 1983: Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of 'risks' thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant 'detriment to safety' (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace . (emphasis added) 78 As in all criminal matters, the absolute nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the employer's failure beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated in relation to s15(1) of the Occupational Health and Safety Act 1983: Although s15(1) 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. We agree in that respect with the observations by Grove J in McMartin v Broken Hill Proprietary Co Ltd (1988) (unreported) to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety. 79 As the above extract emphasises, not only is the prosecution put to proof of the offence and all its elements but it must establish a causal connection between the alleged conduct of the defendant and the alleged risk. In relation to s8(2) of the Occupational Health and Safety Act 2000, the prosecution must establish beyond reasonable doubt a causal nexus between the breach and the risk to the person not in the defendant's employ. 80 This point was emphasised in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of NSW (Inspector Ch'ng) where a Full Bench of the Court stated at 449: However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injury to employees of the defendant is not sufficient in itself to prove 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 relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees. 81 On that point see also: McMartin v Broken Hill Proprietary Co Limited (1988) 100 IR 241; Cullen v State Rail Authority of NSW (1989) 31 IR 207 at 209; State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 and Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 at 156-157. 82 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecution to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt. 83 The risk to safety only has to be a potential risk, not an actual incident causing an injury; See Drake Industrial v WorkCover Authority of NSW at 452 where it is stated: The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

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84 There was no issue taken by the defendant as to the requisite authority of Inspector Waterhouse to institute the offence proceedings, that the defendant was incorporated in New South Wales, that it was an employer at the relevant time and employed Mr Paterson. 85 As has been consistently emphasised in decisions of this Court, while the nature of the duty imposed on an employer under the Occupational Health and Safety Act 2000 is an absolute one, it is still necessary for the prosecution to prove the employer's failure beyond reasonable doubt. It is this issue, I believe, that poses most problems for the prosecutor. The offence charged particularises a failure on the part of the defendant to 'advise that tests should be undertaken to ensure the adequacy and uniformity of the sodium silicate grout treatment prior to the commencement of the trimming of the foundations of the house'. The difficulty, as I perceive it, is that in order to establish the nub of the offence, the prosecutor must be able to point to evidence that the defendant's failure to advise as particularised was within the scope of the advice that was sought by Newtown from the defendant and, in particular, Mr Paterson on behalf of the defendant. 86 On behalf of the defendant, Mr Paterson stated when interviewed by Inspector Waterhouse on 6 June 2003: Q. What was your involvement with Newtown Developments Pty Limited at their construction site at 162 Belmont Street, Alexandria? A. We were asked to confirm that the method of grouting the perimeter of the site was a satisfactory method. We set out some guidelines for restrictions on how they should do the work. 87 What Mr Paterson meant when he referred to being asked to confirm that the method of grouting to be undertaken was 'satisfactory' or what was meant by 'some guidelines for restrictions' as stated in his answer were never explored with him by Inspector Waterhouse. Mr Paterson gave no evidence before me and accordingly, his only evidence is that contained in his record of interview. 88 Mr Carfi was the Construction Manager on behalf of Newtown who initially contacted Mr Paterson in relation to the proposed silicone grouting process. In his examination-in-chief, Mr Carfi's evidence as to what he asked Mr Paterson was as follows: Q. And to the best, you have said something about it already, can you remember the exact words you spoke and he spoke? A. No, not exact words, but it would have been something along the lines, "Do you think that the sodium silicate will work in this application, mate." Q. Right. What was the reply? A. "I think it will work, send me over some information and I'll get in touch with Bradley and I will let you know."

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Q. And you understood the facsimile? A. Yes. 90 There is, in my view, a subtle difference in the evidence given by Mr Carfi in examination-in-chief as opposed to the evidence he gave in cross- examination. In some respects that may be as result of the questions posed but he stated quite clearly in his evidence-in-chief that he asked Mr Bradley if he thought the sodium silicate would work as he proposed. In his evidence in cross-examination he confirmed that evidence in that he said he asked Mr Paterson if 'the thing would work.' He then added the additional words about also asking Mr Paterson to 'come up with a methodology for us.' 91 What was meant by 'methodology' was never explored. I would have to say it would be difficult to place too much weight on Mr Carfi's evidence in the sense that suggesting that his reference to asking Mr Paterson to come up with 'a methodology' was somehow inclusive, without more, of the tests to be undertaken as asserted by the prosecutor in the particulars of the offence. In my view, Mr Carfi's evidence generally was unreliable and I was left with the impression of a witness who was doing his best to put himself in the best possible light in relation to his involvement with this matter. I have already commented as to the significant conflict between Mr Carfi's evidence and that of Mr Bradley in relation to discussions that Mr Bradley said occurred between him and Mr Carfi on Friday, 17 January 2003. Those discussions, according to Mr Bradley, left him in no doubt that Mr Carfi intended to allow the silicone grouting process to cure and solidify until Monday, 20 January 2003. 92 As I have earlier detailed, Mr Carfi denies such conversations with Mr Bradley on that day and relies instead on a conversation he had with Mr Bernie Dreske as to proceeding with the excavation work on Saturday, 18 January 2003. Mr Dreske was never called by the prosecutor for the reasons already detailed but, in any event, I have indicated that, on balance, I would be more inclined to accept the evidence of Mr Bradley on this point. 93 My reasons for coming to that view is that in addition to the disavowal by Mr Carfi of any conversation with Mr Bradley and in the absence of any corroboration to that effect, Mr Carfi's evidence on other matters is in conflict with evidence I received from other witnesses. For example, Mr Carfi gave evidence that the facsimile sent by Mr Paterson on 15 January 2003 was received and handed to him by Mr Foong Takounlao, the Company Manager for Newtown at the time. In his evidence before me, which went unchallenged, Mr Takounlao's evidence was that he had never seen Mr Paterson's facsimile of 15 January 2003 addressed to Mr Carfi before the wall collapse on 19 January 2003. In other words, according to Mr Takounlao, he not only had never seen it but he had never been in a position to hand it to Mr Carfi. Additionally, Mr Carfi gave evidence that he gave instructions to Mr Thipdavong, his site foreman, at a toolbox meeting on Friday, 17 January 2003 at the Belmont Street development, to commence the excavation work the next day, that being Saturday, 18 January 2003. Mr Thipdavong's evidence was to the effect that while that meeting had occurred, it had taken place at another development site involving Newtown, that being the Spectrum development site at McAvoy Street, Alexandria. According to Mr Carfi, the toolbox meeting took place at the Belmont Street site. 94 While these conflicts in evidence may not individually amount to a great deal, they are, when taken together, indicative in my view of Mr Carfi's overall unreliability as a witness. Accordingly, I do not place any evidentiary weight on his evidence, without more, that he asked Mr Paterson to 'come up with a methodology for us' in relation to the silicone grouting process as meaning that it embraced 'the tests' as particularised in the offence charged. 95 Counsel for the prosecution submitted that in establishing the failure as pleaded beyond reasonable doubt, he relied largely on what, he said, were Mr Paterson's admissions on behalf of the defendant after the event. Those admissions, he said, were to be found in three documents, each written by Mr Paterson and addressed to WorkCover as follows:

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I advised Bradley, that in principle, I agreed with the proposal and briefly discussed three matters of concern. · Surplus grout should be manually cut away to avoid shock to foundations. · Such cutting should not occur until at least 48 hours after grouting was completed. · Penetrometer test adjacent to the existing residence should be carried out to ensure that the founding layer to which the grout underpinning was carried was superior in strength to the foundation material currently supporting the existing footing. Bradley visited the site shortly thereafter and tested to a depth of 1500mm in two locations, reporting to me that the sand subgrade improved in compaction at both ends of the wall. Hence the bearing capacity was understood to improve progressively down to the base of the testing. I then confirmed by fax at 15.17 on 15 January 2003 to Mr Carfi my agreement to the Bradley proposal in principle with precautionary time and method restrictions on the cutting out of surplus grout. (My fax was mis-dated 16 January 2003). I next received a phone call at 8:30am on Sunday 19 January 2003 from Mr Carfi advising that 'part of the underpinning had settled, cracking the brickwall', asking for urgent assistance. ... Reasons for Cracking At least in part, there appear to have been some shear failures of the grout material. I do not believe this should have occurred if the grouting of the sand was more than 95% effective and the grout had acquired sufficient strength before being exposed and trimmed. I am convinced from my 21 January 2003 inspection, that the installed grouting was more than 95% effective. There have been suggestions that a weak layer of sand under the middle of the wall may have triggered the collapse. I cannot rule this out entirely although I think it unlikely since the grouting should have acted to reduce foundation pressures. There has also been a suggestion that the slate dpc may have triggered a sliding out of the wall. In my view there would have needed to have been a primary grout crushing failure before the wall could have commenced to move out (at which stage the slate could have facilitated further movement). To summarise, I believe that some of the grout may have been cut out prior to gaining sufficient strength i.e. prior to age 48 hours. I have not yet accurately established for each section of construction what elapse of time occurred between completion of grouting and commencement of trimming of the grout and excavation of the new future footing. I will clarify this latter item as best I can by the end of this week.

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(iii) A letter dated 10 March 2003, signed by Mr Paterson on behalf of the defendant. That letter relevantly states: The following summarises my view of the results of an on-site inspection with representatives of Douglas Partners Pty Ltd (Wiesner), Newtown Development (Foong, Nivon, Carfi) and Workcover (Waterhouse) on 4/3/03 of the permeation grouting to the underside of foundation sandstone blocks to the collapsed neighbour boundary wall to the North of the above site and also finalises my reporting on the reasons for collapse. ... I believe that there are two main reasons for the wall collapse. 1. The permeation of the sub foundation sand is less complete than intended. For the foundation block about 12m from Belmont Street, the apparent (it is not certain that some permeated material was not removed by the collapse) lack of enough permeation to this block alone would be in my view unlikely to have been sufficient in itself to have initiated the beginnings of the collapse. If one or two foundation blocks either side of this block were only 60% grouted then the risk of failure would have markedly increased. The possible poor permeation under this (12m) foundation block if in fact it was poor appears to be due to an unusually high local concentration of substances in the sand which are unlikely to have been capable of taking up the permeation. Had there been some systematic post-grouting check of whether permeation was at least 80% complete it is certain that defects would have been discovered. A subsequent third pass of grouting and/or some local underpinning could have compensated for the unacceptable level of permeation. There was apparently no attempt to prove the completeness of the permeation after installation (by drilling / spoon testing or the like). 2. Whereas the successfully permeated sand has tested on average at better than the nominal intended strength, the earlier than recommended excavation of the permeated sand next to and below the foundation blocks has reduced the safety factor. Although it is possible that the foundation blocks would have been stable had the incomplete permeation been allowed to age further before the excavation commenced, the early excavation ensured that the failure occurred. 96 Despite the submissions to the contrary on behalf of the prosecutor, I do not read Mr Paterson's correspondence to WorkCover of January, February and March 2003 as containing any admissions of a failure on his part, on behalf of the defendant, to the effect particularised in the offence. Without more and in the absence of any expert opinion, I cannot be satisfied that the scope of the advice sought by Newtown from the defendant was such as to be able to assert beyond reasonable doubt that it should have included reference to tests (unspecified) for the reasons as stated. 97 Counsel for the prosecutor pointed to that evidence as establishing the defendant's failure as particularised beyond reasonable doubt. I do not agree. What that evidence establishes, in my view, is that after the wall collapse, Mr Paterson was further consulted by Mr Carfi as to how best to rectify the problem that had emerged when the underpinning had settled and the wall of 160 Belmont Street had cracked. Mr Paterson attended the site and provided further advice. He also fully and openly responded to WorkCover's investigations by setting out his prior involvement with Mr Carfi and Mr Bradley in relation to the silicone grouting process. Apart from his interview with Inspector Waterhouse in June 2003, there is his detailed correspondence to Inspector Waterhouse of 23 January 2003, the most contemporaneous account available. 98 There is nothing in that correspondence or Mr Paterson's subsequent correspondence to Inspector Waterhouse that establishes with any certainty that the scope of work that Mr Paterson, on behalf of PWG, was asked to advise on on 15 January 2003 should have included the carrying out of 'tests' as alleged by the prosecutor. All that is known is that Mr Carfi asked Mr Paterson to advise that the silicone grouting process was a satisfactory method to undertake at the site. There is no evidence to suggest that it was not a suitable method. Mr Paterson discussed the process with Mr Bradley and issued what could be said to be 'guidelines' in his facsimile to Mr Carfi on 15 January 2003. 99 There is no dispute that Mr Bradley was well aware of the minimum set time as discussed with and confirmed by Mr Paterson on 15 January 2003. In short, Mr Paterson outlined the procedures to be followed by Mr Bradley in undertaking the silicone grouting process. 100 Mr Bradley, on behalf of In-Ground, was very familiar with the silicone grouting process. He had done it on prior occasions. He was well aware, as Mr Paterson had confirmed, that the minimum set time for the silicone grouting to be left before undertaking any excavation work beside it was forty eight hours. He said he conveyed that information to Mr Carfi on Friday 17 January. In any event, Mr Carfi already knew that, as is evidenced by the facsimile sent by Mr Paterson to Mr Carfi on 15 January 2003. 101 Given the minimum set time that had been expressed and understood between Mr Paterson and Mr Bradley (and ignored by Mr Carfi) it is not possible to be satisfied beyond reasonable doubt that Mr Paterson was required to do more than he did. Counsel for the prosecutor submitted that Mr Paterson should have visited the site after the silicone grouting process had been undertaken in order to assess its efficacy. There is no evidence, expert or otherwise, to support such a contention beyond the prosecution asserting that if Mr Paterson gave advice as to the suitability of the silicone grouting method, it could be asserted, without more, that that extended to Mr Paterson visiting the site to inspect the end result. 102 In addition to Mr Paterson's correspondence to Inspector Waterhouse, Mr Terry Wiesner of Douglas Partners gave evidence of his involvement in the events surrounding this offence. His involvement was at the request of Mr Paterson on behalf of the defendant. Mr Wiesner is an engineer. Douglas Partners are in business as geo-technical and geo-environmental engineering consultants. 103 After the collapse of the wall at 160 Belmont Street and at the request of Mr Paterson, Mr Wiesner attended the site on a number of occasions with Mr Paterson. Mr Wiesner was not called as an expert witness although it is clear he is professionally knowledgeable about the matters on which gave relevant evidence. 104 Mr Wiesner's evidence centred primarily on the record of interview he gave to Inspector Waterhouse on 14 January this year. In that interview, he responded to pertinent questions from Inspector Waterhouse as follows: Q89. So taking into account what you have previously said in regard to the shortcomings of the grouting process. In your opinion, if the stabilised sand had been allowed to cure for say 48 hours as the engineer indicated in his documentation, would the grouted material in your belief be able to support the structure above? A. I think there is an eighty percent chance that it would have, probably. Eighty/ninety percent chance it would have.

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Q94. I am going to ask you, it is more of a leading question but in your opinion from your visits on the sites, of the site and the tests you've taken. What do you believe, in your opinion, what do you believe the cause of the collapse was? A. Oh well I think I have already answered that question really by saying that I understand that the excavation occurred fairly soon after the grouting plus the level of permeation of the grouting was not what it should have been as I have previously mentioned and also I think a third possibility would have been that the, it would have been better if the excavation had been done in panels with a little more care and an underpinning approach so that they could just check that the grouting had been done properly. 105 Counsel for the prosecution also pointed to Mr Weisner's interview with Inspector Waterhouse in which he was asked the cause of the wall collapse. He identified three factors: (i) the excavation occurred too soon after the grouting; (ii) the level of permeation of the grouting was not uniform; (iii) the excavation should have been done in panels in order to check the grouting had been done properly. 106 While Mr Weisner was not qualified as an expert, he was the consulting engineer called in by Mr Paterson for consultation after the wall collapsed. In essence, there is nothing in Mr Weisner's comments that Mr Paterson would take issue with. He himself identified as much on 10 March 2003 when he wrote to Inspector Waterhouse. Further, as Mr Paterson stated to Inspector Waterhouse in his letter of 10 March 2003: ... Had there been some systematic post-grouting check of whether permeation was at least 80% complete it is certain that defects would have been discovered. A subsequent third pass of grouting and/or some local underpinning could have compensated for the unacceptable level of permeation. There was apparently no attempt to prove the completeness of the permeation after installation (by drilling/spoon testing or the like). 107 What is critical to identify, in my view, in establishing the failure as alleged beyond reasonable doubt, is evidence that points directly to Mr Paterson on behalf of PWG as being the one to advise that a 'systematic post-grouting' check was something that came within the scope of work that he was initially requested to undertake for Newtown or that he should have done that himself. No evidence was elicited from Mr Weisner to that effect nor from Mr Bradley or Mr Carfi. There was no expert evidence to establish to the requisite standard that particular tests would have/should have been expected to have been advised by Mr Paterson at the time he confirmed the suitability of the silicone grouting process to Mr Carfi and discussed the process as he did with Mr Bradley. 108 On the evidence before me, it is quite possible, indeed probable, that Mr Bradley was the person to test the success or otherwise of the grouting process. Certainly, the warranty given by In-Ground would suggest it was they who 'would carry out the procedure in accordance with procedures established and agreed ... the results of the grouting will depend on the ground conditions'. 109 Mr Bradley was asked no questions about his understanding as to the warranty he gave on behalf of In-Ground or whether he would have examined the results of his grouting work on Monday 20 January. His evidence, which I accept, was that he was aware of the need to leave the grouting for the recommended forty eight hour period. He believed there would be no excavation work undertaken until Monday 20 January. While Mr Carfi alleged otherwise, I am more inclined, for reasons already stated, to accept Mr Bradley's recollection of events. 110 Further, it was In-Ground who contracted with Newtown to do the silicone grouting process. In submitting the offer on behalf of In-Ground, Mr Bradley detailed the work to be done as follows: SCOPE OF WORKS The extent of the stabilisation work is the treatment of the soil to a depth of up to 1 metre below footing levels of the adjacent property, over a length of 26 metres. This will be achieved by the creation of interlocking columns of treated soil, 600mm nominal diameter spaced at 500mm centres.

WorkCover Authority of New South Wales (Inspector Waterhouse) v Paterson Wholohan Grill Pty Limited

At a glance

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Decision date

Before

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Judgment (57 paragraphs)

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Legislation Cited (1)

Cases Cited (13)