WorkCover Authority of New South Wales (Inspector Childs) v Stimson

Industrial Relations Commission (NSW)|1995-07-24|Before: Staff J, Peterson J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Childs) v Stimson [2004] NSWIRComm 395 PROSECUTOR WorkCover Authority of New South Wales (Inspector Childs) PARTIES : DEFENDANT Barry John Stimson FILE NUMBER: IRC 6270 of 2003 CORAM: Staff J CATCHWORDS : Occupational Health & Safety - Prosecution under s 9 - Failure to establish a safe system of work - Access to trench - Failure to erect fence to prevent entry to trench - Failure to conduct adequate risk assessment - Risk must be assessed if owner of property disobedient or disregards personal safety - Duty owed to owner - Liability is absolute - Causal connection - No defence - Charge proven LEGISLATION CITED : Occupational Health & Safety Act 2000 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207 CASES CITED : WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 1247 of 1993, Peterson J, 24 July 1995) WorkCover v TRW [2001] NSWIRComm 52 HEARING DATES: 10/28/2004; 10/29/2004 DATE OF JUDGMENT: 12/16/2004

PROSECUTOR Mr P Skinner of counsel Solicitor: Ms L Barnes WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr G Wendler of counsel Solicitor: Mr R Van Houten Van Houten Solicitors, Barristers & Notary Public

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under s 9 of the Occupational Health and Safety Act 2000

Barry John Stimson ("the defendant") was self employed. Shortly before 31 October 2001, the defendant was retained by Raymond Leslie Clissold to dig a trench along the side of a dam on Mr Clissold's property in order to establish the source of a possible leak in the dam. 2. Mr Clissold was buried when the trench collapsed on 31 October 2001 and was fatally injured. 3. In this decision I find the defendant has committed a breach of s 9 of the Occupational Health & Safety Act 2000 ("the OH&S Act") in respect of the incident. The Charge and Agreed Facts 4. The charge alleges that the defendant: DID FAIL to ensure that people, other than the employees of the Defendant, in particular Raymond Leslie Clissold, were not exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work, contrary to section 9 of the Occupational Health and Safety Act 2000. The particulars of the charge are: a) The Defendant, at all material times, was self-employed, trading under ABN 48 756 201 088. b) At all material times, Raymond Leslie Clissold ("Clissold") operated a farm at 50 Knox Road, Pheasant's Nest in the State of New South Wales ("the farm"). Located on the farm was a dam in a paddock known as Big Dam Paddock ("the dam"). c) Shortly before 31 October 2001 ("the accident date"), Clissold retained the Defendant to excavate along the side of the dam in order to establish the source of a possible leak in the dam. d) On the accident date, the Defendant attended the farm to undertake excavation along the side of the dam ("the excavation work"). At all material times the Defendant operated a Samsung Excavator, Model Number SE 210 LC, serial number FAY2712 ("the excavator") that was owned by M&J Excavations NSW Pty Ltd. The Defendant did not possess a certificate of competency for operating the excavator. e) The Defendant used the excavator to dig a trench along the western side of the dam in a southerly direction along the wall of the dam ("the trench"). f) At the time of the accident, the length of the trench was approximately fifty (50) metres long. The average depth of the trench at the southern end, closest to the excavator, was approximately three (3) metres. g) Just prior to the accident, Clissold entered the trench. Shortly after entering the trench, Clissold was standing at the southern end of the trench, closest to the excavator, when the trench collapsed, burying Clissold in excavation material and dislodged earth from the wall of the trench. h) The Defendant failed to ensure that people, other than the employees of the Defendant, in particular Raymond Leslie Clissold, were not exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking while they were at the Defendant's place of work, by:- (1 failing to ensure that people, in particular Clissold, did not enter the trench during the excavation work or come within close enough proximity to the trench so as to be at risk of injury from the fall or dislodgment of earth into the trench; (2 failing to ensure that, in relation to the excavation work, an adequate system of safety, involving shoring, earth retention equipment, appropriate placement of excavated material or other appropriate measures, was in place to control risks to health and safety from the fall or dislodgment of earth into the trench; (3 failing to undertake any or any adequate risk assessment in relation to the fall or dislodgement of a section of wall of the trench, whereby people, and in particular Clissold, would be placed at risk of injury; (4 failing to ensure that the excavation work was carried out by or under the supervision of a competent person, being a person who has acquired through training, qualification or experience, or a combination of them, the knowledge and skills to carry out the excavation work with the excavator; (5 failing to ensure that the Defendant held a certificate of competency in the use of the excavator. i) On the accident date, Raymond Leslie Clissold was fatally injured. 5. The defendant pleaded not guilty to the charge. Findings of Fact 6. There was no dispute between the parties that: (a) the defendant was self employed; (b) Raymond Clissold operated a farm at 50 Knox Road Pheasants Nest ("the property"); (c) the defendant operated a Samsung Excavator Model Number SE 210 L.C. that was owned by M J Excavators NSW Pty Ltd. 7. I find beyond reasonable doubt that: (a) shortly before 31 October 2001, Mr Clissold retained the defendant to excavate along the side of a dam on his property to establish the source of a possible leak in the dam; (b) the defendant attended the property on 31 October 2001 and undertook excavation work, being the digging of a trench along the western side of the dam; (c) at the time of the accident, the trench was approximately 50 metres long and approximately three metres deep at the southern end; (d) Mr Clissold walked into the trench. The Prosecutor's Evidence 8. Mr P Skinner of counsel, who appeared for the prosecutor, called Inspector Barry John Childs, WorkCover Inspector, who attended the premises on 7 November 2001, in the company of Trainee Inspector Helen Clothier. Evidence was also called from Senior Constable Pocock, the first police officer to attend the site on 31 October 2001; Detective Sergeant Van Leeuwen, an expert in crime, accidents and investigation, who attended the accident scene on 31 October 2001; Mrs Agnes Clissold, the widow of the deceased; Mr Garth Greening, a neighbour of Mrs Clissold and Mr Michael Duggan, the owner of the excavator hired to the defendant. Each witness called was cross examined with the exception of Inspector Childs. 9. In addition, Mr Skinner tendered an accident report of Inspector Childs dated 7 March 2002, five colour photographs taken by Inspector Childs on 7 November 2001, a record of interview between Inspector Childs and the defendant dated 16 April 2002 and seven colour photographs taken by Inspector John Gjaltema, a WorkCover Inspector who attended the site on 31 October 2001, together with an accident report prepared by Inspector Gjaltema dated 12 November 2001. A further 21 photographs taken by Detective Sergeant Lyle Van Leeuwen on 31 October 2001 were tendered. 10. Senior Constable Pocock, together with Constable Howard, attended the property at about 5.00 pm on 31 October 2001. Senior Constable Pocock's evidence was that, upon arriving at the property, she observed a large dam located in a paddock with an open trench dug on the high side or northern side of the dam wall. The trench was very shallow at one end and very deep at the other end and 50 metres in length. There was an excavator sitting on top of the dam wall at the deepest end of the trench and two females standing near the excavator with one male. The females were subsequently introduced as Mrs Agnes Clissold and Ms K Fawcett. The male was Mr G Greening, a neighbour of Mrs Clissold. The Constable's evidence was that she spoke to the driver of the excavator, the defendant, who informed her that "Ray was buried underneath the dirt". 11. Senior Constable Pocock radioed for more police assistance to help dig Mr Clissold from the trench. Constable Howard, Senior Constable Pocock and Mr Greening moved into the trench and commenced to try to dig Mr Clissold out with shovels. The dirt was mostly wet clay. It was very heavy and hard to get a shovel into it. Mr Stimson suggested he move some dirt with the excavator but Senior Constable Pocock was worried that Mr Stimson may hit Mr Clissold with the bucket. 12. Senior Constable Pocock's evidence was that she subsequently got on her knees as did Constable Howard and started digging with their hands. 13. After two ambulance officers arrived, Mr Stimson was asked to get into the excavator and attempt to dig Mr Clissold out by removing soil with the excavator. Mr Stimson carefully inched the teeth of the bucket into the clay. Senior Constable Pocock yelled for him to stop when the teeth got about half way into the soil. The excavator was above her and Constable Howard and with every movement, it made the earth underneath seem to shudder and she was worried that the rest of the trench would cave in. Eventually, the soil was loosened exposing Mr Clissold's face. Ambulance officers attempted to revive him but were unsuccessful. Senior Constable Pocock's evidence was that Mr Stimson was having trouble walking and she sought assistance from an ambulance officer who attended to him. Mr Stimson was taken by a Care Flight helicopter to hospital. He was subsequently diagnosed as having had a heart attack. 14. Mr Stimson remained in hospital for approximately one month and after release was subsequently re-admitted to hospital. It was not until Friday 4 January 2002, that Senior Constable Pocock had a telephone interview with Mr Stimson, during which he stated that he had twice told Mr Clissold to get out of the trench. Senior Constable Pocock took notes of the record of interview and requested Mr Stimson to forward a letter to her setting out what had occurred. By letter dated 9 January 2002, Mr Stimson provided the following statement to Senior Constable Pocock: 9/1/02 Attention - Debbie Pocock Picton Police Station 36 Argyle Street PICTON 2571

TO WHOM IT MAY CONCERN On or about 15th September 2001, I was doing some work with an excavator and bulldozer in the area of Pheasants Nest. I was approached by Ray Clissold of Knox Road, Pheasants Nest, he asked me if I would be interested in fixing a leak in his dam. I went and inspected the dam and found that when the wall had been constructed, it was on top of topsoil. I suggested to Ray that I bring the excavator over and excavate the centre of the wall to below the top soil level, which was about 3 metres deep, to the length of where it looked as though it was leaking. The idea was to dig the area out and backfillit and compact it. We agreed on a price and I said that I would start work in about a fortnights time. On the 31st October 2001 at about 10.30 - 11 a.m. I went back over to Ray's place and took the excavator there and then started excavating the trench on top of the dam wall. I had excavated about 50 metres along and 2.5 - 3 metres deep and 1.5 metres wide. Ray came over and walked down the trench towards me while I was on the excavator and by this time the material was getting damp and I yelled out to Ray and told him to get out of the trench, which he did and came up to me on the excavator. I got off the excavator and explained to him not to get into the trench as it was getting damp and was just as likely to cave in. He said o.k. then he walked away and I thought he was going for his lunch. I slewed the excavator a bit to move it a bit further along the wall. I slewed back around again to do some more digging and Ray was in the trench again. I yelled out to him again to get out of the trench and he turned to walk out and a bit of dirt, about 30 metres up fell in and Ray then went to walk out of the trench and it fell down on top of him. I jumped out of the excavator and tried to dig him out with my bare hands, yelling out at him. I then got up into the excavator and got my mobile telephone and dialled 000 and asked for Rescue Squad, Ambulance and Police and told them where I was. I then rang a mate of mine, Gus Greening, who lives in Pheasants Nest Road and asked him to get down in a hurry and to bring some shovels. Fifteen to twenty minutes (sic) the first of the police cars arrived. From there I was feeling very unwell and the rescue helicopter took me to Liverpool Hospital. Signed: (B. Stimson) 15. Mr Michael Stanley Duggan gave evidence that he was the owner of a Samsung Excavator. He gave possession of that machine to Mr Stimson about March 2000. An agreement was struck for the "dry hire" of the machine at an hourly rate. "Dry hire" of the machine means that the operator is responsible for the fuelling, oiling and maintaining of the machine. Mr Duggan further stated that it was a term of the agreement that it was to be used by a ticketed operator and that he had never seen it used by an operator without an excavator's ticket. Mr Duggan was not aware whether Mr Stimson had an excavator's ticket but maintained that the operator of the excavator had to be licensed. 16. During cross examination, Mr Duggan agreed that, in broad terms, he was in the process of selling the excavator to Mr Stimson. Mr Duggan agreed that he had never, at any stage, said that it was important Mr Stimson had a special ticket or a particular licence in relation to the operation of the excavator. His evidence was that it was Mr Stimson's responsibility to ensure that the excavator was operated by a ticketed operator. 17. Detective Sergeant Lyle Van Leeuwen gave evidence that he had been a crime scene examiner for 17 years and that he regularly examined possible crime scenes and accident scenes in relation to possible enquiries for the Coroner. Detective Sergeant Leeuwen's evidence was that he attended the property at approximately 5.30 pm on 31 October 2001 in the company of Senior Constable Vucetic and Senior Constable Hales. The light was failing. The responsibilities were divided between the three of them with Detective Sergeant Van Leeuwen taking photographs, Senior Constable Vucetic taking notes and Senior Constable Hales taking measurements with a trundle wheel and a laser measuring device. The Detective Sergeant's evidence was that the soil surrounding where Mr Clissold's body was removed from was not excessively wet but pliable enough to have an indentation recorded in it of where Mr Clissold was lying. Detective Sergeant Van Leeuwen gave evidence that a footprint was located at approximately six to seven metres into the trench. This was the only physical evidence of footprints in the trench in the area from the beginning of the trench to the collapse area. The Detective Sergeant's evidence was that the collapse occurred at 3.018 metres depth in the trench which had a maximum depth of 3.079 metres depth. He saw no signage anywhere to warn of hazards in relation to excavation work being performed by the defendant, nor any safety barriers to prevent access to the excavated trench. 18. In cross examination, Detective Sergeant Van Leeuwen agreed that he arrived at the property at approximately 5.45 pm when it was starting to get dark and that he commenced to take photographs almost immediately prior to having any idea as to how the accident occurred. The following day the Detective Sergeant prepared a report which, in part, read: The deceased was assisting a hired excavator operator in carrying out repairs to a dam on his property. Information received at the scene was that the deceased was in the trench when a section of wall collapsed. A second source of information indicates he was walking on top of the dam wall when the trench collapsed. 19. Mr Stimson had already been flown to hospital prior to the Detective Sergeant's arrival at the property. The Detective Sergeant's evidence was that he looked for footprints in the trench. 20. Detective Sergeant Van Leeuwen gave evidence that he provided an interview to Inspector Childs on 14 March 2002. A question was asked in the following terms: Did you observe any signs that entry to the trench by Raymond Clissold was made by walking along the length of the trench? This answer was initially left blank and subsequently filled in by Inspector Childs upon receipt of a fax from the Detective Sergeant on 22 May 2002. The facsimile was in the following terms: Please accept this signed facsimile as my authorisation to allow Mr Barry Childs to answer question 27 of the attached witness statement as agreed on the telephone. The answer written by the Inspector to question 27 was as follows: "No, we only saw footprints in the muddy area." 21. This was a reference to the area where the collapse of the trench occurred. These footprints were of those who assisted in the rescue. Detective Sergeant Van Leeuwen explained that the answer had been left blank by Inspector Childs when he was typing the record of interview. 22. Detective Sergeant Leeuwen denied that he had not looked for any footprints on the afternoon of 31 October 2001. 23. There was no mention of footprints in the three page job report prepared by Detective Sergeant Van Leeuwen the following day. 24. The Detective Sergeant stated that the job of looking for footprints was delegated to Constables Vucetic and Hales whilst he took photographs. Detective Sergeant Van Leeuwen's evidence was that he was looking for anything that might indicate how Mr Clissold had got to where he was although he conceded he did not specifically inform Constables Vucetic and Hales to look for footprints. Neither of the Constables were called to give evidence. 25. In re-examination Detective Sergeant Van Leeuwen clarified that the footprints that he was referring to in his answer to question 27 were the footprints surrounding the area of the collapse. 26. Mrs Agnes Clissold gave evidence that when she and her late husband returned from the shops during the morning of 31 October 2001, Mr Stimson had arrived with the excavator. Mr Clissold went down and had a discussion with Mr Stimson and then returned and had lunch with Mrs Clissold. Mr Clissold then returned to the dam area after lunch for a period before he again returned to the house and spoke to her. Mr Clissold then returned to the dam again. Mrs Clissold first became aware of the accident at about 4.30 pm when Mr Stimson said to Mrs Clissold "the old fellow got bogged down there". Mrs Clissold didn't clearly understand what had occurred and followed Mr Stimson to the dam which was two or three minutes distance from the house. Mr Stimson pointed to the collapsed area. 27. Mrs Clissold was referred to her record of interview with Inspector Childs on 7 December 2001 (which was not tendered) and her response to a question regarding what Mr Stimson told her that Mr Clissold was doing prior to the accident. Her answer was "Barry (Mr Stimson) told me that Ray went into the trench to see how deep it was and he said something about how he told Ray to "get into the bucket and I will lift you out". 28. In cross examination, Mrs Clissold gave evidence that she understood that her husband had retained Mr Stimson to find out why the dam was leaking and to repair it. Mrs Clissold agreed that her late husband "had a sort of mind of his own, if he wanted to do something, he would do it." 29. Mr G Greening, a neighbour of Mrs Clissold's stated that he received a call on his mobile telephone at about 4.15 pm on 31 October 2001 from Mr Stimson who said: ... "Get around to the site, bring a couple of shovels. The old fellow has fallen in the hole and hurry." 30. When cross examined about what Mr Stimson said, Mr Greening's evidence was that Mr Stimson's language was a little more colourful but that was the intent of the message from Mr Stimson. 31. Although Mr Greening could not remember speaking to Mr Stimson when he arrived at the scene, he believed that he had asked Mr Stimson what had happened so he had an understanding of what had transpired before the police arrived. The evidence of that understanding was that Mr Clissold had entered the trench to inspect the bottom of it for any seepage, which was the whole object of the exercise and a collapse had occurred. He stated that he obtained this understanding from Mr Stimson. The Defendant's Evidence 32. Mr G Wendler of counsel appeared for the defendant and called Mr Stimson who was required for cross examination. 33. Mr Stimson stated that he had entered into a "dry hire" arrangement with Mr Duggan pending purchase of the excavator. He had been operating excavators over a period of 20 years. 34. Mr Stimson gave evidence that he had had a conversation with Mr Ray Clissold about water leaking from the dam. He stated that he advised Mr Clissold that he could dig a trench along the end of the dam and ascertain if the dam had been built on topsoil or if a root of a tree or limb of a tree was in the wall of the dam and allowing water to seep past it. Mr Stimson reached an agreement with Mr Clissold to carry out the work required, estimating that the work could take a day or two. 35. Mr Stimson gave evidence that he commenced work on the trench at approximately 1.30 pm - 2.00 pm on 31 October 2001. Upon commencing work, Mr Stimson stated that Mr Clissold was present at the dam and he advised him that he was going to commence the work and said "now you keep away from it". 36. There was a barbed wire fence around the property containing the dam. All animals had been removed from the paddock and the gate to the paddock closed. 37. Mr Clissold's evidence was that he started digging the trench from the northern end of the dam in a southerly direction. He had been working on the trench for approximately half an hour. He dug about 10 metres from ground level to about a metre deep when Mr Clissold walked into the trench. Mr Stimson stated that he told Mr Clissold to "get out of it, to stay out of it". He stated that Mr Clissold turned around and walked out of the trench, putting his arms out saying "ok, I'm going". 38. Mr Clissold then stood on the bank of the dam and Mr Stimson continued working when Mr Clissold walked into the trench again. Mr Stimson's evidence was that he said "Ray, didn't I ask you before, to piss off out of the trench and stay out of the trench for Christ's sake. You're not supposed to be in there." Mr Clissold said "I'm only having a look to see what's happening". Mr Stimson said "Well you can see from up the top of the bank". 39. Mr Stimson stated that to get Mr Clissold out of the trench, although it was not supposed to be done, he lowered the bucket into the trench and lifted Mr Clissold out. The trench at this time was approximately 30 - 35 metres long with a depth of 2½ metres. Mr Stimson had been working on the trench for about 1½ - 2 hours on the second occasion when Mr Clissold entered the trench. He stated that it would have been approximately three o'clock. 40. Mr Stimson's evidence was that he put Mr Clissold on the bank of the dam and said "Now do me a favour and go home, stay at home until I finish. What I want to do is to go to the end of the green grass with the trench and backdig the whole trench before I go home." He advised Mr Clissold that he had already organised a roller for the following morning and then said "Please will you go home and stay home and when I finish I will come and have cup of coffee on the way home." 41. Mr Stimson's evidence was that Mr Clissold walked away on top of the bank towards his home. He believed that he had gone straight to his home as he disappeared. This is consistent with Mrs Clissold's evidence that he returned home during the afternoon. Mr Stimson stated that he only had another four to six metres to go to the end of the grass. He "flew" the excavator to the left about 90 and out of the corner of his eye he observed Mr Clissold walking into the trench again. He stated that he "flew" the excavator further around and by this time Mr Clissold was right at the end of the trench where he was working. His evidence was that he said to Mr Clissold "didn't I ask you to bloody stay out of the trench Ray?" Mr Clissold said "I'm only looking to see where it's leaking". Mr Stimson said "You don't have to look to see where it's leaking. Didn't I ask you to stay out of the trench and keep out of it?" Mr Clissold said "All I wanted to do is to see where it's leaking." Mr Stimson said "You don't have to see where it's leaking, that's what I'm here for." 42. Mr Stimson stated that just as he finished speaking, about half way up the bank, a piece of dirt fell off the bank into the trench. Mr Stimson's evidence was he said to Mr Clissold "See what can happen". No sooner had he uttered those words, than part of the trench collapsed. 43. Mr Stimson identified a photograph taken by Detective Sergeant Van Leeuwen which showed the earth that had fallen into the trench immediately before part of the trench collapsed on Mr Clissold. 44. Mr Stimson stated that after the collapse, he jumped off the excavator and into the trench and tried to dig Mr Clissold out with his bare hands. He then got back into the excavator and got his mobile phone and rang 000. He then rang Mr G Greening and said "Gus, don't ask questions, get your arse down here in a hurry with a couple of shovels, the old fellow is buried in the trench." Mr Stimson then went over to Mr Clissold's house and knocked on the door. There was no answer. He then went to the front of the house and saw Mrs Clissold walking up from the letterbox. Mr Stimson stated Mrs Clissold said "What's wrong Barry?" He said "The old fellow is buried in the trench". 45. Mr Stimson and Mrs Clissold returned to the trench. Mr Greening had arrived at this time as had one police car. Shortly thereafter a helicopter arrived with paramedics. Mr Stimson had a heart attack. He was attended to by the paramedics, placed on a stretcher and flown to Liverpool Hospital. 46. Mr Stimson in response to a question whether he undertook any risk assessments prior to digging the trench stated: "Yes, I thought about risks, I always do, but when you are out in the middle of nowhere on a 25 acre property, with no-one around but yourself, and in this case it was Ray, but usually I work on my own, doing a dam, there's no-one around. There was a fence around the place, no-one else could get in unless they got through a barbed wire fence, and besides, I don't think it was up to me to try to shore it up or anything." His evidence was that he was going to backfill the hole that afternoon before he went home, and dig it out the following morning when the compactor arrived. Mr Stimson agreed there were no other barriers around the trench work. 47. Mr Stimson stated that, in respect of shoring up the trench, if it is being dug to a level of one and a half metres, he would only shore it up if someone was going to be working in the trench. He acknowledged that upon reaching 10 metres the trench was damp and unsafe which he said was the reason he didn't want Mr Clissold to be in the trench. Mr Stimson acknowledged that no signs were erected warning the public in general not to come near the worksite. He did not believe that there was any possibility of any person coming into the worksite at any stage apart from Mr Clissold. Mr Stimson acknowledged that he did not have a licence but believed he had enough experience to take on the job. 48. During cross examination, Mr Stimson denied that he told Mr Greening that Mr Clissold had fallen in the hole. Mr Stimson stated that it would have taken approximately an hour to backfill the trench. During cross examination, Mr Stimson gave evidence that he had moved the excavator down below the trench when he attempted to dig Mr Clissold out. Mr Stimson acknowledged that he had not previously given this evidence to Inspector Childs or Senior Constable Pocock. His explanation was that he had not previously been asked a question about this aspect of the accident by either Inspector Childs or Senior Constable Pocock and when he gave his interview to Senior Constable Pocock he was recovering from a heart attack. The Interview with Inspector Childs was approximately six months after the accident. 49. Mr Stimson denied that the job was a two person job on that day which involved him doing the digging and Mr Clissold looking for water leakage. 50. Mr Stimson's interview with Constable Pocock referred to Mr Clissold being in the trench on two occasions, the second of which Mr Stimson lifted him out in the bucket. The record of interview given by Mr Stimson to Inspector Childs referred to Mr Clissold entering the trench on three occasions. Mr Stimson's evidence in cross examination was that on the third occasion that Mr Clissold was in the trench, he again told him to get into the bucket and he would lift him out. Prior to this occurring, the trench collapsed. Mr Stimson denied that the trench collapsed as Mr Stimson was attempting to lift Mr Clissold out of the trench on the third occasion. It seems to be unlikely that Mr Clissold would have been buried in the trench if he had already climbed into the bucket to be lifted out of the trench, even if the bucket disturbed the trench. 51. I do not find that there is any material inconsistency between Mr Stimson's record of interview with Inspector Childs and his evidence before the Commission. His record of interview given to Senior Constable Pocock occurred shortly after he had left hospital for the second time after having suffered a heart attack. Whilst in hospital Mr Stimson's evidence was that his doctor had said "You are a lucky bloke. You kicked the bucket twice and came back again." His record of interview consisted of one page. A far more extensive record of interview was provided to the Inspector, albeit, some six months after the accident. Part of what is contained in the one page statement cannot be reconciled with his oral evidence and record of interview with Inspector Childs. In the statement made on 9 January 2001, Mr Stimson stated that the trench was 50 metres long when Mr Clissold first entered. The passage of time may have led to Mr Stimson's record of events being telescoped. In addition, the effects of fear, panic or fast moving and unexpected events surrounding the accident may have distorted his perceptions of when Mr Clissold entered the trench and the number of times he told Mr Clissold to get into the bucket. In my view, Mr Stimson's version of the facts was reliable and creditable. It is inherently probable that, having lifted Mr Clissold out of the trench on the second occasion that he entered the trench, he intended to do so on the third occasion Mr Stimson found him in the trench. 52. Mr Stimson stated that he hasn't driven an excavator since the accident and has sold his dozer. He does not intend doing any move excavating. 53. Mr Stimson was shown a booklet distributed by WorkCover New South Wales titled "A Guide for Front-End Loader and Excavator Drivers". Mr Stimson was taken to parts of the booklet that dealt with trenching, shoring, battering or benching of a trench and gave evidence that he had the knowledge contained in the booklet although he conceded that he did not do any benching or battering when digging the trench on the property. He also gave evidence of a knowledge of assessing the cubic capacity of earth that he was moving. His evidence was that no-one was to be working in the trench that he had dug and it was to be backfilled the same afternoon. 54. Mr Stimson's evidence was that he intended to obtain a certificate of competency in respect of the excavator if he purchased it because he would have been looking for work with it. 55. Mr Stimson gave evidence regarding a risk assessment for the job as follows: Q: You said to the inspector on several occasions and page 28 there are some answers, you had not conducted any risk assessment in relation to collapse or failure of the fence (sic) with loading on it, or vibration or the nature of the soil. That's right isn't it? A: Yes that is right. Q: You today said something about sheep and cattle being taken away so they were not at risk of falling in. Is that why you mentioned it? A: Yes and there was no-one else to be working there either. Q: You were working there? A: Yes but I wasn't a risk to myself. Q: Why do you say that? A: I was sitting in the excavator. Q: What if the trench collapses under the excavator? A: That is my problem, no-one else's. Q: Isn't it that something you assessed? A: No, no. Q: Mr Clissold was there, even on your version, he was there at least hopping into the trench on two previous occasions to when it collapsed? A: He was because he wouldn't listen to anybody else other than himself. Q: After he wouldn't listen the first time and hopped back in the second time, did you consider it necessary to do anything other than warn him yet again? A: What could I do? If I had put an electric fence around the place he still would have got in if he had wanted to. Q: You did not do anything did you? A: No, other than tell him to keep away. Q: And keep digging? A: I dug to where I had to go to. Q: It did not cross your mind he might be disobedient not just once but twice? A: You would think someone of his age would have a bit more sense than to do that. Q: Were you aware of the code of practice for excavation work published by WorkCover Authority from 31 March 2000? A: No. Q: Did you have any knowledge of that at all? A: No. 56. Mr George Alexander Kelman was also called to give evidence on behalf of the defendant. Mr Kelman gave evidence that had known Mr Stimson since 1968-1969, having met him when Mr Stimson was operating earth moving equipment. Mr Kelman stated that he had worked with Mr Stimson in relation to excavating gear and in his experience Mr Stimson "is an excellent operator and really he uses a machine really like the extension of his arm." "He has an ability that is beyond a lot of operators that I have ever employed." He described Mr Stimson as an excellent operator. Mr Kelman further stated that Mr Stimson had operated a lot bigger and more complex machinery than the excavator that he was operating on the day of the accident. He said he would trust him explicitly. Submissions of the Parties 57. The essence of the prosecutor's submission was that Mr Clissold was clearly exposed to a risk as demonstrated by the collapse of the trench, and that risk arose in the course of the defendant's undertaking. 58. It was submitted that the prosecutor was not required to prove the actual cause of the accident. It was only required to prove that there was a risk of the trench collapsing. In this regard, Mr Skinner pointed to the evidence that there were cracks found in the wall of the trench and that the tracks left by the excavator were in close proximity to the trench. The trench was three metres deep and had a 20 tonne machine on top of it. 59. The prosecutor submitted that there could only be four possibilities as to how Mr Clissold was in the trench: he walked in, he jumped in, which it was conceded was unlikely for a man aged 64 years, he fell in or he was lowered in by the defendant. It was accepted that it was the defendant's evidence that Mr Clissold walked into the trench. 60. The prosecutor contended that if an adverse finding of credit was not made that the defendant was still liable for conviction for failure to have a certificate of competency for the use of the excavator. 61. It was the prosecutor's contention that the defendant was obliged to take account of people doing something that was negligent or foolish. Mr Skinner further contended that Mr Clissold was a participant in the whole exercise, submitting that the whole purpose was for one man to dig in the trench and the other man to have a look at what might be found. 62. In respect of the second particular, it was submitted that the job required earth retention equipment, particularly if it was found that Mr Clissold was required to enter the trench contrary to the defendant's evidence. Mr Skinner pointed to the risk to any person standing on the edge of the trench and the inappropriate placement of the excavated material. Mr Skinner submitted that there had been no adequate risk assessment carried out by Mr Stimson. 63. Finally, Mr Skinner submitted that particulars 4 and 5 go to the issue of competency and amounted to breaches of cl 270 of the Regulation which requires the holding of a certificate of competency or recognised qualification in relation to work of that kind. Submissions of the Defendant 64. The defendant's submissions were effectively twofold: firstly there was no causal connection between an action or omission of the defendant and the detriment or damage suffered. Any causal connection was broken by a novus actus which was described as the wilful and deliberate disobedient act of the deceased in proceeding to enter the trench when he had been warned on a number of occasions not to do so; secondly, the contract which called on, or in effect required the defendant to undertake work did not include any assistance and involvement at any level concerning the deceased. 65. The defendant submitted that the contract required the trench to be dug in one day and filled at the end of that day. The work was being performed on private land in a rural area surrounded by a fence and that there was no expectation that there would be general members of the public visiting that area. 66. It was submitted that any evaluation of the risk to safety had to be undertaken against the circumstances where the work was performed and the way it was performed. 67. The defendant submitted that the Court would not be convinced beyond reasonable doubt of the prosecution's submissions concerning the footprints. It was further contended that the Court should find, as a reasonable possibility, that the deceased walked into the trench of his own volition despite being warned not to enter the trench. 68. It was submitted that the evidence of the defendant was cogent and reliable and that no adverse inference should be drawn from the use of the collective noun "we" in his record of interview. Consideration 69. Section 9 of the Act casts an absolute obligation on every self employed person with respect to persons who are not his or her employees while they are at his or her place of work. The obligation is to guarantee that such persons are not exposed to any risks to their health and safety arising from the conduct or undertaking of the self employed person. 70. It therefore follows that in order to determine liability, the court should identify the relevant risk; determine whether, as a matter of fact, there was a relevant failure by the defendant (by act or omission as particularised in the charge); and if so, determine whether there is a causal connection between the risk and the defendant's failure. 71. Was there a relevant risk to safety in the present matter? In my view, there was a clear risk from the failure to comply with cl 240 of the Occupational Health and Safety Regulation 2001 ("the Regulation") and to adhere to the code of practice which provided that any trench deeper than 1.5 metres must be shored, battered or benched. Any trench likely to be unsafe, even if it is less than 1.5 metres deep, must be shored, battered or benched. The code also provides that advice from a qualified engineer experienced in soil mechanics should be obtained if a bank could be unstable, especially in clay soils. Furthermore, the code provides that spoil must be placed at least one metre away from the excavation to prevent cave-ins and falls, with the toe of the pile no closer than 500 millimetres. The defendant placed the spoil alongside the trench, however, whether the toe of the pile of spoil was closer than 500 millimetres is not clear. I will return to this later. Detective Sergeant Van Leeuwen gave evidence of cracks in the trench wall. The trench, at its deepest, was approximately three metres. It is likely that these cracks were caused by a combination of the weight of the excavator being some 20 tonne, the soil formation of the trench and the placement of the spoil near the side of the trench. 72. In addition, there was no fencing at the entrance to the trench or any fence built around the area of the trench. 73. I find that there was, therefore, a situation of potential danger to the health and safety of persons. I find that the risk arose from the conduct of the defendant's undertaking and that the exposure to the risk was at the defendant's place of work. Where a risk to safety exists regardless of its character, it will be a breach of s 9 (subject to the defences available under s 28) if the defendant fails to take steps to eliminate the risk or fails to ensure that the risk to safety does not impact on persons at the undertaking. 74. However, the nature of the offence is the failure to ensure the protection of people, in particular, Mr Clissold, from a risk to their health and safety. It is necessary that the court be satisfied, beyond reasonable doubt, that there was in fact an exposure to the risk to health or safety. On the evidence, the only person who had access to the area in which the defendant was conducting its undertaking was Mr Clissold. 75. In my view, the defendant, acting as a contractor, had control of the site. However, 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 New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239. 76. I readily accept that the Act is intended to protect against human errors including inadvertence and even foolish disregard for personal safety as was found by Boland J in WorkCover v TRW [2001] NSWIRComm 52 at [13], [14] where his Honour observed: [13] ... However, the duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman (1984) 155 CLR 306 at 311 - 312. [14] I respectfully agree with the conclusions of the Full Bench in Riley v Australian Grader Hire Pty Ltd [2001] NSWIRComm 31 [at 15] as follows:

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." 77. Although Mr Clissold was the owner of the property who, at the age of 64, acted as an independent person ignoring the defendant's direction not to enter the trench, the duty is to provide a risk free environment to all persons including the disobedient. His Honour's observation regarding the duty owed to employees is equally applicable to the duty self employed persons owe to others including the owner of a site where an undertaking is being conducted. 78. Peterson J stated in WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Ltd (unreported, CT 1247 of 1993, Peterson J, 24 July 1995) that there can be no failure on the part of an employer to obviate a risk, which was impossible to anticipate, and this may be characterised as an elaboration of the requirement to establish causation. 79. In this case, in my view, it was not impossible to anticipate that having entered the trench on two occasions, Mr Clissold may do it again. Furthermore, the defendant was aware of the risk. He stated that after Mr Clissold entered on the first occasion "it (the trench) was getting damp and was just as likely to cave in". The defendant was required to ensure that Mr Clissold avoided the area of risk to his safety. This may have required him to cease work and erect a fence or barricade to prevent access to the trench. The defendant's evidence was that after about ten metres the trench was becoming damp and unsafe. He acknowledged that after Mr Clissold entered the trench all he did was to tell him to keep away. In my view the defendant should have taken further measures to ensure that Mr Clissold was protected from the risk. After Mr Clissold disobeyed the defendant on the first occasion, in my view, he was on notice that the deceased was prepared to ignore his direction. The defendant's obligation was to ensure the risk to safety of the undertaking did not impact on Mr Clissold. The defendant could have stopped work, erected a temporary fence at the entrance to the trench or back filled the entrance to the trench to prevent entry. 80. In WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor [2004] NSWIRComm 207, after referring to Dubavo, Walton J observed at [134]: The same could be said of risks which are merely speculative as distinct from those risks which are real and appreciable (see Drake Personnel (at 452, 453). If a risk is impossible to anticipate, or is entirely speculative, it will be difficult to prove causation to the criminal standard. 81. His Honour then went on to consider "unduly remote" risks and at [135] stated: 135 The theoretical and authoritative bases for distinguishing "unduly remote" risks are somewhat unclear and may be examined by the Court at some later date. The distinction is difficult to reconcile with the forceful judicial pronouncements on the absolute, proactive nature of the duty extracted above, such as the Court's observation in Ferguson v Nelmac Pty Limited (1999) 92 IR 188 that the duty is not confined to taking precautions only where there are "warnings or signals of danger or when experience indicates that a risk to safety has arisen" and the observation of Hill J in Atco Controls Pty Limited that "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" (emphasis added). "Remote" risks must fall within the duty imposed by the Act (otherwise, it would be meaningless to extend risks beyond those which are reasonably foreseeable) and the question then centres upon whether the word "unduly" introduces a qualitative difference to justify exclusion from the broad duties imposed by ss15 and 16 of the Act or alternatively whether, as anticipated in the previous paragraph, the issue would be decided on a case-by-case basis by reference to causation. 82. The risk was the failure to ensure people entering the trench, or coming within close proximity of the trench and suffering injury from a fall of earth into the trench, the failure to avert the risk by not providing shoring, earth retention equipment, the placement of spoil and in not carrying out any adequate risk assessment in relation to the fall or dislodgment of a section of the wall. 83. The requirement to prove a causal connection between the actions, or failures, of a contractor and the risk to health and safety is one of the most significant limitations on liability. 84. In Kellogg (No 1) at 253-254, the court observed: 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 449); Cullen (at 209); Dawson (at 120-121); Haynes v CI & D Manufacturing Pty Ltd (1995) 60 IR 149 (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 (NSW) v Maitland City Council (1998) 83 IR 362 at 377.

However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. In Drake (at 452-453) the Full Bench stated:

The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. 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.

This consideration is carefully explained in the decision of the Full Court of the then Industrial Court of NSW in Haynes . Commenting on the reasoning of the trial judge, their Honours said (at 156-157): The commencing point of her Honour's consideration of the evidence was the uncontroverted fact that the death of Mr Chen was caused by the front end loader hitting him as it came to a stop over the pit in which he was working removing the slurry. Her Honour then, correctly in our view, commented that "the occurrence of the accident itself does not however establish the commission of the alleged offence": see Dawson (at 120-121) and McMartin v The Broken Hill Proprietary Company Ltd (at 224). But, her Honour then concluded, concerning the case against Manufacturing, that "(i)t needs to be established that some action taken by (Manufacturing), or the failure to take some action, was causally connected with the front end loader hitting Mr Chen. It seems to (her Honour) that to approach the question of the commission of the offence in any other way, would be to remove the requirement placed upon the Prosecution to establish, beyond reasonable doubt, that it was the Defendant which failed to `ensure the health, safety and welfare at work' of Mr Chen and Mr Ding". The prosecution of Industrial was considered by her Honour according to "(m)any of the comments ... made in relation to the prosecution against Manufacturing"; again, a causal connection between some act or omission by Industries and the accident was found to be necessary. Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondent were charged.

We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objective drawn therefrom.

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. The OHS Act, as its long title, indicates, has the prime purpose "(t)o ensure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligation cast on employers by Div 1 of Pt 3 thereof (which contains ss15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident.

The present case, in my view, gives rise to a highly unusual set of circumstances. The defendant entered into a contract with the owner of a small rural property at Pheasants Nest outside of Sydney to determine why a dam on the property was leaking and what remedial measures were required to stop the leak. The contract involved the defendant on the day of the accident and no other person. In this regard, I accept the evidence of Mr Stimson and find, beyond reasonable doubt, that the contract did not involve the deceased. 86. The contract involved the digging of a trench in circumstances where the trench would be dug in one day and filled at the end of that day. The dam was located in a paddock which was fenced and there was no expectation that there would be children or general members of the public visiting the private property. 87. Mr Clissold was buried when the trench collapsed. There was significant controversy surrounding how the deceased entered the trench. Mr Stimson's evidence was that he walked into the trench on three occasions despite being told in clear and unequivocal terms not to enter the trench as it was getting damp and likely to cave in. 88. The evidence discloses that a footprint was visible approximately six to seven metres into the trench. Detective Sergeant Leeuwen's evidence was that he attended the property between 5.30 to 5.45 pm on 31 October 2001 and that he commenced to take photographs immediately prior to having any idea as to how the accident occurred. The defendant had already left the scene in a helicopter prior to the Detective Sergeant's arrival. His evidence was that although he delegated the job of looking for footprints to Constables Vucetic and Hales, he did not specifically inform them to look for footprints. There was no mention at all of footprints in Detective Sergeant Van Leeuwen's report dated 1 November 2001. 89. On the evidence I find that Detective Sergeant Van Leeuwen and Senior Constables Vucetic and Hales did not have a picture of how the accident occurred whilst they were undertaking their investigation. This finding, in my view, explains why the question asked by Inspector Childs on 14 March 2002 in respect of whether Detective Sergeant Van Leeuwen observed any signs of entry to the trench by Raymond Clissold being made by walking along the length of the trench was left unanswered and not ultimately completed until a fax was received from Detective Sergeant Van Leeuwen on 22 May 2002. It was only at this time that, in my view, the significance of the footprints was realised. There was one footprint in the trench that was located by a photograph taken by the Detective who was not specifically looking for them. Photograph 12 of Exhibit 10 is described as follows: A floor section of section of the excavated trench. Note: Photograph does not show a clear indication of pedestrian use of the trench. 90. In my view, this photograph does appear to show some markings on the floor of the trench which could have been caused by pedestrian use. This photograph is of a different section of the trench to where the clear footprint is visible in the trench. Photographs 8 and 11 also appear to show some indication of pedestrian use of the trench. 91. Neither Constables Hales or Vucetic were called to give evidence. No evidence was called that suggested anyone else entered the trench apart from Mr Clissold. 92. The evidence of Mrs Clissold was that Mr Clissold had a mind of his own, and if he wanted to do something, he would do it. There is no evidence before me that Mr Clissold jumped into the trench, nor that he was lowered into the trench in the bucket. I am unable to form a view on the evidence that Mr Clissold fell into the trench as it was collapsing, as his body was found underneath a pile of collapsed earth. There was some evidence that the earth seemed to have slipped from the side of the trench which appears to be more consistent with the earth falling on top of him whilst he was in the trench. I therefore find beyond reasonable doubt that Mr Clissold entered the trench by walking along it's length. 93. Although Mr Clissold, as owner of the property, refused to obey instructions from the defendant in his role as contractor, in my view, the contractor was required to exercise control over the site to ensure that persons were not exposed to risks to their health or safety including in circumstances where a person is disobedient or even displays foolish disregard to personal safety. 94. Counsel for the defendant submitted that the site was relatively risk-free in that it was located in an isolated rural area. It was surrounded by a barbed wire fence, a closed gate, it was private land, the job was being performed by a person experienced in operating machinery including an excavator and the defendant's intention was to resolve the job in that day by refilling the hole. The obligation on the defendant under the Act is absolute. A relatively risk free undertaking does not meet this obligation. I am satisfied that the defendant's undertaking created a risk to the health and safety of persons, in particular, Mr Clissold. The defendant failed to ensure that Mr Clissold did not enter the trench or come within close proximity to it so as to be at risk from the fall or dislodgement of earth into the trench. 95. The defendant agreed that he had not conducted any risk assessment in relation to the collapse or failure of the trench. This included the effect of the weight of the excavator on the trench, the effect of vibration and the nature of the soil. The defendant also stated that prior to digging the trench, he thought about risks. This included the attendance of Mr Clissold at the site, that the dam was fenced and that he didn't think it was up to him to shore up the trench. The defendant therefore anticipated the attendance of Mr Clissold whilst carrying out the work. What he didn't anticipate was his refusal to obey instructions. The risk assessment, on the defendant's evidence, did involve a consideration of the above factors leading the defendant to conclude there was no risk. In this regard, he was wrong. The risk assessment was rudimentary and inadequate. He accepted that he had not carried out risk assessments as contemplated by the WorkCover Code of Practice. His assessment was that no-one would be placed at risk as no-one was to enter the trench or be in the vicinity of the trench. The defendant's evidence was that he instructed Mr Clissold to leave the site. To the extent that the defendant recognised there was a risk to Mr Clissold if he entered the trench, he sought to ensure that the risk did not impact on him by directing him to leave the site. I am satisfied beyond reasonable doubt that the defendant failed to undertake any adequate risk assessment in relation to the fall or dislodgement of a section of wall of the trench. Particular 3 has been made out. 96. The mere occurrence of the accident, as acknowledged by Mr Skinner, is not sufficient to establish the offence. The prosecution is required to establish a causal connection between the act or omission by the defendant and the detriment which has occurred. 97. I have already found that the defendant's undertaking created a risk to health and safety of persons. There are a number of elements which make it capable of being within liability to which I have earlier referred. The defendant could have put up a fence at the entrance to the trench and a safety fence around the area of the trench. He could have also put shoring and battering in the trench from 1.5 metres depth, giving fall protection if someone entered the trench and preventing the trench from collapsing. I propose to assume liability on these matters. 98. The WorkCover Authority of New South Wales Code of Practice, Excavation Work, dated 31 March 2000 provides as follows in respect of shoring: 3.3 Shoring It is a legal requirement that where necessary, all trenches and excavations must be adequately shored or supported to prevent a fall or dislodgement of earth, rock or other material forming the side of or adjacent to, any excavation work from burying, trapping or striking a person that is in the excavation. Where such a risk also exists for those installing supports, other appropriate control measures must be in place to ensure the safety of persons entering the excavation. A shoring system is not required if, having regard to the nature and slope of the side of the excavation and other relevant circumstances there is no reasonable likelihood that earth, rock or other material will fall or dislodge from a height of more than 1.5m and bury, trap or strike a person that is in the excavation. The risk assessment process should be used to identify unstable conditions and the risks involved. 99. At paragraph 3.6, the Code provides as follows: 3.6 Security of Excavations

Many accidents on construction or demolition sites have involved people including young children sustaining serious injuries as a result of inadequate control measures being in place to prevent uncontrolled entry to the site. These injuries include falls into open excavations, injuries as a result of plant not being immobilised and people being stuck by falling objects. Even shallow excavations can be trip and fall hazards. The OHS Act obligation to ensure a safe workplace extends to others present at the workplace or affected by the work, including contractors, visitors, delivery drivers, etc. A risk assessment should be conducted in order to determine which controls will be implemented to ensure the security of excavation both during work and when left unattended. The control measures implemented must be appropriate and effective for the hazards and risks of the situation. Consideration should be given to factors such as how long the excavation will be open, and who may gain access to the excavation (all persons, including pedestrians, children), etc. The following control measures should be considered: (a) isolating the hazardous area, such as by the use of perimeter fencing, barricades, screens, barriers, handrails and/or covers, which are capable of preventing access or preventing the fall of a person (b) removal or lowering ladders on work site (c) immobilisation of plant to prevent unauthorised use (d) compliance with relevant local authority requirements (police, council, fire brigade) (e) hazard warning lights, signs, markers or flags (f) sentries (may be necessary to provide protection for the public and employees) (g) site security measures, including fencing or use of safety observer(s) (h) night lighting.

Signs should be erected around the site showing the name and contact telephone number (including after hours emergency number) of the principal contractor/contractor.

It will be recalled that it was the defendant's evidence that he was to be the only person involved in the undertaking and that he intended to backfill the trench prior to leaving the site on 31 October 2001. The evidence is that this was an isolated rural property which would not be accessed during the undertaking by any other person, whilst the trench was being dug. The defendant's evidence was that there was not going to be anyone working near the trench, or in the trench and that he would have only considered shoring up the trench if someone was hired to work in the trench. He gave an example that it was not a trench in which pipes were going to be laid which would require persons to enter the trench. However, the defendant is required to ensure against persons being exposed to risk. The trench, at its deepest, was approximately three metres. This depth, in my view, would give rise to a reasonable likelihood that earth could fall or dislodge. So much was acknowledged by the defendant. There was no risk assessment undertaken by the defendant in regard to shoring the trench and the forensic evidence was that cracks were visible in the walls of the trench. 101. The prosecutor contended that Mr Clissold was at risk if he was to only stand at the side of the trench without even entering it and the defendant did nothing to remove the risk that he had created by, for example, failing to shore or batter the trench, or placing the spoil where it should have been placed in accordance with the Code of Conduct. I agree with this submission. The Code of Conduct, as I have already set out in respect of shoring, requires that this occur to prevent a fall, or dislodgment of work from burying, trapping or striking a person that is in the excavation. The defendant did not contemplate anyone being in the excavation and, in undertaking this risk assessment concluded that it was unnecessary to shore the trench. In reaching this conclusion, the defendant failed to address the risk. 102. The 1997 Guide for Front End-Loader and Excavator Drivers provides under cl 4 Trenching as follows: 4 Trenching

Any trench deeper than 1.5 metres must be shored, battered or benched. Any trench likely to be unsafe even if it is less than 1.5 metres deep, must be shored, battered or benched. Check the stability of the ground before benching. 103. The 2000 Code of Practice, to which I have already referred, provides a more comprehensive guide in respect of battering or shoring trenches. Although it was not made clear to me the inter-relationship between the 1997 Guide and the 2000 Code, the same subject matter is dealt with by cl 240 of the Regulation which provides as follows: 240 Protection of stability of excavation work - particular risk control measures (1) An employer must ensure that, in relation to excavation work, an adequate system of safety, involving shoring, earth retention equipment or other appropriate measures, is in place to control risks to health and safety arising from one or more of the following: (a) the fall or dislodgment of earth and rock, (b) the instability of the excavation or any adjoining structure, (c) the inrush of water, (d) the placement of excavated material, (e) instability due to persons or plant working adjacent to the excavation. 104. Although the defendant is not charged with a breach of cl 240, the failure to shore the trench, as I have already determined, created a risk to health and safety. The fact that it was a one person job on a private property, to be completed in a day, with no person being required to enter the trench, is not a defence to the charge. 105. The 1997 Guide deals with the issue of spoil and provides: Spoil must be placed at least one metre away from the excavation to prevent cave-ins and falls, with the toe of the pile no closer than 500 mm. 106. The defendant was taken to the 1997 guide and shown a diagram depicting the placement of spoil and asked the following questions: Q: You put your spoil closer than that diagram would indicate, did you not? A: Yes. 107. The defendant was then asked some questions about his knowledge of assessing the cubic capacity of earth, and then asked the following questions: Q: Spoil must be placed at least one metre away from the excavation to prevent cave-in and falls ... no closer than 500 ml (sic). You weren't doing that were you? A: I'm not too sure how far away I was from the edge of the trench. The photo shows it was placed around the side. Q: I think you are referring to backfill? A: Would be yes. Q: It was not placed in the way this booklet tells an excavator operator it should be? A: No. 108. The defendant agreed that spoil was not placed in the way the Guide provided. In my view, it has been established beyond reasonable doubt that the failure to shore or batter the trench and the placement of the spoil created a risk to health and safety. Particular 2 has therefore been made out. 109. The defendant acknowledged that he had not sought any advice from a qualified engineer experienced in soil mechanics. The 1997 Guide provides that such advice should be sought and their recommendations followed if a bank could be unstable, especially in clay soils. The defendant reasoned that there was no need to do this because the purpose of the undertaking was to find out where the dam was leaking and no-one was to be working in the trench and it was to be backfilled that afternoon and not left overnight. The undertaking involved work in a clay soil. 110. Mr Skinner submitted that even if I declined to make adverse findings in respect of Mr Stimson's credit, which I do, I would still be compelled to convict the defendant because he did not have a certificate of competency for the use of the excavator. In order for this submission to be correct, it is necessary that I find that the failure of the defendant to hold a certificate of competency was causative of the risk. The defendant's evidence was that he had made some enquiries about obtaining a ticket if he bought the excavator. His understanding, which was incorrect, was that he could operate a machine without a certificate if he had intentions to buy it to see if it was suitable. The defendant's evidence was that he had 40 years of experience with various pieces of earthmoving equipment including dozers, scrapers, front end loaders with track and rubber tyres, and from 3.5 tonne excavators to 60 tonne excavators. The defendant agreed that he had never received training in the operation of the type of excavator used at the dam site. He had operated an excavator around his property but not used it on a job site prior to working on Mr Clissold's neighbour's property where he used the excavator to move rocks at a dam. He had not carried out this type of excavating work since 1985 and had never been trained to carry out such work. 111. The defendant admits that he was not the holder of a certificate of competency. The defendant's evidence was that he believed that he was qualified to do the work. He had undertaken such work in the past, albeit, sporadically. Mr Kelman had known Mr Stimson since 1966/1969 and gave evidence that he was an excellent operator with ability beyond a lot of operators that he had employed. 112. I am satisfied, beyond reasonable doubt that, despite the defendant's years of experience, he was not experienced to carry out the undertaking at Mr Clissold's property on 31 October 2001. He had not carried out such work for over sixteen years and had never been trained to carry out such work. It follows that particular 4 is made out. 113. In respect of particular 5, the defendant has not been charged with a breach of cl 270 of the Regulation. This regulation requires an excavator to hold a certificate of competency. However, I am persuaded, for the reasons already outlined, that the failure to hold a certificate was causative of risks created by the defendant. Particular 5 has been made out. 114. It is necessary to deal with a further submission of the prosecutor. Mr Skinner sought an adverse finding of credit be made against Mr Stimson. Counsel contended that there were inconsistencies or a failure to mention certain matters in his interview with Senior Constable Pocock. Mr Skinner pointed to only two references to Mr Clissold entering the trench; a failure by Mr Stimson to mention that he moved the excavator prior to the police arriving and lifted soil from the trench and the use of the collective noun "we" in his record of interview with Inspector Childs. It was further contended that Mr Greening's evidence that Mr Stimson told him "the old fellow has fallen in the hole" could not be reconciled with Mr Stimson's later evidence. However, this statement was denied by Mr Stimson. Furthermore, Mr Greening's evidence was that when he arrived at the property he asked Mr Stimson what happened. His understanding was that Mr Clissold entered the trench to inspect the bottom for any seepage. Mrs Clissold's evidence was Mr Stimson told her "the old fellow got bogged down there." 115. I am not prepared to draw any adverse inference in respect of Mr Stimson through his use of "we" or in respect of his explanation of the events that occurred on 31 October 2001. The defendant's evidence was that his reference to "we" was a reference to himself and Mr Greening who he had engaged to attend the property on the following day with a compactor. Mr Stimson was taken to other references to the use of "we" in his record of interview with Inspector Childs. For example, "we bring the excavator up"; "see what we could find"; "we would have to hire a pad foot roller to re compact it"; "we never started till one or two to excavate"; we will do what you suggested". Mr Stimson explained, on occasions, his use of "we" meant "me". He rejected the suggestion that a job involving more than one person was in operation and maintained that although Mr Clissold was present, he was not supposed to be there. Mr Wendler submitted that Mr Stimson had "a form of education that one wouldn't have expected him to express himself in the language of Dr Johnson." It was submitted that this was Mr Stimson's way, at least a way of describing what occurred on that day. I accept Mr Wendler's submission in this regard. 116. The defendant is therefore guilty of an offence under s 9 of the Act in respect of the charge brought in these proceedings unless he is able to make out a defence under s 28 of the Act. Mr Wendler did not rely upon s 28. The defence raised was that there was no causal connection between the omission and the detriment to safety because of Mr Clissold's wilful disobedience. I have already rejected this submission for reasons set out earlier in this judgment. 117. For the above reasons, I find the offence proven in relation to the prosecution brought in Matter No IRC 6270 of 2003. The matter will be listed for directions at 9.30 am on Monday 20 December 2004 for the purpose of programming a sentencing hearing.

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