WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty... [2003] NSWIRComm 35 | Case summary | Zoe

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WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante

[2003] NSWIRComm 35

Industrial Relations Commission (NSW)|2003-07-01|Before: Kavanagh J, Peterson J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-07-01

Before

Kavanagh J, Peterson J

Source

Original judgment source is linked above.

Judgment (487 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante [2003] NSWIRComm 35 Prosecution: PARTIES : WorkCover Authority of NSW (Insp Maltby) & Anor Defendants: Abigroup Contractors Pty Limited & Luis Bustamante FILE NUMBER: IRC5432,IRC5433,IRC5434,IRC5436,IRC5438,IRC5502,IRC5503 of 1999 CORAM: Kavanagh J Limitation Application brought by defendants under s49(4) of the of the Occupational Health and Safety Act 1983 - defendants submit all prosecutions filed out of time as it does not appear from the Coroner's Report or proceedings each offence has been committed. Consideration of evidence from the Coroner's Report or proceedings. Objective assessment required. Consideration of the allegations, that is the alleged acts and omissions of defendants, as pleaded in each charge - question as to whether it appears each offence committed - Finding, if any of the number of alleged particulars against company establish a risk to safety, or as against the individual establish lack of "reasonable care", then it appears an offence was committed. Finding from coronial material it appears each offence has been committed. Summonses against each defendant found therefore issued within time under s49(4) of the Act.

[17]

7 Two charges relate to events on the day of 10 November 1995. One is brought under s15(1) and the other under s16(1) of the Act. Matter No. IRC5432 of 1999 The breach is pleaded against Abigroup under s15(1) of the Act: On or about 10 November 1995 at Kogarah in the state of New South Wales, the Defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular, Maurice Bolger, Paul Poidevin and Luis Bustamante contrary to s15(1) of the Occupational Health and Safety Act, 1983 in that it: i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated; v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: a) within one metre of a building to be demolished; b) that was not adequately protected or identified; c) in which earthmoving works were to be performed. vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: a) location of the charged gas supply line; b) the risks associated with work adjacent to the charged gas supply line; c) the type of work that might be carried out adjacent to the charged gas supply line; d) the type of work, if any, which could be performed adjacent to any charged gas supply line. Particulars 1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading ("KSU"). 2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line. 8. The Defendant was aware where the gas supply line had been cut and capped by Princi. 9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 11. The Defendant failed to adequately protect the charged gas supply line on the KSU. 12. The Defendant failed to adequately identify the charged gas supply line on the KSU. 13. The Defendant failed to adequately mark the charged gas supply line on the KSU. 14. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 15. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. 8 The second charge relates to events on 10 November 1995. Matter No. IRC5433 of 1999 The breach is pleaded against Abigroup under s16(1) of the Act: On or about 10 November 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant:

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[22]

Particulars 1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading ("KSU"). 2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The defendant was aware of where the gas supply line had been cut and capped. 8. The building was mechanically felled by the use of an excavation which commenced on or about 21 November 1995 and was completed by 4 December 1995. 9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the building. 10. The defendant used a stake to mark the gas supply line when it became exposed. 11. The defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were operated. 12. The defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line. 13. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 14. The defendant failed to adequately protect the charged gas supply line on the KSU. 15. The defendant failed to adequately identify the charged gas supply line on the KSU. 16. The defendant failed to adequately mark the charged gas supply line on the KSU. 17. The defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 18. The defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the work statement. The second of the charges covering the period between 10 November and 4 December 1995: Matter No. IRC5434 of 1999 The breach is pleaded against Abigroup under s16(1) of the Act: Between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, being an employer DID FAIL contrary to s16(1) of the Occupational Health and Safety Act, 1983 to ensure persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking in that the Defendant: (i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; (ii) Failed to take adequate steps to ensure gas supply lines charged with gas were not situated in areas where construction work was to be performed (iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; (iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated (v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line. (vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified; (c) where earthmoving machines were operated. (vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) the risks associated with work adjacent to the charged gas supply line; (c) the type of work that might be carried out adjacent to the charged gas supply line; (d) the type of work, if any, which could be performed adjacent to any charged gas supply line. The extra alleged failure as pleaded in Matter No. IRC5436 of 1999 above at (v) is again recited in this charge.

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[26]

(i) Failed to take adequate steps to ensure the cutting off of capped gas supply lines, which were charged, was affected in a position which was safe and without risk to health; (ii) Failed to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; (iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; (iv) Failed to provide and maintain a system for performing work that was safe and without risk to health in an area where a charged gas supply line was situated; (v) Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area of a charged gas supply line. (vi) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified; (c) where earthmoving machines were operated. (vii) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the: (a) location of the charged gas supply line; (b) the risks associated with work adjacent to the charged gas supply line; (c) the type of work that might be carried out adjacent to the charged gas supply line; (d) the type of work, if any, which could be performed adjacent to any charged gas supply line. Particulars 1. On or about 18 October 1995 the Defendant was engaged by the State Rail Authority of New South Wales to perform construction work on the Kogarah Station Upgrading ("KSU"). 2. On or about 8 November 1995 the Defendant engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was aware of where the gas supply line had been cut and capped. 8. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995. 9. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 10. The Defendant used a stake to mark the gas supply line when it became exposed. 11. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter. 12. The excavator was used to create the batter in the area where the gas supply line was situated. 13. The Defendant did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 14. The Defendant failed to prevent the operation of earth moving machinery on the construction are close to the charged gas supply line. 15. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah. 16. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 17. At approximately 2.00p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 18. Between 2.00 p.m. and 4.00 p.m. on 4 December 1995, the Defendant was advised of the explosion which had occurred. 19. At approximately 4.00p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 20. The gas explosions were of sufficient extent and severity that persons were injured thereby. 21. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 22. The Defendant failed to adequately protect the charged gas supply line on the KSU. 23. The Defendant failed to adequately identify the charged gas supply line on the KSU. 24. The Defendant failed to adequately mark the charged gas supply line on the KSU. 25. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 26. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. In this matter, the prosecution did not press Particulars numbered 7 and 9 of Matter No IRC5432 of 1999 (see para 7 ) but added thirteen new Particulars numbered 8-20 related to events on 4 December 1995.

[31]

On or about 10 November 1995 at Kogarah in the State of New South Wales, the defendant being an employee of Abigroup Contractors Pty Limited whilst at work and contrary to s19(a) of the Occupational Health and Safety Act 1983 failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. Particulars 1. The Defendant was a Foreman for Abigroup Contractors Pty Limited ("Abigroup") at the Kogarah station Upgrading ("KSU"). 2. Abigroup engaged Josef & Sons Contracting Contraction Pty Limited to perform work including the demolition of Shops 3,5,7 and 7 Railway Parade, Kogarah ("the Building") as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line. 8. The Defendant observed where the gas supply line had been cut and capped by Princi. 9. The Defendant took no steps to remove a charged gas supply line from a construction area where earth moving machines were to be operated. 10. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 11. The Defendant failed to adequately protect the charged gas supply line on the KSU. 12. The Defendant failed to adequately identify the charged gas supply line on the KSU. 13. The Defendant failed to adequately mark the charged gas supply line on the KSU.

[34]

Particulars 1. The Defendant was a Foreman for Abigroup Contractors Pty Limited ("Abigroup") at the Kogarah station Upgrading ("KSU"). 2. Abigroup engaged Josef & Sons Contracting Contraction Pty Limited to perform work including the demolition of Shops 3,5,7 and 7 Railway Parade, Kogarah ("the Building") as part of the KSU. 3. Prior to the demolition of the Building, a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 4. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah 5. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 6. The gas supply line remained charged. 7. The Defendant was present at the KSU when Princi attended to cut and cap the gas supply line. 8. The Defendant observed where the gas supply line had been cut and capped by Princi. 9. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995. 10. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the building. 11. The Defendant used a stake to mark the gas supply line when it became exposed. 13. The Defendant failed to prevent the operation of earth moving machinery on the construction area close to a charged gas supply line. 14. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous as the job completed. 15. The Defendant failed to adequately protect the charged gas supply line on the KSU. 16. The Defendant failed to adequately identify the charged gas supply line on the KSU. 17. The Defendant failed to adequately mark the charged gas supply line on the KSU. As to the Particulars of this charge, Nos 1-8 of the charge above were repeated and nine further particulars were provided.

[52]

Statement of John Princi, Ganger, AGL to Police 12/12/95 I then took the gas box from it's original position and put it at the end of the capped pipe. I filled the hole in with the sand and replaced the pavers back into position. I never dug back as far as the first elbow. The pipe was in a horizontal position and I never moved it. I said to the demolition guy, 'This box shows you where the pipe is cut off. This side is live (indicating street side of box) and this side is dead.' (indicating shop side). He said, 'Okay'. I said, 'If you are going to dig, make sure you dig by hand first to find where the pipe is. If you want the pipe cut back further call us.' He said, 'No we are only going to remove the bricks and pull down the buildings. We're not going to excavate past the edge of the building.' I said, 'If you are only going to move the bricks then that's alright.' It normally takes a couple of hours to complete a job like this. From looking at the AGL record I see that I logged an hour and a half for the job at number seven. From 8am to 9.30am. I left and went to another job. Statement of Luis Bustamante, Foreman, Abigroup - to Police - 20/12/95 . . . I could see the yellow gas pipe had been capped, but I can't recall the colour of the cap. The distance from the front of the building to the gas cap was approximately 400 mm. I can't remember the conversation I had with the man from AGL, but when I saw this I told him that it was too close and to re-do and cap it off further away as possible in order to clear the later demolition of the building. I explained to him that we had to demolish the walls and the foundations and I wanted it to a safe working distance . He said that he would do it, that it would not be any problem in doing it. I then saw him remove a number of pavers in a direction leading away from the building and I left that area and continued with other work. When I came back the second time about 2 hours later the man from AGL was preparing to leave. I saw that he had replaced the brick pavers and he then left. I did not see where he had capped the pipe. I did not tell him how far from the front of the building to cap it, he did not ask me how far from the building to cap it and he did not tell how far from the building he did in fact cap it. However he did show me a metal box with a cap on it with the words 'gas' which he told me he had placed at the end of the capped pipe. This gas cap was approximately 1200 mm from the front of the building. I didn't measure it, but it was definitely further away from the front of the building when I first saw the capped pipe and asked him to move it. After that I carried on with my normal duties. The Coronial Report (para 13) WorkCover Inspector Mansell described the procedure used to disconnect the gas service as being at best inadequate, no maps were maintained by AGL showing where the pipes were located and it was not reasonable to allow pressurised gas pipes to remain in place while demolition work is being carried out . . . The Coronial Report ( para 35) Under no circumstances should a live gas pipe be allowed to exist on the site of major industrial works such as was occurring in this case. Statement of Inspector Paul Mansell - 29/12/95 No demolition work should be carried out in the vicinity of active gas piping.

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60 These alleged failures all relate to the alleged activities of earth moving machinery particularly an excavator on site in the period 11 November to 3 December 1995 (inclusive). The coronial material relied upon as to the use of an excavator on site in an area near a charged gas supply line during the relevant period is as follows: Statement of Robert B Campbell, Plant Operator, Josef & Sons to Police 11.1.96 Q12. . . I wasn't there every day. I arrived about the time the photograph dated 24/11/95 was taken. That's me standing in front of the bobcat and Dennis is driving. and Q8. What work did you perform at the Kogarah Railway Station with that bobcat? A. Loading the demolition of the shops. Q9. Were you the only driver of the bobcat? A. No I shared with the tipper driver, Dennis. Q10. . . .. Q11. Other than yourself and Dennis were there any other drivers of excavating machinery working on the Kogarah Railway site employed by Josef and Son for the duration of the excavation and demolition? A. Yes, theres Dennis, me and George. George only drives the bobcat not the excavator. He has another driver driving a 30 tonne SUMATANO excavator by the name of Richard BARRETT. Q12. Are you aware of what functions the other drivers of the bobcat performed whilst at the Kogarah Railway site? A. They also cleaned up as well. . . . Statement of Christopher Stoeski, Leading Hand, Josef & Sons, to Police 5/12/95 The first time I saw the gas pipe exposed was when the excavator pulled away the footings from the Fish and Chip shop last week. I could see the gas pipe was yellow plastic conduit which was capped by a red plastic cap. This pipe was leading to the metal gas cap placed in the footpath, but became exposed when the soil subsided under the pavers on the footpath. When the pipe became exposed I told Lewis and together we put a wooden marker to indicate the pipe into the ground. Statement of Christopher Stoeski, Leading Hand, Josef & Sons, to Police 5/12/95 After the gas pipe became exposed we completed demolishing the footings we moved onto the other area and commenced demolishing the concrete stairs. The smaller excavator which we used to demolish the buildings was removed and a larger excavator was brought in for the stairs and the area near the stairs. After we commenced work on the stairs which were approximately 6 to 7 metres away we did not work near the exposed gas pipe again. From Coronial Report para 32 The failure of . . . and Abigroup to make an appropriate application to the WorkCover Authority, their failure to ensure that the workplace site was as safe as possible by the proper disconnection and marking of the 'live' gas pipe, . . .adds to the conclusion that there was a clear lack of care with regard to workplace safety on the construction site. I am satisfied during the relevant period it appears a charged gas supply line was left in a construction area where an excavator operated.

[94]

72 From the material in the Coronial Report and proceedings it appears persons such as Mr Campbell and Mr Stoeski were persons not in the employ of the defendant company and who were at work on the KSU site on 4 December 1995. From Coronial Report (para 30) Mr Robert Campbell was operating a Daewoo excavator on the site on 4th December, 1995. In the course of operating that excavator he cut a batter running from the northern end of the site towards the southern being towards the ramp and the northern wall of Mei Yee Fashions. He had a partially obscured view of the work he was performing with the bucket and other difficulties resulted in him working with the bucket and arm at full extension . . . Campbell was aware of the stake and bunting which had been placed there to mark the pipe but he said that meant nothing to him. He further stated that he was told by Mr Stoeski that all services had been cut off. Campbell further claimed while using the Daewoo he saw the yellow pipe exposed for about one foot (not near where the stake and bunting were placed) and he stopped work. . . . Campbell agreed that the nature of the controls and the magnitude of the forces generated by the excavator itself was such as to make it, at least, unlikely that the driver of the excavator would perceive the precise point, nature or force of an impact between the bucket of the excavator (or its teeth) and pipe. Added to that is the fact that Campbell was working in an unstable situation - driving an excavator with bucket and arm at full extension and cutting a batter. Statement of Robert Campbell to Police 11/01/96 I was given instructions by the foreman, Chris STOSEKA [sic] as to what materials had to be removed by the bucket excavator. I said 'What services are here?' He said 'They have all been cut off'. I assumed from that the excavation site was clear of any services including gas and water. I also checked on the footpath for any gas hatches, by this I mean the gas type fitting to indicate there is gas connected. At this point there was no exposure of any pipes out of the ground that I saw. Statement of Robert Campbell to Police 11/01/96 . . .On the Monday, 4 December, 1995 I was digging, using the bucket, near the end of where the gas pipe was, this is the top of the batter, which is the top surface of the existing dirt. The edge of this batter is about 5 metres from the dress shop wall. This batter had to be evened up to about a 45 degree angle as such you are removing excess material and shaping the batter. Whilst doing this with the excavation bucket I saw the side of a yellow pipe. I stopped immediately and called Chris, the foreman over. I said 'What is this?' indicating the pipe. The part I had exposed was the part of the pipe leading into the elbow of the pipe. He said 'It's just the existing line after they cut it off.' I knew it was a gas pipe. Statement of Robert Campbell to Police 11/01/96 On that day and part of Monday, 4 December, 1995 I loaded the demolished material onto trucks, by demolished material I mean broken concrete, some wood, but mostly concrete. I loaded material from the railway stairs to half way along the excavation site to the south end (dress shop and amusement parlour end). The machine was standing about two metres from the gas pipe towards the railway stairs. Statement of Robert Campbell to Police 11/01/96 I assumed that this was the old pipe and had been cut off much further away from the batter. I still had to keep digging and dress the batter but I kept away from the pipe. Chris had a look around the pipe and said 'It's OK'. He exposed the elbow part of the pipe and the end with the stopper on it and it stuck up in the air but I don't know how much. I could see for myself that it was ok. The pipe was still intact in its bed or trench. Statement of Inspector Paul Mansell, 29/12/95 (pages 7-8) In my opinion the cause of the gas leak at Railway Parade on 4 December 1995 was due to 'live' gas pipe being permitted to remain in the area of work when machinery was being used in demolition/building work.

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89 Accordingly, it appears from the coronial material there was an offence committed under s19(a) of the Act in that the defendant failed to take reasonable care for the health and safety of persons who were at his place of work and who may be affected by his acts or omissions at work in that the defendant it appears did not take adequate precautions regarding a charged gas supply line situated in an area where construction work was designed to occur. Therefore the charge is brought within time under s49(4) of the Act. The Trial 90 Having determined all summonses issued against both defendants have been issued within time under the Act the matters go to trial. The court must view the evidence offered at trial to determine the liability on each and every charge brought against Abigroup Pty Ltd and on each charge brought against the other defendant, Luis Bustamante. It is noted some of the material considered above in the s49(4) limitation application was either called, tendered and/or admitted in the trial of the charges. Agreed Facts 91 Relevantly and of great assistance to the court an Agreed Statement of Facts was tendered in the trial. As to the parties to the prosecution and companies present on the site it was agreed: 1. Inspector Paul Anthony Mansell of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against Mr Luis Bustamante. 2. Inspector Kathleen Maltby of the WorkCover Authority of New South Wales, 400 Kent Street, Sydney in the State of New South Wales, is an Inspector duly appointed under Division 4 of Part 3 of the Occupational Health & Safety Act, 1983 and is empowered under Section 48 of the said Act to institute proceedings against Abigroup Contracting Pty Limited. 3. Abigroup Contractors Pty Limited [ACN 000 201 516] (Abigroup) is a corporation duly incorporated in New South Wales with its registered offices at First Floor, 25-29 Bridge Street, Pymble NSW 2073. 4. The State Rail Authority of New South Wales (SRA) is a statutory authority constituted pursuant to Section 4 of the Transport Administration Act , 1988 (NSW). 7. AGL Gas Networks Limited [ACN 003 004 322] (AGL) is a corporation duly incorporated in New South Wales with its registered office at AGL Centre, 111 Pacific Highway, North Sydney NSW 2060. 8. The SRA was the relevant Authority which owned the Kogarah Railway Station and its surrounding areas, including shops 3, 5, 7 and 9 Railway Parade, Kogarah. Prior to demolition in 1995, these shops operated with the trading names: (a) Shop 3 - Railway Fruit Market; (b) Shop 5 - Railway Fruit Market; (c) Shop 7 - Kogarah Seafood (d) Shop 9 - Toy/Gift Shop As to the task on site it was agreed: 9(a) The SRA required the Kogarah Railway Station and its environs to be upgraded. (b) The project was called the Kogarah Station Upgrading (KSU), which included in part demolition of the concrete steps at the entrance to the Station on the eastern side; the uplifting and removal of pavers in the mall area outside Kogarah Town Centre; the demolition of retail shops 3, 5, 7 and 9 Railway Parade, Kogarah, and construction within the KSU.

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As to the contracts for work on site it was agreed: 10(a) For the purpose of tendering to the SRA for the right to provide services for upgrades to various metropolitan stations, a group of companies formed a joint venture, the Station Upgrade Joint Venture (SUJV). (b) The SUJV was constituted by the companies TMG International Pty Limited, Edwards Madigan Torzillo Briggs Pty Limited, Group One Interiors Pty Limited and three further corporations, Arup Partner Pty Limited, Ove Arup Consult Pty Limited and Ove Arup Pty Limited. (c) Arup Partners Pty Limited, Ove Arup Pty Limited and Ove Arup Consult Pty Limited traded pursuant to the business name Ove Arup & Partners. (d) The SUJV in furtherance of the joint venture operated and traded under the name of Capital Works Management (CWM) which was registered as a trading name on 15 December 1994 11(a) The SRA engaged SUJV (later renamed CWM) on 29 July 1994 for the design, tender process and the supervision to completion of the upgrading of a number of SRA facilities including the Kogarah Station upgrading (KSU). (b) SUJV was appointed as the Project Manager and the Superintendent of the contract at the KSU between the SRA and Abigroup. As to the work on site it was agreed: 12. AGL Gas Networks Limited (AGL): (a) carried on business as a supplier of gas; (b) was the owner of gas supply lines in Railway Parade, Kogarah; (c) was the owner of the gas within the said gas supply lines; (d) had the care, control and management of the said gas supply lines and of the supply of gas within the lines; 13(a) In and around the Kogarah station area gas was reticulated by means of a yellow nylon tubing, known as "Goldline", "Rilsan" or "Rilsanol". (b) Prior to the use of Goldline, gas was reticulated through galvanised metal pipes. (c) The Goldline in the relevant vicinity of the KSU was inserted in the prior galvanised metal reticulation pipes. 14. The premises to the south of 3, 5, 7 and 9 Railway Parade on the western side of Railway Parade and the border of the railway line were as follows: (a) No 11 Railway Parade - Mei Yee Fashions Ladies Dress Shop; (b) No 13 Railway Parade - Family Amusement Zone (FAZ) being an electronic amusement centre and games parlour; (c) No 15 Railway Parade - St George Tobacconist Shop; (d) No 17 Railway Parade - Oasis Seafood Café. As to the events of Monday 4 December 1995, it was agreed: 15(a) Monday 4 December 1995 was the scheduled picnic day for the building industry including employees of the SRA and Abigroup. (b) Employees of the SRA, including the safety officers were not present at the KSU. 16(a) At approximately 1.55 p.m. Constable Adams and Constable Stephens attended in a Police motor vehicle from Kogarah Police Station. (b) Whilst stationary at the lights at the corner of Railway Parade and Montgomery Street, they were able to smell gas. 17. At approximately 1.57pm the Police Officers inspected a crack in the pavement outside FAZ where gas was escaping. 18. The Police Officers called for further Police to attend and attempted to direct people away from the area. 19. At approximately 2.00 p.m. a gas explosion occurred. 20. The explosion blew out the front of FAZ causing damage to a number of shops in the immediate vicinity. 21. As a result of the explosion, Mina Bakhoum and Gregory Maybury sustained fatal injuries. At least 16 other persons sustained burn injuries. 22. Members of the New South Wales Police were present at Railway Parade, Kogarah. 23. Members of the new South Wales Fire Brigade were also present, misting the flames. 24. At approximately 4.00 pm on 4 December 1995, a second explosion occurred inside FAZ. 25. A number of Fire Brigade officers were inside FAZ when the second explosion occurred. 92 I am satisfied the two WorkCover Inspectors were empowered to institute these proceedings against each defendant, and that Abigroup is a company duly incorporated in NSW. The Contracts 93 After determining the Kogarah Railway Station and its environs be upgraded as part of a NSW Station Upgrade programme, the SRA formed the SUJV/CWM to plan and design the work. The SUJV/CWM acted as Project Manager. The SRA then called for tenders for the upgrade work. The tender document read in part: STATE RAIL AUTHORITY OF NEW SOUTH WALES CITYRAIL

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(A) correctly set out the Works in accordance with the Contract and to provide all instruments and things necessary for that purpose. Dimensions shall not be obtained by scaling from the drawings. The Contractor shall check all dimensions and setting out prior to the commencement of the Work. The Contractor shall verify the dimensions of existing work before proceeding and shall notify the Superintendent of any discrepancies; (B) On a daily basis, monitor and upgrade (as required) all pedestrian walkways, their guard rails, and adjacent construction components to give good unimpeded access to the general public. (C) supply all materials, labour, plant and equipment and everything else necessary for the execution and completion of the Works and the Contractor's obligations under the Contract, including such site establishment, services and facilities as are usually provided by a contractor to its sub-contractors; (D) establish, maintain and administer an industrial relations policy for the Works which will facilitate the timely and economical completion of the Works; (E) keep the site and work under the Contract clean and tidy and regularly remove rubbish and surplus material; (F)(i) comply with all other obligations imposed upon it by the Contract; and (ii) use Quality Assurance Procedures to monitor the manufacturing and construction activities and verify compliance with a) relevant standards recommendations and statutory requirements b) the Specification including any necessary testing and techniques (b) Commissioning (i) to manage and co-ordinate the initial occupation, operation and commissioning of the Works and the activities of others necessary for commissioning in accordance with the Contract; (ii) within fourteen (14) days after the Date of Practical Completion to remove all of the Contractor's temporary buildings, workshops, plant and equipment on the site and leave the site clean and tidy and ready for immediate use or occupation; and (iii) to rectify the defects which become apparent during the Defects Liability Period within a reasonable period as required by the Superintendent. (iv) use Quality Assurance Procedures to monitor compliance with a) the Specification b) any performance criteria called for

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117 John Princi of AGL with two others from AGL disconnected the gas service on 10 November 1995. Mr Princi cut the pipe and removed the gas box in the footpath from its original place and put it back further from the building alignment over the cut pipe. Mr Bustamante, the Abigroup Supervisor, told Police he spoke to the AGL workman when he came to the site to disconnect the gas. Mr Princi of AGL gave evidence he told the person from the company who joined him when asked how far from the front of the shop was the disconnection point: That was about 150, 200 - about 200, say, from the shop. It was put to Mr Princi in cross examination: Q. . . . do you remember somebody suggesting that it was too close to the building? A. He say that, but even if you say that, I said, "Where you want the pipe cut"? And he said, "There is good enough, where you're cutting". . . . Q. Do you now say you recall a person suggesting to you that it was being cut too close to the building? A. He never said anything to me. He never said anything to me. I went to do the job and he was watching and he never said nothing to me. . . . . . . Q. Why, when I asked you the earlier question, did you say "He say that"? A. He probably will say but not to me; he could say to somebody else but he didn't say to me. Sometime later, Mr Princi said in evidence: A. But if he was said - if he said to me to cut it back and I cut it back where he wants, the job was done where he wants. . . . I remember I told about that gas pipe -if he wants the pipe cut off back, if he's going to dig the footpath. This is exactly what I said . . 118 Mr Princi was cross examined to the effect in his statements to the Police and WorkCover he could not recall the words of any conversation he had on 10 November 1995. As to the assessment of Mr Princi's recollection tendered was an excerpt from the WorkCover Authority's Record of Interview dated 13 December 1995 where Mr Princi said: I said if you want assistance to cut the pipe back give us a call . . . I said if you want the pipe cut back further call us . . . I said if you do need more assistance call the gas company and we coming back.

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124 Mr Bustamante, Abigroup's supervisor, gave no oral evidence as he faces two charges under the Occupational Health and Safety Act 1983 which were heard along with these prosecutions against the defendant Abigroup. Mr Bustamante however gave statements to the Police on 20 December 1995 and the WorkCover Authority on 18 December 1995 and 3 March 1996. His statements were admitted against the defendant, Abigroup. He confirmed he was present when AGL disconnected the gas on 10 November 1995. He said: . . . The day the gas company came to do the disconnection I was on site, and after they finished the disconnection I checked it, I found out it was too close to the building to be demolished. So I asked the gas man doing the work to redo it and cut off that line further away from the old building line. Which he did. In his statement to Police on 20 December 1995, Mr Bustamante said as to the gas disconnection: 6. I remember when the man from AGL came out to disconnect the gas I carried out an inspection of his work as he was about to finish. I saw that the disconnection was too close to the existing building and I asked him to re-do it and cut it off further away from the existing building to be demolished. This building was the old fish and chip shop, I think it was number 7 Railway Parade, Kogarah. 7. When I first approached the man from AGL I saw that he had removed the pavers from the footpath in a rectangular shape measuring approximately 800 mm by 700 mm. . . . I saw the exposed yellow gas pipe about 350 mm below the surface of the pavers. I could see the yellow gas pipe had been capped . . . The distance from the front of the building to the gas cap was approximately 400 mm. . . . when I saw this I told him that it was too close and to re-do and cap it off further away as possible in order to clear the later demolition of the building. . . . I saw that he had replaced the brick pavers and he then left. . . . This gas cap was approximately 1200 mm from the front of the building. . . . it was definitely further away from the front of the building . . . Mr Bustamante could not recall where the employees of Josef & Sons were when he talked to the AGL employee but said they were on site. He was questioned by the WorkCover Authority on 8 March 1996: Q12. At that time did you know which shops were to be demolished? A. Yes. Q13. Which ones? A. Fruit shop fish shop and the florist. Shop No. 3 to 9. Q14. If you were aware that all these shops were to be demolished why didn't you ensure that the gas was disconnected further back so as to be outside the construction site during demolition? A. Was disconnected outside the area of the demolition. As I said before I asked the gas man to disconnected the pipe further away from the area of demolition.. Q15. What did he say in response to that? A. He will do it and he did it.

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137 Mr Poidevin, the Construction Supervisor for Abigroup at the KSU, attended the site. He recalled he was shown a disconnected gas service by Mr Luis Bustamante prior to starting work on the platform extension. He recalled it being marked by a piece of metal pipe with a piece of timber and a piece of ribbon around it. The ribbon he identified as safety ribbon. He was asked: Q. What, from your experience, would you have done as a supervisor on site if a gas pipe had been exposed during the construction work? A. I would have marked it exactly the same way, only probably a little bit better. 138 Ronald Robert John Turnbull of the SRA had been to the KSU site approximately twice before the explosions. Glen Smithers was his safety officer on the site and stationed there full time. Mr Smithers' role on the site was to ensure no construction work went too close to the track and, if he identified risk, he had authority to stop work. It was Mr Turnbull's view he and Mr Smithers' major responsibility was for the safety of the rail corridor. Mr Turnbull had noted the bunting on the site whose purpose he identified as keeping people away from a danger. His view was the markings identified there was a potential trip hazard. He was asked: Q. . . . In your experience was the use of bunting, in the way you've described, a regular occurrence within the industry up to 1995? A. You've got to be very careful with bunting. Bunting we use - say we have - I will give you an example - electricians on a step ladder and we want to - on a station. He's up on the step ladder, so we usually put bunting around and so people come along and see the bunting. You do get some idiots but most do walk around it, but if it was an excavated hole where you had a 5 metre drop it's not good enough, because bunting has a tendency to rip, to break, so we have to put a more substantial manproof fence around it. If you take a guy on a step ladder, that's good enough. Something more potentially dangerous, it is not good enough.

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159 A photograph tendered taken by Mr Josef was most revealing as to the site the day of 24 November 1995. It showed a site with significant activity. The defendant company rejects the submission of the prosecution that this was a cramped site. I accept, from the evidence in the photograph, and from an inspection the court made of the site, the site was within a contained area. On one side was the railway line and next to it, on the eastern side, was the long but narrow bank of shops, then a footpath, then Railway Parade. Much of the activity as described by witnesses was endorsed through the photograph. The perimeter hoarding had been opened allowing access to the site across the ramp, under which was the charged gas supply line, to a truck, two excavators and a bobcat. Where the shops had been demolished some foundations were still in place. The site had a significant drop to the west. The ramp is not clear on the photograph but the stake and markings are visible to the north of the ramp. The stake and bunting were in place during the activity of 24 November 1995. The photograph indicates the markings were by way of a bent pole and another longer wooden stake which held, near ground level, a piece of bunting around it. There was a wooden log to the north of the stake and a milk crate to the east. To the west of the stake was a hole lined with what looks like a lump of cement in semi circular shape and quite deep. The placement of the cement was not referred to at all in evidence. Beside the cement lies on the ramp to the west, a tall pile of sand and coming out of the sand some formwork or a beam towards the platform. The photograph reveals the stake and markings of the capped end of the charged gas supply line are close to the northern edge of the ramp though the distance is unclear. A couple of safety barriers are erected on the footpath. The pavers remained on the footpath but appear to stop either where the ramp begins at the building alignment or they are buried under the ramp construction. It is more likely however they were taken up. The bobcat had some pavers piled beside it and Josef & Sons were contracted to take the pavers up for re-use.

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190 Mr Campbell was the operator of the excavator on the day of the explosion. He was also on the site on 24 November 1995 as confirmed by the photograph. On 24 November 1995 he said of the markings: Q. Do you know why those objects were in that place on that day? A. No, I wasn't aware of what that actually represented. Q. Did you go and look at that area at all? A. I looked at that area, yes. Q. Did you see anything when you looked at that area? A. Only that the logs were there and that the stake was there. Q. Did anyone tell you about that area and those items? A. No, they did not. Mr Campbell was then asked as to the markings on 4 December 1995: Q. The objects in the circle, were they there on 4 December 1995, to your knowledge? A. The log wasn't but only the peg was - the steel star picket peg with the bunion piece on it. And later he said: Q. As you moved towards the ramp, did you notice anything in the area where the top of the ramp met the pavement level of the building site? A. The top of the ramp met the paving? Q. Yes. A. Of the site? Q. Anything in that area, did you notice? A. Are we talking at the top of the actual truck access ramp? Q. Yes. Do you remember the other photograph I showed you and you pointed to the stick or the picket, I think you said? A. But that wasn't at the ramp. Q. The bunion? A. Yes, but it wasn't at the ramp. Q. Are you saying those materials weren't there on that day? A. Those materials were there that day. Q. Let me just clarify it. . . . Q. I put it clumsily. Do you know the area I'm talking about? A. Yes, where the steel picket was. Q. What was in that area on that day that you saw? A. Nothing. We're talking about 4 December? Q Yes. A. Nothing. It was just levelled off all the way back to the ramp. There was no rubble there; there was no logs there; there was no nothing. Q. Were the items that were in the photograph taken 24 November 1995 in that area still? A. No, they weren't. Q. Were you told about anything being in that area that you had to watch out for? A. No, I wasn't. Q. Were you told about anything in relation to underground services on the site on that day? A. No, I wasn't. Q. Were you told anything about gas services on the site on that day? A. No, I wasn't.

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Q. Did you see anything in relation to a gas pipeline on the site? A. I don't know who pulled it out - somebody went and pulled a gas pipe out of the ground. Q. Did you see that, did you? A. Yeah. Q. To your knowledge, had your men been working in that area? A. No, I left strict instructions not to. Q. Who did you give those instructions to? A. Bob Campbell specifically. Q. Were you told anything about where they had been working? A. No, I saw them where they were working . . . . Q. You said, "Why would they be working - why would they be working next to the gas pipe? What reason would they have to work?" Right? A. That's correct. Q. What do you mean by that? A. It wasn't part of our site. The site was handed over. We had no work to do in that area whatsoever, so why would they be working there specifically when they were warned not to go in there? Q. The site had been handed over to who? A. To Abi. That part - that part of the site was handed over to Abi the minute they started using it as a ramp. . . . Q. Did you observe the site as a whole on that side of the railway station? A. Yes, I did. Q. Was there any work required of Josef & Sons or their employees at the southern end of that site? A. That's the shops end? Q. Yes. A. No. . . . Q. You said, in answer to questions from my learned friend, Mr Josef, before lunch, that you instructed Mr Bob Campbell not to go near the area where you said there was a gas pipe? A. That's correct. . . . Q. When did you have that conversation with Mr Campbell? A. When I first got on site on the Monday morning. Q. Monday the -- A. The 4th. Q. Of December 1995? A. That's correct. 198 Mr Stoeski, the foreman for Josef &Sons, said of work on 4 December 1995: Q. Were you working on the site on the day there was the explosion? A. Yes, sir. Q. What were you doing on that day on the site? A. Cleaning up. Q. What do you mean by "cleaning up"? A. Cleaning up the rubble and timbers laying around. On the morning there's a bit of extra work on the stairs and cleaning up for the job to get out. . . . Q. What work was being done in relation to the batter? A. They done it with an excavator, sloped it down on the ground. I didn't watch him how he done it because I wasn't there; I was on the other side. Q. Other side of what? A. The railway, sir. Q. Are you saying the man operating the excavator made a batter? A. Yes, sir. Q. That was close by the gas line? A. Well, till the end of it - it could be about 3 metres away till the end or something. Q. When did you last see him doing that work? A. Well, actually I didn't see him do the work. When I came back from the other side, it was already done, okay, but I was walking up and down, so I don't really - you know, can't remember that I went there or not. Q. What was the purpose of that work - that is, making the batter? A. That's what Abigroup wanted. Q. For what reason? What's the batter on an excavation site? A. I suppose so, sir, nobody can fall down into the hole. That's what I think it was for. 199 Mr Bernath Adler of Josef & Sons, responsible for demolition of the staircase to the north of the site, said, as to work that day: Q. Are you saying that you asked Mr Campbell to leave the small material that he was digging out nicely on the batter? A. Not digging out. Q. That he was cleaning up, I'm sorry. A. Yes. The material he hammered was above ground level, so we are not talking digging. Q. How was he to leave it on the batter? A. After he hammered, he's taking off the hammer and with the bucket clean up the area where he hammered and place it nicely on the batter, with the bucket. Q. All right. In relation to the area between the stairs and the ramp at the southern end of the site, how far did the batter extend? A. The same batter was extending from the red columns to the access ramp. Q. To your knowledge at that time did that go over or near where the gas pipeline had previously been marked by the hessian bag and the other objects you've described? A. The batter was near the hessian bag area. Q. Was there anything to indicate that area on the day that Mr Campbell was working? A. No. Q. Did you say anything in relation to going near or not near that area? A. Yes. Q. What did you say to him? A. I asked - I ask him specifically not to go close to the access ramp. The access ramp at the beginning of the job was in a decent condition and it became very untidy, not from our work, and I asked him specifically not to go in the area there and do any clean-up. Q. When did you say that to him? A. I think I mentioned it to him on Friday - on Saturday, while we were working. I don't know if I repeated it on Monday morning. 200 In cross examination Mr Adler was asked: Q. What in your estimation is the closest the excavator got to the area that you'd previously seen the marker and tape in? A. Shouldn't be closer than 3 or 4 metres. . . . Q. What I'm asking you, though, is that in that southern end of the site in the area near the ramp, was there any need to do any further battering work? A. Battering, no - battering as such, no. and: . . . A. The demolition has been completed. The demolition of the shops - they were completed. The area was to be handed over to Abigroup in order to put their ramp in . . . 201 Mr Trajcevski, a Josef & Sons labourer on site, repeatedly, in chief and in cross examination couldn't remember. His command of English was poor: Q. Did you see what the machine was doing inside? A. Was working but I don't remember exactly. The job nearly finished that day. 202 Mr Daniel Josef, the son of Robert Josef, was asked what work was being performed on 4 December 1995. He persistently needed assistance from a prior statement to Police to assist his recollection, even for evidence in chief: Q. . . . Can you remember anything further about what Mr Campbell was doing on the site on Monday, 4 December 1995? A. Well, when I was there he was underneath the steps jackhammering the footings out and cleaning that up. . . . Q. How was he moving it out? A. He was breaking it up with a jackhammer and moving it with a bucket and probably loading it to a truck but I wasn't there, so -- . . . Q. Was the excavator doing something as well as removing the foundation from the steps on that day? A. Yes. Q. What was it doing? A. It was making a batter between the first - between the two levels. Q. Between which two levels? A. Between the upper level and the lower level. . . . Q. What's a batter? A. A batter is a slope created so the - so it doesn't basically collapse, so the top level, it's cut at a natural angle of repose. . . . Q. Can you see an object on the batter that you could easily identify? A. Yes. Q. What's that? A. I suppose it's the gas line. Q. So where the gas line is, is that where the batter is? A. Yes. . . .

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205 Mr Campbell says Mr Stoeski then instructed him to cut the batter. To do this, Mr Campbell worked the excavator from the northern end - the staircase end of the site - to the southern end of the vertical cut. He identified the actual vertical tapered off at the railway ramp. The excavator was facing north but he was moving south. He was progressing backwards. He had noted on 4 December 1995 the "bunion" and stake were not on or near the ramp. No logs were near it on that day either. He had not been warned to watch for any hazard on that day. He noted the ramp had been partly levelled off. He reached the southern end of the site at about one o'clock. It was then he "exposed the gas pipe". He tells of his activity on the day of the explosion: A. The cut of the batter was very minimal to what you normally do, and it was only a 300 cut, what they call a 300 cut, that section off the top. By the time I got to that point of where the actual gas pipe appeared to be, I was unaware of this, I was running out of materials to complete the formation of the batter, and I said to Chris Stoeski, 'Well, we're not going to have enough material from the batter edge or the vertical edge to complete the batter. He said, "Start grabbing it off the top." I'd say it'd been levelled out. He said 'They are going to be digging footings and piers here later on and that. There will be plenty of material to put back for what you take off the levelled area, and take some off the top". So I started taking some off the top. That's when I exposed one end of the gas line.' . . . . Q. When you started taking some off the top, as you said, how did you do that? A. Just by using the bucket digging into the surface of the material . . . Q. How deep did you dig into the surface of the material? A. Well, there's no calculation on actually each time you take what we call a bite but it could have been 200 or 300 mm at a time. Q. When you did that, what happened? A. Well, the first time I dug it in two swipes this happened - there was no visible signs of anything. The second time it showed what I've said before at the site of the gas pipeline. It still had dirt on top. Q. What did you see? A. I seen a yellow gas pipeline. Q. Did you know it was a gas pipeline? A. I did by the - yes. Q. How much of a gas pipeline did you see? A. At that particular time, about a metre of it ... Q. How did you see it in relation to the ground? A. Well, because, the bucket, as the teeth drove down over the pipe, I assumed that's what they did, because we don't see nothing as the teeth go into the ground, you have to understand that. It's buried underground. As the bucket comes up we see what marks it leaves in the ground. The dirt on the top had stayed there, but the teeth must have dragged itself along the edge of the pipe, leaving the edge of the pipe exposed. Q. Did you see the end of the pipe? A. Not at that stage. Q. How exposed was the pipe? A. Well, as I said, the side of it was showing to my vision. Q. What did you do then? A. I stopped. Q. Why did you do that? A. You can't keep going when you see a service like that. Q. Why do you say that? A. Because you don't know whether its live, dead or what. Q. What did you do then? A. I called up Chris Stoeski, who was further down the track and asked, 'What is this?' Q. Did you or he or together do something? A. Yeah, he examined the pipe. He kicked the dirt off the top of it, discerned that the bucket hasn't driven into it or damaged it in any way. I got off myself. Between the two of us we dug around it by foot or they brought up a shovel eventually and dug around it for about a metre, two metres, and we could see there were no fractures or damage done to it in any way, shape or form. By that time it was exposed to the end cap. Q. What did the end cap look like? A. It's a white piece of nylon and it's like a cap effect and it's put on the end by the gas company and it is glued on there. It did have some sort of dogleg on it ... Q. Where was the dogleg - can you describe the dogleg? What did it consist of? A. Well, it's just an extension of the plastic cap and it's, like, it tapers from probably a pen size to about a pen diameter size, and the idea of it is it can be stuck in the ground to sort of hold the gas pipe straight, because there's no balance on that end with the gas in it, you know, and I think the idea is to be sort of a stabiliser in the ground. Q. . . . At the time there was the observations by the Josef & Sons men, I think you said he did something with his feet first-off, Mr Stoeski? A. I only exposed the side of the pipe. As I dug most of the top surface soil off, it left very little left and there still was some on the top of the pipe which you could easily take off with your boot and, as I said, we took off as much as we could by foot in the area that I dug with the intention of examining the pipe. 206 He proceeded to finish the batter but was careful not to go back near the pipe. He continued work on the excavator. He could reach to the other side cutting the batter without going towards the pipe. He revealed the batter ran past the pipe and said: I dug up to the pipe, dressing the batter, and there was still a small section of that I could reach across from the arm and redress the batter without driving any more further forward.

[266]

He then revealed what he believed had occurred in his use of the excavator: What I believe, the bucket clawed across the top of it. The tooth rubbed along the side of side of it. The teeth would drag along the side of pipe but they have what they call a cutting edge on the bucket where the teeth are welded. That's a flat piece of steel. It rides up over the pip, it skids along. It will stay up. If there's a fair percentage of earth there, it will skid along that earth leaving a piece, but the teeth will be deeper. That's what I believe happened, why I seen that, the side of it, because the two came very close to it and to the side of the pipe and skimmed the dirt away and I saw the side of the pipe, not the top of it. 211 In cross examination it was put to Mr Campbell he told the Coroner he had not seen any galvanised pipes in the ground at all anywhere on the site. His answer was: That might be wrong. I seen the galvanised pipe in the ramp, but not at the point where the gas pipe was. He was further cross examined about taking orders from Mr Adler. He said Mr Adler outlined to him in the morning what he wanted done on site but Mr Stoeski was the supervisor from whom he took his instructions. He was asked: Q. . . . When you were making this batter, were you pushing dirt down or were you pulling it? A. Doing a bit of a both scenario. You start off as you cut the back, sort of 45 is half the batter and the other half, if you can imagine a cut line like this on the floor level, as you take the top off, the bucket has sliced half the vertical off. The other half on the bottom stays virgin ground. By drawing that motion with the excavator - it doesn't matter what angle it works to - you format the batter top into the lower area of the batter and you're virtually building it out with excess material to put a plane on it. It's a very hard process to explain, but you virtually build out the bottom another couple of hundred more and when you play with the bucket it crushes it in. Q. Where do you say the vertical was when you were cutting? A. The vertical - if you get that photograph of the Reids excavator, you will see that he is sitting right beside the vertical. What he has dug out, that used to be there. 212 The site was flattened at the top but at the time Mr Campbell began the work it had a vertical edge above where the excavator had worked to remove a wall running parallel to the station. On Mr Campbell's view the top of the demolition site, that is the eastern side of it, looked as if it had already been partly dressed. It was put to him the vertical was not there on the Monday, but his answer was: It was. Why was I cutting the batter? It was further put to him that he had not told any of the authorities to whom he had made statements about the detail of running out of material and that was why he moved material from the top of the gas pipe. Mr Campbell suggested that such detailed questions were not asked of him. He was asked: Q. When you say you exposed this gas line, I think you described the bucket going in and running along the side of the gas line. A. Well, like I said, I can't see what happens when the bucket's cutting-edge or teeth leave the surface of the ground, but by looking at where the teeth marks went and the amount of dirt left on it, it appeared that the teeth had gone over the pipe and the actual cutting edge had skidded along the top of the pipe. At the time he and Mr Stoeski examined the pipe he saw Mr Stoeski "lifting it up".

[273]

220 Constable Adams, Constable Stephen's companion police officer suggested the noise of the excavator was so loud they had moved away to make the call for help. Constable Stephens did not recall being distracted by anything occurring on the excavation site. Constable Adams heard Constable Stephens contact Kogarah Police Station and the supervisor's vehicle. Police follow this procedure in situations where officers on site identify they need help. At the time of the call back to the Police Station she recollected: A. There was a big yellow machine in the background where they were doing all the work, just excavating, just making a lot of noise, so we were having a lot of trouble hearing the radio. Q. What was the noise; was it its engine or movement? A. Just like a big roadworks vehicle - the way they pull soil back and things like that. It was just a big machine going? Q. It was going at the time, was it? A. Yes. Q. When you say "going" was the engine running or appearing to do something at that time? A. Yes, it was making the noise where the bucket comes up and goes down, like an excavator. You could hear gears and everything. It was very close to where we were standing. It was very loud. Q. Did you observe it doing anything? A. Yes. Q. What did you observe it doing? A. Moving around and working. Q. Can you just describe the working? You have said what you heard. I'm asking what you saw. A. There was a huge fence erected, like a safety fence, a mesh fence, and behind that it was just moving back and forward and the bucket was going - I think it must have been excavating or moving ground and things like that, clearing the ground. Q. Did Constable Stephens have to repeat some of the message? A. That's right, yes. . . . Q. Did you turn around to face the amusement zone southward? A. Yes, we were looking - we were trying to decide how far we were going to evacuate. We were looking to see where the people were and how many shops back we would have to consider about evacuating. Q. Did you call out to some ladies in the dress shop. A. Yes. Q. Was that near by? A. Next door. Q. Were you looking down towards the south when in effect there was the sound which you now know to be an explosion. A. Yes. Q. You were injured in the explosion yourself. A. Yes.

[328]

262 I find on 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at the elbow joint adjacent to the FAZ located in Railway Parade, Kogarah. Further, the detachment of the gas supply line at the elbow joint allowed gas, which was under pressure within the line to escape and at approximately 2pm on 4 December 1995 there was a gas explosion in the vicinity of the FAZ. Further, at approximately 3.45-4pm on 4 December 1995 a second gas explosion occurred in the vicinity of, or from the basement of, the FAZ. The gas explosions were of such force and severity that two persons were killed and many others suffered injury. Charges pleaded against Abigroup 263 The charges against Abigroup are brought under either s15(1) or s16(1) of the Act. The breaches relate to the defendant company's obligations to employees and/or persons not in the employ of the defendant company. The charges and the particulars supplied, alleging acts or omissions by the defendant company, leading to a risk to safety on the KSU site can be identified during three distinct periods and are given consideration in their chronological order in this determination. If liability is found on any charge, an issue as to the gravity, that is the objective seriousness, of such an offence becomes relevant. As one or both parties have addressed their submissions directed to all or many of the alleged failures and the other alleged acts or omissions of the defendants, either generally or specifically, the court will deal with each breach and the many relevant alleged failures in its consideration as to whether there was an offence committed under the Act. Applicable Legal Principles 264 As to the duty of an employer under s15(1) and s16(1) of the Act, in Drake Personnel v WorkCover Authority of NSW (1999) 90 IR 432 (at 452), the Full Bench of the Industrial Relations Commission of New South Wales stated: . . . The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances . . . Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. . . the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. In Carrington Slipways Pty Ltd v Inspector R J Callaghan (1985) 11 IR 467, Watson J said (at 470): . . . there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing , securing or making certain.

[333]

267 There is a need for a causal connection between the breach alleged and the detriment to safety. In State Rail Authority of New South Wales v Gregory Thomas Dawson (1990) 37 IR 110, the Industrial Commission in Court Session read the obligations of an employer in the context of the Act to be the relationship of the breach to the risk. The court said (at 121): . . . 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. Bauer J considered this "nexus" in WorkCover Authority of NSW (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 (at 257): Whilst . . . it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in . . . C I & D Engineering . . . . The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that (the) failure gave rise to a risk to health, safety or welfare. 268 The concept of the causal nexus/causal connection as an element of the general duty has been recently commented upon by Walton J, Vice President in WorkCover Authority of NSW (Inspector Ankucic) v McDonalds (Aust) Pty Ltd (2000) 95 IR 383 (at 439-440) as follows: . . . the liability of the employer be established by an examination as to whether there is a causal nexus between the breach of statutory duty and the detriment occasioned to the employee and not . . . by attention being given to the relationship between the conduct of the defendants and the actual accident or hazard . . . and in WorkCover Authority of NSW (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (2000) 101 IR 239 (at 253) Walton J, Vice President held: As previously mentioned, the defendant raised the question of causation. 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 s 15(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 risks to the health, safety and welfare of its employees: (see McMartin v The Broken Hill Proprietary Co. Ltd (2000) 100 IR 241; Drake Personnel Ltd v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 91 IR 432 at 449; Cullen v State Rail Authority (NSW) (1989) 31 IR 207 at 209; State Rail Authority (NSW) v Dawson (1990) 37 IR 110, at 120-121; Haynes v C I & D Manufacturing Pty Ltd 1995) 60 IR 149, at 1560157 and Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 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: see WorkCover Authority (NSW) v Maitland City Council (1998) 83 IR 362 at 377.

[344]

278 As to two of the elements of this offence as pleaded under s15(1): whether the defendant was an "employer" on this KSU site on 10 November 1995 and whether such employees were "at work" the following evidence is relevant. Mr Bolger was asked: Q. Would you be advised of each and every term of the contract? Would you have that duty or would you be instructed generally as to what you were meant to do under the contract? A. Normally we would be given copies of a contract-type document for reading, so that we had an awareness of what the contract included for. Q. Do you know if you were given a copy of the contract that was entered into by Abigroup in relation to State Rail Authority in relation to this project? A. Yes, I was given a copy or shown a copy of the contract. Q. Would you agree that the contract was awarded and the final documents were signed 18 October 1995? A. Yes, as I recall, yes. Q. When was site possession? A. Oh, I couldn't be specific. My estimate or memory would tell me it was probably two weeks after that date. Q. I think you gave a statement to the police. A. That's correct. Q. I think you used the term "site possession" and "site establishment" as processes that were done 30 October 1995; would that be right? A. Yes. Q. What's the difference between "site possession" and "site establishment"? A. Site possession is when the client, in this case the State Rail Authority, would give over possession of the site to the successful contractor for us to cordon off or fence off site and commence establishment, namely, placement of site sheds and accommodation required to undertake our works. Q. From that time on, when you say "possession", Abigroup possessed the site? A. That's correct. Q. How did it possess it in the sense of excluding other people from going on it, other persons from going on it? A. We would put up temporary fencing to cordon off the designated work areas that could be on a progressive basis relevant to the staging of the works and the progress of the works from the start until the finish. Q. Abigroup didn't have personnel that did every single job on site - it subcontracted; is that correct? A. That's correct. Q. The demolition work was subcontracted; is that correct? A. That's correct, yes. Q. It was contracted to companies controlled and operated by the Josef family? A. That's correct. Q. Were you aware of that at the time? A. Yes.

[352]

The defendant company submitted AGL were the relevant experts on site during the disconnection of the gas service. The disconnection was performed by Mr Princi, a ganger employed by AGL for 38 years, with Mr Marjanovic, another ganger and with another person acting in an observer's capacity. The defendant company submitted the gas was being cut off for the purpose of allowing the buildings to be demolished. As the computer generated record for the job performed, identified through an AGL code, the disconnection of a gas pipe was to be at the "building line" therefore the Commission sitting in Court Session would find it was AGL who chose the site of the disconnection and it was AGL employees who chose where to cut off the line. The work being done, the defendant company submitted, was the work of the disconnection of the gas pipe which was not work being done by Abigroup or its employees but by the AGL expert on site on 10 November 1995. Further, as AGL were the owners of the pipeline and the gas contained in it (at least until that gas was sold to and used by a consumer) it was not an act for which the defendant company was responsible. 287 I reject the submission of the defendant company the work being done on 10 November 1995, was the work of AGL employees only and, as AGL were the owners of the gas supply line, it was not work being performed by the defendant company. Mr Bustamante said he had overall control of work activities on the KSU site. Evidence revealed he carried the title of Project Supervisor but was known on site as the Site Foreman. I find relevant to this consideration the evidence which revealed the defendant company knew on or about 10 November 1995 the gas disconnection was required because demolition and construction work was to be performed on site. On 10 November 1995 Mr Bustamante acknowledged to the AGL employees there was demolition work to be done. It was known by the defendant company the work was, under the Abigroup contract with the SRA, for demolition and construction work at Kogarah.

[356]

292 I reject this submission. The evidence reveals Mr Bustamante, if I accept he had the conversation with the AGL worker as to a cut back of the pipe, accepted the cut off point which he said was 1200 mm (approximately) from the alignment of a wall of a building to be demolished. The AGL employees suggested the cut off point was "200" or roughly "two feet". I accepted the cut off point was within approximately one metre of a wall to be demolished. The defendant company knew this was to be a demolition and construction site. I do not accept the cutting off of a gas supply within one metre (approximately) of a building to be demolished, even if at 10 November 1995, Mr Bustamante had only limited knowledge of the site as a demolition site and not as a full construction site, was safe. Mr Bustamante revealed he knew walls, foundations, etc of the shops had to be demolished. His statements as to his conversations with AGL were directed to recognising the site as a demolition site. Whether on 10 November 1995, he had full knowledge of the other roles the defendant company had under the contract to construct a ramp and assist and co-ordinate the platform extension is unclear. It was proven, later in time he had full knowledge. I find, even on limiting Mr Bustamante's knowledge to viewing the area as a demolition site on 10 November 1995, it was unsafe of him, on behalf of the defendant company, to leave a charged gas supply line in its capped position within one metre of a building to be demolished. 293 The defendant company further submitted it was at all times reasonable for Abigroup to rely upon the experts, that is employees from AGL, to cut the pipe off and make it safe for demolition purposes. However, it is the obligation of the defendant company as an employer under the Act to provide a risk free environment at its worksite to which this consideration is directed. I accept the evidence Mr Bustamante had the opportunity to direct AGL as to where he required the cut off point of the charged gas supply line. He did not do so. I find the defendant company did not ensure the gas supply line was cut off in a position which was safe and without risk.

[377]

313 The defendant company submitted generally for the purpose of this s16(1) charge the area in which the gas pipe was cut off was not, as at 10 November 1995, Abigroup's "place of work" nor was the cutting off of the pipe Abigroup's "undertaking". As to the defendant's "undertaking" Lord Hoffman in R v Associated Octel & Co Ltd [1996] 1 WLR 1543 (at 1549) stated: . . . the question of whether an employer may leave an independent contractor to do the work as he thinks fit depends on whether having the work done forms part of the employer's conduct of his undertaking. If it does, he owes a duty . . . to ensure that it is done without risk - subject, of course, to reasonable practicability, which may limit the extent to which the employer can supervise the activities of a specialist independent contractor. 314 The defendant company submitted AGL were "experts" of a specialist nature and it was an AGL "undertaking" to disconnect the gas. However, the evidence revealed AGL employees inquired of the defendant company, through Mr Bustamante, as to the required area for the cut back. The evidence revealed while the AGL code for the task identified the cut back to be at the building alignment, AGL officers, on site, stated they could cut back the pipe as far as the defendant company required. I accept this evidence. Mr Bustamante's evidence was he requested a further cut back. He accepted however the final gas marking as the acceptable cutting off point. The AGL officers further revealed to Mr Bustamante they could be called back at any time to cut the supply line back to where the supervisor viewed it was desirable. I do not accept in these circumstances AGL dictated the cut off point for the charged gas supply line. The "expert" employees from AGL showed they were willing to abide by the requests of the defendant company. In the performance of its "undertaking" which was to supervise and overview all activities on site including the activities of all contractors, even specialist contractors, the defendant company failed to ensure the cut back was completed at a spot which did not create a risk to the safety to the defendant company's employees. I find on 10 November 1995 the defendant company was conducting its undertaking in taking responsibility for supervising "overall activities" on the KSU site including the disconnection of a gas supply service.

[445]

382 The defendant company had a continuing obligation to ensure this construction area was safe for persons not in its employ at all times and especially when work was performed on their work site. Even if the Commission sitting in Court Session accepted the proposition the defendant company did not know Josef & Sons were working on site on 4 December 1995, the defendant had a continuing obligation to ensure its place of work, in the conduct of its undertaking to provide Easy Access and Platform Station Upgrade, was free from a risk to safety. Its contract was to ensure the demolition and construction work on this site was performed in compliance with safety standards. The defendant company's obligation under the Act was to ensure persons at its place of work in the conduct of its undertaking were not exposed to a risk to safety. It failed to realise it had approved the continued existence on the KSU construction site of a charged gas supply line, not properly protected or identified and about which it did not warn nor did it require any work method adopted on the site be designed to observe the inherent danger provided by the continued existence of a charged gas supply line on site. All such acts or omissions of the defendant company continued to create a risk to the safety of persons at this worksite. The risk continued on the site on 4 December 1995. The site remained "a place of work" in the sense of Meinhardt, namely: every area which may be affected by the work being done in the undertaking of the defendant at the time of the explosion. (see WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm325). 383 The charge is brought under s16(1). I find there were, on 4 December 1995, on the KSU site persons not in the defendant company's employ at work, namely, Mr Campbell, Mr Stoeski as well as other Josef & Sons labourers. I find on 4 December 1995, at the defendant company's place of work, in the performance of its undertaking, the defendant had a continuing obligation to oversee activities on site and to ensure its place of work was free from a risk to safety. I find the defendant company put pressure on the sub-contractor, Josef & Sons, to complete the demolition works before the defendant company returned to work on the site.

[455]

394 The Full Court of the Industrial Court on appeal in Wallis further commented as to the obligation under s19(a): In our opinion, the test to be applied under the section in determining whether or not an employee has failed to take reasonable care in any act or omission which may affect another's health or safety is an objective and not a subjective one. In other words the actual intent of the employee is not a necessary ingredient of contravention of the section. Nor, in our view, need the act or omission be a deliberate one. The section is mandatory and imposes a positive duty - to take reasonable care. Nevertheless, while the test is objective and 'intent' is not necessary, all relevant circumstances must be taken into account in determining whether 'reasonable care' was taken. For example, matters such as the employee's state of knowledge, qualifications, expertise, experience and status as foreman, site supervisor or manager, are relevant to the issue. 395 There has been limited judicial consideration of s19(a) of the Occupational Health and Safety Act 1983 by this Court. In WorkCover Authority of NSW v Cruden (1996) 67 IR 469 Marks J in an application of the principles reasoned (at 475): . . . the requisite standard to be applied is that which should reasonably in all the circumstances have been expected of an employee carrying out the duties and discharging the responsibilities in a manner appropriate to the skills and expertise expected of a person holding himself or herself out to be able to undertake that work. In the case of the defendant in these proceedings one is entitled to have regard to those skills and expertise which can commonly be expected of a qualified lift mechanic in undertaking the task of releasing passengers trapped in a lift. 396 The standard to be applied therefore is that of a reasonable person in the circumstances. It is noted there is no duty for the employee to warn of any impending danger (see Quin v Hill [1957] VR 429). By applying the requisite standard, the prosecution must prove the defendant failed to discharge his responsibilities in a manner appropriate to his skills and expertise in accordance with the applicable standard required of a foreman in the construction industry in 1995.

[468]

408 The Commission sitting in Court Session accepts, on the totality of the evidence, that Mr Bustamante was a competent and capable supervisor on construction sites. Mr Cejka referred to Mr Bustamante as "one of the best" project supervisors he had worked with. As to safety Mr Cejka referred to Mr Bustamante's approach as "meticulous". Mr Dean referred to Mr Bustamante as being "absolutely experienced, and certainly not gung-ho". Mr Bolger from Abigroup referred to Mr Bustamante's work as a foreman as "always very good" and Mr Stewart who was employed by Group One Interiors Pty Limited to work with CWM on the station upgrade project said he had no reason to complain about Mr Bustamante or the way he was carrying out his work and commented Mr Bustamante appeared to be carrying it out safely. Mr Sibley, Superintendent of the KSU Contract between the SRA and Abigroup, referred to Mr Bustamante as carrying out the works appropriately and within the set standards and safety regimes required. Mr Warren an employee of Abigroup stated Mr Bustamante guided him around the site and pointed out activities and explained safety requirements. Mr Smithers, SRA's safety officer on the KSU site referred to Mr Bustamante and himself having a "yarn on the day's activities". He refers to Mr Bustamante as being forthcoming with information, happy to explain things, there was no trouble in dealing with him and he had no issues with the way Mr Bustamante handled safety at the worksite. 409 Mr Bustamante was, I believe, a hard working supervisor on construction works and a man of some professional and personal integrity. However, the obligations under s19(a) of the Occupational Health and Safety Act 1983 placed on Mr Bustamante as such an employee are onerous. I find he was at work on the KSU site between 11 November and 3 December 1995 (inclusive). He was the foreman/supervisor on site. He was accepted by his employer as skilled and qualified for the task. He was obliged under the Act to take reasonable care for the safety of persons on this worksite who may have been affected by his acts or omissions. This site during the period of this charge was in a demolition/construction phase. At least five metres of a charged gas supply line were left in the site after the shops had been demolished. Mr Bustamante allowed in this period a shop to be demolished where the charged gas supply line lay within one metre of the building alignment. Three other shops down the site were then demolished. After all the shops were demolished the charged gas supply line then remained a distance of over five metres within this construction site.

WorkCover Authority of NSW (Insp Maltby) & Anor v Abigroup Contractors Pty Limited & Luis Bustamante

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