WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd

District Court of NSW|2015-12-16

Outline

Mr Rahimi suffered electric shock on 26 April 2012. He was working at a construction site at 7 Stewart Avenue, Hammondville. A two storey building was being erected on the site. Relevantly, the building was being constructed of besser blocks. Construction had reached a stage where a special cement mix was to be poured into the cavities of the besser blocks comprising the wall of the building. Like many other forms of cement mix, this particular cement mix required steel reinforcing bars to be put in place before the pour. It was that task Mr Rahimi was performing when he suffered electric shock.
Mr Rahimi was placing the bars vertically from the top into the cavities of the blocks. To do this, he was standing on a scaffold that had been erected on the outside of the building. He was standing on the scaffolding towards the top of the wall. The bars were being handed up to him. Not far from the building were power cables. Mr Rahimi placed a number, it may have been about three to five, bars into position without mishap. After that, in the course of attempting to place another bar into position, that bar came into contact with a low voltage power cable and Mr Rahimi suffered electric shock.

The legislation

Section 19 relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person … (b) … while the workers are at work in the business or undertaking.
Section 27 relevantly provides: (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.
Section 32 relevantly provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.

The evidence

JMW Developments Pty Ltd (JMW) was the head contractor on the site. It was constructing a two storey building. The bottom storey was for commercial premises and the top storey residential. The external walls of the construction were of besser blocks.
JMW contracted with E & T for the laying of the besser blocks. There were five personnel involved in the laying of the blocks. They were Mr Kose, Mr Rahimi, Mr Hadi, Mr Haidary and Mr Giovenale. Mr Kose was an officer of E & T and was its representative on the site.
The top courses of the besser blocks needed to be laid from an external scaffold. JMW contracted with Ultra Group Pty Ltd for the erection of the scaffolding.
E & T's work on the site commenced about ten days before the incident. The contract between JMW and E & T was silent as to steel reinforcing bars.
In the process of laying besser blocks, at about every second course, horizontal steel reinforcing bars need to be laid in place. That is part of the process of laying blocks and accordingly it can be inferred was part of E & T's task under its contract.
On the day of the incident, E & T had in fact laid horizontal bars in place. Those doing the E & T work had laid about four courses of blocks. These were the top four courses. They were laid from the external scaffold. This was the same scaffold on which the incident occurred. In the process of laying the courses, Mr Kose acknowledged that the block layers needed to handle horizontal bars on the scaffold to put them in place.
Besser blocks are about 400mm x 200mm. They are 150mm, 200mm or 300mm in height (T36.37). They are hollow. There is a section of block that goes across the centre of the hollow, being across the short side of the block. Accordingly they have two hollow sections. Like bricks, they are laid offset. To complete the construction of a wall built of besser blocks, it is necessary that those hollows be filled with a concrete mix from ground to top. Like many forms of concrete mix, this mix requires steel reinforcing bars. These bars, in this case, were to be inserted from the top of the wall when the erection of the wall was complete. The task of filling the hollows with the concrete mix was to be undertaken by a concreter.
There was dispute about whose task it was to insert the vertical bars.
Mr Kose, who has been a bricklayer and block layer for many years, says this was never part of the block layer's task and he had never experienced it as being so. I accept that evidence. It is supported by Mr Hadi. It is supported also by the different occasions and timing for the placement of the bars. Both types of bars are used for reinforcing. However, it is essential that the horizontal bars be placed in position as the block laying progresses as, once a course is laid, it is not possible to place horizontal bars under that course. Accordingly, to keep the block laying progressing, the horizontal bars must be put in place as part of the block laying process. It is an essential part of the block laying process. The vertical bars are no part of the block laying process. It is a task done after that has been finished. The vertical bars are not essential to any task the block layers do, but they are essential for the concrete to be poured after the wall has been completed. To this extent, they look more like a builder's or concreter's job than a block layer's job. The contract between JMW and the concreter was not in evidence to shed any light on this. There is no reason why anybody could not perform the task of inserting the vertical rods if they were all pre-ordered and the right length.
On the evidence I am not satisfied that the placement of the vertical bars was part of the contractual duty of E & T on this project. Nor am I satisfied that it was ever part of E & T's contractual duty on any project. It was not part of the business or undertaking of E & T generally or on the day of the incident at least until it was done on this particular occasion. In the normal course of events, this was a task to be undertaken by some other trade after the block laying process was finished.
Mr Dagher was a director of JMW. He was JMW's representative on the site throughout the project. He had other construction sites to attend to and accordingly he was not at the Hammondville site at all times. On the day of the incident, he arrived on the site at about 3.00pm. JMW also had a labourer occasionally on the site. He was not on the site on the day of the incident.
Towards the end of the working day, Mr Dagher approached Mr Kose and Mr Rahimi who were sitting near one another. At this time, E & T was continuing to work on the site through Mr Hadi. All other workers involved in E & T's task of block laying had finished for the day. Mr Hadi was on the scaffold cleaning the inside of the blocks by hosing them.
At the time Mr Dagher approached Mr Kose and Mr Rahimi, Mr Kose was on the telephone. It was Mr Rahimi's mobile phone. He was on speaker phone and was on hold to an insurance company. He was doing this to assist Mr Rahimi in respect of some motor vehicle insurance claim Mr Rahimi had.
The fact of this conversation cannot seriously be in doubt. In evidence, Mr Rahimi knew nothing about it. In this regard, his memory is faulty. He was cross-examined about it. One matter put to him concerned an undertaking he had given to WorkCover to produce his phone records and his failure to produce them. To the extent that he was criticised for this, I reject the criticism. Mr Rahimi's comprehension of spoken and written English was very poor. His evidence needed to be given through an interpreter. His lack of comprehension and lack of sophistication in many respects were amply demonstrated in evidence. Frequently, for example, he could not find the page of a document in front of him in the witness box when given the page number and/or a heading on the page. When a page was identified, he could not detect something obvious on the page when requested to do so. He was getting some voluntary assistance from the interpreter until I stopped the interpreter. In the interests of saving time, I suggested Counsel approach him when it was obvious he could not carry out these simple tasks. None of this was feigned. I have not the slightest doubt about the genuineness of the whole of Mr Rahimi's evidence. That is not to say that everything he said was correct. Some things were demonstrated to be wrong.
When Mr Dagher approached Mr Kose and Mr Rahimi, he spoke to Mr Kose. There is an issue about that, but I am satisfied as to this fact. It goes with the fact that, to all appearances, Mr Rahimi and the other E & T personnel were workers of E & T and Mr Kose was their boss. Mr Dagher was seeking to have a task performed and it would make sense that he would speak to the person he thought was the boss, rather than to the boss's worker. In this regard I prefer the evidence of Mr Dagher. I accept that Mr Dagher spoke to Mr Kose and I accept his evidence as to what was said. When asked what he said to Mr Kose he responded "put the bars in the blocks because it has been done - maybe 80% of it - couple of bars need to be put down" (T8.48). That Mr Dagher spoke to Mr Kose is supported by Mr Rahimi who gave evidence to the effect that it was Mr Kose who requested him to do the job, and that he had nothing to do with Mr Dagher. Whatever orders he received, he received them from Mr Kose (T117.18). He also said that the builder did not have the right to give him an order (T123.16).
Mr Rahimi gave the following evidence: Q. Isn't it the case that those words that you said that Eyup Kose said to you were in fact said to you by Mr Dagher ‑ the builder? A. INTERPRETER: Which words I did not get? Q. Yes: those words that I just read where you say Mr Kose said to you, "We better put metal bars in the concrete blocks because the concreter is coming tomorrow." Those words and the words following that I have just read out? A. INTERPRETER: Yes. Eyup said that because few work was still left for us to finish, because he said that, well, tomorrow the builders will be coming. Q. You see what I'm suggesting to you is that your memory of what has happened on that day has been jumbled up a little bit? A. INTERPRETER: No, not before the incident. Q. And I'm suggesting to you that it was Jihad Dagher ‑ the builder, who said something like that to you, and not Mr Kose? A. INTERPRETER: No. No, with Mr Jihad Dagher I had nothing to do. Whatever orders I was receiving from Mr Eyup. (T117.01 to 117.18) Q. I suggest to you that Mr Dagher said to you, "Would you please help him with the poles"? A. INTERPRETER: No, never. The builder never gave me ‑ did not have the right to give me an order. Always talking to Mr Eyup, and then I was receiving orders from Mr Eyup. Q. I suggest to you that you and Mr Eyup said, no, you were busy and you wouldn't do that work? A. INTERPRETER: Which work? Q. Putting in the poles at the end of the day? A. INTERPRETER: Sorry ‑ I did not understand? Who said that I should put the pole? Q. I've suggested to you that Mr Jihad Dagher ‑ the builder, did? A. INTERPRETER: No. Maybe he has talked with Mr Eyup, because Mr Eyup requested from me that all the other workers have left Q. That's all right ‑ I'm just suggesting certain things ‑ maybe I can just clarify ‑ unless the Court ‑ I'm sorry for interrupting ‑ I just wanted to clarify that all I need to you to do is say whether you agree, or not? A. INTERPRETER: With what? Q. You said that you disagree that Mr Dagher came and asked you to put in the poles, and that you and Mr Eyup said, "No"? A. INTERPRETER: So builder did not say such thing to me. I was working for Mr Eyup and Mr Eyup told me. Q. I suggest to you that Mr Dagher then left your presence; was gone for a few minutes; came back and said to you again, "Would you please help me put the poles in?"? A. INTERPRETER: No, I did not say such thing ‑ or like, the builder did not say such thing to me, and Mr Eyup told me ‑ and I did the work. Q. And I suggest to you that you said to Mr Eyup, "Well, I may as well go and help him."? A. INTERPRETER: No, because normally I was finishing at the end of the work, and I did not like to stay back, so on that day Mr Eyup requested me, and I was happy to stay back. Q. I suggest to you that Mr Eyup said to you, "It's up to you Murtaza ‑ it's up to you if you want to go and help him."? A. INTERPRETER: It was not up to me, so it was up to the employer, and he requested me that if you could stay back to finish the work, and I stayed back. Q. I suggest to you that Mr Eyup said to you, "It's not your job."? A. INTERPRETER: Whose job it's not? Q. Putting the poles in at the end of the day? A. INTERPRETER: So Eyup asked me because I was supposed to finish at 3.30 and go home, and he told me that we should finish this work today because the builders will be coming tomorrow. Q. I suggest that you went with Mr Jihad Dagher to put those poles in, and that it was Mr Jihad Dagher would handed those poles up to you, and not Mr Eyup Kose? A. INTERPRETER: So, no, never. So when the pole ‑ the rods, were giving to me was Eyup ‑ never Mr Dagher. (T123.13 - 124.22)
I have said earlier, I have not the slightest doubt about the genuineness of Mr Rahimi, though it is clear that some of his evidence is not correct. These passages I accept in their entirety. This conforms with the reality that Mr Dagher would be asking for the job to be done. It conforms with the understanding of Mr Dagher and Mr Rahimi that Mr Dagher would not be asking Mr Rahimi to do the work. It conforms with the understanding of both Mr Dagher and Mr Rahimi that it was Mr Kose who would tell Mr Rahimi what tasks to do or request him to undertake tasks and it conforms with a reality that Mr Kose, having asked Mr Rahimi to do it, would help him.
The submission that Mr Dagher would be seeking to minimise his involvement and his responsibility in what happened does not come well from the defendants. There were three main players in this incident: Mr Dagher, from JMW, the building company; Mr Azzi from Ultra, the scaffolding company; and Mr Kose from E & T, the block laying company. They would all have the same interest to minimise their involvement and responsibility. Indeed, Mr Kose would have a continuing interest in that his case has not been finalised, whereas the cases of the others have been. Further, if Mr Dagher was really seeking to minimise his involvement and responsibility, he had a good opportunity a little later in this chronology where he could easily have said he saw Mr Kose passing the vertical bars to Mr Rahimi. He did not do so. He said he did not know who did this.
Other criticism was made of Mr Dagher on the basis that at times he answered that he did not recall to propositions he would be expected to deny if they were not true. This submission fails to come to grips with the lack of facility Mr Dagher had with English and the unusual, to him, process of litigation. This observation also goes with many of the other witnesses. Whilst Mr Dagher barely needed an interpreter, he did have one available to him. It was evident to me that at times when he said he did not recall, that was his way of disagreeing with the proposition put to him. That is often the case with witnesses. Some cross-examination and submissions were based on too literal an interpretation of what Mr Dagher said. This is not satisfactorily passed off with the observation to the effect of, "Well, that's what he said". One example of this type of problem is at T42.36-41 where Mr Dagher twice said he could not remember asking Mr Rahimi to assist with the vertical bars. He did not and his "I can't remember that" was his way of saying it did not happen.
When Mr Dagher made his request of Mr Kose, it was not the horizontal bars he was talking about. He was referring to the vertical bars.
After the conversation earlier referred to, Mr Dagher left and went to "check on the steel" (T42.27). In doing this, Mr Dagher got some extra bars and brought them back to where there were already some bars. There was dispute about this. I accept Mr Dagher's evidence on this. There were some bars already in place. They were in position to be handed up to whomever was on the scaffold doing the task of inserting them into the blocks. These bars were standing upright against the wall. Mr Dagher said, and I accept, that when he brought the extra bars, he placed them on the ground near the bars leaning up against the wall. It was put that that did not make any sense. Why not, is puzzling. Either way, they were at a point convenient to whomever was going to be handing them up to the person on the scaffold. It was also put there was evidence against what Mr Dagher said. This was especially said to be so by reference to a photograph - Exhibit PX 13, photo 4 - showing no bars. The photo was taken the following day. There could be any number of explanations for the absence of bars from it. Most obviously, perhaps, there were none there because they had all been placed in position because the concreters were coming soon.
Mr Kose gave evidence of a second conversation that occurred while he was still on hold on the phone. Mr Dagher was not asked directly about this, but he was asked a long question about a statement made to WorkCover. The effect of this was that he agreed he told the WorkCover investigator that when Mr Rahimi was inserting the vertical bars, Mr Kose was sitting on the bricks, talking on the phone. I accept the evidence that there was a second conversation or request about the vertical bars, but I do not accept Mr Kose's evidence that Mr Dagher spoke to Mr Rahimi.
It is clear that Mr Rahimi proceeded to insert vertical poles into the wall. He did so from the external scaffolding. At the time the only persons present on the premises were Mr Dagher, Mr Kose, Mr Rahimi and Mr Hadi. There is no dispute as to where Mr Rahimi and Mr Hadi were. Mr Rahimi was on the scaffolding, near the corner, inserting the rods. Mr Hadi was on the scaffolding, on the long wall, cleaning by hosing the insides of the besser blocks. There is considerable contention as to where Mr Dagher and Mr Kose were. The relevance of this goes to an issue of which of them was handing the bars to Mr Rahimi for him to insert into the wall. It had to be one or the other. Both deny they were doing it and both say the other was, at least inferentially in the case of Mr Dagher.
The prosecutor submits that it was unlikely that Mr Rahimi would respond to a request from Mr Dagher and then proceed to undertake a task while he was waiting with Mr Kose for progress on his call to the insurance company. The unlikelihood is added to by the fact that Mr Kose said that Mr Rahimi went off to undertake the task at a place where he did not know where he was. How Mr Kose was going to find Mr Rahimi when he came off hold and was speaking to a person on the phone about Mr Rahimi's matter could then become problematic. I think there is considerable force in this submission.
The defendant submitted it was unlikely that Mr Kose and Mr Rahimi did both go off to undertake a task while they were waiting for progress on that phone call. That is a much more likely scenario than the other one.
Mr Hadi gave evidence that it was Mr Dagher who was handing up the rods.
I was most impressed by Mr Rahimi's evidence. The passages I have quoted in [24] above I consider to be very telling pieces of evidence. They are absolutely compelling where they talk about Mr Rahimi not taking orders or directions from Mr Dagher, and taking them from "the employer" (T124.07). In the second and longer passage, and inextricably tied up with that piece of evidence, contextually and temporally, is the evidence about who was handing up the rods. I accept this evidence.
Mr Rahimi's evidence was attacked on the basis of the quality of his memory. A number of matters was relied on. They included:

Mr Rahimi's statement to the GIO investigator that his next memory immediately after the event was when he was in hospital. Added to that was that his first recall of the incident was two weeks after the event. Added to that is that his first recall was of the building and then other bits and pieces of memory. It was submitted that this demonstrated that his memory was not truly a memory but a reconstruction. I disagree. People can have a loss of memory about a given event or events for any number of reasons. The fact that at some point something is seemingly not in a person's memory does not mean that it has been forever lost from memory and that what comes back is reconstruction;
Mr Rahimi did not recall Mr Hadi being on site on the day of the incident. Whilst that provides a foundation for the defendants' submission about Mr Rahimi's memory, I consider this to be a peripheral matter;
Mr Rahimi could not remember his cousin visiting him in hospital. This is no wonder, as he has no family in this country and it demonstrates the care that must be taken at times with history recorded in hospital records;
Mr Rahimi did not recall Mr Kose visiting him in hospital. Mr Rahimi had suffered a cardiac arrest. He had a couple of weeks in hospital. It is not surprising that some matters soon after the event were forgotten;
clinical notes (DX1 and DX2) refer to amnesia and short term memory loss. These are not surprising consequences of Mr Rahimi's injury. The fact that they were recorded as existing when he was in hospital does not implant them on him for all time;
Mr Rahimi does not remember a number of things that in fact happened. - He does not remember Mr Kose visiting him in hospital, but he does remember friends doing so. - The defendants relied on evidence Mr Rahimi gave that he was doing block work when asked to do the job with vertical rods (T97.02). - There was other evidence from Mr Rahimi that he had just finished for the day (T116.20). - Mr Rahimi did not remember being present when Mr Dagher requested the job that the vertical bars be undertaken when the likelihood is that he was. - Mr Rahimi does not recall Mr Kose being on the phone, assisting him with his insurance enquiry.

Even if Mr Rahimi had not been injured he would not be expected to remember all of the details that occurred on the day of or proximate to the incident. The fact that he has been demonstrated to have no recall of some things that did happen is relevant, but not overall significant. He was absolutely rock solid on the two items that are covered in the passages I quoted above in [24], namely who asked for him to do the work and who passed him the rods. Any suggestion that he had any reason to say that it was Mr Kose and not Mr Dagher who did these things does not stand scrutiny. His lack of sophistication and comprehension of any business matters reveal a naivety so obvious that he simply tells things plainly as he sees them. Even if he were capable of applying his mind in a way that might result in a version more favourable for him, it makes no sense that he would give an account putting in jeopardy the person responsible for providing him with work. I accept these matters are not reconstruction. They are memory and they happened. I consider Mr Hadi to be mistaken when he says Mr Dagher was passing up the rods. He was not immediately proximate to where Mr Rahimi was working and it is unlikely he had a clear view of the person handing up the rods.
The prosecutor also relied on the fact that Mr Kose was the first on the scene to render assistance to Mr Rahimi thereby indicating that it was likely that he was the one who was handing up the rods. As Mr Rahimi and Mr Kose at this time were on opposite sides of the wall, it cannot be known precisely what path Mr Kose had to take to get to Mr Rahimi. Without knowing exactly where everyone was at the time and the paths they had to take, this fact is of no assistance.

The elements

The elements the prosecutor must satisfy, on the criminal standard, for the prosecution to succeed in the case against E & T are that: 1. E & T owed Mr Rahimi a duty under s 19(1)(a); 2. E & T failed in that duty; 3. the failure exposed Mr Rahimi to a risk of death or serious injury. To satisfy the first of those elements, it must be established that: 1. E & T was conducting a business or undertaking; 2. Mr Rahimi was a worker engaged by it; 3. at the relevant time, Mr Rahimi was "at work in the business or undertaking". The elements the prosecutor has to satisfy, on the criminal standard, for the prosecution to succeed in the case against Mr Kose are: 1. the elements above in relation to E & T; 2. that Mr Kose was an officer of E & T; 3. that Mr Kose did not exercise due diligence to ensure that E & T complied with its duty.

Item (4) of the elements (E & T and Mr Kose)

There is no doubt that E & T was conducting a business or undertaking, namely block laying on the construction site at Hammondville.

Item (5) of the elements (E & T and Mr Kose)

On the evidence, there is a case that Mr Rahimi was a direct employee of E & T. This, however, is not a case available to be considered. This is because in the particulars of the charge set out by the prosecutor, the only case sought to be made is that Mr Rahimi was a "sole trader". That case is not disputed and, accordingly, by reason of the definition of "worker" in the Act, there is no doubt that Mr Rahimi was a worker engaged by E & T within the meaning of s 19(1)(a).

Item (6) of the elements (E & T and Mr Kose)

This is a critical issue.
The facts, as I find them, are: 1. Mr Rahimi was a "sole trader" or a contractor to E & T; 2. Mr Rahimi, accordingly, was a worker within the meaning of s 19(1)(a); 3. E & T had a contract with JMW for the laying of block work at the site at Hammondville; 4. it was part of the normal course of block laying for the block layers to lay horizontal bars in position about every second course. That normal course was followed on this construction site; 5. it was not part of E & T's normal business to place vertical bars in position; 6. it was not part of E & T's contract with JMW for E & T to place vertical bars in position; 7. Mr Rahimi was present at the site as a block layer for E & T; 8. Mr Kose was E & T's representative at the site; 9. Mr Rahimi took directions or requests for work from Mr Kose and not from Mr Dagher; 10. near the end of the working day, on the day of the incident, Mr Dagher requested assistance from Mr Kose to put the vertical rods in the block work; 11. following that request, Mr Kose asked Mr Rahimi to do the work; 12. following Mr Kose's request, Mr Rahimi proceeded to do the work; 13. Mr Kose assisted Mr Rahimi to do the work by handing up steel bars to him.
I was referred to two authorities to assist me on the question of whether Mr Rahimi was "at work in the business or undertaking". This reference to "business or undertaking" where it last appears in s 19(1), is a reference to the business or undertaking earlier referred to. That is, to the business or undertaking of the person on whom the duty is imposed. It is a reference accordingly to the business or undertaking of E & T.
The prosecutor referred me to a Bowker v DP World Melbourne Limited [2014] FWCFB 9227. The defendant referred me to Corrado Rech v Nomel Pty Ltd [1998] NSWIRComm 463. I do not find these cases of much assistance. They did not deal with the critical question here and that is whether Mr Rahimi was at work "in the business or undertaking" of E & T.
WorkCover Authority of New South Wales v CSR Limited [1995] NSWIRComm 294 is a little closer to the point. It dealt with the issue of whether the sale of unwanted steel was part of CSR's undertaking where, at the site in question, its business was that of the manufacture and supply of timber products. That was a case under the Occupational Health and Safety Act 1983. Whilst the case deals with the issue of "undertaking", it is not of much assistance. Bauer J found on the facts that the sale of unwanted steel by CSR was part of its undertaking, even though it was not part of its core business of manufacture and sale of timber products. It is a different type of factual scenario and does not offer much assistance in the interpretation of the provision in question here.
I think Mr Rahimi was "at work in the business or undertaking" of E & T. He was at work as he was at the work site and was doing a task which was integral to the construction project being undertaken. In this case, this was work in the business or undertaking of E & T for the following reasons: 1. E & T was at the work site and was continuing to undertake its tasks right up until the incident. This is evident from Mr Hadi's cleaning the block work at the end of the day; 2. before the incident, all other workers, including Mr Kose and Mr Rahimi involved in E & T's tasks, had finished their tasks for the day; 3. this did not stop any of them resuming their tasks if the occasion arose; 4. the placing of vertical bars was a task that had not been undertaken by E & T on any prior occasion; 5. when E & T commenced its work on the day of the incident, it was no part of its plan to place vertical bars in position; 6. this did not arise until after Mr Dagher had requested help from Mr Kose so it could be done; 7. E & T would have been within its rights under its contract with JMW to refuse Mr Dagher's request; 8. Mr Kose chose to accede to Mr Dagher's request and assist him; 9. in doing this, E & T embraced the placement of vertical bars as part of its work for the day. It was thus part of its "business or undertaking".
Mr Rahimi was at work in E & T's business or undertaking and he undertook the work pursuant to a request to him by Mr Kose.
The prosecutor had an alternate case in submissions. This was that if the case of vertical bars was not made out, the case in relation to horizontal bars was. Mr Kose gave evidence that horizontal bars were used on the scaffold on the day of the incident. This case is not available to the prosecutor. The particulars make no mention of horizontal bars. The reference by the prosecutor in submissions to [7] of the particulars is no answer to that. Paragraph 7 of the particulars provides: "The risk was the risk of a worker using scaffolding at the site suffering electric shock as a consequence of materials they were handling coming into contact with overhead power lines in the vicinity of the scaffolding." The problem with that submission is that [6], in describing E & T's particulars of duties, it is stated: "On 26 April 2012 Mr Rahimi was working on the top bay of the north-eastern section of the external scaffold. His tasks involved him inserting four metre lengths of metal 'reo' bars vertically inside concrete block work." That is the only case E & T had to meet.
Item (6) of the elements set out above is made out.
I can now return to the first three elements of the offence that the prosecutor must satisfy.

Item (1) of the elements (E & T and Mr Kose)

For reasons I have given, it follows that E & T owed Mr Rahimi a duty under s 19(1)(a).

Item (2) of the elements (E & T and Mr Kose)

The particulars of failure are set out at [8]: "It was reasonably practicable for the defendant to ensure the health and safety of the worker by taking one or all of the following steps: a) Ensuring its workers did not use the scaffolding at the site whilst working with metal material within four metres of overhead power lines, in accordance with Code of Practice for work near Overhead Power Lines and Australian/New Zealand Standard Guidelines for Scaffolding, AS/NZS 4576:1995, unless a risk assessment had been undertaken which identified the hazard of the overhead power lines and control measures had been put in place such as arranging for the power lines to be de-energised during the work; separating the hazard by erecting a physical barrier; using an observer to warn workers if the materials they were handling were about to come into contact with the overhead power lines; and deploying visual indicators such as 'tiger tails'; b) Ensuring that it had in place a safe work method statement or work procedure that prohibited workers from working with metal material from scaffold within four metres of overhead power lines unless a risk assessment had been undertaken which identified the hazard of the overhead power lines and control measures had been put in place such as arranging for the power lines to be de-energised during the work; separating the hazard by erecting a physical barrier; using an observer to warn workers if the materials they were handling were about to come into contact with the overhead power lines; and deploying visual indicators such as 'tiger tails'; c) Ensuring that workers using the scaffold were properly trained and instructed in relation to the risks inherent in working with metal material from scaffold proximate to overhead power lines and in relation to the use of control measures to minimise those risks."

Paragraph 8 a)

It is the fact that a risk assessment as referred to had not been undertaken. Control measures as referred to had not been put in place. Physical barriers had not been erected. An observer was not used. Tiger tails were not deployed. The only question on this point is whether the scaffolding was within 4 metres of the overhead power lines.
Australian/New Zealand Standard Guidelines for scaffolding provided: "The clearance between scaffolds and any transmission line, main apparatus or transmission apparatus should be not less than …: · 4.0 m where any metal member is used…"
There was some discussion as to which two points of reference are to be taken for measuring the 4 metre distance. The Standard talks of "clearance", so there must be a clear 4 metre space between the nearest part of a power line to the scaffold and the nearest part of the scaffold to the power line.
The WorkCover Code of Practice 2006 for Work Near Overhead Power Lines states that its guidance should be read in conjunction with the Standard - Exhibit PX 12, cl 6.1. It then refers to the 4 metre distance provided for in the Standard. It has a figure by way of illustration, fig. 10. Above that figure, it has the words, "Note: Consideration must also be given to sag and swing of the conductors." Below the figure, it has the words, "Figure 10 - A 4 metre approach distance applies in any direction where metallic scaffold is erected, used or dismantled near overhead power lines."
The reference to "sag and swing" suggests the 4 metre distance to be maintained is that between the outside edge of the scaffolding and the point on the line nearest to that outside edge.
WorkSafe undertook some estimates of distances, rather than measurements. There has been nothing precise about many of the measurements undertaken.
The 4 metre distance creating an exclusion zone was a critical fact in proof of the prosecution case and was in issue. It would have been a simple undertaking just to measure it. It was not measured as a result of which a tedious process of undertaking calculations has had to be undertaken. This really is most unsatisfactory.
Mr Dagher undertook a very rough and ready measurement. He estimated the distance at about 3.5 metres. His measuring device was a piece of PVC piping. Mr Azzi was with Mr Dagher when that exercise was undertaken. His evidence adds nothing to that of Mr Dagher. I think the evidence of Mr Dagher and Mr Azzi in relation to this may be put to one side.
Mr McMurtrie gave some evidence of distances. From the ground to the low voltage lines, the distance was 7.2 metres (T127.35). This was measured by a height measurement stick (T130.46). Mr McMurtrie's understanding was that the distance between the scaffolding and the power lines was "well and truly less than four metres" (T127.43). This was derived by use of the height measurement stick. The stick was hung from the line and the distance from the stick to the scaffolding could then be measured. Mr McMurtrie did not use a tape measure or any other recognised measure or device for this measurement because "it was obvious that it was within four metres". It was well within Mr McMurtrie's ability to assess these distances. Not only was it obviously within 4 metres to Mr McMurtrie's observation, but also he did a rough and ready form of measure. This was to stretch his arms out holding the measuring stick in his left hand with the stick hanging from the power line at that point. Doing that, he could almost touch the scaffolding "and I'm not four metres high" (T131.17). By that I think he meant his arm span was not four metres. He later added "with two metres I can almost touch it" (T131.21). His arm span is about 2 metres (T131.47).
Mr Stephens made some casual observations about distance. He put the distance between the scaffolding and power lines at about 2 to 2.5 metres (T138.09). That is consistent with Mr McMurtrie's observations.
Mr Moore also did some calculations. He measured the distance from the edge of the building to a power pole to be about 3.4 metres (T144.16). This was not precisely at the site of the accident, but the difference is immaterial in light of his measurement. From his measurement had to be deducted the width of the scaffolding. That was about 450mm (T144.20). That would leave a distance a little under 3 metres. From that there should also be deducted the distance between the power pole (where Mr Stephens measured to) and the power line closest to the scaffolding. This again is consistent with Mr McMurtrie's observations.
I am satisfied that the distance between the scaffolding and the power line on a horizontal plane was less than 3 metres and almost certainly less than 2.5 metres.
The way to determine the 4 metre distance under the Standard and the Code in this matter is to apply Pythagoras's Theorem. This is sufficiently well known not to require expert evidence. The theorem is that in a right angled triangle, the square of the hypotenuse is equal to the sum of the squares of the other two sides.
In this case, the hypotenuse is the direct diagonal distance between the closest points of the scaffolding and the power line. The other two sides are an imaginary horizontal line and an imaginary vertical line. The imaginary horizontal line runs from the nearest point on the scaffolding towards the power line. It stops where it would meet an imaginary vertical line dropping from the point of the power line nearest to the scaffolding. The imaginary vertical line is thus a perpendicular line, starting from the power line and stopping where it meets the imaginary horizontal line.
I have already indicated that the horizontal distance between the scaffolding and the power line was less than 3 metres and almost certainly less than 2.5 metres. I take 3 metres as the distance of the imaginary horizontal line for the point of this exercise.
The vertical distance between the power line and the imaginary horizontal line itself requires some calculation. The distance between the ground and the power line was 7.2 metres. To determine the distance between the scaffolding platform and the power line, there needs to be deducted from that the distance between the ground and the scaffolding platform. There was some evidence that the wall was about 6 metres high. By itself, it was not very potent evidence, but it blends in with other evidence. Some measurements were given in relation to the size of the blocks. The lowest height a block could be was 150mm (T36.37). Exhibit PX 13, photo 14, clearly shows 20 courses of blocks. That is on the top level. Twenty courses of blocks at 150mm high is 3 metres, without making any allowance for the mortar in between. Other photographs show the lower level of the construction to be about the same height as the upper level, for example, Exhibit PX 4, photo 1 and Exhibit PX 7. The overall height of the wall was, therefore, about 6 metres assuming blocks of 150mm in height and making no allowance for the mortar in between.
Exhibit PX 13, photograph 14, shows the scaffolding platform to be 8 courses below the top of the wall. Again assuming a block height of 150mm and making no allowance for the mortar, 8 courses would be 1.2 metres in height. If that figure is deducted from the overall height of the wall, being 6 metres, one can then ascertain that the platform was 4.8 metres above the ground. The vertical height from the ground to the power line was 7.2 metres. If one takes the height of the platform, being 4.8 metres above the ground, from that figure, one then has a vertical distance between the platform and the power line and that is 2.4 metres and that is the length of the imaginary vertical line.
The elements to apply Pythagoras's Theorem are then all present. The theorem may be expressed thus: hypotenuse2 = horizontal side2 (32) + vertical side2 (2.42); hypotenuse2 = 9 + 5.76 = 14.76. The square root of 14.76 is 3.84 and that is the distance in metres between the scaffolding platform and the power line.
This result works in favour of the defendant for three reasons. 1. I have taken the horizontal measure of 3 metres when, in fact, that distance is less than 3 metres and almost certainly less than 2.5 metres. 2. I have taken the vertical measure of 2.4 metres assuming a block height of 150mm and making no allowance for mortar in between. If the block height was higher than 150mm and allowance is made for the mortar, then the vertical height distance of 2.4 metres reduces. 3. I have used the platform as the nearest point of the scaffolding to the power line when there were parts of the scaffolding above the platform closer to the power line. If those parts of the scaffolding are taken as the reference points, the vertical side of 2.4 metres reduces and so does the hypotenuse.
However one looks at the figures, the diagonal distance between the scaffolding and the power line was less than 4 metres. Accordingly, the particulars of failure alleged in particular 8(a) have been made out.

Particular 8 b)

There was in place a Safe Work Method Statement, Exhibit PX 2. It did not address the matter of the nearby power lines. The failure alleged in this particular is made out.

Particular 8 c)

There was no instruction or training and accordingly the failure alleged in this particular is made out.

Item (3) of the elements (E & T and Mr Kose)

The failures mentioned exposed Mr Rahimi to a risk of death or serious injury. Had the power lines been de-energised, the risk would have been avoided. Likewise with a physical barrier. Had the other particularised measures been implemented, each of them would have significantly reduced the risk to Mr Rahimi.

Item (7) of the elements (Mr Kose)

For reasons given, as all the elements in relation to E & T have been established, this element has been established. That is, in brief, E & T had a duty or obligation under the Act and did not comply with it.

Item (8) of the elements (Mr Kose)

This element is satisfied as Mr Kose was an officer of E & T.

Item (9) of the elements

The particulars alleged against Mr Kose are that Mr Kose failed to exercise due diligence to ensure E & T complied with its duty or obligation because he failed to take the following steps: 1. check that the scaffold installed at the site was installed a safe distance away from overhead power lines, being at least four metres prior to allowing work to be conducted from the scaffold; 2. verify that a risk assessment was conducted which identified the possibility of workers coming into contact with live overhead power lines when working from scaffold at the site and which required the use of adequate control measures in response to that possibility; 3. direct workers not to conduct work with metal material from the scaffold on the site unless it was confirmed to be at least four metres from the overhead power lines, or a risk assessment had been conducted and adequate control measures had been used in order to eliminate or minimise the risk of contact with the overhead power lines by workers and/or equipment; 4. ensure that the company had available for use, and used, a safe work method statement or work procedure that prohibited workers from working with metal material from scaffold within four metres of overhead power lines; 5. ensure that the company had provided training and instructions for workers using the scaffold which included instructions in relation to the risks inherent in working with metal material from scaffold proximate to overhead power lines and in relation to the use of control measures to minimise those risks.
It is clear on the reasons I have enunciated that Mr Kose failed in each of the respects specified.

result

I find the defendant, E & T, guilty of the offence charged in the summons and the defendant is convicted accordingly.
I find the defendant, Mr Kose, guilty of the offence charged in the summons and the defendant is convicted accordingly.
List the matters for sentence hearing on 24 February 2016, at 10.00am.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2016

[1998] NSWIRComm 463

[1995] NSWIRComm 294

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Judgment (19 paragraphs)

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Cited By (4)