Q. "Not to take the cables into the board, the board could not" and there is a word left out, do you mean, could not be isolated?
A. Yes.
25 Mr Landers also agreed with the question:
As the leading hand, you would have had to make it clear to each of these men that they were not to feed the cable into the board?
26 Mr Newman's memory of the work on the day of the accident and the accident itself is very limited. He said he remembered "the bang, the flames and getting into the ambulance". He had no clear recollection of being given instructions in relation to the work which was to be done that day. Mr Aravanis was not so affected. His evidence ultimately was that the work they were doing was the result of instructions given to them by David Thwaite and that it was in the course of carrying out those instructions that the accident occurred. Mr Thwaite's evidence was that he gave them instructions of a quite different kind and he did not understand that they would have been working on the relevant switchboard on the day in question but that they should have been working outside tying off pyrotenax cables and then working on a different floor on work that should have taken them another two or three days.
27 The conflict in the evidence between Mr. Aravanis, who claims an instruction was given to perform the work and Mr. Thwaite, who denies giving the order, and Mr. Landers, who claims to have instructed the two workers not to do the work in question, raises the difficulty of whose evidence is to be accepted. However, I found both Mr Thwaite and Mr Landers to be witnesses whose evidence I should accept; there was nothing which would cause me to doubt the veracity of their evidence. On the other hand, Mr Aravanis was an assertive younger man who was obviously willing to represent himself, in terms of his work qualifications, in a way inconsistent with the facts. However, I am not prepared to reject his evidence on that basis and, otherwise, I find his evidence equally plausible and acceptable.
28 I am not able to find that the evidence on one side of this matter of instructions should be preferred over the other. The position which is thus left is that the preponderance of evidence on the point of the instruction that the work of taking the cable into the switchboard box be or not be undertaken is in favour of the defendant's supervisory staff. Obviously, if the instruction to take the cable through the switchboard wall was not given, or if the express instruction was given not to do the work, one is driven to wonder why the two workers were so intent to perform that work in such patently dangerous circumstances. However, the question cannot be resolved upon the balance of probabilities, it is for the prosecution to prove the instruction beyond reasonable doubt. I find there exists reasonable doubt on this issue and conclude that the prosecution has not established to the requisite standard that the defendant's staff gave the direction to Messrs Newman and Aravanis as the latter has claimed.
29 This conclusion means that the second particular supplied in relation to the first charge, namely, failure to ensure isolation of the board while work was being performed on it, has not been proven. In the absence of a direction there was no relevant failure.
30 Similarly, the two other particulars advanced concerning failure to ensure proper qualifications of the employees and to inform Mr Newman that Mr Aravanis was an unlicensed electrician seem to me to have not been made out as contributing in any way to the incident, or the risk. While the impression was created that Mr Aravanis had qualifications he lacked, there is no evidence which establishes that he was not actually qualified to do the work which he was instructed to do. As to Mr Newman's understanding of his qualifications, that understanding does not appear to have been material at all to exposure of the employees to risk. Accordingly, it has not been established that the defendant "failed to provide a safe system of work for Nicholas Aravanis and Paul Newman whilst they carried out the connection of pyrotenax cables to an electrical switchboard". It not having been established that they were instructed to carry out the connection of the cables to the switchboard, there was no relevant failure by the defendant in the context of this charge.
31 The second charge, however, deals with an alleged failure to provide adequate supervision to the two workers. In the context of the evidence as I have summarised it, it seems to me this charge is made out. Even accepting the evidence, for example, of Mr Landers, that he instructed the workers not to perform the work in question, the mere fact that they did perform the work of taking the cable through the switchboard wall, unsupervised, is enough to my mind to establish inadequate supervision. To this must be added his knowledge of their apparent intention or eagerness to work on the board and the provision of equipment which enabled it to happen.
32 While it might be thought that a specific instruction to a worker not to perform a particular task might, in the ordinary course, absolve an employer from liability for a breach of that instruction, the fact that employees are enabled, in this case by the provision of appropriate special equipment and also opportunity, to perform the work raises a failure in the context of supervision. As Bauer J observed in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v. Maine Lighting Pty Ltd (1995) 100 IR 248 at 257:
The Act was designed to protect against human errors including inadvertence, inattention, haste, and even foolish disregard of personal safety as well as the foreseeable technical risks in industry .